Tax Consultant at RSM Poland
As we have already mentioned in the previous article, any foreigner applying for a visa in order to perform work may submit a written statement on entrusting work registered by the labour office instead of a work permit.
Employing a foreigner on the basis of a statement on entrusting work is a simplified procedure, also known as the ”statement procedure”. This procedure can only be used by citizens of the following 6 countries: Armenia, Belarus, Georgia, Moldova, Russia and Ukraine, provided that the following conditions are met:
- the employment period cannot be longer than 6 months in the 12 consecutive months regardless of the number of entities that entrust the work;
- works to be performed by a foreigner are not seasonal works;
- prior to the commencement of work, the employer shall submit a written statement to the district labour office along with proof of payment;
- prior to the commencement of work, the district labour office shall register the statement on entrusting work to a foreigner.
The district labour office, competent either for the seat or the place of permanent residence of the entity entrusting work to a foreigner, shall, as a rule, register the statement within 7 working days of the date ofreceipt of the statement. The original statement with an official stamp is proof of registration and the employer is obliged to hand it over to the foreigner. In specific cases provided for in the regulations, the district governor may issue a decision refusing to register the statement on entrusting work to a foreigner. This decision may be appealed against to the competent labour minister.
A precondition for performing any work under a simplified procedure is that the foreigner must be in possession of a registered statement on entrusting work along with a document attesting his or her residence in Poland that gives him or her the right to work.
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The foreigner may change the employer in the course of performing the work on the basis of a statement. However, it must be remembered that the new employer must obtain a new document admitting the foreigner to the labour market, because the foreigner may perform work only for the employer indicated in the statement.
Upon receipt of a registered statement, the employer shall be obliged to:
- hand the original copy to the foreigner;
- notify the district labour office in writing either that the foreigner has commenced work, on the date of commencing this work at the latest, or that the foreigner has failed to commence work, within 7 days after the planned commencement of work as defined in the register of statements;
- conclude a contract with the foreigner that is translated into a language the foreigner understands;
- observe any and all obligations resulting from the fact of entrusting work, as in the case of Polish employees.
Any failure to comply with the aforementioned obligations may result in penalties specified in the regulations.
If the employer fails to meet the obligations of notifying the district governor that the foreigner has either commenced work or failed to commence work on the date specified in the statement, the work shall be deemed to be performed from the date specified in the statement (provided that there are no circumstances indicating that the foreigner has commenced work at a different date). What is also recommended is to notify the labour office if the date of work completion is earlier than the one indicated in the statement. This information can be submitted both by the entity entrusting the work and the foreigner themselves.
An employer who employs a foreigner on the basis of a statement for a period longer than 3 months may submit a work permit request to the province governor. A foreigner may do so as well: in such case they shall request a residence and work permit, provided that they will be employed by the employer under a contract of employment on the same position and on the terms and conditions not worse than those defined in the registered statement. In such a case, the foreigner may legally perform the work for the benefit of the employer indicated in the statement while waiting for the decision. This solution is particularly important in the period during which the foreigner can no longer work on the basis of the statement, and the work permit has not yet been issued. However, if you want to apply this procedure, the work for the benefit of the aforementioned employer must have been performed under a contract of employment prior to submitting the request.
There is no need for the employer to request for the registration of a new statement on entrusting work to a foreigner in the following cases:
- the seat or the place of permanent residence, business name or legal form of the entity entrusting work to the foreigner has changed;
- the establishment or a part thereof has been taken over by another employer;
- the establishment or a part thereof has been transferred to another employer;
- the entity entrusting work and the foreigner concluded a contract of employment instead of a civil law contract;
- the foreigner is an employee of a temporary employment agency and is sent to work in a different location (with another employer of the user), provided that remaining work conditions have not changed.
From earlier posts on our blog you have learned how to hire a foreigner in Poland. Once the contract is concluded and the work is being performed, the employer may have certain obligations, both as regards taxes and social security, and you can read more about them in the upcoming parts of our blog.
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