A foreigner delegated to work abroad must first reside legally in Poland.
Legal residence is possible based on the following:
- temporary or permanent residence permit
- a residence permit for a long-term resident of the European Union
- special law on assistance to citizens of Ukraine
- biometric passport
- visa (e.g. Schengen visa, national visa).
Detailed rules for posting workers Germany and Belgium
Work permits for foreigners issued in Poland are only valid there, and some EU countries, therefore, require to obtain such a permit in their country.
Posting citizens of other non-EU countries to Germany requires a Vander Elst visa. You can apply for it at the German embassy in Warsaw. (The German Embassy in Poland provides updated lists of countries whose citizens are subject to visa requirements.)
This Vander Elst visa entitles you to work in Germany for the period:
- for which the posting company (in this case – from Poland) has signed a contract with the recipient of services in Germany and, at the same time
- for a period shorter than that resulting from the validity period of documents legalizing residence and work in Poland.
You can apply for a Vander Elst visa in person in the Visa Department of the German Embassy in Warsaw. You need to book an appointment online in advance. You will be charged 75 euros for the application.
You will find the list of the necessary documents on the website of the German Embassy in Poland.
If a company posts non-EU citizens to Germany without a Vander Elst visa, it exposes itself to criminal liability. The posting company is responsible for complying with all posting conditions specific to the regular posting of workers.
Belgium has different posting requirements. Employers are required to file a Limosa declaration. After that, they no longer need to prepare additional documents related to the terms and conditions of employment, employee registry, or rules for controlling part-time employees.
Obligations of the employer in Poland
An employer who posts an employee (regardless of citizenship) must meet the following conditions:
- employment takes place on the territory of the country from which the employee will be posted, i.e. Poland
- the registered office of the employer is located in Poland
- a significant part of business activity is conducted in Poland
- recruitment is carried out on the territory of Poland
- the employer is obliged to provide transportation and accommodation for the posted employees
- after the end of the posting, the employee will return to Poland to resume work here
Before the employee is posted, sometimes the employer must send the following information to the authorities of the host country:
- information regarding the employee’s place of work
- information regarding the period of posting
- contact details of the employee
- and any other relevant information.
Posting of a worker and conditions of employment
Host countries may have conditions related to the reception of posted workers. Therefore, always check the information on the government websites of the countries to which employees will be delegated. Regardless, employers who post workers are bound by specific regulations resulting from an international directive. These assume that the posted worker is bound by the terms and conditions of employment applicable in the country. They concern:
- the employee’s minimum wage
- the minimum rest period
- maximum working time
- minimum paid vacations
- equal treatment
- occupational health and safety
- protective measures for pregnant women, postpartum women, children and adolescents
- equality of treatment between men and women, and other provisions aimed at preventing discrimination,
- accommodation, if provided by the employer.
Failure to provide these conditions risks fining the posting company.
If an employee is posted to another EU country:
- does not have to apply for recognition of professional qualifications, but a written declaration may be necessary for certain professions,
- does not have to register with social security institutions in the country to which he is seconded, as he remains insured in the land of employment. Therefore, during the period of secondment, he does not accumulate any additional social security rights, such as pension entitlements or the right to unemployment benefits in the country to which he is seconded.
- if the delegation period exceeds 3 months, he must register his stay with the relevant authority.
- does not acquire permanent residency rights in the host country.
Posting of an employee for a long term (more than 12 months)
If the employee has been posted for a period exceeding 12 months, – (provided that the employer has filed a notification with the relevant office of the host country), all the terms and conditions of employment in force in the host country apply, except those relating to supplementary pension benefits and termination of contracts.
If the employee has been posted to another EU country for extended periods, his family members may join him under their rights as EU citizens but not as dependents.