Poland

An employee shall be a person employed on the basis of a contract of employment, an appointment, an election, a nomination or a cooperative contract of employment.

2. How do you define an employment contract?

There is an employment contract when the employee is obliged to carry out a specified work for the benefit of the employer and under its authority in a place and time indicated by the employer, and the employer is obliged to employ the employee and pay remuneration.

3. What does an employment contract need to contain?

An employment contract must be in writing, and indicate type and terms and conditions of a contract and especially shall include:

type of work, place of its performance and date of commencement of work

remuneration suitable for the type of a work.

4. Is there a legal requirement to provide an employee with a written contract and if so, when does this have to be provided?

A written contract is obligatory. If a contract of employment is not concluded in writing, the employer shall immediately, not later than within 7 days from commencement of work, confirm to the employee in writing a type of the contract and terms and conditions of the contact.

5. How would you define a redundancy/economic dismissal?

There is no legal definition of an economic dismissal; however there is a special Act on particular reasons of termination of employment contracts for the reasons concerning the employer. It is commonly accepted that economic dismissal is a dismissal that results from economic reasons such as economic difficulties, technological issues, necessity of stoppage of the activity of the company or liquidation thereof as well as organizational changes in the employer's enterprise e.g. liquidation of a workplace.

6. What is the procedure that an employer must follow when making an employee redundant/or dismissing on economic grounds?

The procedure is stipulated in the Act mentioned in point No. 5 above.

At the beginning the employer is obliged to inform the local labour office and trade unions (if any in the company) about the intention of termination of employment contract/contracts not later than 30 days before planned termination. This information must include reasons of such termination. The trade union is entitled to demand from the employer detailed information about an economic situation in the company and to present its proposals of limitation of scope of dismissal. The employer is obliged to reply to these proposals within 7 days.

The next step is conclusion of an agreement between the employer and trade unions about conditions and procedure of dismissal, especially: selection criteria for choosing the employees for dismissal, and obligations of the employer. Should the parties do not conclude the agreement, the employer issues "rules of dismissal" on its own, but is obliged to include the settlements made with trade unions so far.

If there is no trade union in the company, the employer sets the conditions of the economic dismissal in the special act called Rules of Dismissal, after consultation with the employees.

The dismissed for economical reasons employee shall get, as a rule, the compensation.

7. Do you have laws against discrimination, if so, what types of discrimination do you have and how are they defined?

The provisions of law against the discrimination are included in the Labour Code. The employees shall have equal rights at fulfillment of the same obligations. It refers especially to the equal treatment men and women employed.

Any discrimination, direct or indirect, in employment, especially based upon the sex, age, race, nationality, disability, beliefs, particularly political views or religious beliefs and trade union membership, shall be prohibited. It means that the discrimination occurs when the employer illegally deprives or limits the employee's rights resulting from the employment relationship for the reasons set forth in the previous sentence.

In case of any violation of those provision, the rights of employee vary depending on the situation, e.g. in case of dismissal for the reasons connected with discrimination, he may claim for reinstatement in work, ineffectiveness of dismissal or compensation in the court. Of course he may also use mediation means. Seeking compensation in the court only because of the discrimination is quite difficult, but possible.

8. Do you recognise harassment and again, how is this defined?

There is no special provision in the employment law that provides for moral or sexual harassment; however harassment is recognized in Polish employment law on the basis of the provisions of the Polish Labour Code about dignity of the employee and his moral rights.

It is commonly accepted by the jurisprudence, that sexual harassment occurs when the employee is subjected to acts of another person in order to obtain favours of a sexual nature.

Moral harassment occurs when en employee is subjected to acts which may result in a deterioration of his conditions of employment or undermine his rights and dignity as well as affect his physical or moral health. However these definitions are not legal ones, but definitions accepted by the jurisprudence.
9. What can an employee do about discrimination?

Should any kind of discrimination occur, an employee may bring a claim to the court or start a conciliation procedure. The author of harassment may be liable to disciplinary and criminal sanctions.

10. What is an unfair dismissal?

Unfair dismissal is a dismissal unjustified (not grounded upon a real and serious case) or inconsistent to the binding law. It means that dismissal is unfair when there is no good, serious enough reason and also when the procedure of the dismissal is not compliant with the law.

11. What can an employee do about an unfair dismissal?

In case of an unfair dismissal without observing of a termination notice (i.e. for disciplinary reasons) the employee may claim for reinstatement in his job with the hitherto conditions or seek compensation. The court decides about reinstatement in job and compensation. Should the court decide that reinstatement is impossible or unadvisable it may adjudicate compensation in the amount equivalent to the remuneration due for the notification period. This break in the employment is not deemed as a break. When the court reinstates an employee in his job, an employee shall have a right to the remuneration for the period when he remained unemployed, but for not more than 3 months and not less than 1 month.

In case of an unfair dismissal by notice the court may decide - according to the claim - about ineffectiveness of the dismissal, about reinstatement in job or compensation. Should the court decide about the reinstatement, an employee shall have a right to the remuneration for the period of being unemployed. This break in the employment is not deemed as a break. However an employee has to report to the employer his readiness to work within 7 days after the court decision is issued. Should the court decide that reinstatement is impossible or unadvisable it may adjudicate compensation in the amount equivalent to the remuneration due for the notification period.

12. If a dismissal is found to be unfair, what compensation can the employee obtain?

As stated above.

13. Do you have collective/trade union law?

Yes.

14. If so, what rights does an employee have?

The right of an employee to become member of the trade union is guaranteed by the Polish Constitution. Each employee, regardless the legal basis of his employment, and even unemployed have a right to join the trade union. No one can suffer from membership in the trade union. The trade unions may form national federations of trade unions.

An employee being the managing member of the trade union (or a delegate) shall get special favours, privileges in order to accomplish his mission (special protection especially with regard to the dismissal).

The trade unions have some rights in the scope of making of a law, supervision over the work conditions, settlement of individual and group employment disputes, presenting opinions to the employer in individual employment cases.

Trade Unions are registered in the National Court Register

15. Does the employer have to accept collective/trade union law?

The trade union law is not accepted by the employer. Trade unions are independent on employers, administrative authorities and local government. The trade unions may create its purposes and programs, adopt its internal acts and statutes connected with its activity subject to one condition - that it is compliant with law.

16. Can any individual from another country come and work in your country?

Yes.

17. If so, is there immigration controls/work permits that need to be applied for?

Yes, as a rule an employer must apply for a work permit unless the foreigner has both a working permit and residence permit. There are few exceptions when the working permit is unnecessary, e.g. for seasonal work, student's work, teachers of foreign languages, members of diplomatist's families.

18. What criteria are used for any such applications?

The general criteria are:

· employment situation in the area of the country where the foreigner intends to work

· non-availability of local labour for a particular job

· conditions and character of work

· remuneration

· appropriate education

· skills and qualification

· experience

· accommodation

· unpunishability

· lack of tax arrears in the country of origin

Work permits are granted for up to 5 years and may be renewable on application.

19. What does an employer have to do if he receives an application from someone who is not a national in your country for a job?

In such a situation the employer has to apply to the local authority for a work permit. This permit is always issued to that specific person to do specific job and for a definite period of time and may be renewed - prolonged.

20. What is the tax position for a foreign employee?

As a rule, a foreign employee will be treated in the same way as a native employee for tax purposes. If he has a place of residence within the territory of Poland he is subject to the Polish tax law with regard to whole its incomes, and if he has no place of residence in Poland or works in a branch or representative office in Poland of a foreign company he is subject to Polish tax law only with regard to the incomes achieved in Poland.

21. Are employees protected in the event of a sale or a purchase of a business?

Yes, as a rule, in case of a sale or a purchase of a business, the purchaser becomes the employer (party of the employment contract concluded by the previous employer with the employee) by virtue of the law; however the employee shall have the right to terminate the employment contract in such a situation. The hitherto and new employer are liable severally and jointly for the employer's obligations that have arisen before that transfer.

22. If so, what rights do employees have and what can they do about it?

As stated above, a purchaser becomes an employer by virtue of law, i.e. becomes a party of an employment contract on the same conditions as the pervious employer. It means that a new employer has to abide by the provisions of the same contract. Only the employee shall have a right to terminate the contract with 7 days notice.

23. What does the employer have to do in the event of a sale or a purchase of a business which includes employees?

The employer must inform in writing the employees about planned sale before this sale is made. Within one month from this notice an employee may terminate an employment contract with seven days notice.

24. What is the position regarding agents in your country, briefly outline how agents are dealt with and what documentation is required.

The institution of agent is stipulated in the Polish Civil Code. In the agency contract, agent makes an obligation, within the scope of his enterprise, to act as an intermediary permanently, for remuneration, at conclusion of contracts with clients for the benefit of the other person (entrepreneur) or to conclude contracts on his behalf.

There is needed a separate power of attorney for the agent to conclude contracts for the benefit of the other party.

The remuneration of the agent may by specified in different ways in the agency contract; however if there is no other stipulation, the agent shall get the commission fee dependent on the number or value of the concluded contracts.

The agent is not liable for performance of the contract by the client, however a contrary stipulation may be included in the contract. The parties of the agency contract may also include in the agency contract a competition covenance.

TOMASZ KOZLOWSKI

KRPiA Sopot,

POLAND

http://www.kpsc.com.pl

How to obtain work permit in Poland

The legal frame of foreigners’ work in Poland is set by the Act of 20th of April 2004, concerning the promotion of employment and labour market institutions.A foreigner is allowed to work in Poland only after obtaining a work permit, issued by the voivode (Wojewoda) appropriate for the location of employer’s seat. This requirement does not apply to foreigners holding residence permits, permits for tolerated stay, refugee status, or benefiting from temporary protection in Poland. On the base of the principle of the free movement of people within the EU, the permit is not required form citizens of the European Union Member States and citizens of those states the EU signed an agreements on the free movement of people with. However, during the transitional periods, Poland imposed restriction on the employment of citizens from some EU Member States. According to the provisions of Act of the Minister of Economy and Labour dated 26th May 2004 concerning the limitations in access to employment by foreigners in the territory of Poland, the citizens of Austria, Belgium, Denmark, Finland, France, Greece, Spain, Iceland, Liechtenstein, Luxembourg, Netherlands, Germany, Norway, Portugal, Italy and Switzerland must obtain a work permit. Only the citizens of Sweden, Irleand and Great Britain enjoy full freedom of employment in Poland. There are also no restrictions on the access to Polish labour market by citizens of the new nine EU Member States (the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Slovenia, Slovakia, Cyprus and Malta). Moreover, according to the Ordinance of the Minister of Labour and Social Policy dated 19th December 2001 concerning the situations, where foreigners do not need a work permit, work may also be performed by foreigners without the a work permit in case of foreigners performing a function in the management of legal persons conducting an economic activity, provided they stay within the territory of Poland on the grounds of a residence visa in order to perform work, and the duration of their stay in the territory of Poland in connection with performing such function does not exceed 30 days in a calendar year, irrespective of the number of legal persons conducting the economic activity where the function is performed. Further cases, in which work permits are not required are defined in the Ordinance of Minister of Labour and Social Policy dated December 2001concerning the situations, where foreigners do not need work permits.The decision in the matter of a work permit (as well as in the matter of preliminary work permit) is issued by the relevant regional voivode after consideration of the labour market situation. During this procedure the Wojewoda takes under consideration information given by chief official of a district (starosta) regarding the local labour market situation and the possibilities of solving the employer’s personal needs. Before applying for work permit (preliminary work permit) the employer is obliged to undertake actions in order to entrust the work to which the application relates to a Polish citizen or to a foreigner holding a residence permit, a permit for tolerated stay, refugee status, or benefiting from temporary protection in Poland. These activities are not deemed sufficient if the employer restricted the job advertisement to only the relevant administrative district labour office. Information from the employer regarding aforementioned action undertaken by him are also taken under consideration by Wojewoda. Citizens of Denmark, Netherlands, Norway and Italy are given work permits without following rules concerning the situation on the local labour market.The condition for issuance of a work permit is the prior obtainment of a visa with a right to employment (work visa) or permission for settlement in Poland for a specified period of time or – with regard to the citizens of EU Member States – permission for stay or temporary stay. Whereas, in order to obtain a work visa the preliminary work permit is required. Therefore, the procedure leading to obtainment of work permit contains 3 essential elements: obtainment of preliminary work permit, obtainment of work visa or - with regard do the citizens of EU Member States - permission for stay or temporary stay and obtainment of a final work permit.The work permit and preliminary work permit are issued by Wojewoda appropriate with regard to the employer’s seat. Only the prospective employer may apply for a work permit or preliminary work permit. The prospect employees are not allowed to apply themselves. The prospective employer shall submit an application for a work permit accompanied by a set of required documents, including, among others: an excerpt from the National Court Register or an excerpt from the Business Activity Register at local community; proof of payment to the Labour Fund; REGON (statistical number) and NIP (tax identification number); a document confirming a right to the premises at which work will be provided (for example a lease contract); a statement about number of employees; documents which confirm that the employer tried to employ Polish citizens or refugees for the post; a copy of the foreigner’s travel document (complete pages), a document confirming the foreigner’s professional qualifications (in translation carried out by a sworn translator); and other documents required by the office.An employer who obtained a preliminary permit must make a single payment to the account of the Labour Fund in an amount being the equivalent of the legally set lowest remuneration (which currently is 824 PLN).After obtaining preliminary work permit by employer, the prospect employee may apply for work visa. According to Alien’s Act of 13th June 2003 work visas give right to multiple entry into territory of Poland and are issued for the period specified in preliminary work permit however no longer than 1 year.Work visas are issued by Polish Consulate abroad. The applicant should apply for a visa in person. When applying for a work visa the applicant should produce his/her valid passport with at least one clear page for a visa, completed visa application form, one passport size photograph and an original of a work permit. The citizen of EU Members States, instead of work visa, shall obtain permission for stay or temporary stay. Obtainment of preliminary work permit is not a condition for issuance of permission for stay or temporary stay. The citizen of EU Member State may apply for permission for stay or temporary stay if one holds prospective employer’s written statement concerning intention to entrust work to the applicant. In consequence of the procedure of granting a permission for stay or temporary stay, a EU citizen will obtain a EU citizen's residence card. Permission for stay will be valid for five years with the possibility of prolongation for further five-year periods, while permission for temporary stay is issued for a period of work performance. Permission for temporary stay will be issued for the period of work performance defined in employer’s statement. Decisions concerning permission for stay or temporary stay as well as residence cards for EU citizens and residence documents (also with regard to their prolongation and revocation) will be issued by the voivode of the voivodship where the EU citizens intends to reside. Obtainment of work visa or permission for stay/temporary stay creates legal basis for issuance of the final work permit. Work permit shall by issued on conditions specified in preliminary work permit (if one was required), for a period of time no longer than time of stay defined in work visa or residence card. The Polish law requires the obtainment of a final work permit prior to the commencement of employment by the foreign person.

TOMASZ KOZLOWSKI

KRPiA Sopot,

POLAND

http://www.kpsc.com.pl