Changes to employment of nationals of Armenia, Belarus, Georgia, Moldova, Russia and Ukraine

On 1st January 2018, changes were introduced to employment of foreigners in Poland, including nationals of Armenia, Belarus, Georgia, Moldova, Russia and Ukraine. As the last group of employees is highly popular among Polish employers, and in order to simplify I shall hereinafter refer to Ukrainian nationals. It should, however, be remembered that the legal regulations applicable to them also apply to the other states named above.

Changes to employing Ukrainian nationals have been implemented by the act of 20th July 2017 on amending the act on employment promotion and labour market institutions. Its main objective is to implement the directive of the European Parliament and the Council no. 2014/36/EU of 26th February 2014 on the conditions of entry and stay of third-countries' nationals for the purpose of employment as seasonal workers and to counteract occurring abuses, effectively manage economic migration and improve the standards for employing foreigners.

Generally, as a prerequisite to employ a foreigner in Poland, they must hold a work permit issued by a wojewoda [regional governor]. However, there are exceptions to this rule.

In case of Ukrainian nationals, the key exception till the end of 2017 was laid down in the regulation of the Minister of Labour and Social Policy of 21st April 2015 on instances when foreigners can be employed in the territory of the Republic of Poland without obtaining a work permit. According to that regulation, foreigners could work on the basis of declarations on intended employment of a foreigner registered by the employer with county employment institution, for a period not longer than 6 months within 12 subsequent months.

From 1st January 2018, employment based on these grounds will have significantly changed. The procedure of registering declarations on intended employment of a foreigner has not been repealed, as initially planned, but control of public authorities on employment of foreigners has been extended. Also the procedure related to short-term work on the basis of declarations registered with county employment institution has been tightened.

That is because the altered procedure is based on stronger legal grounds which results from an act and not a regulation. Also mechanisms to prevent abuse have been introduced. Registration of a declaration can be refused (by an appealable decision) and an obligation has been imposed to notify about foreigner's commencing or not commencing work (subject to sanctions). Also a fee shall be paid on registration of a declaration (on completing this paper, a planned amount was PLN 30).

The amendment to the act has also introduced a new type of permit: for seasonal work. That permit can be issued to a foreigner who performs certain works in Poland on the basis of a contract with an entity which is seated or lives, has a branch, facility or other form of organised business in the territory of the Republic of Poland. A bylaw to the act shall stipulate the types of work. Initially, these were supposed to be works in agriculture, gardening and tourism. Such a permit shall be issued for a fixed period which cannot be longer than 9 months in a calendar year. However, the act assumes an option to extend.

A seasonal work permit can be applied for by nationals from all third states. The implemented directive allows for keeping preferential solutions for nationals of selected countries, e.g. by exempting from the obligation to obtain information from starosta [county mayor] that the employer's staff demand cannot be satisfied based on registers of unemployed and individuals looking for work, or about a negative result of recruitment arranged for the employer (so called: labour market test). Poland is planning to apply ease measures for nationals of the aforementioned six states.

In order to avoid frauds, an application for seasonal work permit is lodged by the employer to starosta who verifies employment conditions. If those are met, the application is registered in the record of applications for seasonal work, which shall also be accessible to consuls. That shall allow consuls for easier verification of certificates from future employers which foreigners submit when applying for entry visas. After arrival to Poland, when a foreigner reports to the employer, starosta shall issue a seasonal work permit without verification of additional conditions, the only requirement would be to present confirmation of their entry to Poland and their address during the stay in the territory of Poland.

The new regulations assume for starostas holding registers of declarations on employing foreigners, work permits and seasonal work permits. Within the registers, records of declarations and permits are held. These tools shall facilitate control of declarations issued.

The act also grants significant powers to the Minister in charge of labour matters. The minister can, after arrangements with other ministers, define in a regulation a maximum number of work permits, seasonal work permits or declarations on intended employment of foreigners which can be issued in a year by wojewodas, considering needs of the labour market, national security and public order issues and the rule of complementarity for employing foreigners against Polish nationals.

The aforementioned quotas can apply to particular regions, professions, types of employment contracts for foreigners or types of operations, according to Polish Classification of Businesses (PKD), which the employer of foreigners runs.

At the same time, continuation is facilitated of cooperation with a foreigner after the lapse of the period of work based on declaration, which should encourage to employ foreigners on the basis of employment contracts. Should an employer who employs a foreigner on the basis of a declaration wish to continue the cooperation, then after an application for work permit has been lodged,the work performed shall be deemed legal throughout the entire period of awaiting the wojewoda's decision. This should allow for continuing employment with the employer, regardless of how much time the procedure takes.

Also it has been decided that monthly wages for a foreigner working on the basis of a work permit must not be lower than the wage – also in cases of working on the basis of civil law contracts.

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