(Increasingly easier) rules for employing foreigners in Poland

According to the Business Centre Club forecast, the country’s largest organization of individual employers, by 2025, in Poland there will be a shortage of 2.5 million employees. The introduction of simpler rules regarding the settlement and obtaining a work permit by foreigners is intended to encourage Polish entrepreneurs to employ foreigners, develop the Polish economy and fill the growing staffing gaps.

GENERAL REQUIREMENTS

As a rule, to be able to work in Poland foreigners must reside legally in Poland and possess:

The introduction of facilities for nationals of some countries outside the European Union makes the procedure for obtaining a residence permit and work permit much less complicated. The conditions that a third-country national is obliged to meet when applying for a work permit are specified in the Foreigners Act of 12 December 2013. A foreigner applying for a temporary residence permit and work permit in a profession desired for the Polish economy should, in particular, have the required professional qualifications, valid health insurance, a source of stable and regular income sufficient to cover the costs of living for himself and his dependent family members, as well as have a place of residence in Poland. Basically, the grant of a permit depends on the decision of the province governor who, as the body authorized to examine the application, specifies the details of the work and term of validity of the permit.

CAN IT BE EASIER?

Despite strictly defined rules, the legislator provided for a number of exceptions in specific situations when a work permit is not required. This applies in particular to people who have a valid Pole’s Card, a student status or are temporarily staying in the territory of the Republic of Poland in order to reunite with their family.

An important group of exempted individuals also includes nationals of six countries who benefit from facilitated access to the labour market, i.e. nationals of the Russian Federation, Ukraine, Belarus, Georgia, as well as Moldova and Armenia who will not perform seasonal work. The legislator allows that for 6 months in the next 12 months they can perform work without having to obtain a work permit. The only condition that must be met is to have a written employment contract or mandate contract and a statement from the employer entrusting the work. These documents should be registered at the appropriate district labour office. The procedure is very simple, and if the statement does not contain formal deficiencies, registration takes place within 7 days.

LABOUR MARKET TEST

There are situations in which, before an employer decides to employ a thirdcountry national in a given position, he is obliged to perform the so-called labour market test. This is a procedure for obtaining information on the situation on the local labour market, confirming the inability to employ a Polish or European Union national. In order to obtain such information, the employer should submit a vacancy not ificat ion to the District Labour Office and wait for a decision of the relevant district governor. However, the obligation to carry out the labour market test applies only to specific professional groups. The Regulation of the Minister of Family, Labour and Social Policy of 28 June 2018 amending the Regulation specifying cases when a work permit is issued regardless of the detailed conditions for issuing work permits for foreigners, includes a list of nearly 300 professions that they do not require presentation of information from the district governor. The mandatory labour-market test are not required, among others, in case of work performed by nurses and caregivers, computer system administrators, insulation fitters, bus drivers, welders, road construction workers, construction electricians, software application developers or by individuals who work as domestic help in people’s households, performed by nationals of other countries, which are so popular in Poland. In addition, the province governor may specify his own exceptions from the need to carry out the so-called labour market test for selected professions in the given province.

When considering the employment of a foreigner, the question which arises almost automatically is whether it is possible to enter into an employment relationship with employed employees who are third-country nationals for a term longer than the statutory half-year limit in the next 12 months. Of course, there is such an option. To be able to benefit from it, however, you must apply for the appropriate permit from the province governor. However, if the work were to be performed at a given employer in connection with a previously registered statement, such an employer may apply for a work permit for the same position using the simplified procedure. This means that there is no need to carry out so-called labour market test.

ILLEGAL – UNPROFITABLE

Performing work in accordance with the law is important both from the point of view of the foreigner and his employer. Failure to comply with statutory obligations may result in the imposition of a fine on a third-country national (not less than PLN 1000 and not more than PLN 5000) and issuing a decision obliging the foreigner to return to his home country, as well as exposing the entity entrusting the illegal performance of work to offense or criminal liability. Penalties for employers illegally employing foreigners can reach up to 30,000 zlotys. Legalization procedures, which are becoming ever simpler and faster, combined with the rather severe system of penalties should effectively deter illegal employment of foreigners. However, the shadow economy still covers a significant portion of the market. Entrepreneurs claim that legalization procedures, although simplified, still take too long. This is due to, among others, staff shortages in public administration offices – and that’s how the viscous circle continues. Solutions for this situation have been adopted in the “Polish Migration Policy” – a document prepared by the Ministry of Interior and Administration and supported by the Ministry of Labour. It remains to look forward to its implementation.

Source: Baker McKenzie