The legislator has provided for a special procedure for the regularisation of work in the territory of the Republic of Poland, applying for citizens of the Republic of Armenia, the Republic of Belarus, the Republic of Georgia, the Republic of Moldova and Ukraine. An employer who wants to engage a citizen of one of the above-mentioned countries may submit a declaration on entrusting work to the Labour Office. This procedure allows a quick legalisation of foreigner’s work in Poland.
1. When it’s possible to submit a declaration on entrusting work?
An employer may submit a declaration on entrusting work only in the case where he/she intends to engage a citizen of:
- the Republic of Armenia,
- the Republic of Belarus,
- the Republic of Georgia,
- the Republic of Moldova,
- Ukraine.
It isn’t possible to legalise work in Poland by means of a statement of a person being a citzen of a country other than above-mentioned ones.
It’s also impossible to regularise the employment of a citizen of one of the indicated States for seasonal work in Poland through a declaration (Article 88z(2)(1,2) of the Act on employment promotion and labour market institutions (i.e. Official Journal of 2023, item 735, as amended), hereinafter referred to as the Act).
The legislator limits work on the basis of a declaration on entrusting work. The period of work indicated in the statement submited may not exceed 24 months. Moreover, the date of commencement of work specified in the declaration can’t take place later than 6 months from the date of making the statement (Article 88z(2)(3, 4) of the Act). When entering the declaration on entrusting work to a foreigner into the register of statements, the Powiat Labour Office may determine a later date of start of work than the one specified in the declaration. However, this date can’t be earlier than the day following that one of entering the declaration into the register of statements (Article 88z(3) of the Act).
The provisions require that the amount of the foreigner’s remuneration isn’t lower that the salary of employees performing work of a comparable type or in a comparable position (Article 88z(2)(5) of the Act).
2. How to submit a declaration on entrusting work?
The declaration on entrusting work shall be submitted on an official form. Its template is specified in the Regulation of the Minister of Family and Social Policy of 18 July 2022 on work permits and declarations on entrustring work to a foreigner (OJ 2022, item 1558), hereinafter referred to as the Regulation. A separate model form has been provided for temporary employment agencies.
The declaration shall be accompanied by the following documents:
- a copy of pages of a valid travel document of the foreigner conerned by the application, containing personal data, and in the event that the foreign national doesn’t have a valid travel document and it’s impossible to obtain it – a copy of another valid doument confirming his/her identity;
- a copy of proof of payment of the fee for submitting the declaration;
- a declaration of the entity entrusting work, submitted under threat of criminal liability and informing that it hasn’t been punished for offences specified in Article 88z(5)(1-6) of the Act – a model for the statement constitutes an annex to the regulation;
- if the employer acts through a proxy – a power of attorney and proof of payment of stamp duty on the power of attorney.
3. Where and how to make the declaration?
The declaration on entrusting work shall be submitted to the Powiat Labour Office competent for the head office (it applies to legal persons) or place of permanent residence (it concerns natural persons) of the employer.
The employer can submit the completed declaration form in person to the Powiat Labour Office, send it by post or via the online portal: praca.gov.pl. Certain Labour Offices requires that statements are only presented online. Therefore, before making the statement, it’s necessary to check which form of sumbitting the declaration a given Office prefers.
4. How long does it take for entering the declaration on entrusting work into the register of statements?
In cases that don’t require the investigation procedure, the decision should be made no later than within 7 working days from the date of receipt of the declaration. On the other hand, in cases requiring the investigation procure, the decision should be made no later than within 30 days from the date of receipt of the declaration (Article 88z(4) of the Act).
5. Is it possible to refuse to enter the declaration on entrusting work into the register of statements?
The Staroste is authorised to issue a decision on the refusal to enter the declaration on entrusting work to a foreigner into the register of statements. He/She takes an appropriate decision in the event that:
- the employer entrusting the performance of work or an idividual acting on his/her behalf has committed one of the offences listed in Article 88(5)(1-6) of the Act (Article 88(5)(1-6) of the Act);
- in a given calendar year, the applicable limit of declarations, referred to in Article 90b(3) of the Act, has been exceeded (Article 88(5)(7) of the Act);
- it results from the circumstances that the entity entrusting work is making a declaration for the sake of appearance (Article 88(6) of the Act);
- the declaration will be used by the foreigner for a purpose other than the performance of work for a given entity (Article 88(6) of the Act);
- the entity entrusting the foreigner with the performance of work fails to comply with the obligations relating to conducting an activity or entrusting work to other persons, and in particular:
- doesn’t have the financial resources or sources of income necessary to cover liabilities resulting from entrusting work to a foreign national,
- doesn’t conduct economic, agricultural or statutory activities justifying the entrustment of work to a foreigner in a given period, including suspension of its activity, deletion from the relevant register or liquidation of its activity,
- doesn’t meet the obligation to pay social security, health insurance, the Labour Fund and the Guaranteed Employee Benefits Fund contributions or farmers’ social security contributions,
- doesn’t declare workers or other persons covered by compulsory social security to social security or doesn’t declare farmer’s assistants to farmers’ social security,
- is in arrears with the payment of taxes, except where it has obtained an exemption, deferral, instalment of late payments or suspension in full of the implementation of the decision of the competent authority, as provided for by law (Article 88(6) of the Act);
- the conditions for entering the declaration into the register of statements haven’t been fulfilled.
6. What are the obligations of an employer whose declaration on entrusting work has been entered into the register of statements?
An employer whose declaration on entrusting work to a foreigner has been entered into the register of statements is obliged to notify, in writing, the appropriate Powiat Labour Office of taking up or not taking up work by the foreign national to whom the declaration relates. The notification should be made within 7 days from the date of commencement of work (Article 88z(13) of the Act). Failure to comply with the obligation in question, as well as the provision of false information, constitutes an offence punishable by a fine. Indeed, pursuant to Article 120(10) of the Act: Whoever doesn’t fulfil the obligation referred to in Article 88z(13) or provides false information concerning taking up, not taking up or terminating work by the foreigner on the basis of the declaration on entrusting work to a foreigner shall be subject to a fine.
7. When it isn’t necessary to enter a new declaration into the register of statements?
As a general rule, the change in circumstances requires the entry of a new declaration into the register of statements. However, in Article 88z(14) of the Act, the legislator provides for cases where, despite changed circumstances, it isn’t necessary to enter a new declaration into the register of statements. This happens in the event that:
- there has been a change concerning the head office, place of permanent residence, name or legal form of the entity entrusting the foreigner with work;
- the takeover of the workplace or of its part by another employer has occurred;
- the transfer of the workplace or its part to another employer took place;
- the entity entrusting the foreign national with work and the foreigner have concluded an employment contract instead of a civil law contract;
- the foreign national is a temporary worker, sent by the employer to the user employer other than the one specified in the declaration, and the data concerning the work offered to the foreigner indicated in the statement, with the exception of the place of the performance of work, hasn’t changed.
8. Legal notice
The study is a work within the meaning of the Act of 4 February 1994 on Copyright and Related Rights (OJ 2006, No. 90, item 631, consolidated text, as amended). Publishing or reproducing this study or its part, quoting opinions, as well as disseminating in any other way the information contained therein without the written consent of Crede sp. z o.o. is prohibited.
