There may always be situations resulting in a change of employer, its structure or conditions of engagement. If these modifications concern contracts concluded with foreigners working on the basis of a registered declaration on entrusting work, a work permit, a single authorisation, the following question may arise: what impact does the change have on documents legalising work in Poland? We will try to answer it in this article.
1. Change of employer
1.1 Work permit, declaration on entrusting work
A foreigner may decide to change the employer. In this case, the new employer should obtain a new work permit. It results from Article 88f(1) of the Act of 20 April 2004 on employment promotion and labour market institutions (Official Journal of 2021, item 1100, as amended), hereinafter referred to as the Act on the promotion of employment, that the identification of the entity entrusting work to a foreigner constitutes a necessary element of the content of a work permit.
It should be pointed out that the obligation to obtain a new work permit also exists if a foreigner performs work for a new employer in the same position and under the same conditions as for the previous one.
In the situation in issue, the previous employer is obliged to notify to the competent authority of the termination of employment of a foreigner at his/her workplace (Article 88i of the Act on the promotion of employment).
If a declaration on entrusting work constitutes the basis for legal work of a foreigner in Poland, a change of work leads to the obligaton of the new employer to register a new declaration on entrusting work to a foreigner and make the appropriate registration.
1.2 Uniform permit
The situation concerning a foreigner with a temporary residence and work permit, i.e. the so-called uniform permit, looks slightly different. In the event of a change of an employer, a foreigner is obliged to inform the voivode, in writing, about the termination of work for the previous employer (Article 121(1) of the Act of 12 December 2013 on foreigners (OJ 2013, item 1650, as amended), hereinafter referred to as the Act on foreigners). The notification must be submitted within 15 working days following the date of termination of employment with the former employer. Respecting this deadline is extremely important. If the notification is made in time, the voivode doesn’t withdraw the authorisation for a period of 30 calendar days following the date of termination of work with the previous employer (Article 123(1)(1) of the Act on foreigners). Meanwhile, it’s necessary to apply for a new temporary residence and work permit. If the application has no formal irregularities or these defects are corrected in time, the foreigner will be entitled to legal stay in Poland until the final decision in the case. However, the foreign national can’t perform work for the new employer during the period of waiting for the new authorisation.
The new Article 121(3) of the Act on foreigners should be considered as extremely significant. According to this provision, the obligation to inform the voivode about the termination of work is considered fulfilled in the event that the foreign national has submitted an application for a change of the temporary residence and work permit within 15 working days.
2. Simultaneous employment with several employers
If a foreigner wants to work for several employers at the same time, a separate work permit, a declaration on entrusting work or a single authorisation must be obtained for each employment relationship. In practice, this means that if the foreign national is already in an employment relationship and wishes to start working for another employer, the second employer has to take actions to receive a new work permit, a new single authorisation or register a new declaration on entrusting work.
3. Change of working conditions, pay or position
3.1 Work permit, declaration on entrusting work
As a rule, a change concerning conditions of work and pay requires obtaining a new work permit or registering a new declaration on entrusting work. However, this principle isn’t absolute.
It isn’t necessary to issue a new work permit in the case of replacing of a civil law contract with an employment contract or of changing the name of the position on which the foreigner performs work while maintaining the scope of his/her duties or increasing the working time with a proportional improvement of remuneration (Article 88f(1a) of the Act on the promotion of employment). The replacement of a civil law contract with an employment contract constitutes a circumstance which also doesn’t give rise to the obligation to register a new declaration on entrusting work (Article 88z(12)(3) of the Act on the promotion of employment).
A new work permit isn’t issued if a foreigner is entrusted with work of a different nature or in a position other than that specified in the authorisation to work for periods not exceeding a total of 30 days per calendar year, unless the other conditions determined in this document don’t change. However, in the event that work of a different nature or in a different position requires specific authorisations or entitlements, the foreign national is obliged to have tchem (Article 88f(1b) of the Act on the promotion of employment). The employer is required to inform the voivode in writing, within 7 days following the date of the change, about the foreigner’s commencement of work of a different nature or in a position other than indicated in the work permit (Article 88i, point 1, of the Act on the promotion of employment). Failure to comply with the obligation in question constitutes an offense subjected to a fine (Article 120(6) of the Act on the promotion of employment).
Obtaining a new work permit is also not required in the event that the working conditions of foreigner holding an authorisation to work have changed under the principles defined in:
- Article 91 of the Labour Code (agreement on the suspension of the application of labour legislation) or
- Article 231a of the Labour Code (agreement on the application of less favourable conditions of employment) either
- Article 4 of the Act of 11 October 2013 on specific solutions related to the protection of jobs (i.e. OJ 2019, item 669, as amended) or
- Article 3, Article 15g(6) and (8), Article 15gb, Article 15x(1) or Article 15zf(1) of the Act of 2 March 2020 on specific solutions related to the prevention, counteraction and eradication of COVID-19, other infectious diseases and crisis situations caused by them (i.e. OJ 2021, item 2095, as amended). (Article 88f(1c) of the Act on the promotion of employment).
3.2 Uniform permit
According to Article 120(1) of the Act on foreigners, a temporary residence and work permit may be changed at any time, at the foreigner’s request, by the voivode competent for the foreigner’s current place of stay, if the foreign national intends to perform work:
- for another entity entrusting work or under conditions of exemption from the obligation to have a work permit, either
- for another user employer, or
- on conditions other than those laid down in Article 118(1)(2-5) of the Act on foreigners.
It results from the quoted provision that the foreigner may apply for a change of a temporary residence and work permit in the event of:
- a change of the entity entrusting work,
- the intention of performing work under the conditions of exemption from the obligation to hold a work permit,
- a change of the user employer,
- a change of the position in which the foreigner performs work,
- a change of the minimum remuneration which the foreign national may receive for work in a given position,
- a change concerning working time,
- a change of contract type under which the foreigner performs work.
In the event of remplacement of a civil law contract with an employment contract, it isn’t necessary to apply for a change of a permit or for a new authorisation (Article 119 in fine of the Act on foreigners).
4. Change in the company employing a foreigner
Alterations that concern the employer entrusting work to a foreigner and constist of changing the head office or place of residence, name or legal form of the entity entrusting work to a foreign national, takeover of an establishment or its part by another employer don’t require the issuance of a new work permit, registration of a new declaration on entrusting work either issuance or modification of a single authorisation (respectively: Article 88f(1a) of the Act on the promotion of employment, Article 88z(12)(1-3) of the Act on the promotion of employment, Article 119 of the Act on foreigners).
The employer is obliged to inform the competent authority of the change within 7 days following the date of the alteration. The notification should be made in writing.
5. Change of the user employer
The rules of conduct in the event of a change of the user employer differ depending on the basis for legalising the foreigner’s work in Poland. The change of the user employer doesn’t result in the registration of a new declaration on entrusting work, provided that the data concerning the work performed by the foreigner and specified in the declaration, with the exception of the place of work, haven’t been modified (Article 88z(12)(4) of the Act on the promotion of employment). On the other hand, the change of the user employer gives rise to the obligation to apply for a new work permit (article 88f(1) of the Act on the promotion of employment). In the event of employment on the basis of a single authorisation, the change of a employer results in the necessity to modify the permit (Article 120(1) of the Act on foreigners).
6. 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.
