Taking into account the length of posting, the legislation allows to distinguish two types of secondment: short-term posting and long-term one. The provisions attach different legal consequences to each of the indicated types of secondment. For this reason, it’s extremely important to understand the difference between short-term posting and long-term one.
1. Are there time limits concerning secondment?
The provisions don’t specify maximum time limits concerning secondment. This means that the employer can post workers for very long periods.
The period for which employees are posted is important when determining the conditions of employment of posted workers in the host country. In the event that the period of secondment doesn’t exceed 12 months (exceptionally, this period may be extended to 18 months), workers must be guaranteed the conditions of employment applicable in the host State, provided that they are more favourable than those applicable in the country of origin. Such secondment is referred to as short-term posting. After 12 months of secondment (exceptionally 18 months) the conditions of employment in force in the host State apply, with the exception of the provisions concerning additional pension benefits and termination of contracts. This is the so-called long-term posting.
The distinction between the situations of short-term and long-term workers was introduced by Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018 amending Directive 98/71/EC concerning the posting of workers in the framework of the provision of services.
2. Duration of short-term posting
As already indicated, short-term posting takes place when the period of secondment doesn’t exceed 12 months. This period may be extended to a maximum of 18 months. For this purpose, it’s necessary to submit a motivated notification of the extension of the worker’s posting period to the National Labour Inspectorate of the host country before the expiry of the 12-month period of secondment. It should be emphasised here that the host State can’t dispute the circumstances indicated in information. It also doesn’t consent to a long-term posting. The notification on the extension of secondment constitutes the fulfilment of the obligation information imposed by the provisions on the posting employer.
3. Situation of workers posted on a short-term basis
It results from the content of Article 3(1) of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services that the posting employer is obliged to provide short-term posted workers with the same conditions of employment as those applicable in the host country. The obligation in question concerns the following employment conditions:
a) maximum work periods and minimum rest periods;
b) the minimum duration of paid annual rest leave;
c) wages for work and all components of remuneration;
d) hiring-out of workers, in particular by temporary employment undertakings;
e) health, safety and hygiene at work;
f) protective measures for pregnant women or for those immediately after childbirth, as well as for children and adolescents;
g) equal treatment of women and men, as well as non-discrimination;
h) accomodation of workers in the event that it is provided by the employer to employees located far from their normal place of work;
i) rates of allowances or reimbursement of expenses to cover travel, food and accomodation costs for workers located far from home for professional reasons.
In the event that the aforementioned conditions of employment are more favourable in Poland than in the host country, the Polish conditions of employment shall apply (Article 3(7) of Directive 96/71/EC).
According to the directive, the employer is obliged to guarantee workers the conditions of employment resulting from:
- the laws, regulations and administrative provisions;
- collective agreements or arbitration awards declared universally applicable.
4. Situation of workers posted on a long-term basis
The long-term posted worker must be provided with all conditions of employment applicable in the host country, with the exception of:
a) procedures, formalities and conditions for concluding and terminating employment contracts, including non-compete clauses;
b) complementary occupational pension schemes.
The obligation to ensure all conditions of employment concerns conditions resulting from both generally applicable provisions of law and collective labour agreements.
5. Counting periods of posting
Due to the fact that different legal regimes apply to short-term and long-term posted workers, it’s very important to determine the period of secondment correctly.
Counting periods of posting separately for each service provided by the employer constitutes the basic principle.
In the event that the employer replaces one worker with another for the same service, to perform the same work and in the same place, their periods of secondment are added up.
It should be noted that some countries adopt specific rules concerning the calculation of posting periods. For example: according to German provisions, if an employee is sent to perform work in connection with another service immediately after completing work in the framework of previous service, these periods are added up.
6. Legal notice
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