The provisions of the Act of 20 April 2004 on employment promotion and labour market institutions (i.e. Official Journal of 2021.1100, as amended), hereinafter referred to as the Act, detail the conditions for issuing work permits. Without their fulfilment, an authorisation to work won’t be granted. However, the legislator has provided for cases where this document will be granted regardless of the conditions for issuing work permits for foreigners, determined in the Act.
1. Legislative delegation
Article 90(5) of the Act gave the minister responsible for labour affairs competence to determine, by means of regulation, cases in which a work permit is issued by the voivode, regardless of the conditions for granting authorisations to work specified in Article 88c of the Act. At the same time, the legislator provided that when determining these cases, the Minister should follow in particular: the principle of reciprocity, the specificity of the profession performed or the nature of the work.
On 29 January 2009, the Minister of Labour and Social Policy exercised the conferred power and issued a regulation on determining cases in which a foreigner’s work permit is granted regardless of specific conditions for delivering authorisations to work to foreign nationals (i.e. OJ 2019, item 154, as amended), hereinafter referred to as the regulation.
2. Work permits for a specific group of entities
2.1 Conditions imposed by the Act from which it’s possible to derogate under § 2 of the regulation
§ 2 of the regulation authorises the voivode to issue a work permit without the need to take into account the conditions referred to in Article 88c(1-5) and (7) of the Act.
The first of the conditions for obtaining a type A work permit referred to in the above-mentioned provisions concerns the reservation of an appropriate remuneration for the foreigner. The voivode issues such an authorisation if the amount of the salary, specified in the contract with the foreign national, won’t be lower than the remuneration of employees performing work of a comparable type or in a comparable position and at the same time won’t be lower than the minimum wage (Article 88c(1)(1-1a) of the Act). However, in the case of submitting an application for an authorisation to work part-time or on the basis of a civil law contract, the voivode takes into account the amount of remuneration which will be determined in the contract with the foreigner in proportion to the working time or the expected period of performance of obligations resulting from the contract (Article 88c(7) of the Act).
Another condition for issuing a type A work permit from which it’s possible to derogate under § 2 of the regulation is attaching to the application for an authorisation to work information from the staroste on the inability to meet the employer’s staffing needs based on the registers of the unemployed and job seekers or on the negative result of recruitment organised for the employer, prepared taking into account priority of access to the labour market for Polish nationals and foreigners (Article 88c(1)(2) of the Act).
It’s also possible to derogate from the condition specified in Article 88c(4) of the Act. It shows that in the event that the entity entrusting work to a foreigner applies for a type B permit, the voivode will issue a positive decision, if the entity whose management board member, general partner or registered representative is to be a foreigner generated, in the tax year preceding the submission of the request, an income not lower than12 times the average monthly remuneration in the voivodeship, current on the day of making the application and announced by the President of the Central Statistical Office, as well as if this entity employs for an indefinite period and on a full-time basis, for at least one year preceding the filing of the application, a minimum of two workers who aren’t subject to the obligation to hold a work permit. As an alternative to the requirement in question, the provisions provide for the entity entrusting work to a foreigner to prove that it has the means or conducts activities allowing to fulfil the conditions determined above in the future, in particular by carrying out activity that contributes to increased investment, transfer of technology, introduction of beneficial innovations or job creation.
Pursuant to Article 88c(5) of the Act, the voivode may limit, in the work permit, the scope of tasks performed by the foreigner to management activities and representation of the entity. This entitlement arises in cases justified by the situation on the labour market.
2.2 What situations does the exception from § 2 of the regulation concern?
Despite the failure to fulfil the conditions specified above, the voivode issues a work permit if the application concerns a foreigner having a special status. This is, in fact, a foreign national:
- being a family member of an employee of a diplomatic representation, consular post, international organisation or their representation, working in the Republic of Poland on the basis of international agreements and arrangements;
- performing work as private domestic staff of employees of diplomatic representations, consular posts, international organisations or their representations;
- entitled in accordance to the rules specified in legal acts issued by bodies set up under the Agreement establishing an Association between the European Economic Community and Turkey, signed in Ankara on 12 September 1963 (OJ EC L 217 of 29.12.1964, p. 3687 – OJ of the UE Polish special edition, chapter 11, vol. 11, p. 10) (§ 2 of the regulation).
The provision of § 2 of the regulation is of an exceptional nature. Therefore, it’s imppossible to interprete it broadly and to extend the scope of its application to entities other than those specified above.
3. Work permit without the need to obtain a labour market test
3.1 Labour market test
As already indicated, the condition for issuing a type A work permit is that the entity entrusting work obtains information from the staroste on the inability to meet the employer’s staffing needs based on the registers of the unemployed and job seekers or on the negative result of recruitment organised for the employer. This is the so-called “labour market test”. This document confirms the possibility of employing a foreigner. Therefore, it’s issued only after the determination whether among the unemployed in the region concerned, there are any persons who can be engaged instead of a foreign national.
According to Article 88(3) of the Act, obtaining information from the staroste isn’t required in the event that:
- the profession in which the foreigner is to perform work or the type of work to be entrusted to him/her is on the list specified by the voivode competent for the main place of work, head office or place of residence of the entity entrusting work to the foreign national or of the user employer, according to the territorial jurisdiction of the staroste,
- the voivode issues work permits for the same foreigner and for the same position;
- the lack of need to obtain information results from separate provisions.
3.2 Exception from the regulation
The separate provision from which the lack of need to obtain a labour market test results is, among others, § 3 of the regulation. It shows that the voivode issues a work permit without the need to receive information in the case of:
- a foreigner authorised to represent a foreign entrepreneur in its branch or representation situated in the territory of the Republic of Poland;
- a citizen of the Republic of Armenia, the Republic of Belarus, the Republic of Georgia, the Republic of Moldova, the Russian Federation or Ukraine, performing work of a nursing and caring nature or as a domestic helper for natural persons in a household;
- a foreigner who, during the period immediately preceding the submission of the application for a work permit, was employed for a period not less than 3 months with the same employer and in the same position in accordance with the declaration on entrusting work to a foreign national entered in the register of declarations – In this case, the legislator requires the presentation of a declaration on entrusting work to a foreigner entered in the register of declarations and of the employment contract, as well as documents confirming the payment of social security contributions. However, the declaration must be valid on the date of submission of the request;
- a foreigner – a sport coach or an athlete, performing work for sports clubs and other entities whose statutory activity includes the dissemination of physical culture and sport;
- a doctor and a dentist undergoing training or running a specialisation program under the provisions on the specialisation of doctors and dentists;
- • a foreign national who will perform work in the profession specified in the list constituting annex to the regulation – According to the content of the annex in question, the professions that entitle the voivode to grant a work permit without the need to obtain a labour market test are, for example: electrical engineers, specialised doctors (with a specialisation in the second degree or the tittle of specialist), web application and multimedia designers, assistants for the disabled, roofers, bus drivers, train drivers, operators of lifting and transport machines and equipment and related.
3.3 List of the voivode
The voivode may issue a type A work permit without the need to obtain a labour market test also if such an authorisation is to be granted in order to perform work in the profession specified in the list drawn up by the voivode. When making the list, the voivode should take into account the situation of the local labour market, in particular the number of registered unemployed and job seekers in specific occupations in relation to the number of offers submitted to powiat labour offices (Article 10(4)(1) of the Act), as well as obtain the opinion of the voivodeship marshal and the voivodeship labour market council (Article 10(4)(1) of the Act). This means that when issuing the list, the voivode is obliged to take into account the conditions of the labour market in the voivodeship concerned. Thus, the lists of professions in various voivodeships differ.
The text of the current lists can be found in the Official Journals of different voivodeships. For example, in the Łódź Voivodeship, the regulation No 1/2017 of 13 January 2017 on the criteria for issuing work permits for foreigners (OJ of the Łódź Voivodeship of 2017, item 397) applies. Annex 1 to the regulation in question contains a list of professions and types of work in relation to which the issuance of an authorisation to work doesn’t require taking into account information from the staroste referred to in Article 88c(1)(2) of the Act. These include, for example: IT technology and services sales specialist, injection moulding machine operator, the driver of a heavy goods vehicle, tailor.
4. Legal notice
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