Changing the working conditions of a foreigner is not always possible

[article of lawyer Ewelina Grajner published in the Rzeczpospolita newspaper of December 12, 2019]

The employer may reduce the salary or full-time position specified in the residence and work permit of the foreigner only with the consent of the voivode. The conditions set out in the work permit must not be changed, except for two exceptions.

We have obtained the long-awaited A type work permit for a foreigner. Relatively, a foreigner received a decision on a residence and work permit in our company. And what’s next? What is allowed and what is not based on the obtained decisions?

Let me remind you that a work permit is issued for one entity entrusting work. Therefore, each employer must apply for this type of permit separately. In turn, a foreigner applies for a residence and work permit. This permit can therefore be issued simultaneously in relation to several entities entrusting work. In this situation, all working conditions will be specified in the decision separately for each entity entrusting work.

It is also necessary to mention a certain atypical situation that employers may also come across – namely a residence and work permit in which working conditions are not indicated at all. This situation occurs when, based on special provisions, the foreigner was among the lucky ones exempt from the obligation to have a work permit (e.g. a foreign language teacher at an elementary school, a graduate of a Polish upper secondary school, a graduate of full-time studies at a Polish university), and the purpose of stay in Poland is performing work. The decision indicates the period of its validity and information that the foreigner is entitled to work under the conditions arising from the provisions being the basis for releasing him from the obligation to have a work permit. Because the working conditions in the residence and work permit are not specified, the employer may change them taking into account only Polish provisions (in the case of employment contracts – labour law provisions).

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Conclusion of agreement

On the basis of the obtained permit (for work or residence and work), the employer may conclude an agreement with the foreigner as indicated in the decision (either employment contract or civil law contract). The conditions in the contract must strictly correspond to the conditions specified in the permit. Otherwise, the work will be entrusted illegally and the foreigner will perform illegal work, which will not end well for both parties.

What is the risk? As a rule, a fine in an offense proceedings (for an employer from PLN 1000 to PLN 30,000, and for a foreigner from PLN 20 to PLN 5000) and expulsion of a foreigner from a country with an entry ban. In the longer term, the illegal entrustment of work will have additional consequences (e.g. in certain situations, the employer will no longer be entitled to employ foreigners).

Both in the work permit and in the residence and work permit, the voivode must indicate the following data related to the entrusted work:

– entity for which the foreigner will work,

– position or type of work,

– type of contract being the basis for performing the work,

– working hours,

– the amount of the minimum monthly salary,

– period of validity.

[table] Elements of the work permit / the residence and work permit

Data of the entity for which the foreigner will work 

 

Position /

type of work

 

 

Type of contract being the basis for performing work

 

 

Working hours

Remuneration – the lowest monthly for a given position in the gross amount

(it should always be additionally indicated on a monthly basis)

 

Period of validity

 

e.g. Hospital Ltd. with its registered office in Warsaw,1 Szpitalna street

 

doctor / nurse / hospital reception staff

 

Contract of employment

 

Employment

e.g. full-time, part-timein a monthe.g. PLN  5000 gross/month 

 

 

e.g.

01.06.2019-31.05.2022

 

Civil law contract

e.g. commission contract 

Hourly

 

in a weeke.g. 40 hours/weeke.g. PLN 18 per hour /PLN 2880 per month
in a monthe.g. 160 hours/monthe.g. PLN 25 per hour /PLN 4000 per month

[end of the table]

Changing the working conditions

When employing a foreigner, it may turn out that within three years of the decision being in force, the employer must change certain working conditions. What to do if, for organizational or other reasons, we need to change the working conditions (e.g. position or full-time position). What if the company moves its headquarters or is taken over by another one? Can each of the decisions be changed?

The matter is not simple. It all depends on what changes and on the basis of which type of decision we employ a foreigner.

 

Minor modifications…

Some changes can be described as minor, because there is little or nothing to be done in the context of the permit itself and contact with the voivodeship office. This is the case with both work and residence permits.

Minor changes include:

– change of the seat or place of residence of the entity entrusting work,

– change of name or legal form of the entity entrusting work,

– takeover of an employer or part its part by another employer,

– transfer of a workplace or its part to another employer,

– replacement of a civil law contract with an employment contract (this change is clearly in the employee’s favour).

 

In the event of the above changes, if they occurred in relations to the work permit, the voivode should be informed about this fact in writing within 7 days of their occurrence. Failure to comply with this obligation is an offense for which a penalty of PLN 100 to PLN 5,000 will be charged.

… and serious modifications

In other cases, i.e. directly changing working conditions, the following principle can be adopted: the residence and work permit may be changed, and the work permit may not. However, there are exceptions to this rule.

Residence and work permit

A change of the residence and work permit is possible if the employer does not change. If the change is to concern the entity entrusting the work, the foreigner must submit a new application. When employment is to be continued with the same employer, but under different conditions, only a foreigner should apply for the change of the decision.

It is about the change of the following conditions of the entrusted work:

– position,

– remuneration – but only if it was to be reduced (an increase is always allowed and it is not necessary to report it, and an increase to the level of the minimum remuneration is obligatory, as in the case of Polish employees),

– working time,

– change from an employment contract to a civil law contract.

Of course, the entity entrusting the work must cooperate with the foreigner in order to obtain a positive decision insofar as he should provide him with relevant documents, i.e. at least:

– filled out annex no. 1 to the application for a temporary residence permit,

– a statement that the remuneration offered, which was indicated by the entity entrusting the performance of work in Annex 1 to the application, is not lower than the amount of remuneration of employees performing comparable work or a comparable job in the same amount of time. It should be remembered that the remuneration offered to foreigners cannot differ from the reality of the Polish labour market.

As a rule, the employer must also obtain new information from the foreman taking into account the change in employment conditions and provide it to the foreigner. Each time it is worth checking carefully whether for some reason the foreigner will not be released from the obligation to provide the foreman’s information (e.g. the foreigner has been legally and continuously in the territory of the Republic of Poland during the 3 years preceding the submission of the application, the profession in which the foreigner is to work is on the voivodeship list or ordinance of the minister).

Work permit

If it is necessary to change the working conditions of a foreigner working on the basis of a work permit (change of position, reduction of salary, change in working time, change from employment contract to civil law contract), as a rule, it is necessary to apply for a new permit. The employer always applies for a work permit.

There are, however, two exceptions to this type of permit, when the entrusting entity does not need to apply for a new permit:

EXCEPTION 1. Up to 30 days a year

It is not necessary to obtain a new permit if the entity entrusting the work to a foreigner entrusts him with work of a different nature or position other than those specified in the work permit, for periods not exceeding 30 days in a calendar year in total, provided that the other conditions specified in the work permit are met. If work in a different capacity requires special permits or entitlements, their possession must also be supplemented (e.g. entitlement to practice the profession of a doctor).

Although you do not need to obtain a new permit, there is still an obligation to inform the voivode in writing within 7 days of starting work in a different capacity. Failure to comply with this obligation will result in a fine of PLN 100 to even PLN 5,000, because the failure to do so is an offense.

EXCEPTION 2. Reduction of the work time to protect jobs 

There is no need to obtain a new work permit when a foreigner holding a work permit is covered by reduced working hours under the terms of the Act of October 11, 2013 on special solutions related to the protection of jobs (Journal of Laws of 2019, item 669).

Effective strategy

Due to the length of proceedings in voivodeship offices, it is worth rethinking the strategy beforehand on how to efficiently carry out, for example, changing the position of a foreigner so as not to “ground him” – that is, not to lead to a situation in which this employee cannot perform work for a certain period of time to our company. If we do not start acting well in advance, two-track actions may be necessary.

When a foreigner is a citizen of Armenia, Belarus, Georgia, Moldova, Russia, Ukraine, you can always use the additional option of employing him on the basis of a statement registered in the poviat labour office on entrusting work to a foreigner. However, on this basis, a foreigner can only work for six months within the next 12 months. The proceedings in the voivodeship office often take longer. A lot depends on whether the application was complete or whether the voivode must request the company to complete the missing documents.

Refusal to change

In certain circumstances, it should be taken into account that the voivode may refuse to change the decision on work and residence permit. However, it does not mean that he will do it. Nevertheless, one of the following must take place:

1) the foreigner does not have the required health insurance or stable and regular income source, or

2) the entity that entrusts the performance of work has the opportunity to meet the Staff shortages on the Polish labour market (in other words, the foreman’s new information should be provided, which will show that it is not possible to meet the staffing needs on the Polish market), or

3) the remuneration indicated by the entity entrusting the performance of work in the annex to the application for amendment of the permit (the so-called Annex no. 1) is lower than the remuneration of employees performing work of a comparable type of work or a comparable position in the same working time. In other words, if the remuneration offered to a foreigner deviates from the standards of the Polish labour market, the voivode will refuse to change the permit.

 

The voivode will definitely refuse to change the decision when, in connection with the change, the period of validity of the permit would exceed three years. Temporary residence and work permit is granted only for up to three years. In this situation, you must apply for a new decision.

Who changes the decision

 In both cases, the voivode is the competent authority, except that in relations to the residence and work permit it is always the voivode competent for the place of residence (stay) of the foreigner. In turn, the entity entrusting the performance of work (employer) according to its registered office or place of residence applies for a new A work permit for the foreigner.

Legal basis:

– art. 114 – 120, art. 302 of the Act of December 12, 2013 on foreigners (consolidated text of the Journal of Laws of 2018, item 2094, as amended)

– art. 88f, art. 88i, art. 88z, art. 120 of the Act of April 20, 2004 on employment promotion and labour market institutions (consolidated text of the Journal of Laws of 2019, item 1482, as amended)

– § 1-2 of the Regulation of the Minister of Family, Labour and Social Policy of December 8, 2017 regarding countries to which certain provisions regarding seasonal work permits and provisions regarding the declaration of entrusting work to a foreigner apply (Journal of Laws, item 2349)

– § 1 of the Regulation of the Minister of Labour and Social Policy of April 21, 2015 on cases in which entrusting work to a foreigner on the territory of the Republic of Poland is permissible without the need to obtain a work permit (consolidated text of the Journal of Laws of 2018, item 2273)

– § 1-3 of the Regulation of the Minister of Labour and Social Policy of January 29, 2009 on determining the cases in which a work permit for a foreigner is issued irrespective of the detailed conditions for issuing a work permit for foreigners (consolidated text of the Journal of Laws of 2019, item 154)

Legal status as of December 2019.

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