How to post a driver to Poland - State Labour Inspection

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What does posting of a driver in road transport consist in?

Specific provisions concerning the posting of drives that are laid down in the Act of 28 July 2023 on posting of drivers in road transport apply to road carriers seated in a Member State or a third country who temporarily send their drivers to the territory of the Republic of Poland in connection with a contract for the provision of a transport service. As a rule the provisions of this Act are applicable to drivers employed by foreign companies.

Important! A definition of an employee in the meaning of the provisions of the EU Member State to which the employee is posted is applicable in this context.

NOTE! The Act imposes specific obligations on road carriers and drivers from third countries in relation to a road transport operation in the territory of Poland (including, among others, submission of a posting declaration, provision of a posting confirmation to a driver, and the obligation to produce this document during a road check) not only if the concerned parties are bound by an employment contract, but also by a contract that is equal to an employment contract or any other contract under which a driver posted to the territory of Poland from a third country carries out road transport operations on behalf of that carrier.

The criteria which have to be met by a road transport operator posting a driver to Poland

A road transport operator posting a driver to the territory of Poland is the road transport operator with the seat in another Member State who temporarily posts a driver being their employee to work in the territory of Poland in connection with the provision of road transport services by that operator.

A road transport operator from a third country posting a driver to the territory of Poland is the road transport operator with the seat in a third country who temporarily posts a driver to the territory of Poland in connection with the provision of road transport services.

Who is a driver posted to Poland?

The Act on the Posting of Drivers in Road Transport includes the following definitions:

an EU Member State – a Member State of the European Union or of the European Free Trade Association (EFTA) – a party to the agreement on the European Economic Area (i.e. Norway, Island, Liechtenstein), as well as a country which by way of an agreement with the European Union accepted an obligation to implement the provisions of Directive 2020/1057 to its national legislation;

a third country – a country other than an EU Member State or the Swiss Confederation.

A driver posted to Poland is a driver employed under an employment relationship in another Member State and temporarily sent to work in Poland by a road transport operator posting that driver to the territory of Poland, who carries out the following transport operations:

cabotage operations;
international carriage other than bilateral carriage (carriage of cross-trade type).

With regard to drivers posted to Poland, employed in other Member States, who carry out such types of carriage operations, the provisions of the Act on the Posting of Drivers in Road Transport are applicable.

A driver is not a driver posted to Poland if he/she:

carries out transit;
carries out bilateral carriage of goods or bilateral carriage of passengers;
during bilateral carriage of goods additionally performs one loading of goods or one unloading of goods in the territory of the Republic of Poland, another Member State or a third country, through which he/she drives, on condition that the loading of goods and the unloading of goods are not carried out in the territory of the same Member State;
after bilateral carriage of goods, which was started in the Member State of the seat and during which no additional loading of goods nor unloading of goods was performed, carries out bilateral carriage of goods to the Member State of the seat, during which he/she additionally performs two operations of loading of goods or unloading of goods in the territory of the Republic of Poland, another Member State or a third country, through which he/she drives, on condition that the additional operations of loading and unloading of goods are not carried out in the territory of the same Member State;
during bilateral carriage of passengers additionally one time picks up passengers or one time sets down passengers in the territory of the Republic of Poland, another Member State or a third country, through which he/she drives, on condition that the carriage of passengers is not undertaken between two places located in the territory of the same Member State; the same refers to a return drive;
carries out road carriage of goods at the initial or final part of a combined transport, if that part itself involves bilateral carriage of goods.

Important! The exceptions indicated in points 3-5 are applicable solely to drivers of vehicles equipped with smart tachographs.

Drivers who carry out the above-mentioned transport operations are not posted workers in the meaning of the provisions of the Act on the Posting of Workers in the Framework of the Provision of Services.

A driver posted to Poland from a third country is the driver temporarily sent to Poland by a road transport operator from a third country, posting the driver to the territory of Poland in connection with the provision of road transport services by that operator, who carries out the following transport operations:

cabotage operations;
international carriage other than bilateral carriage (carriage of cross-trade type);
bilateral carriage of goods or bilateral carriage of passengers.

With regard to drivers posted to Poland from a third country, who engage in cabotage operations, international carriage other than bilateral carriage (cross-trade carriage), bilateral carriage of goods or bilateral carriage of passengers, the provisions of the Act on the Posting of Drivers in Road Transport are applicable.

A driver from a third country who crosses Poland in transit is not a driver posted to the territory of Poland, nor a posted worker in the meaning of the provisions of the Act of 10 June 2016 on the Posting of Workers in the Framework of the Provision of Services.

The provisions of the Act on the Posting of Drivers in Road Transport are not applicable to drivers posted to the territory of Poland:

to work in a branch or an enterprise belonging to a group of enterprises of which the employer posting the driver to the territory of Poland is a member,
by an entity which is a temporary work agency or a staff outsourcing agency that has sent the driver to a user undertaking,
from the Swiss Confederation until it accepts to implement the provisions of Directive 2020/1057 to its national legislation by way of an agreement with the European Union.

Important! With regard to the above-mentioned drivers, the provisions of the Act of 10 June 2016 on the Posting of Workers in the Framework of the Provision of Services are respectively applied.

Duties of a road transport operator posting a driver to Poland

A road transport operator posting a driver to the territory of Poland has the duty to ensure that the terms of employment of the posted driver are not less favourable than the minimum terms of employment in force in Poland, resulting from the Labour Code as well as other provisions regulating the rights and duties of employers and employees. This covers:

the standards and duration of working time, as well as daily and weekly rest periods;
length of annual leave;
remuneration for work;
occupational safety and health;
protection of female employees during pregnancy and maternity leave;
employment of juveniles;
performance of work or other paid tasks by a child;
the principle of equal treatment and the ban on discrimination in employment;
amounts due to cover the costs related to a business trip from the place of work in the territory of Poland, to which the worker was posted, to another place of work in or outside the territory of Poland.

Important! A driver posted to temporarily perform work in Poland is entitled, in the period of posting to the territory of Poland, to receive remuneration for work including all the components, according to the same rules as applicable to a driver employed by a Polish employer, resulting from the generally applicable provisions. This also refers to an additional pay for overtime work.

When comparing the remuneration paid to a posted driver by a posting employer and the remuneration for work due in accordance with the Polish legislation, the total gross remuneration is taken into account, not its individual components. A posting allowance is included in the remuneration for work but only in the part which is not a refund of expenses actually incurred in connection with the posting, such as costs of travel, meals and accommodation. In cases where the law applicable to the employment relationship of a worker posted to the territory of Poland does not specify the part of a posting allowance which is to refund the costs actually incurred in relation to the posting, the whole bonus is regarded as a refund of such expenses.

In Poland there are no collective labour agreements regarded as generally binding all over the country or in a specific sector. Collective labour agreements are concluded at a company level (by a specific employer) and at a supra-company level (by several employers) and they are binding for their parties. The Polish system of collective labour agreements does not stipulate supra-company agreements which would be binding for all employers by virtue of the law. If in a specific sector a supra-company agreement is concluded, then it is binding only for those enterprises which are a party to it. Employers not covered by the agreement may not be required to guarantee their employees such terms of employment which are due to employees engaged in a similar enterprise where the agreement is applicable.

Important! A road transport operator from a third country posting a driver to Poland should guarantee that driver the above-mentioned terms of employment, with a reservation that the remuneration of a foreigner posted to Poland is:

• higher than the income giving the entitlement to financial benefits from social assistance, specified with respect to the foreigner and the foreigner’s each family member who is dependent on that foreigner;
• not lower than the remuneration of workers who perform work of a comparable type or in a comparable position, for the same amount of working time, in the territory of the Republic of Poland;
• not lower than 70% of an average gross monthly remuneration in the national economy in the province where the host entity has the seat, announced by the President of Statistics Poland, in the year preceding the submission of an application for a permit.

In order to calculate the posting periods, a posting is deemed to have ended when a driver leaves the territory of Poland while being engaged in international carriage by road of goods or passengers. The posting periods of a driver carrying out international road carriage or a driver replacing him/her, do not sum up.

Formal duties

In addition to ensuring adequate working conditions, a road transport operator posting a driver to Poland has to:

with respect to a driver posted from a Member State who carries out cabotage operations or international carriage other than bilateral carriage (cross-trade carriage), submit a declaration on posting of a driver at the latest at the time when the posting begins, on the European Commission’s website: postingdeclaration.eu

Important! A road transport operator posting a driver to Poland should update the posting declaration on a regular basis through a public interface connected with the IMI system.

Read the information on posting of drivers available on the Internet website of the European Commission, in the form of questions and answers - Posting rules (europa.eu)

with respect to a driver from a third country who carries out cabotage operations, international carriage other than bilateral carriage (cross-trade carriage), bilateral carriage of goods or bilateral carriage of passengers, submit to the State Labour Inspection a declaration on posting of a driver to Poland from a third country, each time, at the latest at the time when the posting begins, using an electronic form.

Read the instructions on how to submit a declaration on posting of a driver from a third country: Zgłoszenie delegowania kierowcy z państwa trzeciego | Biznes.gov.pl - Serwis informacyjno-usługowy dla przedsiębiorcy

Road transport operators from third countries may benefit from e-service “Notify the posting of a driver from a third country to the territory of Poland” available on the portal biznes.gov.pl, in the following way:

1. Register an entrepreneur’s account using an email address. The account enables entrepreneurs to handle matters online only via the biznes.gov.pl. website
https://logowanie.biznes.gov.pl/

2. Buy a qualified signature from one of the certified suppliers in the territory of Poland. The list of such suppliers may be found on the internet website of the National Certification Centre. The most popular qualified signatures validated on websites gov.pl include: Sigilium Sign, Szafir 2.0, proCertum SmartSign, PEM-HEART 3.9, SecureDoc 2 by EuroCert company. Some certified suppliers in the territory of Poland provide a special path for remote confirming of the identity of persons from outside Poland and supplying them with a qualified signature. More information on issuance of a qualified signature to a person from outside Poland, who stays outside the territory of Poland, may be found on individual websites of certified suppliers.

3. Log into the entrepreneur’s account on the portal gov.pl by using the email address.

4. Start the “Notify the posting of a driver from a third country to the territory of Poland” e-service.

5. Sign the form with a qualified signature, previously purchased from a Polish certified supplier, according to the instructions at: https://www.biznes.gov.pl/pl/portal/0075#5

6. Send the signed form to the Chief Labour Inspectorate.

7. If it is impossible for a road transport operator to obtain a qualified signature, the notification may be made by a proxy who has such a signature.

with respect to a driver posted to work in a branch or an enterprise belonging to a group of enterprises of which the employer posting the driver to the territory of Poland is a member, or by an entity which is a temporary work agency or a staff outsourcing agency that has sent the driver to a user undertaking, or from the Swiss Confederation until it accepts to implement the provisions of Directive 2020/1057 to its national legislation by way of an agreement with the European Union, submit a declaration on the posting of a worker in the framework of the provision of services.

Read the instructions on how to submit a declaration on posting of a worker: Oświadczenie o delegowaniu pracownika | Biznes.gov.pl - Serwis informacyjno-usługowy dla przedsiębiorcy

Duties of a road transport operator from a Member State posting a driver to Poland and duties of a driver posted to Poland

A road transport operator from a Member State posting a driver to Poland is obliged to ensure that during the posting the driver holds the following documents in printed or electronic form:

copy of the posting declaration;
proofs confirming the provision of carriage by road in the territory of Poland, in particular in the form of consignment notes, evidence specified in Art. 8(3) of Regulation (EC) No 1072/2009, a relevant permit, an excerpt of the permit along with the binding schedule of driving, a driving form, a relevant decision or a copy of the contract for the transport operation, as specified in Art. 87(1) point 2 letters a-d) and g) of the Act of 6 September 2001 on Road Transport, as long as they are required;
tachograph records, which in particular include symbols of the Member States where the driver stayed while being engaged in international carriage or cabotage operations, in accordance with the requirements for registration and record-keeping on the basis of Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 (EU OJ L 102 of 11.04.2006, p. 1, as amended).

Important! A road transport operator posting a driver to Poland is obliged, after the posting period and at the request of an authority, to send copies of the above-mentioned documents, as well as documents on the remuneration due to the driver for the posting period, an employment contract or a document equivalent to such a contract, working time records of the driver and proofs of payment of the remuneration, using a public interface connected with the IMI system, within 8 weeks from receiving the request.

A driver posted to Poland is obliged to have the above-mentioned documents in printed or electronic form in the vehicle and to present them during roadside checks at the demand of persons authorised to conduct such checks.

Important! It is forbidden to provide a driver with an altered or falsified copy of a posting declaration.

Duties of a road transport operator from a third country posting a driver to Poland from a third country and duties of a driver posted to Poland from a third country

A road transport operator from a third country posting a driver to the territory of Poland from a third country:

each time, before the commencement of carriage by road, issues a confirmation of posting of a driver from a third country to the territory of Poland; a confirmation is drawn up on a template, with a computer or a typewriter; a confirmation is signed by a road transport operator from a third country posting a driver to the territory of Poland and by the driver posted to the territory of Poland from a third country.

A confirmation of posting should comprise the following information:

name of the road transport operator from a third country posting a driver to the territory of the Republic of Poland, the address of its seat or the residential address, the number of a relevant permit required in international road transport or of a driving form based on which the carriage connected with the posting is undertaken, the telephone number and the email address for business purposes;
name and surname, the residential address and the number of a driving licence of the driver;
start date of an employment contract of the driver or of a document equivalent to such a contract, or of other contract based on which the driver posted to the territory of Poland from a third country carries out road carriage for the benefit of that operator, as well as the legislation applicable to that contract;
registration number of the motor vehicle used to carry out the carriage connected with the posting;
information as to whether the provided carriage services involve carriage of goods, carriage of passengers, international carriage or cabotage operations.

Documents

A template form with confirmation of posting of a driver from a third country to the territory of Poland is in attachment to the Regulation of the Minister of Infrastructure of 7 August 2023 – Journal of Laws 2023 item 1638.

Important! It is forbidden to provide a driver with an altered or falsified copy of a posting confirmation.

A road transport operator from a third country posting a driver to Poland from a third country is obliged to ensure that during the posting the driver holds:

a printed confirmation of posting of that driver to the territory of Poland from a third country;
proofs confirming the provision of carriage by road, in particular in the form of consignment notes, a relevant permit required in international road transport or a driving form on the basis of which the carriage is undertaken;
tachograph records required in accordance with the European Agreement concerning the Work of Crews of Vehicles Engaged in International Road Transport (AETR), drawn up in Geneva on 1 July 1970 (Journal of Laws of 2014, item 409), hereinafter referred to as AETR Agreement.

Important! A driver posted to Poland from a third country is obliged to possess the above-mentioned documents in the vehicle and to present them during roadside checks at the demand of persons authorised to conduct such checks.

A road transport operator from a third country posting a driver to Poland from a third country is obliged, after the period of posting, to send the below-mentioned documents immediately, no later than within 8 weeks from the day of receiving the State labour Inspection’s request:

copies of documents mentioned above;
documents concerning the driver’s remuneration with respect to the posting period;
an employment contract or a document equivalent to such a contract or other contract on the basis of which the driver posted to the territory of the Republic of Poland from a third country carries out road carriage for the benefit of that operator;
working time records of the driver;
proofs of payment of the remuneration.

Important! If, on the basis of an international agreement, a road transport operator from a third country posting a driver to Poland from a third country submits a posting declaration with the help of a public interface connected with the IMI system, on the website: www.postingdeclaration.eu, the following obligations are imposed on that road transport operator:

to ensure that during the posting the driver holds:
a copy of the posting declaration;
proofs confirming the provision of carriage by road, in particular in the form of consignment notes, a relevant permit required in international road transport or a driving form on the basis of which the carriage is undertaken;
tachograph records required in accordance with the European Agreement concerning the Work of Crews of Vehicles Engaged in International Road Transport (AETR), drawn up in Geneva on 1 July 1970 (Journal of Laws of 2014, item 409), hereinafter referred to as AETR Agreement.
to update the posting declaration in the public interface connected with the IMI system on a regular basis.

The aforesaid road transport operator is obliged, with the help of the public interface connected with the IMI system, after the posting period, to send the below-mentioned documents immediately, no later than within 8 weeks from the day of receiving the State Labour Inspection’s request:

copies of documents mentioned above;
documents concerning the driver’s remuneration with respect to the posting period;
an employment contract or a document equivalent to such a contract or other contract on the basis of which the driver posted to the territory of the Republic of Poland from a third country carries out road carriage for the benefit of that operator;
working time records of the driver;
proofs of payment of the remuneration.

However, that road transport operator is not obliged each time to issue a confirmation of posting of a driver to the territory of Poland from a third country before the commencement of carriage by road.

Where to get additional information?

The main source of information on the rights and duties related to posting of drivers is the Act on the Posting of Drivers in Road Transport and the contact point: biznes.gov.pl.

The authorities responsible for providing information on the national legislation and national practices applicable to posting of drivers to the territory of Poland are the State Labour Inspection and the Road Transport Inspectorate, each within its remit.

The person in the State Labour Inspection appointed to provide information pertaining to posting of drivers in road transport to the territory of Poland is:

Mr Dariusz Górski

Legality of Employment Department

Chief Labour Inspectorate

28/30, Barska St.

02-315 Warsaw

· phone: + 48 22 111 35 28

· fax: + 48 22 391 82 14

· e-mail: kancelaria@gip.pip.gov.pl

The person in the Road Transport Inspectorate appointed to provide information pertaining to posting of drivers in road transport to the territory of Poland is:

Mr Mariusz Kurczyński

Department of Inspection Supervision

Chief Inspectorate of Road Transport

Al. Jerozolimskie 94

00-807 Warsaw

· phone: +48 22 220 48 39

· fax: + 48 22 220 48 99

· e-mail: bni.sekretariat@gitd.gov.pl

The legal basis

Act of 28 July 2023 on the Posting of Drivers in Road Transport;
Act of 10 June 2016 on the Posting of Workers in the Framework of the Provision of Services;
Act of 12 December 2013 on Foreigners;
Act of 26 June 1974 Labour Code (Journal of Laws of 2023, item 1465);
Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020 laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector and amending Directive 2006/22/EC as regards enforcement requirements and Regulation (EU) No 1024/2012;
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;
Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (“the IMI Regulation”);
Regulation (EU) No 165/2014 of the European Parliament and of the Council of 4 February 2014 on tachographs in road transport, repealing Council Regulation (EEC) No 3821/85 on recording equipment in road transport and amending Regulation (EC) No 561/2006 of the European Parliament and of the Council on the harmonisation of certain social legislation relating to road transport (EU OJ L 60 of 28.02.2014, p. 1 and EU OJ L 249 of 31.07.2020, p. 1), referred to as “Regulation (EU) No 165/2014”.