What does the new law on the posting of drivers cover?
On 19 August 2023, the Law on the Posting of Drivers in Road Transport of 28 July 2023 entered into force. The Act sets out the rules for the posting of drivers in road transport within the territory of Poland. It also regulates, inter alia, the control of compliance with the provisions on the posting of drivers in road transport within the territory of the Republic and the fulfilment of information obligations related to the posting of drivers. Also included in the Act are regulations concerning the procedure related to the realisation or submission of requests for notification of a decision to impose an administrative fine or an administrative penalty on a road transport carrier posting a driver to and from the territory of the Republic of Poland. Compliance with the above-mentioned regulations will be subject to control by ITD (Inspectorate of Road Transport) and Labour Inspectors, checking the correctness of wages.
Failure to declare a posted driver may incur a fine of PLN 500 for the driver and PLN 6 000 for the carrier. On the other hand, errors caused by the absence of all information or concerning data are threatened with a fine of PLN 4,000, more on sanctions for failing to comply with obligations below.
In addition, the law introduced the obligation to report, as of January 2025, all transports that are performed on the basis of Polish permits to the SENT (System for Electronic Transport Supervision) system.
How will drivers in international transport be billed?
One of the most important changes introduced by the Posting of Drivers Act is the setting of a new and fixed 'virtual per diem' rate for all countries. It represents €60 - this amount reduces the basis for Social Security contributions and reduces the advance payment of income tax.
Raising the 'virtual per diem' (a working term defined solely for calculation purposes that has become accepted in the transport community) to €60 compared to the rates previously in force is beneficial for transport companies. In principle, this could mean a reduction in staff costs.
The legal regulation of the 'virtual per diem' - Article 26g(1) of the Act on the Posting of Drivers - stipulates that in the case of drivers performing official tasks in the framework of international road transport whose monthly income is higher than the average wage, the income constituting the basis for the assessment of social security contributions does not include an amount equivalent to EUR 60 for each day of stay abroad, with the proviso that the monthly income of such persons constituting the basis for the assessment of contributions may not be lower than the amount of the average wage.
As far as the specific amounts saved by transport companies are concerned, they will range between £50 and £500 per month. The money saved will depend primarily on the amount of remuneration agreed with the driver, either net or gross, and the rate at which the transport company currently pays contributions.
The biggest reduction in employee costs can be expected by transport companies charging premiums on an amount higher than the average salary for a driver (amounting to PLN 6,935 in 2023).
Increase in road tolls in European countries
The scale of toll increases will be significant. This is due to the implementation of EU Directive 2022/362, the so-called Eurovignette Directive. Its provisions change the toll setting methods and do not allow temporary permits. Previously, vignettes (this is a road toll for the use of toll roads and motorways) were without a limit on kilometres travelled, which may have encouraged hauliers to make as many trips as possible and consequently contributed to increased emissions. The European Union has therefore decided to introduce a regulation that makes the toll rate primarily dependent on the number of kilometres driven.
Toll increases affect all European hauliers.
New obligations for carriers
One of the most important obligations of an employer posting a driver to Poland is to notify the driver of the posting. This must take place at the latest when the posting starts. A public interface connected to the IMI system (Internal Market Information System) is used for this purpose. The posted driver should carry the relevant documentation with him. It is the responsibility of the employer to prepare it and entrust it to the driver.
When the haulier posting the driver is an entrepreneur from a third country (not an EU member), he/she is obliged to report the posting to the National Labour Inspectorate. This is most conveniently done using an electronic form. This must be done at the latest when the posting starts.
To whom do the provisions of the Posting Act not apply?
The provisions of the Act shall not apply to drivers posted in the territory of the Republic of Poland:
- to work in a branch or undertaking belonging to the group of undertakings to which the employer posting the driver in the territory of the Republic of Poland belongs;
- by an entity that is either a temporary work agency or a staff leasing agency that has referred a driver to a user employer;
- from the Swiss Confederation, pending the adoption, by means of an agreement with the European Union, of a commitment to implement the provisions of European Parliament and Council Directive (EU) 2020/1057 of 15 July 2020 into the national legal order.
In addition, an exemption for the posting of drivers from the territory of the Republic of Poland is highlighted. This applies to posted employees:
- to work in a branch or undertaking belonging to a group of undertakings to which the employer posting the driver from Poland belongs;
- by an entity that is a temporary employment agency;
- on the territory of the Swiss Confederation, pending the adoption, by means of an agreement with the European Union, of an obligation to implement the provisions of Directive 2020/1057 into the national legal order.
What will be the consequences of failing to comply with the obligations contained in the Act?
A number of sanctions are envisaged for failure to comply with the obligations provided for in the Act, such as:
- a fine of PLN 500 - if a copy of the posting declaration (for the driver) is not shown during a roadside check;
- a fine of PLN 3,000 for an entity that knowingly knew, or should have known, that its outsourced road transport services violate the regulations on the posting of drivers;
- a fine of between PLN 4,000 and PLN 7,000 for each infringement (awarded to the road haulier for breach of the obligations or conditions set out in the Act).
Summary
The introduced regulations on posted drivers introduce very significant changes in the field of road transport.
The new legal regulations presented in this article may have different effects on entrepreneurs - for some they will be more important, for others less. Nevertheless, every professional transport operator must be aware of these changes and familiarise themselves with them.
Amongst other things, our law firm provides services to transport companies and supports entrepreneurs in adapting their business activities to the new legal regulations - to this end, we invite you to contact us by phone or e-mail!
