In a previous article: Posting of carers from third countries to Germany, I wrote about the employer's obligations related to this practice. The article deals, inter alia, with the legalisation of residence and work in that country. In this article, I will address the obligations that fall on those who employ and subsequently post workers in terms of:
- social security and
- registration obligation.
Posting of carers from third countries - social security for posted persons
If a Polish company posts an employee to provide services in Germany, the employees are in principle still subject to social insurance in Poland. Contributions still have to be paid from such an employee to the Social Insurance Institution. Of course, in order to avoid problems related to the issuance of certificates by the Social Insurance Institution (ZUS), confirming the insurance of employees, it is possible to insure them immediately with a German insurer. However, the costs of such insurance, for example with the Krankenkasse AOK, are much higher. Moreover, if you have to apply for further residence permits for foreigners in Poland, it will be quite difficult to explain to the clerk that the foreigner's place of work is Poland, if the employer has decided to insure the employee in Germany.
But let us return to the Polish backyard.
I have already mentioned that the rule is to be subject to social security in the country of work. Posting is an exception to this rule. This means that when employees are posted to work within the EU, as a general rule employees continue to be insured in the posting country.
Preconditions for being insured in Poland
At this point, reference should be made to Articles 12 and 13 of Regulation (EC) No 883/2004, which regulates the social security of employees working in different EU countries. Its content can be found here: https://eur-lex.europa.eu/legal-content/PL/TXT/?uri=CELEX%3A02004R0883-20140101.
According to the content of this regulation, being subject to social insurance in Poland is subject to the following conditions:
- the period of posting of an employee to Germany may not exceed 24 months. According to the amended EU Posting of Workers Regulation 96/71/EC, this period has now been reduced to a maximum of 18 months, although the cited regulation on the coordination of security is still 24 months; the period is still 24 months. 18 months, although 24 months are still stipulated in the above-mentioned coordination regulation;
- an employee is not seconded to replace another seconded employee.
This follows from Article 12 of the aforementioned Regulation.
In contrast, Article 13 provides that a person who normally pursues an activity as an employed person in two or more Member States is subject to:
- the legislation of the Member State of residence if he/she pursues a substantial part of his/her activity in that Member State, or
- to the legislation of the Member State in which the registered office or place of business of the undertaking or employer is situated if he/she is employed by one undertaking or employer and does not pursue a substantial part of his/her activity in the Member State of residence.
The competent branch of the Social Insurance Institution (ZUS) for the employer in question confirms that the employee is subject to Polish social insurance in the form of a certificate. the so-called A1 certificate. An employee who is sent to Germany should always carry the current certificate indicated above. This certificate is a confirmation that the employer pays social insurance contributions for the employee in Poland. By presenting the A1 certificate, the employee indicates that the place of work in Germany is only temporary. It is advisable to show the A1 certificate at all inspections.
Basics of delegation
Referring to an inappropriate posting basis when applying for a certificate from the Social Insurance Institution may result in a refusal to issue this very important document. When applying for the certificate, therefore, attention should be paid to the very subtle differences in the scope of the above-mentioned Articles 12 and 13 of EC Regulation 883/2004.
According to Article 12, the posting employer should carry out a significant part of its activities in Poland (25 per cent of turnover, 25 per cent of contracts are assumed), while Article 13 emphasises the employer's seat.
If you do not carry out a significant part of your activity in Poland, it is recommended that you use Article 13 of EU Regulation No. 883/2004 when applying for the A1 certificate.
Residence in Poland (centre of vital interests)
Third-country nationals seeking to obtain an A1 certificate must be legally resident in a Member State.
In view of the above, a third-country national is required to attach US-54.0 to the application for an A1 certificate. Namely, information on the legality of the third-country national's residence.
A frequent requirement imposed by the Social Security Administration is the need to obtain a certificate of tax residence of the foreigner from the Tax Office. This requirement is not stipulated by any legislation. However, according to ZUS, it confirms the foreigner's residence on the territory of Poland.
When applying for an A1 document, the start and end dates of the posting in another EU country must be provided. The maximum period for which a worker can currently be posted and insured is currently 12 months. This period can be extended to 18 months in specific cases.
Insurance for new employees
The posting of employees and contractors also applies to those employed for posting purposes only. However, it is a condition that they have worked for at least one month in the employer's country of establishment. This does not mean that an employee employed for the purpose of posting must have been insured for one month with the employer. If he or she has previously worked for another employer and there was no break between one employment and the other, the new employer can send him or her to work abroad straight away.
The condition of at least one month's insurance will also be met if the employee takes:
- payment for incapacity for work
- sick pay
- rehabilitation benefit
- maternity allowance
- carer's allowance
- is an unemployed person registered at an employment office
- is covered by health insurance
In addition, one must not forget the need to make EHIC cards. It is a free card that allows access to essential state healthcare services.
Posting of carers from third countries - registration obligation
When an employee will be on secondment for more than three months, it is necessary to remember to notify the registration office.
Furthermore, if an employee changes his or her place of residence, notification must be made to the registration office with jurisdiction over the place of residence within two weeks of moving in. Violation of this obligation constitutes an offence and will result in a fine.
Confirmation of registration in Germany is the so-called Meldebescheiningung.
When registering, the landlord is obliged to cooperate with the German authorities. To this end, he or she should confirm to the person subject to the registration obligation, in writing or electronically, to the registration authority the facts indicated by the obliged person.
In order to fulfil the registration obligation, the following documents must be collected:
- identity card and passport of the person to be registered
- confirmation of accommodation
- lease agreement or, if applicable, purchase agreement
Many cities offer a downloadable registration form, which can be filled out at home, printed out and then brought to the appointment. As seconded employees are in the homes of their residents in different locations, when registering, you should check on the website of the specific Einwohnermeldeamt whether the office in question has its own form in which the relevant registration data must be included.
In the next part of the article, I will address in detail the further obligations of the employer in relation to posted employees in Germany.
