Polish companies stand out on the European market for their favourable prices and good quality of services. Consequently, Polish employers are increasingly choosing to employ people from outside the European Union. The high competitiveness of Polish companies vis-à-vis German entrepreneurs makes them accept orders from German contractors, using non-EU employees. They very often come from third countries - from Ukraine or Belarus. Companies in the care sector, among others, are leading in sending their employees to work abroad. Although this issue is not controversial, posting of carers from third countries to Germany requires a number of measures on the part of the entrepreneur. What is therefore worth knowing about posting foreigners in the care sector from non-EU countries to Germany? What details need to be taken into account when posting of carers in the families of persons in need of care?
Work in Germany for posted workers only
To begin with, it should be pointed out that although there are a number of models for carrying out care activities, the posting model is the only legal way of using employees or contractors from Ukraine and Belarus on German territory. This group does not include EU residents who are allowed to work in Germany for a period of three months per year. Citizens of the above-mentioned countries do not currently have access to the German labour market (not including specialists and people after graduation). Therefore, employing them in Polish companies and subsequently posting them to work in Germany is a way out. Provided that the prerequisites for posting, which will be indicated below, are met.
Delegation third-country carers - temporariness requirement
According to 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, posting is characterised by temporality.
The condition for being subject to the provisions of the Directive is the existence of an employment relationship between the employee and the seconding company. It is also possible to second a person providing work under a contract of assignment. The employee or contractor should normally work in the country of posting. Furthermore, the sending employer should normally be established in the Member State concerned. In addition, there must be a direct relationship between the employer and the posted worker during the period of posting. In order to examine whether this exists, issues such as the subject of the payment of wages and the issuing of work orders, among others, must be taken into account.
Legalisation of residence and work in Germany for carers from Belarus and Ukraine
A foreigner who can be posted to work in Germany should:
- reside legally in Poland on the basis of a work visa, residence permit or biometric passport;
- be legally employed in Poland.
However, it should be borne in mind that a work permit obtained by a foreigner in Poland only confers the right to work on the territory of the Republic of Poland. An employee in possession of such a permit will not be able to provide work on the territory of the German state without completing further formalities. In such a case, he is obliged to obtain a special type of visa - the Vander Elst - which is intended for third-country nationals to provide services in Germany on a temporary basis.
Delegation carers from third countries - Visa van der Elst
A third-country national should apply in person for a Vander Elst visa. This visa can be obtained from the German embassy in Warsaw upon fulfilment of the following conditions:
- the third-country national should have a residence and work permit in Poland. Thus, he or she should be insured and have social security contributions paid;
- such a person must have an employment contract with a Polish employer;
- The Polish employer should have a contract with the German recipient of the service;
- the provision of work by a third-country national in Germany will not be the sole purpose of that person's employment by a Polish employer.
To summarise the above, a third-country national employee must first and foremost be permanently employed by a Polish employer. The mere performance of an assignment in Germany should be occasional. On the other hand, the main place of work provision should be Poland.
In order to obtain a visa, which is issued in a simplified procedure (its issue does not require the approval of the Federal Employment Agency - Bundesgentur fur Arbeit), an appointment must first be made in the online registration system at the German Embassy in Warsaw.
Delegation third-country carers - documents required
Two applications in German, hand-signed, must be accompanied by a number of documents, including:
- up-to-date biometric photographs,
- passport,
- proof of residence and work permit,
- a contract between the company providing the service and a third company in an EU country,
- a certificate from the company providing the service,
- proof of sickness insurance (A1 document and EHIC card).
In addition to submitting a set of documents, a fee of €75 must also be paid.
A Vander-Elst visa is obtained for the period of work. However, this period may not be longer than the period of the foreigner's legal residence in Poland and, in addition, no longer than 12 months. As this is currently the maximum period of posting, which can exceptionally be extended to 18 months, this visa is issued in the passport. The content of the visa indicates the exact address where the delegated employee may work.
It is worth emphasising at this point that with regard to companies employing caregivers or domestic helpers, if the posting party does not operate on the territory of Poland, it is deemed to be in fact acting as a temporary work agency. Then this activity is a regulated activity and it is necessary to have an entry in the relevant register kept by the voivod. Its absence is punishable by a fine and other sanctions. Furthermore, in view of the ban on Ukrainian or Belarusian workers working in Germany, even those employed by employment agencies will not be granted a 'Vander Elst' visa.
In 2020, only an insignificant number of carers and domestic helpers from third countries were issued with a simplified Vander Elst visa. Most people were obliged to apply for a German work visa through consulates in their countries of origin. This procedure is time-consuming and complicated. The Embassy in Warsaw takes the position that the sending of caregivers to work in Germany in private homes of individuals by a company that is not an employment agency indicates the sham nature of such a model and the company is treated as an agency despite the fact that it is not an agency.
Delegation carers from third countries - obligations of the Polish employer
When intending to second a foreigner to Germany, the first thing to do is to ensure the legality of the stay and work in Germany. However, these are not all the obligations that fall on a Polish employer. Among other things, an employer who seconded a third-country caregiver to Germany has an obligation:
- respect of the German-Polish double taxation agreement;
- provide the posted worker with at least the minimum wage;
- guarantee the employee a holiday, to the extent applicable in Germany;
- comply with German legislation on working time.
Double taxation treaty
Posted employees are subject to tax liability on all their income (revenue) in Poland when:
- do not have a permanent establishment in the country of secondment;
- it is in Poland that they have their centre of vital interests.
The location of the source of income does not affect the place of tax liability.
Minimum wage
In any case, however, Polish employers posting workers to Germany must comply with the provisions on minimum wages or holidays. The German authorities carefully verify that Polish employers pay posted employees the minimum wage applicable in Germany. Failure to comply with these obligations can result in heavy fines.
Holidays
In addition, the employee must also be guaranteed a holiday at the rate applicable in Germany. In most types of industries, this will not be a problem for the Polish employer. As the paid holiday in Germany is 4 weeks - largely the same as in Poland.
Working time
German working time regulations also apply to the posted employee. Across our western border, the daily working time of an employee should not exceed 8 hours. It is permissible to extend this to 10 hours per day if this average 8-hour standard is not exceeded within six calendar months or within 24 weeks. In Germany, Saturday is a normal working day. Therefore, it is possible to work up to 60 hours per week, as long as the employee's average working time does not exceed 8 hours per day during the indicated period.
No obligation registration at the Zollamt, but on one condition
In Germany, there are tariff agreements whose provisions are binding on the employer. Firstly, it is important to check whether the agreements apply to the industry in which you operate. In relation to the care industry, tariff agreements apply. However, these agreements do not apply if the share of care activities in the overall care activities does not exceed 50%. This is why it is so important to monitor and describe the activities carried out by caregivers in the homes of their clients. The non-compliance with tariff agreements entails, among other things, that employees/contractors do not have to be declared to German customs. It is, in principle, an obligation for any employer subject to German sectoral regulations.
The absence of an obligation to report employees to the Zollamt results in no other obligations for the employer. These include, for example, the need to identify a contact person or to keep detailed employee documents in German for inspection purposes.
The above-mentioned obligations do not have to be complied with when caregivers are posted to the homes of residents in Germany. The only condition is that the carer's activities as indicated in the care professional regulations (Vierte Pflegearbeitsbedingungenverordnung - 4. PflegeArbbV) do not exceed 50% hours of the carer's work.
In the next part of the article, I will refer in detail to further obligations in relation to seconded employees. Namely, caregivers of persons requiring assistance in Germany. In this, I will comprehensively describe the procedure related to social security obligations.
