Poland is the undisputed leader in terms of provision of cross-border services. According to European Commission data presented in the proposal for the Implementation Directive, there are approximately 1 million posted workers in the European Union, 23% of whom are Poles. In further placessecond and third, with a much lower number, i.e. around 200,000 employees locatedą France and Germany. The phenomenon of posting is important for the Polish economy. It constitutes one of its competitive advantages on the internal market of the European Union. As a result, employers are increasingly looking for ways to send their employees to other EU countries at low cost. We observe that training contracts are proving to be quite common as a way to delegate more easily. But is this actually an effective way to free yourself from all the consequences of sending your employees abroad?
We respond below.
Read also: Posting of workers abroad in 2022 and the situation of Ukrainians
What does the process of posting an employee look like?
It is worth explaining briefly at the outset what the posting of workers is. Posting a worker to another country within the European Union is nothing more than provision by service provider in another Member State. In this case, the service provider, in order to fulfil the service, must be able to send its employee to another country to perform the assignment. The process of posting workers is based on the so-called freedom to provide intra-Community services of the European Union.
Training contracts and posting - EU regulations
The process of posting of workers is regulated by European Union legislation and more specifically by Directives: 96/71/EC, 2014/67/EU and 2018/957. These provisions aim to ensure the protection of workers during the posting - in connection with the freedom to provide cross-border services. The establishment of mandatory rules, which (in principle) should be respected, are intended to ensure adequate working conditions and the protection of the health and safety of posted workers.
We have written more extensively about delegation on several occasions on our blog. Both in the context of delegation itself and the delegation of specific professional groups. If you are interested in this topic, read also: Posting of carers from third countries to Germany
Definition of posted worker
In addition to indicating what the process of posting a worker is, it is also worth clarifying the concept of 'posted worker'. A posted worker can be defined as a person who, for a limited period of time, performs his or her work on the territory of a Member State other than the one in which he or she normally works. Obviously - the task of a posted worker is to perform work for and under the control of his or her existing employer.
Read also: Posting of foreigners to work abroad
Posting of an employee and student placement agreement
Turning to the clue of our question, it would be appropriate to reflect and pose the following question: Is there a legal basis for posting an employee performing work under a graduate traineeship agreement?
Unfortunately, in this case the answer is no.
Indeed, according to European Union Directive 96/71/EC, it is possible to post workers who, during the period of posting, remainwith the employer in an employment relationship or orders.
In contrast, a graduate traineeship contract cannot be described as an employment contract or a contract of mandate. In such a case, the posting of an apprentice, and in particular an employee, on the basis of a graduate traineeship contract cannot be regarded as a basis for the proper posting of an employee.
The purpose and intent of the Graduate Internship Agreement is:
- the acquisition of experience by the employee and
- his acquisition of the practical skills necessary for his job.
Thus, the posting of a person employed as an apprentice under such a contract is not possible.
Training contracts and posting - can they be a way to circumvent the rules? The most common mistakes in the posting of workers
It should be noted that it is a particularly incorrect (and most common) practice to use a graduate traineeship agreement as a legal basis for the employment of an employee by companies (as well as temporary employment agencies) and providing services with the help of such "apprentices" at their business partners or companies.
This is because employers assume that by sending an 'apprentice' for training abroad, they will thus avoid many unpleasant formalities. For example, the need to comply with a strict regime of mandatory rules in the country of work. The directive in question imposes precisely such an obligation on those posting their employees.
However, nothing could be further from the truth! Let us remember that the posting of workers is subject to strict controls on compliance with the host country's regulations - whether on correct hiring, minimum wages or holidays - and this is done both through the authorities in the host country and the country of posting. Employers who send their employees abroad to work under a training contract expose themselves to liability for offences against labour rights - and in both countries. We should add that, currently, the State Labour Inspectorate can request information from companies posting workers from Poland to work in other EU countries - in connection with suspected violations of the host country's regulations.
It is circumventing the law to sign training agreements with employees when there is no training process at all. At the same time, it is exposing oneself to fines running into thousands of dollars, as well as exposing the employees themselves to liability.
If you are interested in optimising your workforce, contact us. We will support, we will think, we will listen.
