How to employ a foreigner in a transport company?
The employment of foreigners is fully permitted under the Polish legal system, although it requires the fulfilment of several different conditions for its validity, including, first and foremost, the obtaining of appropriate work permits and the submission of relevant documentation to the competent administrative authorities. Is the employment of a foreigner in a transport company also subject to such rigours?
Driver – foreigner
Employing foreigners by Polish transport companies is not something new – many entrepreneurs use this solution mainly for financial reasons. Foreigners usually work for lower wages than Polish workers. This is also due to a shortage of domestic drivers – this type of work is very demanding and not as popular as it once was. No wonder Polish transport companies are willing to use drivers from other countries.
Polish law does not impose any limitations on the possibility of a foreigner taking up employment as a driver (national or international). However, it is necessary for the foreigner to legally perform his/her duties (it is necessary, among other things, to have a permanent or temporary residence permit in Poland).
Employment of EU citizens
If a transport company wants to hire a driver from a member state of the European Union (e.g. Italian, German or French), it does not have to apply any additional legal regulations. It is sufficient to apply the same regulations as for a Polish driver. Of course, the parties concluding the employment contract (or any other civil-law contract) may choose the applicable law to apply to the given obligation. In other words, if the driver is to be a foreigner from the EU, it may be decided that his native law (e.g. German or French law) will apply to him.
The basic rule when choosing the applicable law for contractual obligations is therefore the principle of freedom of choice set out in Article 3 of the Rome I Regulation, according to which the contract is governed by the law chosen by the parties. However, in the case of contracts of employment, there is a restriction that the choice of law may not have the effect of depriving the employee of the protection afforded to him by provisions which cannot be derogated from by agreement by the law which, in the absence of choice, would have been applicable under Article 8 of the Regulation. A contractual clause according to which, for example: “the law applicable to this contract is Polish law” means that Polish law applies to the employment contract, which, however, is not absolute. If in the absence of a choice of law, the applicable law would be German law, it would apply to the extent that the mandatory rules of German law so provide.
If the employment contract does not indicate which law is applicable, the conflict-of-law rules set out in Article 8 of the Rome I Regulation apply. According to the basic principle expressed in Article 8(2) of this Regulation, the law applicable to an individual employment contract is the law of the country in which or, failing that, from which the employee habitually carries out his work in the performance of the contract. However, according to the rules, temporary employment in another country is not considered a change of country where the work is normally carried out.
Employment of non-EU citizens
More formalities arise when a transport company intends to employ non-EU foreigners (for example, Ukrainians, who are quite a significant professional group in Poland). In this case, signing the right contract (employment or civil law) and choosing the right law to regulate the obligation. This is because a foreigner must go through an appropriate administrative procedure, which will allow him to legally exercise the profession of a driver in a Polish company.
The employment of a non-EU foreigner is based on the provisions of the Act of 12 December 2013 on foreigners. According to its provisions, a foreigner must obtain a temporary residence permit – it can be granted for up to 3 years. The permit is issued by an official of the foreigners’ department of the voivodeship office for the foreigner’s place of residence. When visiting the office, the foreigner’s fingerprints are taken, which are then placed on the residence card. The application should be accompanied by a valid travel document, current photos and documents confirming the data in the application.
The foreigner must also prove that they have an assured place of residence in Poland (e.g. in the form of a housing lease agreement). Also important is a document confirming that a given person is covered by public health insurance or that the costs of treatment are covered by a private insurer (as of the date of taking up employment, a foreigner will be covered by public insurance). A prospective employee must also present a document confirming having a source of stable income and an employment contract or a civil law contract. The procedure for issuing a permit takes about 1-2 months.
However, obtaining the relevant permit and signing the appropriate contract is not the only obligation of the transport company. If an entrepreneur wishes to employ a driver who is not a European Union citizen, he must remember to meet the requirements regulated by the Road Transport Act.
To apply for a work permit, the driver must submit documents confirming his/her eligibility to work as a driver – a copy of the driving licence, a statement on meeting the requirements to work as a driver and the employer’s road transport licence. It should be remembered that the driver must undergo appropriate training, have a Polish medical certificate, psychological certificate and a statement of no criminal record.
A foreigner employed as a driver for the carriage of goods must also have a driver’s certificate, issued at the request of the employer by the Chief Inspectorate of Road Transport. This certificate is a confirmation that the person is legally employed in a third country. The application for the certificate requires a copy of the Community licence, a certificate of employment, a photocopy of an identity document, social insurance and a certificate that the driver meets the relevant requirements under Article 39a of the Road Transport Law.
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