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Published by Anna Zdrojewska |
Based on the information sent by Congress participants we are preparing a list of questions and difficult case studies that will be discussed by lawyers and subject matter experts from the Social Insurance Institution and National Labour Inspectorate on the second day of the Congress. Please find below the examples of questions that we have received from the participants:
- What is the stand of the Social Insurance Institution /ZUS/ on a recent judgment of the Supreme Court which contended that there was „an obligatory threshold of 25% of the domestic turnover”, arising from the regulations, below which the company loses its right to post workers?
- Does the performance of work in two countries require specific frequency or regularity over a span of 12 months or during the term of the contract?
- May the Branch Office of the Social Insurance Institution /ZUS/, when checking if there was a reason for issuing certificate A1 under Art. 13, require an applicant to submit language certificates and documents confirming travels between the countries in which work is performed? May the lack of those documents result in a negative decision?
- What is the limit of thoroughness in the documenting of future and past periods of work which should be satisfactory for the Branch Office of the Social Insurance Institution /ZUS/ in order to find that work was performed in two countries? Insured persons are frequently elderly and poorly educated. In most cases they do not have computers. Some Branch Offices demand from them detailed information concerning the course of different days of work performed over a span of months, whereas it is obvious that most of us, when requested the same, would have problems with remembering what we were doing and whom we met last week. It would be an exaggeration to state on that basis that work was not performed.
- Some Branch Offices of the National Insurance Institution /ZUS/ not only require the number of days on which the insured person carried out work in each of the countries but also actual dates and number of hours. Is it necessary to verify the number of days or the total number of hours of providing work on the territory of each of the countries in order to establish whether work was not of a marginal nature? If it were the number of hours provided in answer to that question, how could one establish and verify their number in case of a mandatory contract, especially in case of such specific work as taking care of an elderly person at his/her home? May defining only the number of days without indicating the number of hours result in a negative decision?
- An employee has a farm of an area of 5ha. During an unpaid leave – granted by a Polish employer between periods of work on the territory of Germany – he performs farm work and maintenance and repair works on that farm. All this time he pays insurance fees to the Agricultural Social Insurance Fund /KRUS/. His wife and co-owner of the farm pays insurance fees to the National Insurance Institution /ZUS/ because she works at school. Can we recognize work on one’s own farm as work in Poland for the purpose of establishing that an employee is a worker normally working in two countries? How can one make this work credible for verification by the Branch Office of the National Insurance Institution /ZUS/?
- Can we apply to the Branch Office of the National Insurance Institution /ZUS/ for establishing the legislation applicable to the insured person invoking two legal bases in the case when in the given period of insurance the conditions for both of them are satisfied or the real situation of the insured person – enabling the choice of one of them – has not been defined yet?
- Do Polish Labour Inspection Authorities, when controlling companies posting their employees abroad, intend to examine workers’ issues on the basis of the Polish Labour Code, Polish regulations concerning working time and minimum wage rates or will the regulations of the host country apply? How are the issues of worker’s claims related to overtime, annual leaves, etc. examined? The regulations of which state are applicable? As compared, for example, with Germany.
- May a Polish company, applying Polish law, which sends workers to Germany, include in employment contracts with workers a guarantee to pay the minimum rates used on the territory of Germany (Mindestlohn)? May it adopt German regulations to wages and workers’ regulations so that in case of any claims related to overtime, working time, etc. it is German regulations which are operative?
- Can we recognize on the basis of the recent judgment of the Court of Justice of the European Union in the case of Elektrobudowa that Polish per diems can be included in the minimum wage rate in accordance with Directive 96/71/EC? If we can, how can this be reconciled with a completely different stand presented by ZOLLAMT on its website?
The answers to the questions will be given during lectures and difficult case studies, held on the second day of the Congress.