It’s been more than 2 weeks since one of the biggest amendments to the labor law came into force related to the implementation of the so-called work-life balance directive, i.e. the Directive of the European Parliament and of the Council (EU) of June 20, 2019 on work-life balance for parents and caregivers and repealing Council Directive 2010/18/EU, which has been the subject of many of our previous blog posts. This time we will take a look at the changes covering issues relating to the employment contract between employer and employee.
As of April 26, 2023, the work-life balance directive, which aims to increase employees’ work-life balance, is in effect. Although the amendment to the Labor Code, bringing the regulations in line with the EU directive, contains a number of positive changes for parents, it also involves some potential negative consequences that need to be noted.
Remote work, about which we have been writing so much on our blog lately, although it went into effect more than a week ago, is still quite controversial. In addition to the obligation to prepare appropriate implementation documentation, employers are mainly wondering how to determine a lump sum for remote work.
On 23 March 2023, the Sejm received a government bill on amending the Act on spatial planning and development and certain other acts (print no. 3097; hereinafter: the Amendment). The proposed legislation is controversial as it will affect the investment process in renewable energy source (RES) installations.
In this article, we present the most significant changes that the proposed legislation brings.
As we have already mentioned many times on our blog, the beginning of 2023 is marked by a real revolution in labour law due to, inter alia, the introduction of the possibility of remote working to the Labour Code and the obligation of Poland, as a Member State of the European Union, to implement the so-called work-life balance directive, to which we devoted one of our last blog entries. This time, we analyse what changes for employees-parents and the employers employing them are introduced by the amendment, which will already come into force on 26 April 2023.
There is just one day left until the remote work regulations come into effect. The amended Labour Code repeals the previous possibility of remote work under the so-called COVID-19 law, which means that employers on the day the new regulations take effect – that is, already on April 7 – should implement appropriate documentation of remote work in their organization.
The year 2023 is a time of fundamental changes in Polish employment law, which we systematically analyse and comment on in our blog. 23 March 2023. President signed a law amending the Labour Code in connection with the obligation to implement Directive 2019/1158 of the European Parliament and of the EU Council of 20 June 22019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU, conventionally referred to as the “work-life balance directive”. The amended regulations will take effect within the next month.
The amendment to the Labour Code, which we have already described in our blog, introduced an extremely important way of working, especially popular during the COVID-19 pandemic, which is remote work. The main advantage of remote work is the possibility of performing it outside the employer’s premises, practically from anywhere in the world where the employee can perform his or her duties and obligations towards the employer. But can you work remotely for a Polish employer while staying abroad?
Remote work in the amended Labour Code
According to the newly added Article 6718 of the Labour Code, work may be performed:
- entirely or
- at a location specified by the employee and
- agreed upon each time with the employer, including at the employee’s place of residence,
- in particular, using means of direct communication at a distance.
It is therefore important for both parties to the employment relationship to agree whether the work performed by the employee can be performed remotely and where the employee will perform the work.
In which document should the place of remote work be established?
The amendment provides several possibilities for introducing regulations on the place of remote work, including:
- a remote work order;
- an individual agreement between the employer and the employee;
- a remote work regulations;
- an agreement with a trade union organization.
In each of the above-mentioned documents, the parties to the employment relationship may specify how they will regulate the employee’s remote work.
Can the place of remote work be located outside the borders of Poland?
Looking at the statutory definition of remote work, it is possible to perform it outside the borders of Poland.
However, this solution may raise many more questions and doubts than it seems at first glance.
First of all, it should be kept in mind:
- in which country the employee will work remotely – due to tax regulations – the employee’s situation is simpler in the case of remote work in countries with which Poland has signed agreements on the avoidance of double taxation (such as Germany, France, Italy, or Sweden) – then the provisions of the relevant agreement apply, which regulate the nature of tax obligations due to being a tax resident of one or the other country;
- issues related to the insurance of an employee working remotely outside the borders of Poland – here, too, the choice of the country in which the employee decides to work should be carefully considered; this situation can be extremely important, for example, if there is an accident at work.
The situation will be problematic and raise doubts if the employee works remotely from a country with which Poland has not signed an agreement on the avoidance of double taxation (e.g., Colombia), because there is a risk of double taxation of income, so depending on the choice of the country in which the employee intends to work remotely, the provisions of the relevant country should also be taken into account.
What else should be considered?
It is also worth noting:
- if remote work is carried out on the employer’s directive, the employer has the right to revoke the remote work directive with at least two days’ notice – then the employee must return to work at the employer’s premises;
- Prohibition of discrimination due to performing remote work, as well as due to refusal to perform such work – allowing an employee to work remotely abroad, it should be noted that they must be treated like employees who do not work remotely, so as not to create potential liability for the employer to pay compensation.
To summarize the issue of the possibility of remote work by an employee abroad, we recommend a careful analysis of the specific situation of each employee, taking into account the above-mentioned legal and tax factors.
The decision to allow remote work by an employee, especially for a longer period of time, should be properly considered and planned by the employer. The possibility of taking a so-called “workation” may sound very tempting for employees, but they should also remember about their duties and obligations towards the employer resulting from remote work.
Paula Staszak-Urbańska, LL.M., Trainee attorney-at-law (PL)
Mateusz Turowski, Trainee attorney-at-law (PL)
At its session on 9 March 2023 the Parliament of the Republic of Poland adopted the long-awaited amendment to the Act of 20 May 2016 on investments in wind power plants (Journal of Laws 2021, item 724; hereinafter: the Distance Law, Act H10). On 14 March 2023 the Polish President signed the aforementioned law. Work on the amendment has been ongoing since the beginning of 2020, and we have informed you about its progress in a number of articles (e.g. Draft amendment to the Act 10H approved by the government, Work on the amendment of the Distance Law is still ongoing, Amendment of the Distance Law as an opportunity for green energy)
In this article we are discussing the final form of the adopted amendments.
Occasional remote work, an institution provided for by an amendment to the Labor Code, entitling employees to work remotely for 24 days per calendar year, is already very popular in practice, especially among employees. What do employers think about it?