Pursuant to the COVID- 19 Act, the employer may request Guaranteed Employment Benefit Fund subsidizing of salaries paid to employees with reduced work time (art. 15 g 8 COVID 19 Act). The work time reduction may also entail the reduction of employee’s salary. Both those reductions constitute a change in the work and pay conditions. There are doubts about the admissibility of the work time reduction and the salary reduction as far as employees being foreigners are concerned in the context of the employer’s filing for a salary subsidy on the basis of art. 15 g COVID-19 Act.

In majority of cases the employment of a foreigner involves the need to obtain a relevant permission e.g. work permit, stay and work permit or employer’s declaration regarding entrusting work for performance to a foreigner and having that declaration entered in a relevant register. The work permit (respectively: work permit, stay and work permit, declaration regarding entrusting work for performance to a foreigner) sets among others the foreigner’s minimum monthly remuneration received at a given position, the work time or the number of hours of work during a week or month. As a consequence, covering a foreigner-employee with a reduced work time system and the pay reduction may exceed the scope of the work permit. The new COVID-19 Act – called Shield 3.0 – stipulates that a foreigner may perform work on those changed conditions without need to change the permit, to obtain a new permit or to have the new declaration regarding entrusting performance of work to a foreigner entered in the register of declarations.

The same principle will apply where the employer exercises the rights provided in art. 15zf 1 of the COVID-19 Act regarding the limiting of an uninterrupted period of rest, the entering into agreements introducing equivalent working time or the entering into agreements applying less favourable conditions of employment than those stipulated in the contract for employment.

Moreover, the employers active in the area of e.g. ensuring the functioning of critical infrastructure systems or objects, and applying special solutions provided in art. 15x 1 of the COVID-19 Act involving a possibility to change the system or the employees’ work time schedule, to assign work overtime, to be on continuous stand-by to perform work and to exercise the right to rest at a place designated by the employer – will have a possibility to change the work and pay conditions of employees being foreigners without need to change the permit, to obtain a new permit or to have a new declaration regarding entrusting work for performance to a foreigner entered in the register of declarations.

Additionally, Shield 3.0 provides for that the entity entrusting the work for performance to employees being foreigners may entrust them for periods that in aggregate do not exceed 30 days in a calendar year the performance of work of another nature or at another position than those specified in the work permit, provided that the other terms and conditions specified in the work permit have been satisfied. In such a case it the work permit specifying new circumstances is not required. 

 

Contact

Agnieszka Nowacka

senior associate, radca prawny

a.nowacka@gessel.pl