On 1st of July 2023 the Polish Social Insurance Institution joined the Framework Agreement on the application of Article 16(1) of Regulation (EC) No 883/2004 in cases of ordinary cross-border telework.
The main change from the perspective of the practice of labour law in Poland is the possibility to determine the legislation applicable to the country of the employer’s office in the case of remote work abroad.
This means that an employee who performs remote work in another EU country (as long as such country is also a party to the agreement) and is employed by a Polish employer may be subject to the legislation of the employer’s state of residence, and not – as before – to the legislation of the place of work.
What does cross-border telework mean?
Cross-border teleworking is understood by the Social Insurance Institution as remote work (teleworking) carried out from the country of residence while maintaining a digital connection to the place of work with an employer based in a country other than the country of residence.
Who does the agreement apply to?
The agreement applies to employees working in different Member States who are employed by an employer or employers in one Member State other than their country of residence and who carry out part of their work in their country of residence in the form of cross-border teleworking for at least 25% but not more than 50% of their total working time.
The agreement does not apply to:
- persons who carry out an activity other than cross-border telework in the country of residence (if, for example, they work stationary there)
- persons who carry out an activity in a country other than the country of residence and the country of permanent establishment
- persons who carry out a self-employed “freelancer” activity.
In order for eligible persons to be subject to the legislation of the employer’s country of residence, they should submit an application US-36 to the Social Insurance Institution.
Such an application may be submitted by the employee or the Polish employer, and the application may be submitted via the ZUS PUE portal or in paper form.
The competent branch to process the application in question is the ZUS branch in Kielce. Once the US-36 application has been approved, an A1 certificate should be applied for.
Persons who perform cross-border telework in Poland for foreign employers, as well as foreign employers, may submit an application to the social security institution in the country of the employer’s registered office, provided that the specified country is a party to the agreement.
Not every EU country is a party to the agreement.
Currently, 18 countries have signed the agreement, including the Czech Republic, Spain, Portugal, and Germany.
Source: The article was created in collaboration with our cooperation partner – sdzlegal Schindhelm Law Office
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CUSTOMER RELATIONSHIPS DEPARTMENT
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