NEWSLETTER
No. 6, May 2021
Malinowski & Associates. Legal Advisors. Partnership
Table of contents
Reducing the gender pay gap – another unenforceable obligation for employers, or a worldview battle?
Once self-employed, now employees – the period of work “on yourself” counted as seniority.
VAT – new special settlement procedures in the EU.
A sales platform is not a supplier of goods, but is one, a legal fiction in the VAT law.
EU procedure for accounting for goods and services tax.
Non-EU procedure for accounting for service tax.
Special procedure for declaring and paying import tax.
Will shopping malls be closed again?
Extension of deadlines related to vehicle turnover.
Extension of the travel voucher redemption period.
Reducing the gender pay gap – another unenforceable obligation for employers, or a worldview battle?
On April 22, 2021, the parliamentary bill on reducing the gender wage gap, proposed by a group of MPs from the Civic Coalition, the Left, the Polish Coalition and Polska2050, was submitted to the Sejm. In order to meet demands for the elimination of the gender gap in gross wages, the drafters propose to introduce an obligation to prepare and submit to the Minister of Labor an annual (by March 31) report containing indicators of the percentage differences in wages between men and women. In addition, employers under the new law will be required to publish the reporting information on their company’s website. Importantly, the project does not provide for the separation of statistics based on the position occupied by those employed, since the reporting information should include at least two indicators (W1, W2, respectively) of the percentage differences in gross wages between men and women in a given enterprise or institution for the previous calendar year. Additional statistics (such as the breakdown of differences by position or the detailing of information on various components of wages) are optional. As a result, it is not difficult to imagine a situation in which an employer employing a man in a managerial position and women alone in the position of a rank-and-file clerk will show a significant disparity between men’s and women’s salaries in the report.
Thus, while the goal of eliminating unwarranted differential pay between men and women for providing the same work should be considered laudable and desirable, the means proposed by the drafters to achieve this goal should once again be revised.
If differences in favor of either gender are shown in the annual comparative report, the employer will be obliged to provide explanations and conclusions, along with a remediation plan, in which it will specify the ways and timeframe for eliminating wage differences.
Employers with 20 or more employees will ultimately be required to prepare reports.
Given the obligation to make the information available on the employer’s website and, subsequently, on the website of the Ministry of Family Affairs, Labor and Social Policy, it seems that, in essence, the obligations are not so much to enable the government to control the wage gap, but to exert a kind of social pressure on employers with discriminatory pay conditions.
The draft, despite the introduction of the above obligations, does not provide for coercive measures to enforce the preparation of reports by employers or the possibility of verifying the veracity of the data contained in these reports. Perhaps at a later stage of work on the project, it will be completed – we encourage you to follow our newsletter.
Once self-employed, now employees – period of working “on yourself” counted as seniority
On May 4, 2021, a bill to amend the Labor Code – although very short, it is important – was sent to the first reading at the Diet. The draft announces the introduction of the possibility of counting previously completed periods of non-agricultural activity or cooperation in the performance of such activity among the periods on which an employee’s benefits or entitlements depend, if social security contributions have been paid for these periods. Including periods of non-agricultural activity as part of seniority will affect such entitlements as the employee’s vacation time, the amount of a long-service bonus or the timing of a jubilee award, for example.
The State Labor Inspectorate no longer only inspects, but also establishes the employment relationship
An MP project related to labor law, also headed for first reading on May 4, 2021, amending the Law on the State Labor Inspectorate and the Code of Civil Procedure, also affects employees and employers – this time indirectly. Currently, the employment relationship – in addition to the obvious code events (contract, appointment, appointment), can be established by the labor court in court proceedings. The draft introduces the power of district labor inspectors (DIOs) to determine the existence of an employment relationship and to conduct inspections of employers in this regard without notice and at any time of the day or night. The decision has the same effects as under the employment contract and is immediately enforceable. The employer may appeal the decision to the district court – labor court within two weeks, but the appeal does not stop the implementation of the decision.
Expanding the powers of district labor inspectors to inspect and then issue a decision establishing the existence of an employment relationship can, in addition to relieving the burden on labor courts, significantly shorten the path from the so-called “labor courts. a junk contract to an employment contract, and thus improve the situation of low-skilled workers, with the risk of intensifying the PIP’s interest in employers.
VAT – new special settlement procedures in the EU
In order to implement EU directives – the e-commerce VAT package, the government has proposed another amendment to the Value Added Tax Law.
Sales platform is not a supplier of goods, but it is one – a legal fiction in the VAT law
In particular, the draft is relevant to entities operating trading platforms, portals or similar electronic means (referred to in the law as an “electronic interface”) that facilitate distance sales between EU consumers and non-EU suppliers or suppliers offering imported goods from outside the EU. A taxpayer operating such a platform will be treated (under tax law) as if he had independently received the goods and made their delivery. This applies to the taxpayer:
- facilitating the distance sale of imported goods in consignments not exceeding 150 euros,
- facilitating the distance intra-Community sale of goods within the EU by a non-established taxpayer,
- facilitating a non-established taxpayer’s supply of goods to a non-taxpayer within the EU.
In view of this, the burden of fulfilling tax obligations will be shifted from the actual suppliers to the operators of sales platforms.
EU procedure for accounting for goods and services tax
The EU procedure is to settle the VAT due to the Member State of consumption (the end of the shipment or place of supply of services) through the Member State of identification (where the supplier or service provider is located).
The EU procedure will be available to taxpayers who:
- make intra-Community distance sales of goods,
- facilitate the delivery of goods through the platform, if the shipment or transport of goods begins and ends in the territory of the same member state,
- are established in the EU, but are not established in the territory of the Member State of consumption and provide services to non-taxpayers.
A taxpayer may file a notification informing of his intention to use the EU procedure in his country of residence. The EU procedure applies to all supplies of goods or any supply of services covered by the procedure, carried out by that taxpayer within the territory of the European Union.
Taxpayers applying the EU procedure are required to keep records of transactions covered by the procedure and submit quarterly VAT returns electronically by the end of the month following each subsequent quarter.
Non-EU procedure for accounting for service tax
The draft also introduces a non-EU procedure for certain services provided to non-taxpayers by foreign (non-resident) entities. The non-EU procedure involves accounting for the VAT due on the supply of services to the Member State of consumption (the final supply of services) through the Member State of identification (chosen by the foreign entity).
Import procedure
The draft also provides for the introduction of a special procedure for distance sales of imported goods with a value not exceeding €150 (the “import procedure”), involving the settlement of VAT due on sales to the Member State of consumption through the Member State of identification.
The import procedure can be used by taxpayers:
- Having a registered or permanent place of business in the EU territory
- Non-established in the EU, represented by an intermediary
- Based in the territory of a third country with which the EU has a mutual assistance agreement.
Taxpayers using the import procedure are required to submit monthly VAT returns electronically by the end of the month following each consecutive month (with the understanding that the deadline also expires if the last day falls on a Saturday or a public holiday).
Taxpayers are required to keep electronic records of transactions covered by the import procedure.
Special procedure for declaring and paying import tax
With regard to the declaration and payment of tax on the importation of goods, a special procedure has been provided for the person in charge of tax collection to show the tax in monthly declarations. This procedure will apply to the importation of goods, which are the subject of distance sales placed in consignments of a value not exceeding 150 euros, the shipment or transport of which ends in the national territory, if a special import procedure does not apply to these goods.
In order for the person in charge of tax collection to use this procedure, he or she should either be a postal operator or have the status of an authorized economic operator within the meaning of the EU Customs Code.
Feel free to contact us if you are interested in legal advice on taxation.
More anti-crisis solutions
The fate of a new law on amending the Law on Special Solutions for Preventing, Counteracting and Combating COVID-19, Other Infectious Diseases and Crises Caused by Them and Certain Other Laws (hereinafter: the Shield) is weighing in the Parliament.
Subsidies for school stores
In the first edition of the Newsletter, we wrote about the assistance provided to entrepreneurs in connection with COVID-19 (Subsidized wages for employees of entrepreneurs in certain industries – click here). Another government amendment to the Shield is planned to expand the circle of entrepreneurs eligible to apply for workplace protection benefits to include entrepreneurs whose business involves the sale of foodstuffs, stationery and stationery to pupils, students or alumni on the premises of educational system units (i.e., mostly in so-called “school stores”).
School stores will also have the opportunity to apply five times for a parking benefit and a grant from the Labor Fund to cover ongoing business costs.
Social security payers operating in the form of school stores can apply for an exemption from paying Social Security contributions for the period from November 1, 2020 to March 31, 2021.
Will shopping malls be closed again?
As of May 4, retail facilities over 2,000sqm have reopened. With the filing of another government draft amendment to the Shield on May 6, 2021, it is likely that shopping malls will be closed again. Why – this is discussed below.
The New Shield provides for the repeal of the provision that currently provides for the mutual obligations of the parties to the lease agreements to be extinguished during the ban on operations in shopping malls. At the same time, the drafters want to introduce another regulation, providing for a reduction in the dues of the landlord of commercial space during the period of the ban on mall operations up to 20%, and up to 50% during the three months after the ban is lifted. Introducing by law the solutions used in the event that such facilities are closed again may raise suspicion that the proponent – which is the government, and therefore the same entity that can restrict business in shopping malls – is preparing for the next phases of closing down the economy in large-scale facilities.
It is worth noting that if, under the existing Shield rules, a tenant made an offer to extend the lease, it may, within 14 days of the new Shield taking effect, submit a statement withdrawing the offer. Then the rent reduction rules described above will apply.
Extension of deadlines related to vehicle turnover
The Shield amendment provides for an extension to 60 days of the 30-day deadlines under the Road Traffic Law to:
- Registration of a used vehicle, imported from another EU country to Poland
- Notifications to the district governor on the acquisition or disposal of a vehicle.
Extension of the travel voucher redemption period
Currently, if a travel event is canceled as a result of COVID-19, the traveler receives a voucher from the organizer to redeem against future travel events, which can be used within a year of the scheduled departure date. Once the new Shield is enacted, the deadline will be extended to two years, but only for vouchers that the traveler agreed to before the effective date of the amendment.
