Driver in international transport without a business trip

There are two definitions of a business trip in national labor law: one for all employees and the other for professional drivers only. For drivers, this definition stems from the Drivers’ Working Time Act, which underwent significant changes in this regard in February 2022. Changing the definition of a driver’s business trip has resulted in international journeys being removed from the scope.

Domestic delegation only

On February 2, 2022, a fundamental change took place in the definition of a business trip for drivers. Before that date, according to the then wording of art. 2 point 7 of the law on working time for drivers, where every official task consists in carrying out, at the request of the employer:

  • road transport outside the place where the employer’s registered office is located, for which the driver carries out his work, and any other place of business of the employer, in particular branches, representatives and branches,
  • departure outside the above-mentioned place or place for road transport.

As a result of the amendment of the above provision (which was related to the implementation of the so-called Mobility Package), foreign road transport is excluded from the definition of business trip. As of February 2, 2022, a driver’s mission is any official task performed in the context of domestic road transport, consisting of providing road transport at the request of the employer or departure for road transport, outside the previously indicated places/ place.

Source: shutterstock

According to art. 21b of the Drivers’ Working Time Act is a driver who performs official duties within international road transport, not on a business trip within the meaning of art. 775 § 1 of the Labor Code However, since any foreign journey (including the driver) usually consists of domestic parts of the journey undertaken to cross the border and return from abroad, the question arose as to how the domestic parts of the foreign journeys from the driver.

Foreign transport also in the country

The current definition of a driver’s business trip has been introduced on the basis of the Act amending the Road Transport Act, the Driver’s Working Time Act and several other acts (Government Gazette 2022, item 209). The amendment also amended art. 21a, according to which drivers who carry out road transport in the context of a domestic business trip are entitled to delegation benefits after the change under the provisions of art. 775 Labor Act The regulation of the Minister of Labor and Social Policy regarding claims against an employee who is employed for a business trip by a budget unit of the state or local government applies to such transports. However, in the context of the above provision, the question arose of how the domestic parts of international journeys should be treated. Does a driver in international transport, who travels through the country to go abroad or return from abroad, go on a domestic business trip?

The Ministry of Infrastructure, to which our publisher asked a question about this matter, decided not to. This opinion was also confirmed by the Chief Labor Inspectorate, in response to a question from our publisher (see box).

In light of the positions of both offices, international transport is the driver’s entire transport task, including the domestic parts of this journey (because they are related to foreign transport). Consequently, only drivers engaged in purely domestic road transport are allowed to make business trips.

“(…) in accordance with the amended Article 21a of the Drivers’ Working Hours Act, drivers who carry out domestic road transport on a business trip are entitled to allowances to cover the costs associated with the performance of this official task, determined on the conditions stated in the provisions of Article 775 § 3-5 of the Labor Code. On the other hand, under the new art. 21b member. 1 of the Working Time Drivers Act is a driver who performs official duties within international road transport, not on a business trip within the meaning of art. 775§ 1 of the Labor Code.

On the basis of the definition of international transport as referred to in art. 2 point 2 of Regulation (EC) No 1072/2009, in art. 2 point 1 of Regulation (EC) No 1073/2009 and in accordance with the practice of inspection services, any voyage without cargo or without passengers, in connection with foreign carriage, shall be treated as an international carriage, subject to all the conditions for such transport must be met, for example to have a relevant extract of the Community license in the vehicle and to show this for inspection.

Therefore, it should be taken into account that “domestic transport” is a transport that is not defined in art. 2 point 2 of Regulation (EC) No 1072/2009 relating to the carriage of goods or Art. 2 point 1 of Regulation (EC) No 1073/2009 in the field of passenger transport. (…) “.

Response from the Ministry of Infrastructure of May 5, 2022.

“(…) a driver who performs official duties within international road transport is not on a business trip within the meaning of the provisions of the Drivers Working Time Act and the rules on kidnapping (coverage – note of the editor) the costs referred to in Article 21a Furthermore, due to the exclusion of Article 21b, such a driver is not on a business trip within the meaning of the provisions of the Labor Act and may therefore not receive benefits for business trips (the journey at the time of the dividing crossing the Polish border into domestic and foreign sections, so there is no ground). )”.

The answer of the Chief Labor Inspectorate of May 31, 2022.

Legal basis

Act of 16 April 2004 on the working time of drivers (Journal of Laws of 2022, item 1473)

Author: Agata Barczewska
Gazeta Podatkowa No. 57 (1932) from 2022-07-18

Control of the state labor inspectorate in the workplace. All about it in the guide on GOFIN.pl

Delegation

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