As every year, employers with less than 50 employees have until 31 January each year to formally notify staff that a Company Social Benefits Fund (“CSBF”) will not be created, and the holiday allowance will not be paid in order to be able to use such opt-out option.
The provisions of the so-called “Anti-Crisis Shield” introduce certain modifications regarding the functioning of the CSBF during the pandemic, but they do not exempt employers from their information obligations.
The obligation to create a CSBF applies, as a rule, to employers with at least 50 full-time employees (FTE) as of 1 January 2023. This does not mean that employers with lower levels of employment are automatically released from such obligation.
In order to avoid the obligation in 2023 to create a CSBF and holiday allowance payment, the employer that employs less than 50 FTE as of 1 January 2023, and is not covered by a Collective Bargain Agreement, or Remuneration Regulations must:
- take a formal decision in this respect (e.g., as a resolution or an announcement); and
- provide employees with information on this by 31 January 2023 in the customary manner.
This information only applies to 2023 and must be repeated in subsequent calendar years if necessary.
What if such information is not provided to employees?
Failing to provide such information may result in employers being obliged to create a CSBF, or pay the holiday allowance to employees who have taken 14 calendar days of uninterrupted holiday leave in 2023.
Failure to take one of the above actions results in the risk of:
- effective employee claims for the holiday allowance payment (with interest);
- fines, in some cases even up to PLN 30,000.
Pandemic and the CSBF
During the pandemic, some employers may suspend obligations related to the creation or functioning of the CSBF (e.g., payments of CSBF contributions or holiday allowance). Such possibility will only be justified in the event of a decrease in economic turnover or a significant increase in the remuneration fund as defined in the “anti-crisis” regulations.
Michał Olszewski, Associate in the Employment team, Bird & Bird Poland