DUTCH TRANSPORT COMPANY FIRST TO BEAT THE POLISH VERDICT
As communicated earlier, on Thursday June 12th 2014 the Polish supreme court defined its final judgement with regards to night allowances for Polish drivers. The outcome of the verdict has received a common description as ‘’lethal for all Polish transport companies” in the Polish media. As a complete surprise to Polish transport stakeholders, the Polish supreme court agreed upon their unanimous judgement that truck cabins can’t be regarded as acceptable substitutes for accommodations for drivers. As a consequence drivers are either entitled to receive reimbursement of the cost for hotel accommodations, or the employer has to pay drivers 25% of the night allowance additional to their regular per diem structure (even if the night is spent in the truck cabin).
The supreme court also decided that each individual driver is entitled to receive this additional (net) payment for each night the driver has spent in his cabin. In practice it means that the employees can bring an action against employers for not paid night allowance for the past 3 years. In the Polish newspapers the consequences of this verdict have been described as the ‘’bankruptcy of the Polish transport companies”.
Within less than two months after this verdicts – and the verdict not even been officially published yet – a Dutch SMB transport company was the first in Poland to beat this supreme court’s decision. This SMB company has had a profitable business until June 2014. After a risk assessment, it turned out that the value of potential drivers’ claims would literally result in millions of Zloties. Despite its profitable business AND despite the absence of pending (active) claims, this Dutch SMB managed to managed to request a bankruptcy of its Polish company in a successful manner. This way the risk and impact of possible future claims from drivers have been minimised from millions of Zloties to nearly zero. Moreover during bankruptcies in Poland board members of limited liability companies (Spzoo) can be held personally liable. In this specific case, the personal liability of the board members had been prevented too. Therefore the personal liability of its board members was also minimised from millions of Zloties to zero.
Almost simultaneously this Dutch SMB established a new Polish vehicle too. Furthermore this Polish entity also acquired its own transport license. The structure of the salary payments in this new entity have been re-structured, fully in compliance with the recent verdict of the supreme court. Moreover in this new structure the total employers’ cost per driver remains identical as in the previous years. Thus the entire Polish business case remains as profitable as before too. Finally no Polish jobs were lost during the transformation.
Hence taken the fact that within less than two months:
- A bankruptcy was requested successfully, whilst having a profitable business and absence of pending claims;
- Claim threats have been minimised from millions of Zloties to close neary zero;
- Board members were not held personally liable;
- A new Polish entity with a transport license became operational;
- No jobs were lost;
- The daily operation remained ‘’up and running’’;
- The Polish transport business case remained as profitable as before;
We feel entitled to declare that this ‘Dutch transport company was the 1st to beat the Polish verdict’.
This Dutch SMB company achieved its victory over the Polish supreme court via a sharply managed – smart and tailor made – legal operation. Amongst other this consisted of a rapid AND solid preparation, picking the right timing moments for actions and whilst conducting its regular business operations – in compliance with Polish bankruptcy legislation – and according to a profoundly controlled legal road map. In case you also need support in maintaining a profitable Polish transport business case – and want to be the 2nd company to beat the Polish verdict – please feel free to contact us.