Posted Workers
A posted worker is an employee sent by his employer to work in another EU state on a temporary basis under an employment contract on intergroup posting or hiring out to a temporary agency. This might arise for example the employer wins a public or other contract in that other EU states.
Posted workers are treated differently to other EU migrant workers as they remain in the home state temporarily only and do not become part of its market. EU law sets out mandatory rules applicable to the terms and conditions of employment of posted workers. These rules guarantee that their rights and working conditions are protected throughout the EU. They seek to ensure a level playing field and avoid social dumping whereby service providers can undercut local service providers with lower labour standards.
Rights of Posted Workers
The rules require that even though the workers posted to another state and are employed by the company which sends them. they are entitled to a core set of basic rights in the host state. They include the following rights
- minimum rates of pay
- maximum work periods
- minimum rest periods
- conditions of hiring out workers to temporary work agencies
- health safety and hygiene at work
- equal treatment between men and women
The directive does not apply to working conditions applicable to the worker under the rules of the sending member state are more favourable than those which would arise the terms of the directive.
Social Security Coverage
A posted worker continues to be covered by the social security system in the home country, provided that the employer or employee requests a PD A1 form from the social security institution in the home country. The PD A1 form is valid for only 24 months. If the posting to another EU country lasts longer, the employer can either switch to the social security system of the country where he is posted or apply for the extension of the validity of the social security form posting period to remain covered in the home country.
A social security cover extension is granted if a mutual agreement between the authorities in the countries involved in the posting is reached and it is in the interests of the party concerned.
Prior Information
Before being posted the employer must give the hosted employees certain information and must send an advance notification to the authorities in the host country with the following details:
- workplace
- the duration of posting
- contact details, and
- any other relevant information.
The regulations and enforcement mechanisms h seek to counter evasion of the rules and fraud. It provides for joint liability in contracting chains in certain cases, exchange of information cooperation inspection and monitoring.
New Rules in July 2020
The proposed new posting of workers rules are due to come into force in July 2020.The changes include the application of mandatory remuneration provisions i.e. minimum rates of pay to posted workers. Rules in the home state on workers’ accommodation allowances and reimbursement of expenses are to apply during the posting.
In the case of longer-term postings (longer than 12 in some cases 18 months) extended terms and conditions of the host state apply.
In the road transport sector, the rules of the revised Directive apply only from the date of application of the sector-specific rules proposed by the Commission (the so-called “lex specialis”) and under discussion between the European Parliament and the Council. Until that date, the rules of the 1996 Posting of Workers Directive remain applicable to the sector.
Income tax
If the employee works in the host country for less than six months, he shouldn’t be liable for income tax there. However, there are no EU-wide rules that set out which country can tax your income during a posting. This may be set out in national laws or tax agreements between EU countries.
Social security cover while abroad
A posted worker can continue to be covered by the social security system in the home country, provided that the employee or your employer has requested a PD A1 form from the social security institution in the home country. The PD A1 form is valid for only 24 months. If the posting to another EU country lasts longer, the employee can either:
- switch to the social security system of the country where he is posted or
- apply for the extension of the validity of the social security form posting period to remain covered in his home country.
A social security cover extension is granted if a mutual agreement between the authorities in the countries involved in the posting is reached and it is in the employee’s interests.
Updated Directive
Directive 96/71/EC concerning the posting of workers in the framework of the provision of services
Directive 2014/67/EU on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services
Directive (EU) 2018/957 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services
Directive 2014/67/EU Better prevention, monitoring and sanctioning of any abuse of the applicable rules
To help fight abuse and circumvention of the rules (for example, via so-called letter-box companies), Directive 2014/67/EU contains a list of factual elements to help the assessment of whether a specific situation qualifies as a genuine posting.
For greater legal certainty, Directive 2014/67/EU lays down a list of national control measures that are considered justified and proportionate and which may be applied in order to monitor the compliance of Directive 96/71/EC and the Enforcement Directive (Directive 2014/67/EU) itself.
To increase the protection of workers’ rights in subcontracting chains, EU countries must ensure that posted workers in the construction sector can hold the contractor in a direct subcontractor relationship liable for any outstanding net remuneration corresponding to the minimum rates of pay, in addition to or in place of the employer. Instead of these liability rules, EU countries may take other appropriate enforcement measures.
Improved access to information
To increase awareness and transparency, EU countries are obliged to make information on the terms and conditions of employment and on collective agreements applicable to posted workers available free of charge via a single official national website. The information must be made public in the official language(s) of the host country and in the most relevant languages taking into account demand in its labour market.
Enhanced administrative cooperation
Directive 2014/67/EU also includes clearer rules to improve administrative cooperation between national authorities in charge of monitoring compliance, including time limits for the supply of information. The IMI Regulation comes into play here. The IMI system is a multilingual electronic tool that allows national, regional and local authorities to communicate quickly and easily with their counterparts in the EU, Iceland, Liechtenstein and Norway about EU internal market law.
Directive 2014/67/EU also ensures that administrative penalties and fines imposed on service providers for failure to respect the applicable rules in one EU country can be enforced and recovered in another.
Amending Directive (EU) 2018/957
Amending Directive (EU) 2018/957 introduces a number of new rules:
the same rules regarding remuneration apply to posted workers as to local workers in the host country;
a worker will be considered to be posted long-term after 12 months (with the possibility of a 6-month extension subject to a motivated notification by the service provider). After this period, the posted worker will be subject to nearly all aspects of the labour law of the host country;
the number of potential collective agreements that may apply in EU countries having a system for declaring collective agreements or arbitration awards of universal application may be increased;
temporary work agencies must guarantee posted workers the same terms and conditions which apply to temporary workers hired in the country where the work is carried out;
improved cooperation between EU countries’ authorities regarding abuse and circumvention of rules in the context of posting.
DOCUMENTS
Directive 96/71/EC has applied since 10 February 1997 and had to become law in the EU countries by 16 December 1999.
Directive 2014/67/EU has applied since 17 June 2014 and had to become law in the EU countries by 18 June 2016.
Amending Directive (EU) 2018/957 has to become law in the EU countries by 30 July 2020 from when it will apply. However, it will only apply to the road transport sector from the date of application of a legislative act which will need to be adopted to amend Directives 2006/22/EC and 2014/67/EU concerning the posting of drivers in the road transport sector.
Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ L 18, 21.1.1997, pp. 1-6)
Successive amendments to Directive 96/71/EC have been incorporated into the original text. This consolidated version is of documentary value only.
Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (‘the IMI Regulation’) (OJ L 159, 28.5.2014, pp. 11-31)
Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services (OJ L 173, 9.7.2018, pp. 16-24)
Corrigendum to Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services (OJ L 91, 29.3.2019, p. 77)
DOCUMENTS
Regulation (EU) No 1024/2012 of the European Parliament and of the Council of 25 October 2012 on administrative cooperation through the Internal Market Information System and repealing Commission Decision 2008/49/EC (‘the IMI Regulation’) (OJ L 316, 14.11.2012, pp. 1-11)
See consolidated version.
Directive 2006/22/EC of the European Parliament and of the Council of 15 March 2006 on minimum conditions for the implementation of Council Regulations (EEC) No 3820/85 and (EEC) No 3821/85 concerning social legislation relating to road transport activities and repealing Council Directive 88/599/EEC (OJ L 102, 11.4.2006, pp. 35-44)
