Background to Directive 2018/957/EU
Directive 2018/957/EU begins with a list of 30 recitals, constituting the preamble to the amendments implemented.
Firstly, the recitals recall the milestones of the internal market, i.e. free movement of workers and freedom to provide services. Such principles are established in the Treaty on the Functioning of the European Union, Article 56. These principles, already present in Directive 96/71/EC, are essential to promote the respect for workers’ rights, justice and social protection.
In this regard, posted workers receive special attention. Posted workers are workers sent from their usual workplace to another host Member State for a transnational provision of service. Their transnational assignment generally lasts for a limited period, usually less than 12 months. During the entire period of the posting, workers remain hired by their employer in the home Country.
Learn more on posting workers to EU.
However, Directive 96/71/EC alone is not sufficient to promote equal treatment among different categories of workers in the European Union. Way back in May 2014, Directive 2014/67/EU came into effect to promote the implementation of Directive 96/71/EC and coherent information sharing.
The objectives of EU Directive 2018/957
In June 2018, EU Directive 2018/957 amends what Directive 96/71/EC previously established. In particular:
- It emphasises the need for minimum health and safety conditions, as well as wages, of posted workers. The ultimate aim is in fact to eliminate any discrimination among workers;
- It recalls the importance of offering additional protection in case of postings longer than 12 months. In that case, the applicable working conditions are those that are most favourable to posted workers.
Equally, the application of the following regulations of the European Parliament and the Council must remain unaffected:
- Regulation (EC) No. 883/2004 on the coordination of social security systems.
- Regulation (EC) No. 987/2009 on the procedures for implementing Regulation 883/2004.
Core of the Directive: amendments to Directive 96/71/EC
Article 1: Scope of application
First, Directive 2018/957 clarifies the scope and manner of application of the 1996 Directive. Indeed, it guarantees the protection of posted workers and establishes mandatory health and safety conditions. Directive 2018/957 also recalls that the 1996 Directive does not affect the exercise of the main rights of workers, both at the EU legislation and Member States national legislation level.
Secondly, guidelines are provided on the posting of temporary workers. For example, the user undertaking must inform the temporary employment undertaking about the posting of a worker before the start of the assignment abroad.
Article 3: Equal treatment, extension of collective agreements and provisions for long-term postings
Equal treatment
Amending Article 3 of Directive 96/71, Directive 2018/957 defines the aspects on which Member States must ensure equal treatment of workers posted to their territory. The topics listed are:
- maximum work periods and minimum rest periods;
- minimum paid annual leave;
- remuneration, including overtime rates; this point does not apply to supplementary occupational retirement pension schemes;
- the conditions of hiring-out of workers, in particular the supply of workers by temporary employment undertakings;
- health, safety and hygiene at work;
- protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and young people;
- equality of treatment between men and women and other provisions on non-discrimination;
- the conditions of workers’ accommodation where provided by the employer to workers away from their regular place of work;
- allowances or reimbursement of expenditure to cover travel, board and lodging expenses for workers away from home for professional reasons.
In addition, Member States must publish information on working conditions in a transparent and timely manner. Specifically, they must publish such data on the single official national website, in compliance with Article 5 of Directive 2014/67/EU. Non compliance with this transparency obligation influences the application of sanctions due to violation of the laws transposing Directive 96/71/EC.
Extension of collective agreements
Directive 2018/957 also decrees an extension of the concept of “collective agreement” to all categories of workers. Previously, such concept only referred to the activities in the construction sector. All the subjects above listed, now, are to be established not only by regulations, legislation and administrative provisions, but also by collective agreements. Such agreements must now be respected and applicable to any professional category.
Provisions for long-term postings
The amendment to Article 3 of Directive 96/71 also clarifies the guidelines in case of postings exceeding 12 months. In this case, legislation must grant posted workers the employment conditions applicable in the host Member State.
Furthermore, a posting company can substitute a posted worker with another to perform the same tasks at the same worksite. In this case, the total duration of the posting is the sum between the duration of the posting of the replaced worker and the duration of the posting of the worker replacing him.
Articles 4 and 5: Cooperation in implementing the legislation
To enhance the safeguard of the above-mentioned working conditions, modifications to Article 4 of Directive 96/71 promote stronger cooperation among authorities, administrations and inspection bodies. This cooperation must consist of a timely response to requests concerning non-genuine postings or the provision of temporary workers. The amendment to Article 5 further emphasised the need for more effective cooperation. Specifically, both the host country and the country hiring the posted worker must monitor the application of Directive 96/71 and its national transposition laws. In case of violations, sanctions proportionate to the nature of the infringement are applied.
Conclusions
In summary, Directive 2018/957 once again promotes less uncertainty and more transparency in the communication of terms and conditions of employment, as well as access to information, within the framework of European legislation. In force since 30 July 2020, it constitutes a further effort to uniformly enforce legislation on posting in the European Union. Its aim is to avoid fraud, abuse and non-genuine postings, in parallel with the continuous evolution and expansion of markets.
Learn more about the EU legislation in our article on EU Posted Workers Directives.
