A posted worker is defined under Article 2 of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services as: “a worker who, for a limited period, carries out his work in the territory of a Member State other than the State in which he normally works”.
On a legal note, it is first necessary to understand the jurisdiction that will govern the work contract of the posted employee, together with the documentation required to carry out the posting in good order. Over the years, primary and secondary sources of EU law have provided the appropriate instructions to comply with the various obligations. All EU Member States, EEA countries and Switzerland have aligned themselves with these regulations and directives on the posting of workers, which will be explained below.
Jurisdiction to be applied to the posted worker’s contract
According to Article 3 of Regulation (EC) No. 593/2008 on the law applicable to contractual obligations, the parties to the contract may freely choose the jurisdiction under which the contract is to be drafted. However, Directive 96/71/EC permits the non-application of certain parts of the latter in order to facilitate the employee. In fact, the aforementioned directive allows the application of the most favourable norms, with the aim of protecting the employee, regardless the chosen jurisdiction when drafting the contract. Hence, the Directive, which has been transposed by all the Member States, with which the EEA countries and Switzerland have also aligned, has the power to deform the jurisdiction of the contract in favour of the employee.
In order for the posting to fall within the scope of this directive, the employee must be properly employed by the posting company and their employment relationship must be valid and continue for the entire duration of the posting.
Working conditions to be guaranteed during the posting in Europe
When the conditions are fulfilled, the worker may move freely within the EU Member States, provided that the most favourable rules are observed. Directive 957/18/EU amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services replaces the term ‘minimum rates of pay’ with ‘remuneration’.
In Article 3, this directive provides with the list of terms that must reflect the most favourable conditions, regardless of the jurisdiction under which the employment contract is drawn up:
- 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 of young people;
- equality of treatment 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.
Social Security in Europe
Regulation (EC) No. 883/2004 on the coordination of social security makes it possible to maintain the system of paying contributions in the posting worker’s country, even for the days of work performed in another Member State. This practice is possible by requesting a single or multi-state A1 Certificate: a document required to obtain this exemption at the time of posting.
The A1 Certificate is issued in all cases in which the conditions for the posting of the worker provided for by Community legislation (Article 12 and Article 13, EC Regulation 883/2004 and Article 14, EC Regulation 987/2009) are met. In particular, Article 12 of Regulation 883/2004 establishes that an employee or self-employed worker who is posted to an EU country, in the presence of all the conditions required by Community law, remains insured, for social security purposes, in the country of origin.
For the entire period of the posting (maximum 24 months or if the request for extension for a longer period is accepted), social security contributions must be paid in the country of origin.
Posting 360 for stronger cooperation on social security
ELA, the European Labor Authority, with the support of the European Commission, launched in March 2023 “Posting 360 Mutual Learning and Understanding Program“, a program to strengthen knowledge and exchange of information regarding social security and posting of workers.
Administrative obligations for posting workers in Europe
The administrative obligations for the proper implementation of Directive 96/71/EC are explained in Directive 2014/67/EU concerning the posting of workers in the framework of the provision of services. The Directive provides a list of obligations that may or may not be mandatory depending on how this Directive has been transposed in the Member States:
- Declaration of posting: through which the posting company notifies (via an electronic portal made available by the government authorities in the foreign country, or by other means) the authorities in the foreign country of destination of the posting of its employees. In some cases, the declaration of posting is always compulsory, while other countries have made it necessary following a minimum period of posting (e.g. in Spain it is mandatory for a posting of more than eight days, while in France it is mandatory even for a single day of posting).
- Archiving of documentation: the documentation required for the posting must, according to this point, be kept by the worker throughout the duration of the posting and presented to the inspector at the time of any inspection and also for a certain period after the end of the posting.
- Prescription in controls: the foreign authority has the possibility of carrying out the necessary controls relevant to a given posting for a minimum period of two years after the end of the posting. A company may therefore be penalised for an irregular posting even after the end of the performance.
- Translation of documents: According to this point, it is mandatory to present the inspection authorities with the documents relevant to the posting, accompanied by a translation into the official language of the host country.
- Representative domiciled in the foreign country: this is a natural or legal person on site, fluent in the local language, with whom the inspector will interface during the inspection.
Duty of disclosure when posting workers in EU
Finally, as a result of Directive (EU) 2019/1152 on transparent and predictable working conditions in the European Union, there is an obligation to communicate certain data to the posted workers, such as the salary and wage level to which they will be entitled for the period of the posting abroad. These obligations may be more or less stringent depending on the transposition into the Member State’s legislation.