Directives 96/71/EC, 2014/67/EU and 2018/957/EU set out the guidelines related to the posting of workers to EU. Rather than a single transposition, the secondment of employees to Germany is based on 3 frameworks acts, the Minimum Wage Act (Mindestlohngesetz – MiLoG), the Posted Workers Act (Arbeitnehmer-Entsendegesetz – AEntG) and the Act on the Provision of Temporary Workers (AÜG).
In the following sections we summarize the obligations provided by German and European Law on transnational posting to Germany.
Preliminary obligations for posting workers to Germany
When posting workers to Germany, foreign-domiciled employers must comply with several rules concerning minimum wage and employment conditions in order to give notification of their posted workers. These conditions are laid down in collective bargaining agreements and legal provisions and must be reported in the notification pursuant to the Minimum Wage Act.
As a matter of fact, in order to comply with these rules, employers must submit the notification of posting online with the help of the minimum wage registration portal.
It has to be noted that notifications must be submitted prior to the commencement of the work activity in Germany regardless of its duration.
Exceptions to the obligation to notify the posting of workers to Germany
The obligation to notify only applies to specific work activities, as listed in Article 2a of the Schwarzarbeitbekämpfungsgesetz:
- setting up and dismantling trade fairs and exhibitions;
- building industry;
- meat industry;
- catering and hotel business;
- industrial cleaning;
- passenger transportation industry;
- fairground and amusement sector;
- haulage, transport, and associated logistics industry;
- private security sector;
Furthermore, pursuant to the Minimum Wage Act, notifications are not required when an employee regular monthly pay exceeds a gross €2,000. In this case, the employer must submit evidence of such payment for the past 12 months.
However, considered that the obligation to notify is based on the legislation provided by three different acts, as stated before MiLoG, AEntG and AÜG, we recommend a specific analysis of every case.
Working and salary conditions applicable during the posting to Germany
The above-mentioned 3 acts lay down certain minimum requirements for the terms and conditions of employment. General conditions of employment apply to every sector and concern working time, safety, health and hygiene in the workplace, further remuneration, allowances, reimbursement, holiday pay and vacation allowance, among others.
As far as the minimum wage is concerned, this value is adjusted every 6 months, on January 1st and on July 1st.
Currently, the minimum pay in Germany amounts to gross €10.45 per hour worked.
Regarding applicable salary conditions applicable when posting of workers in Germany from Italy, the Italian Revenue Agency, with ruling no. 428 of 12 September 2023, clarifies the request of a commercial company regarding the possible applicability of the conventional regime to one of its employees seconded to Germany from 1 January 1st, 2022 until December 31st, 2023 at a German subsidiary.
Assignments to Germany lasting more than 12 months
From 30 July 2020, in case of posting employees to Germany for more than 12 months, additional rules shall apply. These regulations apply starting from the date from which the posting of a worker exceeds a duration of 12 months.
However, this period can be extended up to 18 months by adjoining a statement of reasons to the submitted notification.
Special rules applicable to the posting of temporary workers to Germany
Concerning the use and supply of temporary work services, special rules apply to ensure the protection of posted workers. Under this framework, the supplier must comply with the supplier’s assurance, a written form that certifies the conditions of employment pursuant to German legislation are observed.
Social security in Germany
When posting workers to Germany, employees temporarily work in Germany but are employed in another country. Thanks to the EU harmonized social insurance system, employees posted abroad pay social insurance contributions to the country where they are employed.
As a matter of fact, pursuant to Regulation (EC) 883/2004, the posting company must apply to the competent social institution for the issuing of an A1 Certificate for each posted workers. This document states in which country the holder pays for social security contributions.
A&P can provide full support with the application for the A1 certificate or the multistate A1 Certificate.
Documents’ availability during the posting to Germany
When posting workers to Germany, your company and your employees must fully cooperate with the German authorities in case of a customs inspection.
Among others, the main documents requested during such inspections are personal IDs, work permits (when applicable), employment contracts, pay slips, evidence of wage payments made, evidence of working time.
All these documents must be available on German territory and written in German language. When requested, they must be provided to the authorities. Failure to cooperate may result in an administrative offence.
Penalties for non-compliance as defined in the German legislation
If foreign-domiciled employers fail to notify or incorrectly notify the posting of workers to Germany, or fail to provide posted workers minimum working conditions, they are committing a violation.
This is punishable as administrative offences entailing a fine amounting to a maximum of €30,000 pursuant to Art. 21 MiLoG, Art. 23 AEntG, Art. 16 AÜG.