Posting workers to Spain

The posting of workers to Spain, by an employer based in a EEA country, is regulated by Ley 45/1999, which transposes Directive 96/71/EC. The provisions of Law 45/1999 apply to companies that temporarily post their workers to Spain as part of a transnational provision of services. A&P experts are at your disposal to support your company and your employees in the management of your posting to Spain.

1. Sending the posting notification and appointing the domiciled representative

The employer that sends his workers to Spain in the framework of a transnational provision of services must notify the posting to the labour authority of the Autonomous Community where the services are to be provided. The notification shall be send one day before the start of the posting at the latest.

The posting notification must include the identification and contact details of a domiciled representative of the company. Specifically, this is a natural or legal person present in Spain, acting as a link with the competent Spanish authorities. This person will act on behalf of the posting company in any consultation and negotiation procedures affecting the posted workers.

However, there are some exceptions to the submission of the posting declaration:

• when the duration of the posting is less than 8 days and/or
• in the event of postings where there is no provision of services (conferences, business meetings, etc.).

2. Additional obligations for temporary agencies sending employees to Spain

If the foreign company is a temporary employment agency, the posting notification must also include a certification issued by the State in which the agency is established, authorising it to carry out the activities of:

• Administration;
• Intermediation;
• Search and selection;
• Vocational outplacement support.

Additionally, the posting notification by a temporary agency shall also include a declaration by the user company. This shall state the temporary need to use the workers, as well as the type of contract in place between the user company and the temporary agency.

Finally, in the context of a transnational provision of services, the notification of posting of temporary agencies workers to Spain is mandatory from the very first day of activity, meaning that there is any exemption for assignments lasting less than 8 days.

3. Application for A1 Certificate

According to EC Regulation 883/2004, the foreign employer who posts his workers to Spain, as well as to any other EU or EEA country, must apply for the A1 Certificate to the relevant social security institution the posted workers are registered with in their home country.

4. Compliance with Spanish minimum working and salary conditions

Foreign companies posting workers to Spain to carry out a transnational provision of services are subject to the legal and contractual provisions applicable to personnel employed by companies in the same sector of activity established in Spain. This means that employers posting their workers to Spain must guarantee them at least the minimum terms and conditions of employment set out under Spanish labour legislation, with regard to the following matters:

• Labour law;
• Working time
• Compensatory rest;
• Public holidays;
• Working hours and night work;
• Remuneration
• and more.

5. Mandatory storage of documents about the posting of workers to Spain

During the posting, companies must have available in Spain a series of documents regarding the posted workers. They shall include employment contracts, pay slips, timesheets indicating the beginning, end, and duration of the working day, etc.
The foreign employer must keep all documentation concerning the assignment for a fixed period of not less than two years after the end of the posting.

Documentation must be properly stored and kept available to foreign labour authorities.

6. Additional obligations for corporates when sending employees to Spain

Companies that post their employees to Spain for more than 8 days to carry out activities in the construction sector are required to register with the REA (Registro Empresas Acreditadas) of the labour authority in whose territory the services are to be provided in Spain.

The purpose of this registration is to certify that the company meets the requirements on the prevention of occupational risks. The company shall provide evidence that the workers employed in the activities have adequate training in occupational health and safety. Companies contracting or subcontracting work on construction sites must also check that their contractors or subcontractors meet these requirements.

Similarly, it may be necessary to ask for the opening of a Centro de Trabajo to inform the authorities about the start of the new activity. Furthermore, in all construction sites, each contractor must have a Subcontracting Book, disclosing some information about the subcontractors involved.

With dedicated support from Local Partners, A&P can support your company in the process of registration with the REA and other obligations.

7. Sanctions in case of non-fulfillment

The Spanish Penalty System establishes different levels of severity of infractions and the related sanctions amounts:

1. Minor infringements, such as errors and formal shortcomings in the notification: in their maximum degree, fines may reach €625,00;
2. Serious infringements, such as late notification or failure to appoint a domiciled representative. The company may be liable for fines of up to €6.250,00, at their maximum level;
3. Very serious infringements, such as failure to notify the authorities. At the maximum level, the fines imposed to the company may increase to €187.515,00.