The legislative framework and the management of labour relations in the field of transnational mobility have undergone many changes over time: starting from the introduction of Directive 96/71 on the posting of workers, to the “enforcement” Directive 67/2014 and the consequences of Brexit.
This article will provide an overview of the current state of the legal framework on transnational mobility. It will analyse the different cases of international mobility and their regulation, the impact of Brexit and the main issues encountered on the application of legislation.
The topics analysed below have also been dealt with during the seminar on “Transnational mobility of workers. The legislative framework and the management of labour relations”. The seminar took place on March 1st, 2024, in collaboration with Fondazione Marco Biagi. The seminar took place on March 1st, 2024, in collaboration with Fondazione Marco Biagi.
The different cases of international mobility and their regulation
As also illustrated by Professor Basenghi during his presentation at the seminar, there are different forms of international labour mobility within the Italian labour law system:
- Secondments abroad;
- Long-term assignments;
- Transnational postings;
- Employment abroad;
- Temporary agency work.
Legislative sources on transnational sources
Transnational posting of workers is regulated at European level by 3 legislative sources:
- Rome I Regulation: it defines the law applicable to employment agreements. It also introduces a system that protects workers in all circumstances. Such system derives from the law of the State where the workers reside and operate normally.
- Directive 96/71: it aims to coordinate and guarantee workers’ rights. It introduces significant tools for their protection and it requires compliance with the most favourable conditions for workers, as a way to combat social dumping within the EU.
- Directive 67/2014: also known as the enforcement Directive, it introduces the first instruments to implement the obligations and protection provided for in the previous Directive 96/71. Among these, the Directive establishes a series of administrative obligations for posting companies and other measures aimed at ensuring the authenticity of posting.
The impact of Brexit on the framework on transnational labour mobility
Following Brexit, the procedures and the obligations for posting companies have undergone important changes, concerning the posting of personnel to the UK and the options available.
However, during her presentation at the seminar, Professor Catherine Barnard highlighted the areas of law that are still in force:
- Immigration law;
- Labour law;
- Safety conditions at work and social security.
New conditions for posting to the UK
European citizens are exempt from the obligation to apply for an entry visa, for short-term assignments and to carry out certain activities (related to the supply of goods, such as after-sales installation). However, it is important to recall that it is a concession related to the temporary nature of permanence. Indeed, such exemption is not valid for periods exceeding 6 months.
Find out which work visa to apply for to carry out a specific activity in the UK in our complete guide on UK work visas.
The exemption from the obligation to apply for a visa does not exempt posting companies from the obligation to comply with the requirements on minimum work and salary conditions and, in particular, with the regulations on health and safety in the workplace.
This regulatory area may represent an obstacle for companies willing to operate in the UK. Indeed, the UK provides for a series of specific measures and skill assessment instruments, as in the case of training certificates and other similar measures.
As regards the area on Social Security of workers, the Trade and Cooperation Agreement has retained the cornerstones of current European law for signatory States. Moreover, it has introduced new limitations, such as the maximum duration of social security coverage, pursuant to Regulation 883/2004, artt. 12 and 13.
More information in our complete guide on Social Security in the UK.
Directive 2014/67, enforcing Directive 96/71
The aim of Directive 2014/67/EU is to promote the application and implementation of Directive 96/71/EC, which protects workers posted abroad, in the context of transnational provision of services.
The Directive provides a series of administrative obligations for posting companies, among which:
- The submission of a posting declaration to the competent authorities, according to the deadlines provided by each Member State;
- The obligation to keep the documentation available in an accessible place and in the territory of the host State;
- The obligation to store the documentation for a minimum of 2 year after the end of the posting;
- The appointment of a contact person, domiciled in the host country.
Moreover, Directive 2014/67 provides for the implementation of control measures by the inspection authorities of each Member State. The aim, which was also highlighted by Mr Arletti in his intervention on the Directive in the seminar, is to prevent the phenomenon of social dumping and guarantee adequate protection for posted workers, in particular on the topic of salary divergence.
European Labour Authority: an internal point of view on global mobility issues
ELA (European Labour Authority) is in charge of guaranteeing that EU rules on global mobility are applied equally and effectively, facilitating cooperation between Member States.
In their presentations during the seminar, ELA officials Carita Rammus and Mariagrazia Lombardi highlighted a series of issues encountered by the Authority. Specifically, the main critical aspects concern the exchange of information among Member States and the lack of mediation and of mechanims promoting compliance with administrative obligations.
In this sense, ELA’s proposal is to implement a special hub on their official website, to unify the information required for posting notifications. This will allow to harmonise the procedure in all the Member States, facilitating not only access and exchange of information, but also the management of conflict negotiation among Member States.
The opinion of trade associations and trade union representatives
The 1st March seminar also included a moment for trade associations and trade union representatives to exchange opinions on transnational labour mobility. Among the associations invited were Federmacchine, Confindustria Emilia and Anima.
The round table highlighted some of the most frequent critical points on the topic, also trying to propose alternatives that could protect both companies and employees.
In particular, the discussion underlined the restrictiveness of the obligation to appoint a representative domiciled in the host State. Moreover, representatives also called for the possibility to standardise legislation, by making the notification procedure mandatory only in case of assignments of a certain duration, so that shorter assignments could be exempt.