The legislative framework and the management of labour relations in the field of transnational posting have undergone many changes over time. Everything started with the introduction of Directive 96/71 on the posting of workers. Later, the “enforcement” Directive 67/2014 and the consequences of Brexit redefined the landscape once again.
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. In addition, it will dwell on the impact of Brexit and the main issues encountered on the application of legislation.
The different cases of international mobility and their regulation
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. Furthermore, it requires compliance with the most favourable conditions for workers to combat social dumping within the EU.
- Directive 67/2014: 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.
Scope of application of the transnational posting
As set out in Article 1 of Directive 96/71/EC, the legislation on the transnational provision of services applies when an undertaking established in one Member State sends one or more workers to another undertaking established in another Member State. It includes the aforementioned Directive and the subsequent 67/2014/EU and 957/2018/EU as well.
In particular, paragraph 3 defines in more detail the scope of application, which involves undertakings that:
“(a) post a worker, on their own account and under their direction, to the territory of a Member State, under a contract concluded between the undertaking which sends the worker and the party for whom the services are intended, operating in that Member State, provided that an employment relationship exists between the worker and the undertaking which sends the worker during the period of posting; or
(b) post a worker to the territory of a Member State, to an establishment or to an undertaking belonging to the group, provided that there is an employment relationship between the worker and the undertaking making the posting during the period of posting; or
(c) post, as a temporary employment undertaking or as an undertaking making the temporary assignment of workers, a worker to a user undertaking having its head office or place of business in the territory of a Member State, provided that there is an employment relationship between the worker and the temporary employment undertaking or the undertaking making the temporary assignment during the period of posting.”
For an overview of all EU Directives on transnational posting, take a look at our guide on EU Posted Workers Directives.
Definition of posted worker
It follows from the definition of the scope of application that the main prerequisite for transnational posting is the existence of an employment relationship between the worker and the sending company. Not only that, Article 2 of the same directive specifies that the posting of the worker to a company in another Member State must be for a limited period.
It follows that the worker cannot be employed for the sole purpose of being sent on secondment and that the employee must therefore return to their usual employment in the State in which they are employed, once the mission abroad has ended.
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 years after the end of the posting;
- The appointment of a contact person who, in some cases, has to be 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 is to prevent the phenomenon of social dumping and guarantee adequate protection for posted workers, in particular on the topic of salary divergence.
Authenticity of the transnational posting
In order to prevent abuse or evasion of obligations, it is therefore necessary to verify that the posting is genuine and that the conditions required are met.
The supervisory bodies may therefore carry out an inspection to determine that:
- The posting company is actually established in the Member State where it is based and that it does not therefore carry out mere administrative activities;
- The posting of the worker(s) is carried out for a limited period and that they resume the usual employment in the state of recruitment.
How to verify the authenticity of posting
In order to assess the above conditions, the authorities may require an evaluation of the following elements:
- the place where the company is registered with the Chamber of Commerce or, where required by reason of its activity, with a professional register;
- the rules applicable to the contracts concluded by the posting company with its clients and workers;
- the number of contracts performed or the amount of turnover achieved by the undertaking in the Member State of establishment, taking into account the specific nature of small and medium-sized enterprises and newly established undertakings;
- the content, nature and mode of performance of the work and the remuneration of each worker;
- the temporary nature of the work activity carried out by each worker in Italy;
- the existence of the certificate relating to the social security legislation applicable to the individual posted worker (Form A1).
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, there are some regulatory areas that still remain 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.
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.
At present, the main issues identified by the authority concern:
- the exchange of information among Member States;
- 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.