On July 29, 2018, will enter into force the Directive (EU) 2018/957, of the European Parliament and of the Council, of 28 June 2018, amending Directive 96/71/EC, regarding the posting of workers in the framework of the provision of services.
Directive (EU) 2018/957 introduces new amendments to the posting of workers in the European Union, to reinforce the legal protection of posted workers, including posted workers under a temporary contract.
The following changes can be highlighted:
1. Posting of workers by temporary employment agencies or placement agency
Temporary employment agencies (TEA) and placement agencies (PA) are obliged to comply with the applicable legislation in case of posting of workers to other Member-State, being considered that the worker is posted by the TEA or by the PA, as the case may be.
The same rule applies in the case of successive postings of the same worker, i.e., if the worker is posted to other Member-State and, during that period, is posted to another Member-State. The user undertaking shall inform the TEA or PA which hired out the worker in due time before commencement of the work.
2. Reinforcement of posted workers protection
The amendments introduced by Directive (EU) 2018/957 reinforce the posted workers legal protection.
Where the effective duration of a posting is inferior to 12 months, regardless of the applicable law to the employment relationship, the legal protection of posted workers are increased, considering all that is set forth in collective bargaining agreements or arbitration awards which have been declared universally applicable, concerning the following:
- The conditions of workers’ accommodation where provided by the employer to workers away from their regular place of work;
- Allowances of reimbursement of expenditure to cover travel, board and lodging expenses for workers away from home for professional reasons.
Where the effective duration of a posting exceeds 12 months, posted workers are entitled to all legal conditions set forth by law, regulation or administrative provision, as well as by collective bargaining agreements or arbitration awards which have been declared universally, applicable in the Member State where the work is carried out, with exception of:
- Procedures, formalities and conditions of the conclusion and termination of the employment contract, including non-competition clauses;
- Supplementary occupational retirement pension schemes.
In order to determine the duration of the posting, all periods of posting corresponding to the replacement of posted workers by other posted workers performing the same task at the same place shall be considered.
The minimum conditions laid down by Directive 96/71/EC (considering the amendments introduced by Directive (EU) 2018/957) do not prohibit the application of more favorable conditions to posted workers.
3. Development of the concept of remuneration
The minimum wage applicable in the Member-State where the work is carried out is one of the guarantees provided to posted workers, regardless of the length of the posting.
To that end, it is made clear that the concept of “remuneration” is determined by the law and/or common practice of the Member State where the worker is posted and includes all the constituent elements of remuneration rendered mandatory by national law, regulation or administrative provision or by collective bargaining agreements or arbitrations awards which have been declared universally applicable.
Allowances specific to the posting are considered to be part of the worker’s remuneration, unless they are paid in reimbursement of expenditure actually incurred on account of the posting, such as expenditure on travel, board and lodging. For this purpose, these allowances shall be presumed to be paid as reimbursement of expenditure, unless the legal provisions applicable to the employment relationship state otherwise, indicating which constituent elements of remuneration are paid as reimbursement of expenditure.
4. Enforcement of control and monitoring of postings
Member States shall implement measures to better control and monitor postings of workers, namely:
- Publication on national website of accurate and up-to-date information regarding the working conditions applicable in that Member State, according to national law and practice;
- Increased cooperation between the national authorities of each Member State on the control and surveillance of posting of workers and compliance with applicable national and European Union legal law;
- Member States obligation to ensure the compliance with applicable national and European Union legal law;
- Implementation of administrative sanctions in case of violation of the national provisions that will be introduced due to Directive (EU) 2018/957;
- Implementation of adequate procedures to ensure that workers and/or their representatives are able to comply with and be protected by national and European Union law.
5. Entry into force and date of transposition by Member States
Directive (EU) 2018/957 shall:
- Enter into force on July 29, 2018;
- Be incorporated into national law by the Member States until July 30, 2020.