Determining the applicable collective bargaining agreement represents a prerequisite for applying the adequate terms and conditions of employment (including remuneration).

An employer having posted several workers to one of the most important “receiving Member States”, has been recently fined for failure to pay at least the remuneration due under the law, ordinance, or collective agreement.

The relevant collective agreement must be determined considering the business sector in which the undertaking making the posting operates.

However, such a determination can be based neither on merely the wide “denomination of the activity “(e.g., maintenance and repair services), nor blindly automated (i.e., by scrolling in a list showing potentially relevant collective agreements).

The accurate standard classification of the business sector, and subsequently of the specific activity will be carried out in the host Member State must be first determined. To that end, it must be ascertained whether the job description matches the activities listed under the specific classification.

Subsequently, it must be determined which collective agreement covers the specific activity will be carried out. How a collective agreement is titled might be irrelevant. Collective agreements determine their scope of application, inter alia in terms of branches of activity.

Only by referring to the standard job description in relation to a specific standard activity, and to the scope of application of different collective agreements “listed”, a correct determination of the applicable collective agreement can be foreseeable.

It must be also noted that certain collective agreements determine the application of another collective agreement, unless the former is more favourable to the worker.

In the same context, when determining the remuneration, approximation of the classification criteria might result in the failure to pay at least the remuneration due under the law, ordinance, or collective agreement. In the case at hand, the authority was willing to consider the good faith efforts shown by the employer, if at least the (wrong) collective agreement would have been correctly applied.

The takeaway

When determining terms and conditions of employment, approximations should be avoided. Making is “simple” it can appear to be (very) expensive.