EUROPEAN UNION – Revised Posted Workers Directive Enters into Force
On 9 July 2018, the Official Journal of the European Union (EU) published Directive (EU) 2018/957 of 28 June 2018, amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services.
The revised Posting of Workers Directive came into force 20 days later, on 29 July 2018. Member states will have two years (until 30 July 2020) to transpose the revised rules into their national laws, until which date the unamended wording of the Posting of Workers Directive will remain applicable.
What is changing?
Under the amendments, all the host country’s rules on remuneration and working conditions applying to local workers will also apply to all posted workers (“equal pay for equal work"). Currently, employers can pay posted workers the national minimum wage, regardless of how local workers are paid for the same work. The national rules for accommodation conditions, and for allowances or reimbursement for workers’ travel, board and lodging expenses, will also now apply to posted workers. The Directive will apply to postings up to twelve months, with one possible six-month extension, after which additional employment rules of the host country will apply to the posting. Member States will be allowed to apply large, representative regional or sectoral collective agreements to postings. Currently, this is only allowed in the construction sector. In the event of a fraudulent posting, e.g. by a letterbox company, member states should cooperate to ensure that posted workers are protected, at least, by the conditions of the Posting of Workers Directive. The new elements of the revised directive will apply to the transport sector once the sector-specific legislation, included in the Mobility Package, enters into force. Until then, the 1996 version of the directive will remain applicable to this sector.
A posted worker is an employee (EU national or third-country national) who is sent by his or her employer in one EU Member State to carry out a service in another EU Member State.
The Posting of Workers Directive (1996/71/EC) established rules guaranteeing that the core rights and working conditions of posted workers are protected throughout the EU. The Enforcement Directive (2014/67/EU) aims to strengthen the practical application of the Posting of Workers Directive. This directive requires a posted worker notification made by the sending entity to the labour authorities of the host country before or at the start of the assignment. It also requires the sending entity’s legal representation and employment documents about the assignment available in the host country.
On 8 March 2016, the European Commission proposed a revision of the rules on posting of workers within the EU to ensure that national laws and regulations apply to posted workers in three main areas: remuneration; temporary agency workers; and long-term posting. This revision has now been published, has entered into force, and is awaiting transposition by the Member States into national law.
Employers established in a Member State of the EU and posting workers to another Member State should be aware that non-compliance with national legislation which implements these directives may result in financial penalties following workplace inspections. Employers are advised to consult an immigration specialist for case-by-case assessment of administrative requirements.