Stepping up the enforcement of EU legislation on the posting of workers

KEY POINTS

Directive 96/71/EC

• Directive 96/71/EC applies to undertakings which, in the context of the transnational provision of services, post workers to the territory of an EU country provided that there is an employment relationship between the undertaking making the posting and the worker during the period of the posting. A ‘posted worker’ is a worker who, for a limited period, works in the territory of an EU country other than the one in which they normally work.
• To protect posted workers’ rights when companies use the freedom to provide services and to facilitate the exercise of that freedom, Directive 96/71/EC contains core employment conditions that must be applied to posted workers in the host country, such as:
  • maximum work periods and minimum rest periods;
  • minimum paid annual holidays;
  • applicable minimum rates of pay, including overtime rates;
  • health, safety and hygiene at work.

Directive 2014/67/EU

Better prevention, monitoring and sanctioning of any abuse of the applicable rules

• To help fight abuse and circumvention of the rules (for example, via letter-box companies¹), Directive 2014/67/EU contains a list of factual elements to help assess whether a specific situation qualifies as a genuine posting.
• For greater legal certainty, Directive 2014/67/EU lays down a list of national control measures that are considered justified and proportionate and that may be applied in order to monitor the compliance of Directive 96/71/EC and the enforcement directive (Directive 2014/67/EU) itself.
• To increase the protection of workers’ rights in subcontracting chains, EU countries must ensure that posted workers in the construction sector can hold the contractor in a direct subcontractor relationship liable for any outstanding net remuneration corresponding to the minimum rates of pay, in addition to or in place of the employer. Instead of these liability rules, EU countries may take other appropriate enforcement measures.

Improved access to information

• To increase awareness and transparency, EU countries are obliged to make available and free of charge any information on the terms and conditions of employment and on collective agreements applicable to posted workers via a single official national website. The information must be made public in the official language(s) of the host country and in the most relevant languages, taking into account demand in its labour market.

Enhanced administrative cooperation

• Directive 2014/67/EU also includes clearer rules to improve administrative cooperation between national authorities in charge of monitoring compliance, including time limits for the supply of information. The Internal Market Information (IMI) regulation comes into play here. The IMI system is a multilingual electronic tool that allows national, regional and local authorities to communicate quickly and easily with their counterparts in the EU, Iceland, Liechtenstein and Norway about EU internal market law.
• Directive 2014/67/EU also ensures that administrative penalties and fines imposed on service providers for failure to respect the applicable rules in one EU country can be enforced and recovered in another.

Amending Directive (EU) 2018/957

Amending Directive (EU) 2018/957 introduces a number of new rules:

• the same rules regarding remuneration apply to posted workers as to local workers in the host country;
• a worker will be considered to be posted long term after 12 months (with the possibility of a 6-month extension subject to a motivated notification by the service provider), after which the posted worker will be subject to nearly all aspects of the labour law of the host country;
• the number of potential collective agreements that may apply in EU countries having a system for declaring collective agreements or arbitration awards of universal application may be increased;
• temporary work agencies must guarantee posted workers the same terms and conditions that apply to temporary workers hired in the country where the work is carried out;
• improved cooperation between EU countries’ authorities regarding abuse and circumvention of rules in the context of posting.

Directive (EU) 2020/1057

Among the changes introduced by Directive (EU) 2020/1057 are:

• an exception from the general posting rules applying to cabotage and international transport operations, with the exception of transit, ‘bilateral transport operations’ (both in goods and passenger transport) and bilateral operations with 2 additional carriage-related stops — this exception is restricted to cases where a service contract exists between the employer sending the driver and a party operating in the host EU country;
• administrative rules relating to posting of drivers, control and enforcement — hauliers must use the IMI system to send posting declarations and any requested information;
• penalties in the event of infringements;
• ‘smart enforcement’, which requires EU countries to integrate the control of posting rules into an overall control strategy;
• rules ensuring that strengthening posting rules for EU drivers does not result in a competitive advantage for non-EU operators having access to the EU road transport market.