Posted Worker Notifications and the EU Posted Workers Directive

Many international organisations require their workers to move frequently between projects, offices and countries to ensure the smooth operation of the business. Within the EU the Posted Workers Directive and the Posted Workers Enforcement Directive both work together to enforce the need for posted worker notifications to be submitted to the host nation for each secondment. These posted worker notifications inform the host country of the assignee’s intention to carry out the work on a short-term basis.

More specifically, the EU’s Posted Workers Directive 96/71/EC ensures that workers moving freely across Europe can expect the same rights and living conditions as those living and working in the location of their secondment; while the more recent Posted Workers Enforcement Directive 2014/67/EU has mandated that these conditions now be enforced by the member states, and requires that host countries are notified of any employees on secondment within their borders.

Although the directives were originally established to guarantee appropriate working conditions for employees on secondment between EU member states, many of the nations have now expanded the scope of the notification procedure to include those on secondment from any country, not just those within Europe. Although other countries around the globe may have similar procedures in place, it is the EU and EEA member states, and Switzerland that follow the guidelines established by the EU.

Who is a posted worker?

The European Union defines a posted worker as “an employee who is sent by his employer to carry out a service in another EU Member State on a temporary basis, in the context of a contract of services, an intra-group posting or hiring out through a temporary agency”. Some countries specify posted worker notification exclusions, where an employee on a short trip for the purpose of attending a conference or installing a purchased product for a client, for example, is not required to file a posted worker notification with the host country.

In most cases, the directive will apply in one of the three following situations:

• a company agrees to provide a service to a client in another member state and needs to send staff there in order to carry out this work

• a worker is posted to another country through arrangements within a group of companies, with the parent and subsidiaries based in different member states

• a worker is posted through an agreement between an employer and an employment agency

It is important to note that the regulations around providing a posted worker notification can vary widely from country to country within the EU, so it is essential you assess the requirements for each individual secondment case. If an employee did not require a posted worker notification for one country, this does not mean that they will not need one for another country, even if they are completing the exact same assignment over the same timeframe.

Posted worker protection

In order to protect employees on secondment, the EU dictates that posted workers must be protected by a minimum of six standards from the host country. These protections work to ensure that the individuals on secondment are treated equally to the workers already on site. These rights do not include any other rights which are already established across the region, such as the various articles under the European Convention on Human Rights and the EU Race Equality Directive, which must also be met.

The company must ensure that the following categories of protection are provided at least equally to those currently provided to the workers on site:

• Working hours, paid holiday and wage

• Agency worker standards

• Health and safety

• Pregnancy and maternity protection

• Anti-discrimination law

• Collective agreement standards

This means that if an employee is already given a higher wage than a staff member in the host office, that no change needs to be made. Alternatively, if the assignee is going to be working in an office where the pay is higher than their existing salary, the wage must be adjusted accordingly.

For a full list of websites for all countries enforcing the Posted Worker Directive, see our blog post on the topic.

Non-compliance penalties

The penalties for non-compliance with the EU Posted Worker Directive are primarily financial, with the value and application of the fines set by the respective member states. Multiple or repeated breaks in compliance can quickly lead to increasing and multiplying fines, as penalties are often demanded from the organisation on a per-employee basis. It is therefore essential that businesses, especially those with large secondment programs, be proactive in meeting the posted worker notification requirements in their countries of operation.

Late notification filing

• Up to €10,000 per employee

Incorrect filing

• Up to €10,000 per employee

Violation of employment standards

• Up to €50,000 per employee

Severe and repeated non-compliance

• Up to €500,000 per employee