Developments in European legislation on the posting of workers

Twenty-two years after the adoption of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services, the new regulation on the subject, Directive (EU) 2018/957 of the European Parliament and of the Council (hereinafter the "Directive"), was published on 9 July 2018.

Both the 96 rule and the recently published Directive deal with three types of posting: posting in the context of the direct provision of services between the worker and the company, posting between companies in the same group (intra-group posting) and posting in the context of a transnational service contract between the temporary work agency or employment agency and the user company.

This new Directive aims to update European regulations on the posting of workers, which currently totals 1.9 million and has increased by 44.4% since 2010. To this end, the text incorporates new areas subject to the principle of equal treatment between national workers and posted workers and increases the monitoring of States. One of the most important supervisory obligations is the establishment of an infringement system that will fine companies that fail to comply with travel regulations.

Among others, the following changes are worth mentioning:

• An express mention is added to the mandatory nature of the provisions on working conditions and to the rules on safety and health.
• It also rejects the possibility that the new provisions could be used to violate rights recognised in national legislation, such as the freedom to strike or the right to negotiate collective agreements.
• The scope of the Directive specifies that this includes postings in the context of a contractual relationship with temporary employment agencies or employment agencies, whether the work for which the posting is made is for the temporary employment agency, the employment agency or the user company.
• The working conditions under which equal treatment between national and posted workers must be guaranteed are extended:

1. The workers accommodation conditions, when provided by the employer to such workers outside their usual place of work.
2. Allowances or reimbursements in respect of travel, accommodation and subsistence expenses for workers who are away from home for professional reasons, when they have to travel to/from their regular place of work in the Member State in whose territory they are posted or when their employer sends them temporarily from their regular place of work to another place.
3. The term "minimum wage" is replaced by the term "remuneration", which is broader and includes all those mandatory pay items in accordance with national legislation.

• The Directive imposes an obligation on Member States to publish the terms and conditions of employment applicable in their territory on a single official website and to verify that the information provided is accurate and up to date. Failure to comply with this obligation shall be taken into account when determining the fines applicable for infringement of the provisions of the Directive.
• In the case of postings of more than 12 months, companies must guarantee workers, in addition to the list of minimum conditions in force to date, all the working conditions applicable in the State of destination (except for formalities and conditions for the conclusion and termination of contracts, non-compete clauses and supplementary pension schemes).
• The reference period of 12 months may be extended to 18 months if the service provider submits a motivated notification. In such cases, for the obligation to ensure equal working conditions to arise, the duration of the posting must exceed 18 months.
• Surveillance and control measures are further developed. In particular, it establishes the State's obligation to create a sanctioning regime.

The amendments adopted aim to guarantee the rights to equal treatment and freedom to provide services. The Court of Justice of the European Union has ruled in favour of preserving the principle of equal treatment on numerous occasions and in various areas: equality between workers on fixed-term contracts and workers on comparable open-ended contracts, between part-time and full-time workers and between temporary agency workers and their counterparts in user undertakings. We are therefore dealing with a particularly sensitive issue, and we must therefore ensure that the conditions applied to posted workers comply with the new European regulations.

Finally, it should be recalled that Member States will not start implementing the new Directive 2018/957 until 30 July 2020 and therefore Directive 96/71/EC will remain applicable until that date.