A new law has incorporated into the Spanish regulations the criteria of the Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the posting of workers in the framework of the provision of services to avoid fraud in transnational movements within the European Union.
Royal Decree-Law 9/2017 of 26 May (“Royal Decree-Law 9/2017“) regulates, among other matters, the modifications introduced by the Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the posting of workers in the framework of the provision of services, which amends Regulation (EU) No 1024/2012 concerning administrative cooperation of internal market information (the “Directive“).
First of all, it should be noted that the Spanish legislation, contained mainly in Law 45/1999 of 29 November on the posting of workers in the framework of a transnational provision of services, continues limiting the concept of “posting of workers” in cases where the movement of workers from one country of the European Union or of the European Economic Area to Spain takes place for: (i) the execution of contracts for the provision of services in Spain, provided that they are subscribed by their employer and is under its management; (ii) the provision of services in a work-centre of the employer, or of a company of the corporate group to which it belongs, located in Spain; and (iii) its assignment, by a Temporary Employment Agency, to a user company established or operating in Spain.
Furthermore, the new regulation does not alter the minimum working conditions that must be offered to the workers posted in Spain. Therefore, it will remain necessary to verify that the conditions of the posted workers in matters such as remuneration, working time, safety and health, equality, among others, comply with the minimum provisions foreseen in the Spanish regulations.
In this regard, the purpose of the legislative amendment provided in Royal Decree-Law 9/2017 is to include in the system the cautions established in the Directive to detect cases of fraud in the posting of workers that do not fall into any of the situations described in sub-paragraphs (i) to (iii) above, or which have the sole purpose of applying working conditions that are lower than those which would effectively apply if the posting did not concur. Therefore, Royal Decree-Law 9/2017 contains the following relevant changes:
Firstly: it specifies the documentation that employers should keep in their work-centre during the posting of workers for the purposes of future verifications by the Spanish Administration. Likewise, it is required that the initial communication of the posting of workers, to be submitted prior to the start of the services, includes the identification and contact details of the employer’s representative present in Spain.
Among the documents that the employers should keep in their work-centre in Spain are the employment contracts of the posted employees, their salary receipts, proof of payment of their salary, records of their working hours and residence and work permits if applicable. Moreover, the regulations require a translated version of these documents, either into Spanish or into a co-official language of the territory where the services are provided.
The absence of the initial communication of the posting constitutes a very serious infraction that can lead to the sanction of the employer. Likewise, the late communication of the posting, the omission of the data of the employer’s representative in Spain, the absence of the documents mentioned in the previous section or the omission of their translation may give rise to the responsibility of the employer for the commission of a serious infringement on employment matters, and may be punished accordingly.
Secondly: in order to ensure the employer’s compliance with the prevention of occupational risks regulations, the amendments impose a higher involvement of companies with posted workers in the control of occupational hazards. Therefore, employers shall notify to the Spanish Administration any damage to the employee’s health that may occur during the posting of their workers to Spain. The absence of such communication may give rise to the responsibility of the employer for the commission of a minor infraction on employment matters and it may be punished.
Thirdly: apart from the documentary requirements allowing the verifications of the Administration, the regulation also mentions the factual elements that must be assessed by the Administration to make an overall evaluation of the circumstances that justify the posting of workers in order to determine its validity.
It should be noted that the verification will mainly focus on proving the substantial activity of the employer. For this reason, the rule indicates that the factual elements to be verified by the Spanish Administration are, among others, the existence of the employer’s headquarters or offices, the place where the services are provided, the place where the workers were hired, the law applicable to employment contracts, the number of contracts concluded and turnover of the company in the Member State of origin.
Notwithstanding the above, Royal Decree-Law 9/2017 also establishes some of the criteria that will be assessed to determine whether a posted worker normally performs his or her work in another Member State. Among the aspects to be evaluated are the duration of the posting, its start date and the payment of expenses by the employer.
Finally, as discussed in our Newsletter of October 2016, the Labour Inspectorate had already begun to implement the Directive in its Technical Criteria No 97/2016 (Criterio Técnico Núm. 97/2016) concerning the posting of workers within the framework of the provision of services. Therefore, the approval of Royal Decree-Law 9/2017 provides certainty to the system by specifying the legal criteria that shall be used by the authorities to verify the validity of the posting of workers to Spain.
It should also be noted that, in the light of the content of the new legislation, it is essential to carry out a careful drafting of the documentation to be used during the posting of workers, since the Spanish authorities are entitled to carry out an overall analysis of the circumstances that justify the postings of workers to determine their validity.