POSTED WORKERS IN THE EUPHR®, PHRca®, SPHR®, GPHR®, PHRi™ and SPHRi™ recertification through HR Certification Institute® (HRCI®). Please make note of the activity ID number

POSTED WORKERS IN THE EU

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Today’s Presenters

Natalie Barnhart

Immigration Specialist - Europe

Aires

Wim CocquytClient Engagement

DirectorFragomen Brussels

Jo Antoons

Partner

Fragomen Brussels

AGENDA

1. INTRODUCTION

HISTORIC BACKGROUND

EU LEGAL FRAMEWORK

2. OBLIGATIONS IMPOSED ON COMPANIES FOR POSTED WORKERS

3. WHEN DOES IT MATTER?

4. PRACTICAL EXAMPLE

5. RISKS OF NON-COMPLIANCE

6. DAY ONE COMPLIANCE

7. WHAT TO EXPECT FURTHER

8. HOW CAN WE HELP

INTRODUCTION


INTRODUCTION: HISTORIC BACKGROUND

Treaty of Rome (1957): free movement of workers within the European Economic Community(Belgium, France, Germany, Italy, Luxembourg and The Netherlands)

1981: Greece

1986: Spain & Portugal

1986:Single European

Act

1989: PHARE

Programme

1990: Unification of

Germany

1993:Creation of

‘single market’

1995:Austria, Finland, Sweden

1996:Posted Worker

Directive

1997:Reform of the EU

1999:Introduction

of Euro

2004:Eastern

Enlargement

2007: Romania &

Bulgaria

2008:Economic Crisis

2009:Lisbon Treaty

2013:Croatia

2014: Enforcement

DirectiveStart


INTRODUCTION: EU LEGAL FRAMEWORKPosting of Workers:

Temporary employment of staff in an EU Member State other than the country of habitual employment

Posted Workers Directive 96/71/EC

Aims at ensuring fair competition in terms of labour and salary

conditions

Respect for the labour rights of posted workers

Enforcement Directive 2014/67/EU

Aims at better implementation and

monitoring of the application of

Directive 96/71/EC

Strengthens the mechanisms of

control, enforcement and cooperation

OBLIGATIONS IMPOSED ON COMPANIES


POSTED WORKERS: LABOUR OBLIGATIONS IMPOSED ON COMPANIES

POSTED WORKERS DIRECTIVE 96/71/EC

Employers must guarantee, at a minimum, employment protection for posted workers per local law in the host

EU Member State in terms of:

Maximum work and minimum rest periods

Minimum paid holidays

Minimum pay rates

Health, safety and hygiene

Protective measures

Non-discrimination provisions

Ensuring minimum protection in terms of salary and employment conditions in any EU Member Statewhere workers are temporarily posted

Social Security coverage maintained in the home EU member state (A1 Certificate)


POSTED WORKERS: LABOUR OBLIGATIONS IMPOSED ON COMPANIES

REVISED POSTED WORKERS DIRECTIVE 2018/957

Revision of the Posted Workers Directive 96/71/EC (Directive 2018/957) has in the meantime been adopted and published in the Official Journal of the EU.

Member States will need to transpose the new directive into national law and collective labour agreements by 30 July 2020. Main changes to the existing Posted Workers Directive 96/71/EC :

Mandatory host countries’ remuneration rules must apply to posted workers.

Duration of a posting is set at a maximum of 12 months with one 6 month extension, after which all of the host country’s labour laws will apply to the worker if he/she continues to work in the country.

Additional compensation for travel, board and housing costs must be paid by the employer on top of host country remunerationDIRECTIVE 2019/1152 on transparent and predictable working conditions in the European

UnionTo be implemented by 1st of August 2022

Assignment letter to be drafted in writing prior to the posting and mentioning the employment and salary

conditions


POSTED WORKERS: ADMINISTRATIVE OBLIGATIONS IMPOSED ON COMPANIES

ENFORCEMENT DIRECTIVE 2014/67/EU

The Enforcement Directive gives EU Member States the right to impose administrative requirements and control measures to

ensure effective monitoring of compliance with the obligations set out in the Posted Workers Directive 96/71/EC.

Prior notification of the posting to

the host EU Member State

Keep, make available and/or retain copies, in

paper or electronic form,

possibly translated, of several social

documents (such as employment contracts, pay

slips, time sheets, etc.)

Obligation to keep these documents

after the end of the posting period for a reasonable

period of time

Obligation to designate a person to

liaise with the authorities in the host EU

Member State

Obligation to designate a

contact person to liaise with

social partners in host EU

Member State

What are the requirements that Member States MAY impose on employers who are

posting employees in an EU Member State?


POSTED WORKERS: ADMINISTRATIVE OBLIGATIONS

IMPOSED ON COMPANIESENFORCEMENT DIRECTIVE 2014/67/EU

The requirements in terms of notification, document retention and appointment of contact persons differ from Member State to Member State

Notification requirement Document retention Contact person

The Netherlands Not in place yet (expected by end 2019) Yes (+/- 6 documents) Yes (located in the

Netherlands)

Denmark Yes (online registration) No Yes (not necessarily locatedin Denmark)

France Yes (online notification) Yes (+/- 10 documents) Yes (located in France)

Switzerland is regulating posted workers under national immigration law.

WHEN DOES IT MATTER?


POSTED WORKERS: WHEN DOES IT MATTER?

The EU Legal Framework focuses on temporary employment by EU companies of their workers (existence of employment contract between the EU company and the worker), irrespective of their nationality, in another EU Member State for the provision of services

Three scenarios exist:

1. Intra-company: Posting of workers to a group entity established in another MS

2. Client site: Posting of workers to another MS under a service contract with a client established in that other MS

3. Hire out: Hiring out of workers by temporary employment or placement agencies to a user company in another MS


POSTED WORKERS: WHEN DOES IT MATTER?

Despite the EU Legal Framework, the scope of application of the obligations in terms of notification, document retention and appointment of contact persons differ from Member State to Member State.

Employers based in third countries

Business travellers*

Limited to certain sectors

Member States

Belgium, Bulgaria, Croatia, Denmark,

France, Finland,Greece,

(Italy), Latvia, Lithuania,

Luxembourg, Poland, Portugal,

Romania, Spain and Sweden

Austria, Belgium

Germany, United Kingdom

PRACTICAL EXAMPLE


POSTED WORKERS: PRACTICAL EXAMPLEPosting of workers from India to France:

Facts of the case – Employee posted to France

• Nationality of the employee: Indian national• Place of employment contract: Indian employment contract (non-EU)• Job description in France: Assistance with an IT project• Period of assignment: 5 days • Starting date: 1st December 2019


POSTED WORKERS: PRACTICAL EXAMPLE

• Online notification • Deadline: Notification must be made before commencement of the assignment

on French territory (in this case before 1 December 2019)Notification requirement

• Must be stored at the place of work (exceptions can apply)• Required documents: Certificate of Coverage (CoC), employment contract,

timesheets, medical certificate, etc. Document retention

• Administrative representative to be indicated when submitting the online posted workers notification

• Representative needs to be physically located in France• Representative responsible for liaising with labour inspection and keeping various

documents at the inspection’s disposal, which he/she may need to communicate to them in paper form or electronically

Representation

• Requirements apply to non-EU nationals in service of a non-EU employer• No exemptions based on length of assignment • Consequence: Indian employer must comply with all requirements

Posted workers to whomFrench legal obligations apply

Labour law requirements • Indian employer must respect minimum terms and conditions of employment under French law

What must be done by the Indian employer to comply with French law?

RISKS OF NON-COMPLIANCE


POSTED WORKERS: RISKS OF NON-COMPLIANCE

Penalties

Inspections

For late or non-filing of Posted Workers notifications (can reach 500,000 EUR per infraction)For non-compliance with the document retention requirementFor breach of local salary and employment law protectionMany Member States have implemented joint liability of home and host companies, whether a group company or client

Understand Posted Workers rules, which differ considerably from country to countryPrioritise countries with strict enforcement measuresAttention to high-risk jurisdictions, where authorities increasingly focus on business travel compliance

Online notification systems increased data-transfer between national authoritiesTriggers vary from member state to member state (non-compliance with SS/Tax/Immigration, retro-active filing of PWN, random inspections with no mandatory trigger etc.)Need for consistent and compliant approach across all aspects of global mobility

Monitoring compliance


POSTED WORKERS: ENFORCEMENT HEAT MAP

DAY ONE COMPLIANCE


POSTED WORKERS: DAY ONE COMPLIANCEIncreased checks on compliance for

business visits and temporary moves

to and in the EU through Posted

Workers notification and document

retention requirements

Integrated approach to work

readiness and mobility in Europe

Compliance with Immigration, Posted

Workers and Social Security rules is

required for work readiness as of day

one

Posted Workers

SocialSecurity

Immigration

WHAT TO EXPECT FURTHER


WHAT TO EXPECT FURTHER? EC Report on the implementation of the PW Enforcement Directive and EC Practical Guide on Posting

Towards a more uniform approach?

o Conclusion EC Report:Unnecessary to propose amendments to the PW Enforcement Directive at this stage

Acknowledgement by EC that the implementation by MS can be more coherent and proportionate

1. Introduction of a single EU-Wide declaration system or common templates for national websites2. Facilitations for Business Travelers / certain types of Short-Term Travelers

Proportionality of national measures : Case C-64/18 Maksimovic and Others, Case C-33/17 Čepelnik

Implementation of the revised Posted Workers Directive (Directive 2018/957) in the national legislation and collective labour agreements of member states by 30 July 2020

Impact of Brexit

HOW CAN AIRES HELP?


HOW CAN AIRES HELP?

Educational resources and trainingProgram and policy consultingGlobal partner networkAssessment of impact on other relocation servicesComplianceTechnology

MobilityX case status reporting and trackingBusiness traveler tracking toolExtensive reporting capabilities

HOW CAN FRAGOMEN HELP?


HOW CAN FRAGOMEN HELP?

Advisoryservices

Education/Training Knowledge Tools Advisory services on minimum/equal pay rules Risk Assessment Matrices Manual for HR/mobility departmentsDay One Compliance Audits for Immigration, Posted Workers and Social Security Posted Worker Process compliance and risk audit

Compliance services

Submission of Posted Workers notificationsDocument Retention compliance Certificate of Coverage applications Act as the administrative representative in relevant jurisdictions

TechnologyAssessment and case management technology, reporting, and program analytics toolsNomadic – Innovative Posted Worker and Business Travel management and compliance tool


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POSTED WORKERS IN THE EUPHR®, PHRca®, SPHR®, GPHR®, PHRi™ and SPHRi™ recertification through HR Certification Institute® (HRCI®). Please make note of the activity ID number

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