Posting of workers in EU

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In April, an interesting event was held in the Bratislava Hotel, the main topic of which was "posting of workers in the construction sector within the EU countries", where speakers presented selected legal aspects of the regulation of posting to Austria, Belgium, France, Germany and also to Slovakia.

At the level of the European Union, the following legislation regulates the posting of workers or employees:

Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems
Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (implementing Regulation)
Regulation (EU) No 1231/2010 of the European Parliament and of the Council of 24 November 2010 extending Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of third countries who are not already covered by these Regulations solely on the ground of their nationality
Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services
Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (the IMI Regulation)
Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services
Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020 laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector and amending Directive 2006/22/EC as regards enforcement requirements and Regulation (EU) No 1024/2012

Posting of workers (employees) in selected European Union countries:

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Slovakia

Legislation (national):

Act No 311/2001 Coll., the Labour Code, as amended
Act No 351/2015 Coll. on cross-border cooperation in the posting of employees for the performance of work in the provision of services, as amended
Act No 82/2005 Coll. on illegal work and illegal employment, as amended
Act No 283/2002 Coll. on travel allowances, as amended

Conditions/Duties:

work not exceeding 24 months
the posting employer achieves in the territory in which he is established and from which he sends the employee a minimum of 20% of the total annual turnover
the maintenance of a direct relationship between the employer and the employee throughout the period of posting
carrying out only the activities agreed in the employment contract
third-country national may be posted if:
- - valid temporary (permanent) residence permit ´in an EU/EEA/Swiss Member State
- - work permit
compliance with “hard core” conditions is continuously monitored:

a)   working time and rest periods
b)   length of leave (holiday)
c)   minimum wage, wage entitlements and benefits for overtime/holiday/Saturday/Sunday/Sunday/night work, wage compensation for hardship, other compulsory wage components and holiday pay
d)   health and safety at work
e)   working conditions for pregnant women, mothers up to the end of the ninth month after childbirth, breastfeeding women and adolescent workers
f)   equal treatment and non-discrimination
g)   the conditions under which an employee may be seconded (working conditions, including pay)
h)   the conditions of accommodation provided by the employer to employees
i)   reimbursement of travel, accommodation and subsistence expenses

Exceptions to the application of “hard core” conditions:

initial assembly
the first installation of the goods
posting in terms of its duration:
- - short-term. i.e. up to 12 months or up to 18 months
- - long-term, i.e. over 12 months or over 18 months

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Austria

Legislation (national):

Lohn- und Sozialdumping-Bekämpfungsgesetz – LSD-BG (Law to combat wage and social dumping)
Ausländerbeschäftigungsgesetz – AuslBG (Law on the Employment of Foreigners)
Arbeitskräfteüberlassungsgesetz – AÜG (Labour Hiring Act)
tax regulation

Conditions/Duties:

before the posting, the posting employer is obliged to:
- - report the posting of the employee to the "Zentrale Koordinationsstelle des Bundesministerium für Finanzen" (forms ZKO3 and ZKO4)
- - registration for social insurance - filling in the A1/E101 application form (if the posted employees are not subject to social security obligations in Austria)
- - in the case of third-country nationals, a work permit
the employee is entitled to the minimum wage (including supplements and allowances) stipulated by Austrian law, collective agreement or regulation
the obligation to keep the Social Security Document (PDA1/E101), the Posting Notice (ZKO4) and, if necessary, the work permit with him/her/contact person at all times
- - employment contract
- - pay slip (payslip) and payroll records
- - proof of salary or proof of bank transfer of salary
- - working time records
- - documents relating to pay classification
  (these documents may also be available in electronic form)
in the construction sector, inclusion in the procedures for the BUAK (Bauarbeiter- Urlaubs- und Abfertigungskasse) holiday fund is obligatory, this also applies to the cross-border provision of construction work
the obligation to register arises on the first day of posting
registration via the “Zentrale Koordinationsstelle des Bundesministerium für Finanzen“
any change in the posting of an employee must be reported immediately to the BUAK via the ZKO form (Notification of Change)

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Belgium

Conditions/Duties:

obligatory notices and documents:
- - residence permit and entry permit
- - PDA1 form
- - LIMOSA declaration required for each posting to Belgium
- - notification of all places (sites) on which the posted worker will be active, not applicable:
  - + contractor does not use subcontractors and the total amount (excluding VAT) is less than € 30.000,-
  - + contractor uses only one subcontractor and the total amount (excluding VAT) is less than € 5.000,-
- - registration of attendance on Checkin@Work (on construction sites where the total amount (excluding VAT) exceeds € 500.000,-
compliance with the "hard core" conditions

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France

Conditions/Duties:

maximum period of posting of 24 months
maintaining a direct relationship between employer and employee throughout the posting
the posted worker must not have been posted within the previous 2 months
the posted worker must have been socially insured in his/her home country for at least 1 month
A1 certificate (form); an S1 certificate may also be requested
completion of the Declaration of posting and appointment of a representative in France (SIPSI)
submission of employment contract, proof of remuneration, employment reports (also in electronic form)
specifically for the construction sector:
- - personal identification card (BTP)
- - registration in the holiday fund
- - financial guarantees for temporary employment agencies established outside France
exemptions from the above reporting requirements for so-called “selfemployed” cases (artists, athletes or conference participants)
strict control of compliance with the 'hard core' conditions
registration of seconded workers via Urssaf

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Germany

Legislation (national):

Mindestens Lohn Gesetz (MiLoG) (General Minimum Wage Act)
Arbeitnehmer-Entsendegesetz (AEntG) (law on compulsory working conditions for workers posted across borders and regularly employed in Germany)
Arbeitnehmerüberlassungsgesetz (AÜG) (Act on the regulation of temporary employment)

Conditions:

follow to “the hard core” conditions
completed and validated PDA1 form
temporary employment is not allowed in principle in the construction sector
minimum wage requirements are regulated by several collective agreements (Federal Framework Collective Agreement - BRTV, Collective Agreement on the Social Security System - VTV)
as in Austria, Germany also has a holiday and wage compensation fund for the construction industry (ULAK) and a supplementary contractors' fund for the construction industry (ZVK)

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Author

Barbora Lord

Newsroom