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To Minimum Terms of Employment for Posted Workers

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To Minimum Terms of Employment for Posted Workers GUIDE to Minimum Terms of Employment for Posted Workers 2021 INTRODUCTION CONTENTS We are pleased to present an update to our guide to minimum terms of employ- BELGIUM ................................................................... 3 ITALY ........................................................................... 14 ment of posted workers across 22 European countries. The first edition of the guide received very positive feedback from clients. We are happy to continue this project BULGARIA ................................................................. 4 LATVIA ...................................................................... 15 with the invaluable involvement of our fellow lawyers from firms across Europe, who shared contributions on their jurisdictions. CYPRUS ...................................................................... 5 LITHUANIA ............................................................. 16 The update to this guide follows changes to national legislations resulting from the CZECH REPUBLIC ..................................................... 6 NETHERLANDS ....................................................... 17 introduction of EU Directive 2018/957/EU dated 28 June 2018 amending Directive 96/71/EC. These changes aim at enforcing the rule of “equal pay for equal work” DENMARK .................................................................. 7 NORTHERN IRELAND .......................................... 18 in relation to posted workers. ESTONIA .................................................................... 8 POLAND .................................................................. 19 Key changes introduced by Directive 2018/957 were: • extension of the scope of minimum terms of employment under hosting country FINLAND ................................................................... 9 ROMANIA ............................................................... 20 legislation that apply to posted workers (particularly in terms of remuneration, accommodation and reimbursement of costs connected with business travel). The FRANCE .................................................................... 10 SLOVAKIA ............................................................... 21 new provisions also provide detailed guidelines on determining whether a post- ed worker is paid minimum remuneration applicable in a given country GERMANY ............................................................... 11 SWEDEN ................................................................... 22 • extension of the scope of employment terms and conditions under hosting coun- try legislation that apply to workers during long-term posting, i.e. exceeding 12 HUNGARY ............................................................... 12 SWITZERLAND ...................................................... 23 months (exceptionally –18 months). After this period, irrespective of law gov- erning an individual’s employment contract, a posted worker must be ensured IRELAND ................................................................... 13 UNITED KINGDOM .............................................. 24 all terms and conditions of employment resulting from local laws and collective bargaining agreements (except for rules governing termination of employment, including non-compete restrictions and employee pension schemes). • application of the above protection and guarantees for posted workers also to temporary (agency) workers posted to another country as part of their work for an employer-user. The transposition of EU Directive 2018/957 onto local legislation should have been completed by 30 July 2020. However, due to the COVID-19 pandemic, the imple- mentation process in many European countries has been significantly delayed. At the start of 2021, changes to local legislation resulting from the above directive have not yet been finalised in Austria, Norway and Spain. Therefore, these countries are not covered by this revised guide. While preparing the revised guide, our aim was to provide employers with compre- hensive, yet concise advice on key terms and conditions applicable to their posted staff. With this aim in mind and in light of volume constraints, this guide edition does not cover prerequisites of leasing personnel (including temporary workers), work of juvenile employees and settlement of business trip costs. We hope that this updated guide will be a useful resource for employers posting staff to other European countries, particularly once Europe successfully overcomes the pandemic and the cross-border movement of employees regains its former dynamics. Katarzyna Magnuska Magdalena Świtajska Employment Practice Global Mobility Practice Wardyński & Partners Wardyński & Partners 2 3. Pay remuneration at least equal to the statutory mini- EXCEPTIONS TO APPLICATION OF THE ABOVE TERMS AND mum or sector pay scales. CONDITIONS The guaranteed average minimum monthly pay, fixed by BELGIUM national CBA, amounts to EUR 1,593.81. However, in many The above terms and conditions do not apply to crews of sectors of industry, pay scales have been determined by merchant ships. CBA, fixing minimum wages per sector or industry that are Moreover, the terms listed in points 2-4 above (holidays, (much) higher. minimum wages and overtime pay) do not apply (i) to work- Joint liability schemes are provided for certain sectors and ers performing initial installation works of goods that form activities (e.g. construction, meat, cleaning, agriculture and an integral part of a contract for the supply of goods, (ii) ALTIUS horticulture and security). these activities are necessary for putting the goods supplied Havenlaan 86C B414 Avenue du Port into service, (iii) they are carried out by qualified and/or PHILIPPE ESTHER 4. Pay overtime and grant compensatory rest for overtime specialised workers, (iv) for periods not exceeding 8 days, BE 1000 Brussels DE WULF SOETENS hours. (v) and provided that such work is not related to construction Tel.: +32 2 426 14 14 partner managing associate In principle, overtime hours can only be performed on the work. basis of a limited number of specific grounds (with the ex- E-mail: [email protected] [email protected] [email protected] ception of 120 ‘voluntary’ overtime hours). Working over- MAIN ISSUES THAT EMPLOYERS ENCOUNTER WITH RE- time entitles the worker to 50% extra pay for the overtime, GARD TO APPLICATION OF THE ABOVE TERMS WHEN while working on Sundays or on public holidays entitles the POSTING EMPLOYEES TO BELGIUM worker to 100% extra pay for the overtime. Compensatory LEGAL BASIS rest breaks are also provided. When posting employees, subcontracting-chains are reg- ularly used in which a Belgian ‘user’ exercises authority over The European Directive 2018/957/EU on the posting of workers was implemented in 5. Comply with all Belgian wage and employment con- the workers posted by the foreign employer, or the foreign Belgium by the Act of 12 June 2020, which contains various provisions on the posting of ditions applying within the Joint Committee, laid down in employer exercises authority over a subcontractor’s employ- workers and amends the ‘old’ Posting Act of 5 March 2002. CBAs that have been declared generally binding. ees. Foreign employers are often not aware of the involved Moreover, a Royal Decree of 15 July 2020 details the formalities to be complied with CBAs are entered into within Joint Committees existing for risk of ‘forbidden labour lease’, which is a typical Belgian by a foreign employer to be exempted from the obligation to apply a more extensive each sector of industry. These CBAs include the terms gov- legal rule. This risk of prohibited labour lease can be limited package of Belgian salary and employment conditions for a period of 18 months instead erning employment conditions in that particular sector (e.g. by taking appropriate legal measures. of 12 months. the granting of meal vouchers, eco vouchers, premiums, Moreover, it often comes as a surprise to foreign employ- additional holidays, etc.). Most of these CBAs are declared ers that when posting employees to Belgium, these employ- generally binding and must be complied with by foreign em- ees will be entitled to the salary and employment conditions THE MINIMUM TERMS AND CONDITIONS OF EMPLOYMENT ble to work up to 11 hours a day (and 50 hours per week), ployers posting workers to Belgium (with the exception of (e.g. extra benefits such as meal vouchers, eco vouchers, APPLICABLE TO EMPLOYEES POSTED TO BELGIUM provided that a quarterly or annual average of 38 hours per contributions to be paid to occupational pension plans). The additional holidays, etc.) included in CBAs that have been week is respected. new Posting Act of 12 June 2020, specifies that a foreign declared as generally binding and that are entered into at As from the first day of a worker’s posting to Belgium, A worker cannot work for more than six hours without a employer must comply with Belgian sector level CBAs that sector level (within the competent Joint Committee). This ap- the foreign employer must, unless it provides more favour- break (of at least 15 minutes). A worker is entitled to a break have been declared generally binding and provide for reim- plies to all sectors, and not only to the construction sector. able terms and conditions under its home law, comply with of 11 hours between two working periods. Once per week, bursement formulas covering travel, board and lodging ex- (i) the labour, salary and employment requirements of Bel- a worker is
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