POSTING OF WORKERS IN THE FRAMEWORK OF THE PROVISION OF SERVICES
The freedom to provide services includes the right to provide services in another Member State. This can include the provision of service by self-employed or the temporary posting of workers. The principle of free movement of workers provides protection against discrimination with regard to employment, remuneration and other conditions of work and employment in comparison to nationals of that Member State.
You must distinguish between the posting of workers from the principle of the free movement of workers, which gives every citizen the right to move freely to another Member State to work and reside there.
Directive 96/71/EC of the European Parliament and the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services constitutes a core set of clearly defined terms and conditions of employment which are to be complied with by the service provider in the Member State to which the posting takes place to ensure the minimum protection of the posted workers. The Directive does not apply to seagoing personnel of the merchant navy companies.
Directive 96/71/EC applies to entrepreneurs conducting economic activity in the EU. One of the conditions for an effective posting of a worker to another Member State is the need for the existence of an employment relationship between the worker and the posting enterprise.
Posting can be in the following forms:
- on your own account and under your direction, under a contract concluded between the enterprise making the posting and the recipient of the service,
- to an establishment or to an enterprise owned by the group (posting within a single capital group),
- as the temporary employment agency, hiring out to the user employer's staff.
The posted worker under the definition adopted by directive is a worker who, for a limited period, carries out his work in the territory of another Member State other than the State in which he works on a daily basis. As a definition of "worker" applies the definition used in the law of the Member State to whose territory the worker is posted.
The length of the posting shall be calculated on the basis of a reference period of one year from the beginning of the posting. In calculating the period of posting, all the previous periods for which the post has been filled by a posted worker must be taken into account.
In accordance with the provisions of the directive, Member States shall guarantee workers posted to their territory the terms and conditions of employment covering the following matters:
- maximum work periods and minimum rest periods,
- minimum paid annual holidays,
- the minimum rates of pay, including overtime rates (this does not apply to supplementary occupational retirement pension schemes);
- the conditions of hiring-out of workers, in particular the supply of workers by temporary employment agencies,
- health, safety and hygiene at work,
- protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, children and young people,
- equality of treatment between men and women and other provisions on non-discrimination.
Importantly, in relation to the concept of minimum wage, it is defined in national law and/or practice of the Member State to whose territory the worker is posted.
Member States may provide for certain derogations from the rules on the issues of:
- minimum wage for work lasting up to one month (provided that this work is not carried out by the agency providing the workers),
- minimum wage and leave with regard to work on a small scale (provided that this work is not carried out by the agency providing the workers),
- a minimum wage and leave as regards installation of supplied article and the maximum duration does not exceed eight days. This derogation shall not apply to the construction sector.
In the case of initial assembly and/or first installation (when the service is essential to the proper performance of the service) carried out by the skilled (specialised) workers posted for a period of not more than 8 days, shall not be subject to rules on:
- minimum paid annual holidays,
- minimum rates of pay, including overtime rates
This rule shall not apply to the following construction works:
- building works in a narrower sense,
- assembly and dismantling of prefabricated elements,
- fitting out or installation,
- upkeep (painting and cleaning work),
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