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Directive (96/71/EC) of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services

Directive 96/71/EC of the European Parliament and of the Council of 6 December 1996 concerning the posting of workers in the framework of the provision of services applies to undertakings established in a Member State of the EU, posting their workers (temporarily) to work in another EU Member State under the services provided in that Member State.

The provisions of this Directive apply to undertakings (Article 1(3) of the Directive):

• posting workers on their account and under their direction to the territory of a Member State, under a contract concluded between the undertaking making the posting and the recipient of the services operating in that Member State, provided there is an employment relationship between the undertaking making the posting and the worker during the period of posting; or

• that post workers to an establishment or to an undertaking owned by the group in the territory of a Member State, provided there is an employment relationship between the undertaking making the posting and the worker during the period of posting; or

• as a temporary employment undertaking or placement agency, hire out workers to undertaking established or operating in the territory of a Member State, provided that during the period of posting there is an employment relationship between the temporary employment undertaking or placement agency and the worker.

In accordance with the provisions of the Directive, ‘posted worker' means a worker who, for a limited period, carries out his work in the territory of a Member State other than the one in which he or she normally works.  It should also be stressed that, in the light of Article 1(3), the provisions of the Directive apply to persons employed in the context of an employment relationship.  The Directive is not therefore, in principle, applicable to self-employed persons.

However, it should be borne in mind that, in accordance with Article 2 of Directive 96/71/EC, the definition of a worker is in force in the host State.  Judgement of the institution posting workers also have to be made on the basis of the rules of the host State and  definition of a posted worker they contain.

In accordance with the provisions of the Directive, employment relationship of a posted worker, as a matter of principle, shall be governed by the law of the country of deployment.  However, in order to protect workers' rights and ensure fair competition the Directive indicates which legislation of the State of provision of services concerning the minimum terms and conditions have to be applied to posted workers (Article 3(1)).

Minimum working and employment conditions (included in the legislation of the country of services) to be provided to the posted worker are following:

  • maximum work periods and minimum rest periods
  • minimum paid annual holiday
  • the minimum rates of pay, including overtime rates
  • the conditions of hiring-out of workers, in particular the supply of workers by temporary employment undertakings;
  • 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, of children and of young people;
  • equality of treatment between men and women and other provisions on non-discrimination.

This means that a posted worker is entitled to the minimum wage in force in the State to which he/she is posted, unless this remuneration is higher than the minimum wage applicable in the State of origin.

The same applies to a number of other terms and conditions of employment, i.e. a period of service, leave, health and safety rules, equal treatment, etc. (to be applied if the provisions of the country of origin in this scope will be less advantageous for the posted worker).

Member States may provide for certain exceptions to the immediate application of the rules:

• minimum wage for work for a maximum of one month provided that this work is not carried out by the Agency providing the workers,

• minimum wage and leave to work for small operations, and provided that this work is not carried out by the Agency providing the workers,

• a minimum wage, leave, and as regards the assembly and/or installation of supplied article and the maximum duration does not exceed eight days.  This derogation shall not apply to the construction sector.

Directive as guardian of fair competition between national entrepreneurs and othose from other Member States, so that the latter are not using unfair the fact that the level of social protection in the host Member State is higher than in the country of origin of the service provider.  By identifying the mandatory rules, service providers posting workers to another Member State is not able to foresee which of the standards governing the working conditions, would apply to his workers and posted workers are guaranteed the minimum protection level.  Directive 96/71/EC also provides that undertakings established in a non-member State must not be given more favourable treatment than undertakings established in a Member State.

It is also worth indicating that on 28 May 2014 in the Official Journal of the EU Directive of the European Parliament and of the Council 2014/67/EU of 15 May 2014 was published 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).

The purpose of the act is to guarantee respect for an appropriate level of protection of the rights of posted workers for the cross-border provision of services, while facilitating the exercise of the freedom to provide services for service providers and promoting fair competition between service providers, and thus supporting the functioning of the internal market.  Directive 2014/67/EU does not therefore alter the personal scope of Directive 96/71/EC.  At the same time, Article 4 of the Directive sets out the elements for assessing whether an undertaking posting workers is genuinely established in the State of establishment and whether the posting of a worker is temporary.  In accordance with Article 4(5) of Directive 2014/67/EU, these elements may also be used in order to determine whether a person falls within the applicable definition of a worker in accordance with Article 2 of Directive 96/71/EC.  Member States should be guided inter alia by the facts relating to the performance of work, subordination and the remuneration of the worker, notwithstanding how the relationship is determined in an agreement between them.

On 18 June 2016, new rules came into force on the posting of workers in the territory of the Republic of Poland.  These relate, inter alia, to determining the rules for the protection of workers and cooperation of the National Labour Inspectorate with similar institutions in other countries. Learn more about this topic.

 

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