Following the positive vote by the European Parliament in May, the Council of the EU has now approved the revision of the Posting of Workers Directive 96/71/EC (“Posting Directive”) as well. The most significant changes included in this revision are the introduction of the concept of a “long-term posting” for postings exceeding 12 months (with a possible extension of 6 months) and the adjustment of the notion of remuneration to be paid during the posting. The revised Posting Directive will enter into force 20 days after publication in the Official Journal of the EU, after which Member States will have two years to transpose the changes in their national legislation.
A posted worker is an employee who is sent by his employer – that is located in one Member State – to temporarily carry out a service in another Member State (the host country). The Posting Directive was adopted in this respect, in order to protect the rights of posted workers on the one hand and promote freedom to provide service and ensure a level playing field on the other hand. To achieve this, the Directive defines a number of core minimum working conditions (minimum salary, working time, health & safety …) applicable in the host country that have to apply to posted workers as well.
The revision of the Posting Directive is intended to further facilitate the provision of services within the EU while respecting both fair competition and the rights of posted workers.
Principles of the revision
The following changes are included in the revision of the Posting Directive:
- After a period of 12 months – with the possibility for an extension to 18 months after a motivated notification by the posting employer – a posting will be considered long-term, resulting in the fact that the entirety of the labour law provisions of the host country will become applicable to the posted worker. Notable exceptions in this respect are all provisions related to the conclusion and termination of the employment agreement and regulations on supplementary pensions.
- One of the principles of the current revision is: “equal pay for equal work in the same place”. As such, the revision of the Posting Directive provides that, as from day 1 of the posting, all rules on remuneration that apply to local workers in the same position will also have to apply to posted workers. The notion of remuneration has to be defined by the laws of the host country and can no longer solely comprise the minimum rates of pay, but rather has to include all elements of remuneration mandatory by national law, including e.g. a year-end premium.
- In addition, posted workers who are required to travel for work within the host country will have to receive the same travel, board and lodging expenses that local workers receive for such travels.
- Unless allowances paid to a posted worker in the framework of the posting constitute a reimbursement of actual costs incurred on account of the posting (such as expenditure on travel, board and lodging related to the posting) they should be considered as part of the remuneration and should be taken into account to compare the total gross remuneration of the posted employee. Whether or not an employer is required to reimburse such costs for its posted workers depends on the national law applicable to the employment relationship.
- Universally applicable collective bargaining agreements will have to be made applicable to posted workers in all industries and not only in the construction industry;
- The principle of equal treatment for temporary agency workers will also have to apply for posted temporary agency workers. This means that temporary work agencies that post workers abroad will have to guarantee their posted workers the same terms and conditions that apply to temporary agency workers who were hired directly in the host country.
- The above changes will not apply to the industry of international road transport, for which industry-specific conditions will be negotiated.
Impact in Belgium
The impact of the revision of the Posting Directive will be rather limited in Belgium. Indeed, Belgium has transposed the Posting Directive in a broad fashion by means of the Act of 5 March 2002, resulting in the fact that the vast majority of Belgian labour law provisions (including provisions laid down in Collective Bargaining agreements that were declared universally binding, in every industry) are currently already applicable to posted employees as from the first day of their posting to Belgium.
The Posting Directive and its above-described revision only determine the labour law position of posted workers. The social security position of those employees is governed by the Regulations (EC) 883/2004 & 987/2009 and will not be affected by the current revision of the Posting Directive.