A posted worker is “a worker who, for a limited period, carries out his work in the territory of a Member State other than the State in which he normally works”, as defined under Article 2 of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services.
Over the years, EU regulations and directives – enforced by all EU member States, EEA countries and Switzerland – have provided the instructions to comply with the various obligations. When the conditions are fulfilled, although the worker may move freely within the EU Member States, the most favorable rules are observed, as stated by the Directive 957/18/EU amending Directive 96/71/EC which replaces the term ‘minimum rates of pay’ with ‘remuneration’. Article 3 provides with the list of terms that must reflect the most favorable conditions, regardless of the jurisdiction under which the employment contract is drawn up.
The Directive 2014/67/EU provides a list of administrative obligations for the posting employer in the Member States:
- (prior) declaration of posting, to notify the authorities in the country of destination the posting of employees;
- archiving and translating of the posting documentation, to be presented to the inspector at the time of any inspection;
- controls: the foreign authority has the possibility of carrying out the necessary controls relevant to a given posting. A company may therefore be penalized even after the end of the assignment;
- appointment of representative(s) domiciled in the foreign country, with whom the inspector and/or social parties will liaise during the inspection.
Directive (EU) 2019/1152 provides for the obligation of the employer to communicate certain data to the posted workers, such as the salary and wage level to which they will be entitled for the period of the posting abroad.
From a social security standpoint, Article 12 of Regulation (EC) No. 883/2004 on the coordination of social security establishes that an employee or self-employed worker who is posted to an EU country (if conditions are met) remains insured (maximum 24 months or if the request for extension for a longer period is accepted) by applying for a (single or multi-State) A1 certificate.