Posting of Workers - the law has been reinforced!

The Posted Workers Directive (1996) has just been reinforced by a new Directive to prevent social dumping, to protect the rights of posted workers and to better ensure fair competition between services providers in Europe.This so-called Enforcement Directive needs to be transposed into national law by 18 June 2016. Below we summarize some of its most important aspects.

To identify a genuine posting the new Enforcement Directive offers a few indicative factors that must be examined but the factual situation is still important:

• to determine whether an undertaking genuinely performs substantial activities in the state of origin the place where the undertaking has its registered office, the place where the posted workers are recruited and from which they are posted, the law applicable to contracts, the place where the undertaking performs substantial business activity, turnover realised in the state of origin etc. may be considered;
• to assess whether a posted worker temporarily carries out her/his work in another Member State than the one she/he normally works in the following elements may be considered: work is carried out for a limited period of time, travel, board and lodging is provided or the costs of such are reimbursed, what the nature of the activities are, etc.

Under the new Directive access to information on the terms and conditions of employment (such as minimum wages, etc.) in the Member States must be made easier.

The new Directive also provides for increased cooperation between national authorities in charge of posting: for urgent enquiries Member States will need to respond within two working days, all other requests will need to be handled within 25 working days.

To monitor compliance Member States may oblige posting companies to make a preliminary declaration, to designate a contact person and to make available and/or keep copies of all relevant documents (such as payslips, timesheets, etc.).

Posted workers will be offered effective (legal or administrative) mechanisms to lodge complaints.

Additional subcontracting liability measures may be taken to tackle fraud or abuse.

Penalties and fines imposed on service providers must be enforced.

> Action point

The Directive still needs to be transposed into national law but it is clear the impact is quite important.
To be continued...