Mobility and immigration

Yesterday, on 21 June 2018, the Council of the European Union approved the revised Posted Workers Directive. The modifications mostly concern the remuneration of posted workers, postings of more than 12 months and temporary agency work. The revised Posted Workers Directive will enter into force 20 days after its publication in the EU Official Journal, after which Member States will have two years to change their legislation in order to be in line with the new rules.

The Posted Workers Directive has, since 1996, defined a set of core minimum working conditions applicable in the host member state which also apply to posted workers, even though their employment contract remains further governed by the posting state.

The key changes of the revised Posted Workers Directive are the following:

  • The set of core conditions is expanded to include the conditions of accommodation where provided by the employer that apply in the host member state and the same mandatory allowances as local employees for travel, board and lodging expenses when they are away from home for professional reasons.
  • Posted workers are entitled to the same remuneration as local workers for the same work at the same place. The concept of remuneration must be determined by the host member state, but it must include all mandatory constituent elements of remuneration and not only the minimum rates of pay.
  • Allowances specific to the posting may be included in the comparison, unless they cover expenses actually incurred on the account of posting, such as travel, board and lodging. The employer must reimburse such expenses in accordance with the national law and/or practice which applies to the employment relationship. Where the conditions applicable to the employment relationship do not determine which elements of the allowance covers expenses and which are part of the remuneration, the entire allowance is considered to cover expenses actually incurred on the account of the posting.
  • In all Member States, the collective bargaining agreements which are declared universally applicable must also apply to posted workers in all sectors and not only in the construction sector (which is already the case in Belgium).
  • After 12 months, posted workers are entitled to all working conditions of the host state that are mandatorily applicable except for the conditions and procedures of the conclusion and termination of the employment contract and the supplementary occupational retirement pension schemes. With reasoned notification, this period may be extended to 18 months.
  • The principle of equal treatment with regard to temporary agency work as provided for in the Temporary Agency Work Directive also applies to posted workers.
  • In the transport sector, the current Posted Workers Directive will continue to apply until the sector-specific European legislation that is currently under negotiation comes into force.

What the impact will be of the new rules also depends on how far Member States have already gone with the implementation of the Posted Workers Directive. Belgium has already gone far in this and many modifications are already effective.

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Please bear in mind that in two years more local legislation may apply to the posting of workers within Europe.