Dr marek benio SoPHIA Posting of workers

EU pillars Freedom of movement for people (employees) Free movement of goods (and services) Free movement of capital Freedom to start and run businesses

Free movement of services Article 56 TFEU Restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.  C 113/89 Rush Portuguesa and C-43/93 Vander Elst Employees of a company that has been temporarily posted to another Member State for the purpose of providing services there do not claim in any way the right to access to the labour market of the other country, because they return to their country of origin or residence after carrying out their tasks.

Posted worker - definition For the purposes of this Directive, the term „posted worker” means 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 For the purposes of this Directive, a definition of a worker shall be that which shall apply in the law of the Member State in whose territory the worker is posted

Legal systems Labour law Social security Taxes Harmonization Directive 96/71/EC Rome I - private international law Labour law Coordination Regulation 883/2004/EC Social security Avoiding double taxation Bilateral agreements Taxes

Sources of EU law (labour and social security law) Article 56 TFEU Treaty 96/71/EC Basic directive 2014/64/EC Implementation directive 593/2008/EU Rome I Regulation 883/2004/EC (d. 1408/71/EC) Regulation on coordination of social security systems 987/2009/EC Regulation laying down the procedure for implementing reg. 883/2004/EC A draft revision of the implementation directive

Basic directive 96/71/EC Posting of workers in the framework of the provision of services

Types of posting Posting of workers by an undertaking on its own account and under its direction to the territory of another state, under an agreement between the undertaking and a recipient of services operating in a given Member State, posting workers to a company or undertaking belonging to a group of undertakings in the territory of another country, posting workers to the territory of another country as a temporary work undertaking or lending an employee to an undertaking through an agency.

Mandatory employment conditions maximum work periods and minimum rest periods, minimum pay, minimum annual pay leave.

Implementation directive Criteria for real posting – Employer and employee Strengthening cooperation between audit institutions Cross-border enforcement of penalties and fines Implementation directive 2014/64/EC

Criteria for real posting - employer Company headquarters Place of recruitment of employees Law applicable to employment contracts Law applicable to contracts with clients Significant activity in the posting country Number of contracts and turnover in the posting country

Criteria for real posting - employee Limited work-time abroad The date of the start of posting Work in a country other than that in which the employee normally performs work After the work is done, the employee returns to his country Transport, accommodation and meals are provided for the worker Substitutes for another posted worker

The choice of labour law ROME I Definition of the employment relationship according to the law of the host country Rome I Regulation 593/2008/EU (different standards no longer collide) Rules: Labour law of the posting country Choice of the governing law by the parties – with the exception of Article 3 of the Directive Principle of the most favourable law

Social insurance One legal order Anti-discrimination policy Social insurance guarantee even after crossing the border Protection against double insurance Anti-discrimination policy Protection of acquired rights Protection of rights during their acquisition

Applicable legislation Article 11 Lex loci laboris General rule Article 12 Posted workers Article 13 Work in two countries Article 16 Special agreement Special rules

Article 12 A person who performs an activity as an employed person in a Member State on behalf of an employer who normally carries out his activities there, and who is posted by that employer to another Member State to work on behalf of that employer, is still subject to the legislation of the first Member State, provided that the anticipated duration of such work does not exceed 24 months and that the person is not sent to replace another delegated person.

A1 certainty over correctness Statement A1 / E101 – is binding for the competent institution and courts of the Member State to which the employees were posted, until it is revoked or declared invalid by the authorities of the Member State that issued it. Judgment C-2/05 of CJEU: Rijksdienst voor Sociale Zekerheid vs Herbosch Kiere NV French URSSAF of Alsace vs Swiss insurance company and ROSA – case pending [opinion of the Advocate General of the CJEU Oe

Discussion

Inspiration for the survey In our Union, the same work at the same place should be remunerated in the same manner Jean Claude Junker COM proposal minimum rates of pay -> remuneration Equal pay? Equal terms of pay?

Revision of the basic directive Equal pay for the same work done in the same place EQUAL PAY After 24 moths – working in the host country

„Remuneration” It covers all elements required by host country regulations, collective agreements or arbitration rulings recognized as generally applicable or Understood according to the law and custom of the host state pay bonuses? variable pay components? all because of minimum pay rates, ????

Usual workplace The principle of freedom of choice of the law (Article 3 and Article 8 of the Rome I Treaty) The choice cannot lead to depriving an employee of the protection granted to him on the basis of regulations that cannot be excluded by contract, under the law of the country where he normally performs his work. _____________________________________________________________________ EC proposal – expected or actual posting period <24 months – the host country is considered to be a usual workplace> After 24 months or from day 1? 2 or more usual places of work possible

Let’s talk Social dumping Level playing field Fairer single market Equal (terms of) pay for the same work in the same place