Posting of workers – law and practice in the EU

We say a worker is "a posted worker" when he is employed in one EU Member State but sent by his employer on a temporary basis to carry out his work in another Member State.

For example, a service provider may win a contract in another country and send his employees there to carry out the contract. 

This trans-national provision of services, where employees are sent to work in a Member State other than the one they usually work in, gives rise to a distinctive category, namely that of "posted workers". 

This category does not include migrant workers to go to another Member State to seek work and are employed there.

To guarantee that the rights and working conditions of a posted worker are protected throughout the European Union, and to avoid "social dumping" where foreign service providers can undercut local service providers because their labour standards are lower, the European Community law has established a core of mandatory rules regarding the terms and conditions of employment to be applied to an employee posted to work in another Member State. These rules will reflect the standards of local workers in the host Member State (that is, where the employee is sent to work). 

The idea is that where a Member State has certain minimum terms and conditions of employment, these must also apply to workers posted to that State. However, there is nothing to stop the employer applying working conditions which are more favourable to workers such as, for instance, those of the sending member State (that is, where the employee usually works).

The Posting of Workers Directive (Directive 96/71/EC) covers employees being sent to another Member State in three situations:

§  When an employer posts a worker to another Member States on his own account and under his direction, under a contract which the employer has concluded with the party in the State for whom the services are intended;

§  When an employer posts a worker to an establishment or to an undertaking owned by the group in the territory of a Member State;

§  When the employer, being a temporary employment undertaking or placement agency, hires out a worker to a user undertaking established or operating in another Member States.

The employment relationship between the employer and the posted worker must be maintained during the period of posting.

The core of mandatory rules on posting covers a wide range of issues such as maximum work periods and minimum rest periods, minimum paid annual leave, minimum rates of pay, equal treatment between men and women and the conditions of hiring out workers, in particular the supply of workers by temporary employment undertakings.

The legislation also tackles issues such as health and safety at work and includes protective measures in the terms and conditions of employment of pregnant women, of children and of young people.

By guaranteeing fair competition and respect for the rights of posted works, the EC legislation provides a clear framework so that businesses and workers can take full advantage of the opportunities offered by the internal market.

Furthermore, the Posting of Workers directive lays down the obligation for Member States to cooperate among themselves and to grant public access to information on national employment conditions.