The European Parliament and the Council of the EU have adopted Directive 2018/957, which changes the uniform rules for the posting of workers between EU Member States after more than 20 years. EU Member States are required to adopt the laws, regulations and administrative provisions necessary to comply with this Directive by the end of July 2020.
The fundamental changes introduced by the new Directive may be summarised as follows:
Principle of Equal Pay
The currently-applied principle of minimum rates of pay of the host state where the work is carried out will be replaced by the principle of equal pay. The salary of a posted worker will have to include all components of pay that are mandatory under the national legislation of the host state where the work is carried out, collective agreements or arbitration rulings pronounced as generally applicable in the host state where the work is carried out.
New Hard Core
Currently, only the “hard core” mandatorily applies to a posted worker in relation to his/her working conditions, i.e. only a part of the working conditions in the host state where the work is carried out (e.g. maximum working hours, length of annual leave etc). Under the new rules, the “hard core” will be expanded and additional working conditions of the host state where the work is carried out will mandatorily apply to posted workers: the conditions of accommodation, the payment of allowances or reimbursement of expenditure to cover travel, board and lodging expenses for workers away from home for professional reasons.
Regulation of Concurrence of Temporary Assignment and Posting
The new Directive explicitly allows temporary assignment of a worker and his/her subsequent posting to another entity in another (third) Member State in the framework of the transnational provision of services. The Directive currently does not regulate this situation. The worker shall be considered to be posted to the territory of another (third) Member State by the employer or placement agency with which the worker is in an employment relationship.
Postings for Periods Longer Than 12 Months
The current Directive does not distinguish posting by the length of posting, and it does not explicitly provide for a maximum duration of posting. However, for the purposes of this Directive, a “posted worker” means a worker who, for a limited period, (temporarily) carries out his/her work in the territory of a Member State other than the state in which he normally works. Where a posting exceeds 12 or, where applicable, 18 months based on an extension, the new Directive lays down that all the terms and conditions of employment applicable in the host state where the work is carried out will apply to a worker, i.e. not just the “hard core”.
Extending the Obligation to Publish the Terms and Conditions of Employment
The new Directive extends Member States’ obligation to publish the information on the terms and conditions of employment, on the single official national website, to the elements of remuneration rendered mandatory as well as to the additional set of terms and conditions of employment applicable to postings exceeding 12 or, where applicable, 18 months. The European Commission shall publish on its website the addresses of the single official national websites providing such information.
The new Directive does not apply to cross-border posting of drivers in the road transport sector; special rules of posting will be prepared for the road transport sector.