In a market as globalised and competitive as the current, international labour mobility is an increasingly common option for companies. Many employers see the international mobility of their workers outside the national territory as an opportunity to grow and expand their business beyond their borders.
In this sense, the European single market gives companies the possibility of posting their workers to another company on a temporary basis, when one of the following conditions arises:
- The conclusion of a service contract with another company which operates in the territory of another Member State (hereinafter, the "Host Member State").
- The posting of workers to an establishment or to a company owned by the group in the territory of another Member State ("lntragroup Posting").
- In the case of a temporary employment company or placement agency, the posting of an employee to a user company established or operating in the territory of another Member State
("Posting by a temporary employment undertaking")
In all the above cases, the employment relationship between the employer of origin and the worker must be in force in the course of the duration of such labour mobility.
In order for the posting of workers to be of a temporary nature, it may not last longer than 12 months over a period of 3 years(18 months, if the company submits a reasoned notification).
If these limits are exceeded, the posting would become a long-term posting, with the consequences on the working conditions specified below.
With regards to the coordination and applicable Social Security system, the regulations make no distinction as to the duration of the posting. However, where the foreseeable duration of the mobility exceeds 24 months, the Home and the Host Member States must agree an extension so that the employee is able to continue to be covered by the Social Security legislation of their Home State. If such extension is not approved, the legislation of the Host State shall apply as soon as the initially expected period of the posting expires.
What working conditions shall the company apply to workers posted on the European Union market?
European Union law provides that the undertaking/company of origin must ensure posted workers the minimum conditions of work and employment recognized in the State where the workers are posted. This comprises the minimum rights in terms of working time, equal pay, equal treatment or
regulation on the prevention of occupational risks, provided, of course, the conditions in the
Host State are more favourable than those in the Home State.
On the contrary, if the aforementioned maximum period of 12 or 18months for temporary posting is exceeded, EU law provides that all the working conditions of the State to which the worker is posted must apply, with the exception of those relating to the formalities for the conclusion and termination of the employment contract and supplementary pension schemes, to which the local legislation of the country of origin shall continue to apply.
What if the mobility occurs outside the teritory of the European Union? The new regulatory area for the United Kingdom after Brexit
When the posting of workers occurs outside the limits of the European Union area, the relevant conventions or agreements that may be in force between the country of origin and the host country will apply instead, in addition to the regulations on foreigners that each state may have.
Special mention to the United Kingdom, since after the controversial BREX!T, the posting of workers is a challenge and an added difficulty for companies because, in general terms, they can no longer benefit from the advantages offered by the single market.
Thus, the new regulatory framework resolves this issue by establishing a series of cases and dates which will determine the applicable regime and the procedures to be carried out in each case.
Firstly, with regards to those Spanish companies which, on January 1st, 2021, had workers temporarily posted in the United Kingdom or Gibraltar, they shall continue to apply the European law on mobility of employees during the time of the posting (in particular, the applicable law will be the transposition by the United Kingdom of the European Directive concerning the posting of workers in the framework of the provision of services).
Likewise, British workers who, as of January 1st, 2021, were already working in Spain in the framework of a temporary posting, may continue to stay in Spain until the initially foreseen duration of their posting ends, without the need to obtain prior authorization for residence and work. In the event that the original duration needs to be extended, it will be necessary to obtain such a residence and work permit, as provided for in the regulations on foreigners.
These two cases are currently subject to the granting of reciprocal treatment by the UK authorities.
Finally, in the event that a Spanish company requires the posting of British workers for the provision of services and the posting takes place as from January P ', 2021, workers must obtain the necessary visas or residence and work permits provided for in the Spanish foreigners legislation, under the same conditions as workers from third countries outside the European Union.
In conclusion, in this new regulatory context, it is necessary to have the best advice on the international mobility and posting of workers in order to carry out all the necessary procedures in an efficient and safe manner.
This article was produced by CELIA member firm Ceca Magan.
CELIA Alliance members are identified here. Members of the CELIA Alliance are each independent law firms and do not practice law jointly with any other member of the CELIA Alliance. "CELIA Alliance" and "CELIA" are not trading names. For more information about the CELIA Alliance click here.
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