The Posted Workers Directive (PWD) guarantees a core set of rights to employees sent to work in another EU Member State. It is designed to prevent service providers from undercutting local businesses by adopting lower labour standards.
Whilst the original PWD dates back to 1996, it was revised in 2018, with EU Member States given until 2020 to pass it into national law.
What is a posted worker?
A posted worker is an employee temporarily sent – or ‘posted’ – by their employer to work in another EU Member State (the ‘host’).
If you are an employer sending a worker to another Member State to carry out a contract there, then that worker could be a posted worker. You should consider whether the employee will be providing a service while they are in the host Member State. The Directive would not not apply if the worker is being sent on a business trip, to attend a conference, or to undertake training. That is because they would not be providing a service in the host Member State.
The Directive is also not relevant to EU mobile workers, who are different from posted workers. Although mobile workers do provide a service in another Member State, they are already entitled to equal working conditions, as they have become part of that country’s labour market.
What rights do posted workers get under PWD?
The conditions of employment which must be granted to posted workers include:
- Maximum work periods
- Minimum rest periods
- Minimum paid leave
- Remuneration, including overtime rates
- Health, safety and hygiene standards at work
- Equal treatment between men and women
- Allowance or reimbursement of expenses relating to travel and accommodation
Providing posted workers with these conditions fulfils the Directive’s aim of ensuring they are treated at least as well as workers permanently located in the host state. But where the conditions in the posting state are already more favourable than in the host state, PWD will not apply.
How is PWD implemented and enforced?
The specific employment conditions to which the worker is entitled vary, depending on the laws of the host country. But before considering the precise laws of the Member State in question, the employer should first determine whether PWD applies. The posting will be covered by the Directive if it falls into one of these three scenarios:
- Service contract posting: an organisation enters into a contract to provide services in another Member State
- Intra-group posting: an organisation that posts a worker to an establishment within its group which is based in another Member State
- Temporary agency posting: a placement agency hires out a worker to an undertaking in another Member State
If the secondment falls within one of these categories, the employer must undertake certain formalities, such as procuring a form for the posted worker (the ‘A1 Form’), confirming that they fall within the rules for posted workers. The posting organisation must obtain this form from the relevant institution in the posting Member State.
In addition to the A1 Form, host Member States are allowed to demand further information, including:
- the identity of the service provider
- the anticipated duration of the posting
- the address of the workplace
- the nature of the services justifying the posting.
The information is to be provided to the responsible national authority, and can be made in a simple declaration. The form of the declaration varies for each Member State, but it must be provided by the start of the posting.
In most cases, the posting employer is responsible for making the declaration, but in some Member States it is the service recipient who is required to make the declaration.
Does PWD apply in the UK after Brexit?
PWD has not been implemented in the UK.
There were transitional rules which applied to UK workers posted to EEA countries while the EU and the UK were negotiating the Brexit withdrawal agreement. But those rules expired at the end of 2020 and no longer apply. In principle, the Directive therefore does not apply to EU companies sending workers to the UK, or to UK companies sending workers to the EU. But in practice, UK organisations sending workers to the EU should still consider the following exceptions.
- National laws of EU Member States still apply
The Directive was not implemented in exactly the same way in each Member State.
Under the Directive, Member States must ensure that workers posted from non-EU countries (such as the UK) are treated at least as well as workers posted from within the EU. Many Member States dealt with this by enacting rules which apply equally to workers from both inside and outside the EU.
A UK employer posting a worker to the EU should therefore find out what the host nation’s requirements are for workers posted from outside the EU. They may well be the same as those for workers posted from within the EU.
- Intra-corporate transferees
‘Intra-corporate transferees’ refers to managers, specialists and trainee employees sent to different entities within the same organisation. If an employee of a UK company is sent to one of its group’s EU offices, they must be treated at least as favourably as citizens of the host state. This is provided in the trade agreement reached between the UK and the EU.
Practical Considerations
The aim of guaranteeing workers’ rights under PWD is to ensure the fair treatment of workers and create a level playing field for EU companies.
But it can also be seen as a burden for organisations who want to avoid the legal and reputational costs of failing to comply. Organisations that regularly post workers within the EU should therefore consider creating or acquiring a compliance solution capable of:
- Collecting relevant data relating to posted workers
- Analysing the data to determine whether PWD applies
- Assisting with the various reporting requirements of each Member State
- Storing documents which can be used to respond to any information requests
VinciWorks’ PWD reporting solution
VinciWorks has built a centralised PWD reporting solution to help businesses comply with the Directive by keeping track of all their posted workers. This in turn ensures that reports can be made accurately and on time to the relevant authority. The system also includes built-in guidance to help users understand the questions and terminology used by the host nation in question.
