Controversial amendments to the EU rules for posting workers
On 3 October 2018 Poland filed a complaint with the Court of Justice against the amended Posted Workers Directive (2018/957/EU).
The main objection raised by Poland to the new provisions on the posting of workers is their protectionist character, in particular the principle of equal pay, which according to the Polish government hinders the implementation of the Treaty principle of the free movement of services.
Directive 2018/957/EU, approved on 21 June 2018, introduces significant changes to the current provisions on posting of workers within the EU. Under the new directive, which should be implemented into national law by mid-2020, an employer posting employees will be obliged, as of the first day of the posting, to provide the posted worker, based on the principle of equal treatment, with the remuneration in force in the host country, and not minimum pay as has been the case. The directive provides that remuneration is determined in accordance with the host country’s legislation or practice and stipulates all components of compulsory remuneration binding under national legislative, regulatory or administrative provisions, or pursuant to collective labour agreements or arbitration awards. The directive states that in implementing the principle of equal treatment in remuneration, total gross remuneration should be compared, not individual remuneration elements.
Accommodation and business trips
An employer that provides posted workers with accommodation in the host country will also be required to comply with the relevant provisions in force in that country.
Posted workers on a business trip in the host country (i.e. to and from their normal workplace) should receive at least the same allowance or reimbursement to cover travel, subsistence and accommodation expenses as are received by local workers in the host country.
Host country law and extended application of collective labour agreements
If the posting period is longer than 12 months (or in some cases 18 months), the posted worker should also be guaranteed, on the basis of the principle of equal treatment, the application of all applicable employment terms in the host country with the exception of procedures, formalities and conditions for concluding and terminating employment contracts, including non-competition clauses and complementary employee pension schemes.
In addition, the directive introduces the rule that application of collective labour agreements or arbitral awards recognised as generally applicable is extended to all sectors of the economy. The current rule is that the use of collective labour agreements is only mandatory for the construction sector and optional in other sectors.
Wait and see for international road transport
Note that the new directive excludes its application by enterprises operating in the international transport sector until special provisions are introduced for this sector. These provisions (the so-called Mobility Package) are currently being negotiated by the EU member states’ transport ministers.
Kamil Jabłoński, attorney-at-law, Employment practice, Wardyński & Partners