posting about workers

To remember :

temporarily posted to work in another EU country
may last until specific task completed
after posting, return to workplace

legal backgrounds

labor code § 5 and act no. 351/2015 coll.

- these laws regulate cross-border cooperation concerning the posting of workers for work performed in slovakia.,- establish obligations of foreign employers posting workers to slovakia & slovak entities that receive these services.

act no. 5/2004 coll. § 23b

requires slovak legal or natural persons who contract with foreign entities to notify authorities if foreign employees are posted to work in slovakia.

directive 96/71/EC (as amended by directive 2018/957/EU)

governs the conditions for posting workers in the EU, aiming to ensure fair treatment & conditions for posted workers within the framework of service provision.

rirective 2014/67/EU

focuses on enforcing directive 96/71/EC and administrative cooperation across the EU through the internal market information system (IMI).

directive 2020/1057/EU

provides specific rules for posting drivers in the road transport sector and updates enforcement regulations.

regulation (EC) no 883/2004 and decision No A2 (2009)

coordinate social security systems within the EU and clarify applicable legislation for workers posted or self-employed outside their home state.

fegulation (EC) no 987/2009 and european labour authority (2019)

establishes the european labour authority, amends existing regulations, and enhances coordination in the EU's social security framework.

concepts

Definitions

posting employer

an employer who sends his employee to perform work in the provision of services from the territory of one EU member state to the territory of another EU member state

posted employee

an employee posted by his employer to perform work in the provision of services from the territory of one EU member state to the territory of another EU member state

visiting employer

if he is established in another member state and sends his employee to perform work in the provision of services from the territory of this EU state to the territory of the slovak republic

visiting employee

if he is sent by his employer to perform work in providing services from the territory of another EU state to the territory of the slovak republic

domestic employer

if he has his registered office in the slovak republic and sends his employee to perform work in the provision of services from the territory of the slovak republic to the territory of another EU member state

domestic employee

if he is sent by his employer to perform work in providing services from the territory of the slovak republic to the territory of another EU member state

,,hardcore core'' provisions

when employer posts employee to member state, must abide to host country's laws on

working hours and rest periods
leave entitlements
minimum wage requirements
eligible surcharges (from July 30, 2020)
health and safety standards at work
protections for pregnant women, mothers up to nine months postpartum, breastfeeding women, and adolescent workers
equal treatment and non-discrimination
conditions for temporary agency workers

working conditions

remuneration

includes all basic pay components defined by national law or collective agreements.

allowances / reimburshments

employer must cover travel, subsistence, and accommodation costs during posting if travel is required.

accomodation standards

must comply with host country regulations if provided by the employer.

expense reimbursements

follows home country laws or practices, separate from regular pay.

exclusions from remuneration

travel, subsistence, and accommodation payments are additional, not part of regular wages.

collective bargaining

service providers may be asked to participate in negotiations in the host country.

a work permit is not required for posted workers, except for certain sectors when posting from croatia to austria.
professional qualifications do not need to be recognized, but a written declaration may be needed for some professions
the worker remains insured in the home country, so there's no need to register with social security in the host country.
no accumulation of additional social security rights (e.g., pension, unemployment benefits) occurs during the posting.
if the posting lasts over 3 months, the worker must register their stay with the host country's authorities.
permanent residence rights in the host country are not gained during the posting period.

long-term posting

if a worker is posted for more than 12 months (or 18 months with a justified notification to the host country's authorities), all employment conditions in the host country apply, except for contract termination and supplementary occupational pensions.
If posting is long-term, the worker’s family members may join them based on union citizenship rights, not as dependents.

social security

to continue under social security system of home country, a posted worker's employer must request a PDA1 form from the home country's social security institution and notify the host country authorities.

If the posting lasts longer than two years, the worker may:

1. switch to the host country's social security system.

2. request an extension from their employer to remain insured under the home country’s system, which requires mutual agreement between both countries' authorities and must be in the employee's interest.

types of posting of an employee to perform work in the provision of services

(a) cross-border provision of a service for a recipient of a service

- service contract: a service contract is established between the posting employer and the recipient of the service, involving the posting of an employee to another member state for work related to the contract.,- employee management: the posted employee remains under the management of their employer while performing work in the other member state, regardless of whether the recipient of the service is a legal or natural person.,- service recipient: the recipient of the service does not act as a user employer in this scenario, distinguishing it from temporary assignments.

(b) cross-border posting between the controlling entity and the controlled entity or between the controlled entities

- group posting: this refers to the posting of employees to a subsidiary within a group of companies, where the specific reason for the business trip is not relevant. - key requirements: - employees are on a business trip in another member state. - their work occurs at the premises of the subsidiary.

- temporary assignment: involves an employee being temporarily assigned by a temporary employment agency (or by a non-agency employer under specific legal conditions) to a user employer in another member state. - non-posted workers: employees temporarily sent abroad for purposes such as conferences, business meetings, or fairs are not considered posted workers under the directive. they are not subject to the administrative requirements or control measures applicable to posted workers.

monitoring

document retention: the host state may require the employer to keep or provide copies (in paper or electronic form) of the employment contract, payslips, worksheets, and payroll statements throughout the secondment period.

translation requirement: these documents must be translated into the official language of the host member state or another language accepted by the host state.
remuneration guarantee: the employer must ensure that the worker receives at least the equivalent of the remuneration required under the host country's rules, based on gross remuneration.

european labour authority (ELA)

the posting directives are overseen by the ELA, established in july 2019. the ELA assists member states and the european commission in ensuring fair, simple, and effective enforcement of EU rules on labor mobility and social security coordination. it is based in bratislava.