Preparing for labour inspections it is not sufficient to retain in paper or electronic form the documents laid down in the law of the host Member State (MS) transposing Art 9.1 (b) Directive 2014/67/EU.
The content of such documents should reflect factual compliance with the host MS’ laws transposing the Posting of Workers Directive (Directive 96/71/EC as amended by Directive 2018/957/EU), and its enforcement Directive 2014/67/EU.
Hereinafter a few highlights.
1 The allowance specific to the posting must be calculated as the balance between the gross remuneration due in the host Member State (i.e., all mandatory constituents must be considered), and the gross remuneration (including mandatory constituents) should have been paid if the sending MS’ law, regulation or administrative provision, collective agreement, arbitration award would have been applicable during the assignment period (i.e., considering the specific posting scenario).
2 In principle, are deemed remuneration, exclusively amounts effectively paid i) for the work carried out during the assignment period, and ii) as a consequence of rights accrued for that period in the calendar year during which the assignment is carried out (or, where relevant, for the period during which the assignment is carried out, if rights are accrued for that period). The excess is deemed remuneration for the same calendar year (or, where relevant, for the assignment period if rights are accrued for that period), without prejudice to obligations that arise from the sending MS’ law, regulation or administrative provision, collective agreement, arbitration award.
Example- labour inspection carried out on 2 November 2023, for an assignment initiated on 15 September 2023 and planned to last until 31 December 2023:
- a Christmas bonus (will be) paid in December 2023 for the year 2023, will not be considered paid remuneration for the months of September and October 2023 (i.e., may not be virtually prorated)
- 13th month paid by the end of October 2023 for the year 2023, is deemed paid remuneration for the months of September and October, and the excess for November and December
3 Despite of alleged compensation for work carried out, paid amounts deemed reimbursement of expenditure actually incurred on account of the posting under the sending MS’ law, regulation or administrative provision, collective agreement, arbitration award, will be presumed as such by the labour inspection in the host MS. That is a refutable presumption (where relevant, detailed evidence must be provided).
In the same context, per diem amounts that cover expenditure actually incurred and allowance specific to the posting, must be split accordingly. The grounds of determining the amount that corresponds to expenditure actually incurred must be addressed: law, regulation or administrative provision, collective agreement, arbitration award or contractual agreement that apply to the employment relationship (on the contrary, the entire per diem will be deemed paid in reimbursement of expenditure).
4 The relevance of the principle of favourability must be proven and not only stated. It is often easier to merely provide the breakdown above addressed (see point 1).
5 The letter of assignment must contain a breakdown of the calculation referred to under point 1 (see inter alia Preamble 18 Directive 2018/957: When comparing the remuneration paid to a posted worker and the remuneration due in accordance with the national law and/or practice of the host Member State, the gross amount of remuneration should be taken into account. The total gross amounts of remuneration should be compared, rather than the individual constituent elements of remuneration which are rendered mandatory as provided for by this Directive. Nevertheless, in order to ensure transparency and to assist the competent authorities and bodies in carrying out checks and controls it is necessary that the constituent elements of remuneration can be identified in enough detail according to the national law and/or practice of the Member State from which the worker was posted).
As regards the information must be provided to posted workers, Directive 2019/1152/EU on transparent and predictable working conditions (replacing Directive 91/533/EEC), imposes obligations on sending MS. When drafting letters of assignment, the sending MS’ law transposing Directive 2019/1152 must be considered.
6 Find an appropriate way to present pay slips that cover work carried out during the same month in the sending MS, and in one or more other MS.
7 Time sheets must record the beginning, end, and duration of the daily working time, and not overtime only (working time represents time during which the worker remains under the employer’s authority/at the employer’s disposal).
8 Portable Documents A1 (A1 certificates) issued by the competent social security authority in the sending MS, are not considered as a proof of a genuine posting from the perspective of labour law (i.e., the existence of an A1 certificate does not preclude the verification as to whether
- the sending company performs substantial activities, other than purely internal management and/or administrative activities in the sending MS and
- the posted worker temporarily carries out his or her work in a MS other than the one in which he or she normally works)
9 Where relevant, and notably following labour inspections, retain mandatory documents beyond the period laid down in the host MS’ law transposing Art 9.1 (c) Directive 2014/67/EU.
It must be distinguished between on the one hand, the period laid down by national laws provisions transposing Art 9.1 (c) Directive 2014/67/EU, and, on the other hand, the limitation period for bringing proceedings for failure to comply with (e.g.,) obligations relating to the remuneration of posted workers (see to that extent the ECJ Judgment of 10 February 2022, C-219/20, LM, EU:C:2022:89).
A judicious planning of the assignment (i.e., pre-arrival) followed by monitoring compliance (i.e., post-arrival), are essential in granting smooth labour inspections.
Remark: references to the sending MS’ law [….], must be understood as references to the law applicable to the employment relationship, determined on grounds of Articles 8 and 9 Rome I Regulation.
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