Posting of employees domestically and abroad

In an environment of enhanced European integration, as an expression of free and facilitated mechanisms for the provision of cross-border services, it is increasingly common for Bulgarian employees to be sent to perform their official duties abroad. European legislation has not recently sought to ensure maximum protection for the rights of workers who fall within the scope of the free transfer of goods, people, capital and services. However, there are a number of questions whose answers remain unclear to both workers and employers. In this statement, we aim to answer some of the most frequently asked questions, starting by clarifying the basic concepts.

General concept of business trip

A business trip is undoubtedly related to the so-called “place of work”. It is part of the minimum contractual content of the individual employment contract and should be agreed upon by the parties upon the occurrence of the employment relationship. In the absence of provisions in this direction, the law imposes the presumption that the place of employment is considered to be the place of employment of the employer or it is possible to follow the nature of the work. Most often it is determined by some fixed boundaries. For example: gr. Sofia, s. Vacarell, Montana District, et al.

By virtue of the opportunity granted to him by Article 121 of the Labor Code (TC),the employer may, at his discretion, unilaterally change the place of workwhen “the needs of the enterprise so require” as the seconding officer for a period not exceeding 30 days. The employer exercises this subjective probationary right by means of a posting order. In the event that the posting requires the absence of the employee from his usual place of work for more than 30 days, it is also necessary to take his consent. Any performance of official duties in a territory other than the designated place of work is considered as a posting.

Posting in the framework of the provision of services

Posting under these conditions is regulated in Art. 121a of the TC. With this provision, the legislator has fulfilled its obligation to transpose Directive 96/71/EC, subsequently amended by Directive 2018/957/EU, which brings our national legal framework into line with European legislation in this field.

Art. 121a KT introduces the following three alternative hypotheses, in the presence of which it is considered that the employee is posted in the framework of the provision of services:

• where the employer, at his own expense and under his direction, on the basis of a contract concluded between him and the user of the services, a Bulgarian national posted to a Member State of the European Union, the European Economic Area or to the Swiss Confederation for the performance of his or her work duties in relation to the provision of the relevant services.
• when the employer sends a Bulgarian employee in an enterprise from the same group of enterprises/that is, between two related enterprises/ located on one of those mentioned in the previous point /for example: Enterprise X, with its registered office in Bulgaria, has a subsidiary U with its registered office in Germany, respectively X hires Ivanov and sends him to work on the territory of enterprise U/;
• when a Bulgarian enterprise, which provides temporary employment or acts as an intermediary for the recruitment of labour sends a worker or employee to a user undertaking in the territory of another Member Statein the European Union, the European Economic Area or in Switzerland/for example: Ivanov has an employment contract with a Bulgarian employer under Article 107r of the Labor Code, respectively he is sent to Spain, where he will work in the summer as a waiter in a Spanish restaurant (the user enterprise).

Directive 96/71/EU does not apply only to maritime crew undertakings in the commercial fleet.

What is not a business trip?

According to Art. 6 of the Ordinance on Posting in the country, persons whose professions fall under the following hypotheses are not considered to be posted:

• carry out their permanent work during travel - workers of locomotive and other transport brigades, drivers, airmen, sailors, hunting and fishing supervisors of the mobile guard, etc. /For example: the place of work of the pilot is the aircraft he is piloting.
• perform official tasks within the boundaries of settlements, where the place of their work is determined upon the occurrence of the employment relationship/For example: Ivanov has agreed with his employer that his place of work is in the city of Sofia, therefore, if it is necessary to officially bring documents from the office in the city of Sofia. Sofia to notary2 blocks down, there will be no secondment/;
• perform positions such as suppliers, suppliers, couriers, dispensers and others, in which the nature of the work is associated with travel between different settlements.

*It should be noted that the mentioned regulation applies only to business trips to the territory of the Republic of Bulgaria, therefore, if the employee has to leave the Bulgarian borders, performing any of the mentioned activities, he will be considered posted.

• Persons who are sent to an EU Member State, the EEA or the Swiss Confederation for the performance of official duties not related to the provision of services shall not be considered to be posted under Directive 96/71/EC. For example: the employer sends Ivanov to France to attend an international congress on imaging.

Is it possible for an employee to be posted abroad without his consent?

The employer has a subjective post-certification right to change the place of work unilaterally, but the change should be short-term. According to Art. 121 of the Labor Code, the consent of the employee is not required if the period for posting is less than 30 calendar days without interruption. In this case, the employee is obliged to fulfill the order of his employer, which is always entered through a posting order. This is not the case if the posting is for a period longer than 30 days. It is then mandatory to obtain explicit written consent from the worker/employee.

Another hypothesis requiring the express written consent of the employee on a business trip, regardless of its term, is that in the provision of Art. 310 of the Labor Code. She says that”the employer cannot post a pregnant woman, worker and employee in the advanced stage of in-vitro treatment and mother of a child up to 3 years of age without her written consent”.

Posting to EU Member States, EEA and Switzerland requires that an additional written agreement be concluded between the employee and the employer on the basis of Article 2 and Article 3 of the Regulation on the conditions and procedure for posting and sending workers in the framework of the provision of services. Without the signing of the relevant agreement on the amendment of the employment relationship for the duration of the posting, respectively without the written consent of the employee, it is not possible to carry out the posting.

Located in an environment of progressively expanding employment opportunities and provision of services in cross-border conditions, we have set out to successfully synchronise national and supranational legislation with a view to guaranteeing the rights of European citizens as much as possible. With the present article, we have clarified the main features of posting, but this only provokes new ambiguities. In this regard, we have continued the in-depth analysis of matter, which we have reflected in our next text, which you can find at the following link.

‍