IN the previous expositionwe tried to acquaint you with the basics and concepts in connection with the topic, in which we clarified what is posting and what is the posting of workers and employees in the framework of the provision of services, what is not considered a business trip and whether it is possible for an employee to be posted without his consent. With this article, we aim to draw attention to the conditions under which cross-border workers will successfully fulfill their social function. Since each new answer, filling the missing space with information, provokes the emergence of new unknowns, we will delve into the matter by clarifying also questions oriented around monetary costs of a different nature, concerning both sides of the legal relationship.
For the employee, the conditions on which an agreement was reached with the employer apply. According to Directive 2018/957/EU, as well as the Ordinance on the Conditions and Procedure for the Posting and Posting of Workers and Employees in the Provision of Services (NURKIRSRPU), the posted employee must be guaranteed at least the same minimum working conditions as provided for by law, regulatory or administrative provisions, collective agreements and arbitration industrial solutions, relevant to the profession concerned, as granted to employees occupying the same or similar position in the host State.Therefore, if you are posted to Germany, for example, the requirements of the German labor regulations should be complied with. The applicable conditions cover the following areas:
The application of the relevant conditions of the host State shall not be subject to a specific period of posting. However, there are a few exceptions in which the rules on minimum paid annual leave and on remuneration will not be relevant. This is the case for posting for a period of less than 8 (eight) days in connection with the initial assembly and/or initial installation of goods, where this is an integral part of a contract for the supply of the products and is necessary in order to put the delivered works into service. In this regard, this must be carried out by qualified workers and/or specialists of the supplying undertaking in all cases except those concerning activities in the construction sector.
There is also the possibility that the host State may refuse to apply those conditions to a business trip of a maximum duration of one month within one year
With regard to the remuneration to be paid to the seconded employee, it is appropriate to note, that the agreed remuneration is due, but not less than the remuneration payable for the position in question in the host State.Remuneration refers to all its constituent elements (basic and additional remuneration) which have universal application in the relevant territory, branch or branch, determined by laws, regulations and collective agreements of the host State. It also includes secondment allowances, but does not include amounts for reimbursement of expenses already incurred in connection with the posting. For example: living rooms, travel and accommodation.
Directive 2014/67/EU requires each Member State to maintain a single official national website on which to upload and update any information relating to working conditions arising from both regulatory sources and collective agreements generally applicable to the case. There, any citizen who is about to be posted in the framework of the provision of services can familiarize himself with the applicable labor requirements. The addresses of the websites can be found on the website of the European Commission.Moreover, according to the NURKIRSRPU, the employer, or the undertaking providing temporary employment, has an obligation to inform the worker or employee in advance in writing of the conditions of employment in the host country published on the single official national website of the country concerned, which should be fulfilled no later than one working day before the start date of the posting, i.e. the date specified for his or her entry into employment at the user enterprise.
It should be noted that if the working conditions for the profession in question in the country of origin are more favourable than those of the country to which the employee is posted, those conditions must remain applicable.
Yes. Directive 2018/957/EU and the working conditions which it guarantees to European citizens as posted workers and employees are applicable here. Although the directive does not explicitly mention it, the case-law as well as the case law of the Court of Justice of the European Union (Case C-815/18; C-428/19) share the view that it should apply even to persons holding positions in the field of cross-border provision of road transport services. For example: Ivanov is a tire driver, he needs to transport goods from the city. Sofia to Gr. Strasbourg, where to hand it over to the buyer, Ivanov provides a service in connection with a contract concluded between the employer and the recipient of the goods, therefore Ivanov falls within the scope of the Directive, even though the position held by him is distinguished by its mobile nature.
According to NURKIRSRPU, which is special to CT and the Ordinance on official business trips and specializations abroad, the employeris obliged to pay only the transport costs incurred by the seconded official. Costs for used public transport are usually covered. If an airplane is used, the employer is obliged to cover only an economy class ticket, unless it is necessary to use more expensive services due to urgency. However, it is not uncommon for an employee to use a vehicle personally or for work. In this situation, the employee should receive back the amount spent on fuel, parking, tolls and other related expenses.
However, with regard to daily and accommodation money, the employer is not obliged to pay them, unless there is an agreement between the parties to the employment relationship in the opposite direction.
Pursuant to Article 3 (1) (b) of Directive 2018/957/EU, the posted worker shall be entitled to at least the minimum number of days of paid annual leave established in the host country, to be agreed in the posting agreement. It should not be forgotten that more favorable working conditions for the employee should be maintained, respectively, if national law requires the employee to rest more days than the days of paid leave in the host State, the national legislation must be complied with.
Regarding compensation for unused paid annual leave, we should pay attention to Art. 224 in conjunction with Art. 177 of the TC. According to those provisions, an employee whose employment contract has been terminated without having exercised that right should receive monetary compensation for the days of unused paid annual leave accrued to him. The rate at which it is paid is determined in relation to the average daily gross labor remuneration that the employee received in the last month before the termination, during which he worked at least 10 days.It therefore depends on where the worker/employee did his work during the specified period and, accordingly, what remuneration he received.
Yes. According to Art. 4 of the Ordinance on the conditions and procedure for posting and sending workers and employees in the framework of the provision of services (NURKIRSRPU)'travel expenses relating to the use of paid annual leave for the return of the worker or employee and for his return to the place of work in the other State shall be at the expense of the employer'.
In the event that the employee receives remuneration in an amount corresponding to the minimum in the host country for the position in question, the case law in Bulgaria as well as the case law of the European Court of Justice (Case C-396/13) are unanimous in their opinion that the employee is considered to be sufficiently compensated. This also corresponds to the text of Directive 2018/957/EU, as well as that indicated in the NURKIRSRPU.
The topic of posting in the framework of the provision of services in the EU Member States, the EEA and the Swiss Confederation is extremely topical. There is still not enough practice on the subject, due to the recently introduced updates to the legislation. Of course, the above does not exhaust the topic, and in case of cases and additional questions, do not hesitate to contact turn to us.
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