New directive in spain on the posted workers in the framework of the provision of transnational services

Last april, the european parliament and the council, carried out amendments to directive (eu) 2018/957 of 28 june 2018 on posted workers in the framework of the provision of transnational services.

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Royal Decree-Law 7/2021, of April 27 (published in the Official State Gazette on April 28, 2021), contains the amendments derived from the transposition of the aforementioned Directive on posted workers in the framework of the provision of transnational services.

In this blog post, we will outline the amendments contained in Royal Decree-Law 7/2021 of 27 April 2021 on posted workers in the framework of the provision of transnational services.

 

Royal Decree Law 7/2021 of 27 April 2021

Royal Decree 7/2021 of 27 April contains amendments resulting from the transposition of Directive (EU) 2018/957 of the Parliament and of the Council of 28 June 2018. This Royal Decree modify the Directive 96/71/CE on posting of workers carried out in the framework of a transnational provision of services.

The Directive (UE) 2018/675 modify some aspects to the Directive 96/71/CE, with the objective of guaranties the rights of posted workers in the context of the freedom to provide services established by the founding principals of the European Union.

The explanatory memorandum states that, in Spain, this Directive has been partially transposed by Law 45/1999 of 29 November 1999, in terms of to the application to posted workers off all constructive elements of the compulsory remuneration and the basic workers conditions laid down in the sectoral collective agreements. 

What amendments does the Royal Decree-Law introduce?

In order to complete the aforementioned transposition, this new Royal Decree-Law introduces the following new features:

Application of the concept of posted workers

In this sense, the concept of "posted worker" explicitly includes the worker of a temporary employment agency placed at the disposal of a user company established or carrying out its activity in the same or a different state than the temporary employment agency, and sent to Spain, when:

  • The user company has signed a provision of services contract with a Spanish company
  • In the case of a company belonging to the user company's group or the user company's place of business in Spain
Application of minimum conditions
  • Application of the minimums established in Spanish legislation regarding accommodation conditions, when provided by the employer.
  • Subsistence allowance or reimbursement to cover travel, accommodation and subsistence expenses, when during the period of posting in Spain they have to travel to another place outside their usual place of residence in Spain
Duration of the journey
  • Postings longer than 12 months: application of Spanish law, except for labour procedures, formalities and conditions for the conclusion and termination of the employment contract, including non-competition clauses and supplementary pension schemes
  • Substitution of posted workers doing the same work at the same place: the cumulative duration of their postings will count towards the 12 months indicated
Minimum amount of salary: travel allowance

With regard to the travel allowance, the nature of the travel allowance must be expressly stated in the respective travel letter.

If not expressly stated, they shall be considered as reimbursement of expenses.

Communication of the displacement

Temporary employment agencies (ETT) are obliged to submit the posting notification when it is a foreign user company that sends the worker.

The company using the services provided by the posted worker must also be specified in the notification.

Cooperation between administrations

Cooperation is extended to transnational cases of undeclared work and bogus self-employment related to the movement of persons.

When did the amendments set out above enter into force?

The entry into force took place on 29 April 2021. However, they will be applicable to workers who are posted to Spain after the entry into force of Royal Decree-Law 7/2021 of 27 April (29 April 2021).

On the other hand, for workers who were already posted in Spain at the time of its entry into force, this maximum period will apply six months after its entry into force (29 October), with the calculation of the maximum period of posting commencing on the date on which the posting took place.

If you would like more information about the new regulations applied in Spain on the posting of workers, Expatfeliu can help you to solve all your doubts!

Montserrat Feliu Costa

Managing partner, ExpatFeliu