Member States shall take the necessary measures to comply with the Directive 2019/1152/EU on transparent and predictable working conditions in the European Union by 1 August 2022.
What will change for employers posting workers?
Article 7(1) lays down the information must be provided by employers to workers sent to another Member State (MS) or to a third country (regardless of their status). That article brings only a very few changes comparing to Article 4.1 Directive 91/533/EEC on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship (hereinafter exclusively these changes are referred to):
- the obligation to provide information applies where a worker is required to work in a MS or a third country other than the MS in which he or she habitually works (instead of the MS whose law and/or practice governs the contract or employment relationship)
- the country (or countries) in which the worker is required to work, and the “anticipated” duration must be communicated (instead of the “duration”)
- it is mandatory to provide information on the benefits in cash or kind relating to the work assignments (see where “applicable” instead of where “appropriate”)
- it is mandatory to provide information on the conditions governing the employee's repatriation (see where “applicable” instead of where “appropriate”)
Article 7(2) lays down the additional information must be provided by employers to workers posted to another MS (i.e., workers covered by Directive 96/71/EC as amended by Directive 2018/957/EU).
First, an additional opportunity for those who will be concerned by laws transposing Directive 2019/1152/EU, to understand that not any worker sent is deemed to be a posted worker in the meaning of Directive 96/71/EC as amended by Directive 2018/957/EU.
Additional information must be read in the sense that the information laid down in Article 7(2) must be communicated in addition to the information provided for by Article 7(1):
- the remuneration to which the worker is entitled in accordance with the applicable law of the host Member State
- where applicable, any allowances specific to posting and any arrangements for reimbursing expenditure on travel, board and lodging
- the link to the single official national website developed by the host Member State pursuant to Article 5(2) of Directive 2014/67/EU of the European Parliament and of the Council
The term “remuneration” must be read in the meaning of Article 3.1 Directive 96/71/EC as amended by Directive 2018/957/EU.
Member States will impose such obligations on employers who post workers from their territory.
The obligations under Article 9.1(b) Directive 2014/67/EU, are laid down in the national law of the host MS, inter alia : “an obligation to keep or make available and/or retain copies, in paper or electronic form, of the employment contract or an equivalent document within the meaning of Council Directive 91/533/EEC, including, where appropriate or relevant, the additional information referred to in Article 4 of that Directive, payslips, time-sheets indicating the beginning, end and duration of the daily working time and proof of payment of wages or copies of equivalent documents during the period of posting […]”
Where providing information pursuant to Articles 7(1) and 7(2) Directive 2019/1152 is mandatory, and where the employment contract is unlikely to contain such information, the equivalent document within the meaning of Directive 2019/1152/EU (replacing Directive 91/533/EEC) will be deemed mandatory (must be provided to the worker, it contains information that pursuant to Directive 2014/67/EU must be made available at the request of the authorities of the host MS, and consequently, host Member States may require its provision, in addition to the employment contract).
In any circumstances, such a document satisfies both requirements (under Directive 2019/1152/EU, and Directive 2014/67/EU), and reduces administrative burden (merely because about a single document).
Pursuant to Article 7(3) Directive 2019/1152, the information related to remuneration (in accordance with the applicable law of the host MS), and currency to be used “may, where appropriate, be given in the form of a reference to specific provisions of laws, regulations and administrative or statutory acts or collective agreements governing that information.” That provision must be read in conjunction with Article 5 Directive 2014/67/EU lays down the MS’ obligation to “make the information available to workers and service providers free of charge in the official language(s) of the host Member State and in the most relevant languages […]”
Article 7(4) Directive 2019/1152/EU raises a certain degree of legal uncertainty and confusion:
“Unless Member States provide otherwise, paragraphs 1 and 2 shall not apply if the duration of each work period outside the Member State in which the worker habitually works is four consecutive weeks or less.”
The concept of “work period” is not defined. The applicability of paragraphs 1 and 2 if the duration of each work period is four consecutive weeks or less is left to the MS’ discretion, however, not the interpretation of the concept of “work period outside the MS in which the worker habitually works”. That concept must be given an autonomous interpretation throughout the European Union, taking into account its wording, its context, and the purpose of the rules of which it forms part (the ECJ will bring further clarity).
Looking into the interoperability with the Posting of Workers Directive and its enforcement Directive 2014/67/EU, situations in which the duty to inform the worker does not apply, however, the employers are bound by the host MS’ law to keep or make available a document that contains the same information (or the other way around), are foreseeable.
Lastly, pursuant to Article 6(1) Directive 2019/1152/EU, any change to the information above addressed “shall be provided in the form of a document by the employer to the worker at the earliest opportunity and at the latest on the day on which it takes effect.”
Pursuant to Article 6(2), that document “shall not apply to changes that merely reflect a change in the laws, regulations and administrative or statutory provisions or collective agreements” (restricted to information provided by means of reference to laws, regulations, and collective agreements- in my view, where about posted workers, the remuneration must be excluded from the scope of that provision).