We have discussed the EU Posted Workers Directive extensively over the past few months on the ReloTalent blog, including what to look out for, where to get the correct information and the potential penalties that lie in wait for those who ignore the requirements. But what actually is a posted worker? Who in your organisation is counted and needs to be declared? Why are some secondments outside of the scope, while other near-identical trips have extensive notification requirements?
By understanding the (seemingly) simple question of “who is a posted worker?”, all will be revealed.
The Definition
The Posted Worker Directive defines a “posted worker” as:
“A person who, for a limited time, carries out his or her work in the territory of an EU Member State other than the state in which he or she normally works.”
At first sight, the definition appears to be pretty straight forward, but as you begin to look a little closer and apply the phrase to the different EU Member States, the simplicity rapidly disappears and leaves many with little more than confusion.
“Person”
Although many professionals associate the term “posted workers” with individuals from generally lower-wage member states who are transferred to perform work in higher-wage member states, the term is clearly referring to a definition much broader than this. The “persons” referred to can include any individuals employed in the European Economic Area (EEA) state or Switzerland who are temporarily working in another country within the area. While due to EU freedom of movement principles, immigration and visa requirements might not apply posted worker requirements can (and likely will) still apply. So, although the individual may not require a work visa or permit, this does not exempt them from the various posted worker requirements. For example, Switzerland has chosen to apply posted worker notification requirements instead of work permits for postings of up to 90 days.
Note that a “person” does not necessarily have to be an EU/EEA citizen. If the individual works in one EEA member state and is temporarily working in another EEA state, then they qualify; the nationality of the worker is irrelevant.
“A limited time”
Currently, the posted worker directive sets an upper limit on the duration of a temporary work assignment to which the posted worker requirements apply of 12 months. However, this can be extended for another six months. Therefore, if the worker’s secondment to another EU member states is to last for more than 18 months, they are no longer classed as a “posted worker”.
However, the directive itself does not define a minimum threshold of assignment duration for a notification requirement for posted workers to be triggered. Unless a specific EEA member state establishes a clear minimum assignment length under which posted worker requirements do not apply, assignments even of a single day (or less) fall under the definition.
For example, the Irish authorities (and many others) have taken the position that since there is no clear minimum assignment length specified within the directive, all assignments or visits of under 18 months, even for only one day, can trigger their posted worker notification requirement.
“Carries out his or her work”
The directive specifically identifies three different types of secondments that are considered to be postings, and therefore are within the scope of the directive:
Intra-company transfers;
Workers travelling to client sites; and
Workers hired out by temporary employment agencies.
Please note, however, these three examples in no way limits the scope of the definition to these cases. There may be other assignments to which the posted worker requirements apply as well which do not neatly fit within these categories.
It is important to be aware that the definitions of “work” and “business” and how they are applied across Europe can vary greatly. While common business meetings are generally considered to be more “business” than “work”, some authorities (e.g. Ireland) apply posted worker requirements to business meetings, even for visits as brief as a single day. More grey areas, such as providing a service in conjunction with pitching or selling a product are even more likely to result in confusion as to whether the posted worker requirements apply.
“In the territory of another EU member state”
The 27 EU members states plus EEA member Iceland and Switzerland are all covered by the posted worker requirements. This means that if the temporary assignment is to be completed in any of these countries, posted worker requirements can apply. It is also essential to note that although Norway does not apply a posted worker notification requirement, it does require a special tax registration to be completed by the host and sending entity for some postings from outside of Norway.
“Other than the state in which he or she normally works”
Originally, the posted worker directive was only created to cover individuals whose normal place of work is within the European Economic Area (EEA) or Switzerland. However, many of the adopting states have chosen to expand their requirements for posted worker notifications to include workers sent from any country in the world. For example, a worker normally employed in India and who is sent to work in France for three weeks may also be required to file a posted worker notification under the local rules.