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CONVINUS Global Mobility Insights NEWSLETTER Winter 2022 / 2023

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Global Mobility Insights - Winter 2022 / 2023 scratch the Mother Directive 96/71, with a view to greater protection of national labour markets. Indeed, the directive intervenes on minimum standards of protection, expanding the list of minimum conditions of work and employment, introduces equal pay, the concept of "long-term posting," and an anti-avoidance rule to counter the phenomenon of so-called rotation posting. Directive 96/71/EC defines "posted worker" (Article 2(1)) as that worker who, for a limited period of time, performs his or her work in a state other than the one in which he or she is normally employed. It is therefore sufficient for a worker to work in a country other than the one in which he or she is normally employed for the term "posted worker" to be used at the EU level. It is therefore clear that this definition includes postings, assuming of course that there is a transnational provision of services. The posted worker, however, could also be a "business traveller." Again, the regulations of individual member states provide different definitions and obligations for business travellers. Regardless of whether the activity carried out in another member state constitutes the provision of services and its duration, as also reiterated by the European Commission, it is always necessary to apply for Form A1. The company that decides to post must, in any case, comply with rules. The minimum working and employment conditions that must be guaranteed to workers are listed in Article 3 of Directive 96/71/EC. In an effort to provide greater protection, Directive 2018/957/EU expanded its content. Therefore, an employer who posts its staff in the context of transnational provision of services must ensure the protection of the following conditions: Maximum work periods and minimum rest periods Minimum duration of annual paid leave Wages, including increased rates for overtime work; this subparagraph does not apply to occupational pension schemes Conditions for the supply of workers, particularly the supply of workers by temporary employment enterprises Health, safety, and hygiene in the workplace Protective measures regarding working and employment conditions of pregnant women or women who have recently given birth, children, and young people 40

Global Mobility Insights - Winter 2022 / 2023 Equal treatment of men and women as well as other non-discrimination provisions Conditions of workers' accommodation where this is provided by the employer to workers far from their usual place of work Allowance or reimbursement to cover travel, board, and lodging expenses for workers away from home for professional reasons The posting company must also fulfil certain obligations. The goal of the 2014 Directive was to give member states tools to increase the degree of transparency and visibility on minimum protections for posted workers and ensure fair competition within the EU. This allowed member states to impose a number of administrative formalities and control measures such as: Notification requirement: prior notification sent by the employer to the competent authorities of the host EU member state. Document Retention Obligation: obligation for the employer to retain a number of employment documents related to the posted worker (e.g., employment contract, pay stubs, Form A1, etc.). Duty of representation: obligation for the employer to designate a contact person who is responsible for liaising with the competent authorities in the host member state/who can maintain contact with the social partners within the host member state. Obligations, control mechanisms and penalty structure vary considerably from one member state to another, making it complex for companies to adopt a harmonized, consistent, and transparent approach with respect to sending workers within the EU. This patchwork of obligations has created a significant administrative burden for companies sending (even for short postings) workers across the EU, with exposure to sanctions (not just administrative) in several cases substantial. In the case of non-compliance, one of the most important measures available to national authorities for regulating the labour market for posted workers and ensuring compliance with national labour regulations is the possibility of imposing sanctions-criminal and administrative-which, just like posted workers' administrative requirements and control measures, can vary significantly within the EU. Indeed, violations related to failure to - or late - send notification are punishable 41

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