Posted Workers in the EU: guaranteed rights and employer obligations
An increasing number of Spanish companies are entering into service provision contracts in other Member States of the European Union, thereby raising the number of posted workers within the EU. This practice involves the temporary secondment of employees to carry out services in the host country.
Although the employment relationship continues to be governed by Spanish law, EU legislation — in particular, Directive 96/71/EC, as amended by Directive (EU) 2018/957 — imposes specific obligations and minimum standards on undertakings regarding working and pay conditions, pursuing a clear objective: to ensure that posted workers in the EU enjoy the same conditions as local workers in the host Member State.
Article 3 of Directive 96/71/EC: core minimum conditions for posted workers in the EU
Article 3 of Directive 96/71/EC, partially amended by Article 1 of Directive 2018/957, requires Member States to ensure that posted workers benefit, in the host State, from a set of core employment conditions which cannot be derogated from.
In particular, the following must be guaranteed:
- Maximum work periods and minimum rest periods.
- Minimum duration of paid annual leave.
- Remuneration, including overtime pay, in accordance with legislation or universally applicable collective agreements in the host country, from the first day of employment, pursuant to the key principle of “equal pay for equal work”.
- Conditions applicable to workers posted by temporary work agencies.
- Health, safety and hygiene at work.
- Protective measures for pregnant workers, those who have recently given birth, and young workers.
- Equality of treatment between men and women, and non-discrimination.
- Adequacy of accommodation standards where housing is provided by the employer.
- Payment of allowances or reimbursement of expenditure to cover travel, board and lodging expenses, but strictly limited to professional secondment-related travel, such as transfers from the worker’s habitual residence to the host country, or temporary travel within the host State when the undertaking assigns the worker to another place of work.
A key innovation introduced by the 2018 reform is the reinforced protection of salary. The Directive no longer limits itself to requiring compliance with the host country’s statutory minimum wage; it now incorporates the broader concept of “remuneration”. This means that posted workers must receive not only the basic wage, but also overtime pay and all mandatory supplements, bonuses and allowances provided under the host State’s legislation or universally applicable collective agreements.
It should be noted that the general posting regime does not apply uniformly across all sectors. For instance, international road transport is subject to a specific legal framework (Directive (EU) 2020/1057), which regulates working and rest periods for drivers, as well as remuneration in cross-border operations.
Practical consequences
In practice, this entails that where a Spanish company posts employees to Germany, France or any other Member State:
- It must adjust the posted worker’s pay in line with the economic conditions in that country, even though the employment contract was concluded in Spain.
- It is obliged to comply with working time, rest periods and paid leave requirements of the host country.
- For postings exceeding 12 months (extendable to 18), the obligation extends to applying additional working conditions of the host State, with two exceptions: (i) procedures and conditions regarding the conclusion and termination of employment contracts, including non-competition clauses; and (ii) supplementary occupational retirement pension schemes.
Failure to comply with these obligations may have significant consequences. Control mechanisms exist both in the host country and in Spain to impose sanctions where the rights of posted workers are not upheld. EU law requires such sanctions to be effective and dissuasive, which in practice may result in substantial fines as well as potential claims by affected employees.
Planning and foresight as key factors
Transnational posting is not a mere administrative formality. It requires:
- Analysing the employment legislation and applicable collective agreements in the host country.
- Budgeting for the economic impact of wage adjustments and mandatory supplements.
- Submitting notifications to the competent labour authority and managing documentation (e.g., A1 forms regarding Social Security coverage).
In conclusion, the posting of workers within the EU represents an opportunity for expansion for many Spanish companies, but it entails strict obligations regarding pay equality and working conditions. Article 3 of Directive 96/71/EC establishes the minimum standard: posted workers in the EU must be granted the essential conditions applicable in the Member State where they perform their duties.
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