If you are an employee of a temporary work agency or if you run one yourself, you are well aware of the fact that posting to work is never business travel and vice versa. But what is the key difference between the two? What are the elements that determine whether there is delegation and what obligations do they entail?
You will learn from the following article:
- Why should attention be paid to the use of the terms posting and business travel?
- What is the essence of posting from a regulatory perspective?
- What should I pay particular attention to when posting workers?
Instead, we devoted the last part of our entry to strongly practical issues. We have unanimously concluded that there is no better way to pass on knowledge to others than by answering the most common questions that customers address to us on this topic. Therefore, we look forward to your evaluation of this new - also for us - experiment!
Posting for work versus business travel - what is the difference?
It should be noted at the outset that pBusiness trip and posting in each country can mean something different. Consequently, we very often signal to our clients to be careful with their vocabulary in this regard.
Example
In Germany, a business trip is a trip for purposes other than work. It would therefore be, for example, a training course, a symposium, a trade fair, etc. Germans do not know business travel in the same sense as we do in Poland. For this reason, you should pay particular attention to the terminology used.
Legal nature of posting
The essence of posting is that it takes place in the context of the cross-border provision of services. This means that a so-called "service provision" contract should be in place between the sending and the receiving company. The control authorities of the host country have the right to verify such a contract between the entrepreneurs in order to exclude or confirm the sham of the posting and the concealment of the real employer-company in the host country.
Conclusion: planning a delegation, a service cooperation agreement must be signed!
Read also: Training contracts and secondments - a way to circumvent the rules?
What to look out for when posting employees for work
Management of employees
Management over posted workers should come from businesses sending. It is about nothing less than:
- an official order to perform a specific task,
- remuneration,
- employment contract,
- paying for accommodation.
All of these elements - which are part and parcel of job posting - should come from the the sending company. Above all, we should be careful about the employment relationship and that we are not accused of the relevant employer is the company to which the worker is posted. This is because such a situation entails a number of additional obligations, such as insuring the worker in the host country (and this from the beginning of the posting)!
Statement of posting
In the case of a posting, a declaration of posting must be made to the appropriate authorities in the host country. This is nothing more than what is known as the 'host country'. registration in the host country. This must be ensured at the latest until commencement of service provision. The statement in question should include relevant information necessary to carry out a workplace inspection, including:
- identification of the service provider,
- the anticipated number of posted workers (with data enabling their identification),
- contact details in the host country,
- the expected duration of the posting, the expected start and end dates of the posting,
- workplace address(es),
- the nature of the services justifying the posting.
Attention!
Each country has different registration requirements. For this reason, it is important to familiarise yourself with these requirements before sending an employee. The most important thing is to verify what data we should disclose to the authorities in such a statement.
Remuneration for work carried out in the framework of a posting in 4 points
- The posted worker is bound by the remuneration accepted in the host country. An exception to this general rule is when it is less favourable to the worker than the salary in the sending country.
- The obligation to calculate wages correctly lies with the entrepreneur sending the employee to another country.
- Currently (following the amendment of the legislation), posted employees are entitled to receive all elements of remuneration that are mandatory under the law or a collective agreement of general application.
- When we set a minimum wage, we check the issue in laws and then in industry regulations and collective agreements commonly used in the country, region or even city.
Posting for work and business travel - the most common questions and answers
Do we have to register as a posted employee when going to certain countries - e.g. for training or a business meeting (a shopper for negotiations)?
Posting concerns only work. A posted worker means a worker who performs his or her work for a limited period of time in the territory of a Member State other than the territory of the State where he or she normally works. If an employee goes abroad for training and this training is not related to the simultaneous performance of work, the employer is relieved of the obligation, for example, to register the employee with the controlling authority.
Posting for work versus business travel. Can secondments only take place between company branches? What if we send a company employee to another country where the company is not headquartered, but he works there regularly? Will this be treated as a business trip or as a posting and require registration?
Delegation does not have to take place exclusively between branches of the company. Delegation allows work to be performed on behalf of the employer, even if it is not another branch of the same company. If an employee regularly performs work in another country, it is generally not possible to delegate the employee by sending him or her on a business trip.
A business trip is incidental, temporary - as it is a deviation from the employee's normal duties. If an employee "regularly" performs work in another country, such work cannot be considered incidental. Consequently, that person should not be sent on a business trip. However, it may be necessary to give an amending notice/agreement amending the employee's contract of employment - by changing the place of work specified therein.
What does it mean that a minimum wage should be provided to a posted worker? If the minimum is €10 and a person in a similar position earns €15 in the company, how much should we pay?
The delegating employer is obliged to provide the same minimum wage that applies in the host country, e.g. Germany.
Using Germany as an example, it is €9.6, but sectoral laws may of course (depending on the type of work) stipulate a different minimum wage for a particular job. Thus, if an employee in an establishment earns €15, the wage requirements have already been met when the minimum wage is exceeded. Of course, the employee can be paid more than the minimum wage - amounting to just €15, for example.
The legislation provides only minimum standards of protection for posted workers and in no way opposes the application of provisions more favourable to the worker. This means that jf an employee in Poland earns more than in the host country, he or she should be paid a more favourable wage. Therefore, the PIP also pays attention to the employee's employment conditions in Poland during its inspections.
Are you struggling to determine whether a posting for work or a business trip is taking place in your case? Or are you looking for professional support in sending your employees abroad? Feel free to contact our law firm!
