Polish employers can benefit from the freedom to provide services in Europe. They have the possibility to second their workers to Member States where, according to the contract, they will provide their services. Practice shows that more and more entrepreneurs are making use of this entitlement. Given that a significant proportion of them choose to posting in building services in Germany, today's post will be dedicated to this topic. In addition, I will outline the aspects related to the situation when an employer hires employees from third countries and intends to second them for further work in another EU country.
I would like to point out at the outset that I have covered most of the issues related to posting for work in my previous publications. If you are looking for detailed information on:
- the employer's basic obligations in relation to the posting (legalisation of stay and work in the country of posting), I encourage you to read this article: Posting of carers from countries three to Germany
- the obligations incumbent on those who employ and subsequently post workers with regard to social security and registration obligations: Posting of carers from countries three to Germany part II
- remuneration, employee records maintained at the place of assignment: Posting of carers from countries three to Germany part III
In the meantime, I invite you to read this article on posting in building services.
Posting of workers from third countries
Many employers want to send employees to work in Germany. A large number of assignments, attractive salaries and the relatively short distance from Poland are just some of the factors that make it attractive to post workers to Germany. Due to the principle of the freedom to provide services and the free movement of workers binding in the European Union, an entrepreneur who has third-country nationals in his staff may, for a limited period of time, post them abroad to work. Such employees most often come from Ukraine, Moldova, Belarus, Russia or Georgia. They are allowed to work, among others, on German territory, having fulfilled a number of specific obligations in a number of areas. First and foremost, this concerns:
- employee records,
- procedures relating to work and residence permits,
- conditions of posting,
- employee settlements,
- employer's costs associated with the posting.
Posting of construction workers - choice of applicable law in employment or contract agreements
When posting an employee to work in Germany, we can choose between an employment contract and a contract of mandate. The most important element of any agreement will be the choice of law to which the posting will be subject. In practice, this amounts to a notation in such an agreement, under which of the legal systems (Polish or that of his/her EU contractual partner, e.g. Germany) the employee will be subject. In the absence of such a provision in the contract, he/she will be classified under the legislation of the host country. Consequently, the employee will belong to the foreign social security system, tax obligations. This may be a certain complication for us.
Attention!
A person who performs only a works contract is not subject to social and health insurance with the Social Security Institution on this account. Thus, EU regulations do not provide for the possibility to second a work contractor to work in the EU under the terms of the Regulation. Similarly, this is the case for self-employed persons, but such persons have the possibility to delegate themselves to work abroad.
What labour laws apply to the posted worker?
The posted employee is bound by the labour laws of the country in which he/she is permanently resident (so, in principle, this will be Poland). However, this does not apply to the so-called mandatory regulations. Regardless of which of the legal systems of the countries (sending or receiving) one chooses, certain regulations stemming from international directives remain unchanged. This applies to:
- maximum work periods and minimum rest periods;
- minimum amount of paid annual leave;
- remuneration, including the overtime rate;
- terms and conditions for the hiring of employees, particularly by temporary employment companies;
- health, safety and hygiene in the workplace;
- protective measures applicable to the conditions of employment of pregnant women or women just after childbirth, children and adolescents;
- equality of treatment between men and women, as well as other non-discrimination legislation;
- the conditions of workers' accommodation where it is provided by the employer to workers far from their normal place of work;
- rates of allowances or reimbursement of travel, food and accommodation expenses for employees who are far from home for professional reasons.
This means that the rules applicable in the country of work (Germany) will take precedence in the above matters. The exception is if the rules applicable to the employer in Poland are more favourable to the employees in these matters. In that case, the employer should apply the legislation of their country in this respect, which can also be checked during a PIP inspection.
Significant activities in the home country
A further prerequisite for the correct posting of employees/contractors to Germany is the substantial pursuit of activities in the home country. At the same time, the posting employer's activities in that Member State must not be purely managerial or administrative activities of an internal nature.
Period of posting
The posting can last up to a maximum of 12 months, with the possibility of an extension for a further 6 months. There should be an interval of 2 months between secondments of the same employee, after having worked for 12 months. Then the posted workers may remain in the social security system of the country in which they worked prior to their secondment.
In the case of long-term posting (more than 12 months), EU rules strengthen the link between the host labour market and posted workers. The terms and conditions of employment applicable in the host Member State are then mandatory. As a consequence, the seconded employee does not have the possibility to remain in the social security system, e.g. in Poland.
Attention!
In the event that a worker is posted again by the same employer to perform a service in the same host country but in a different location, the posting period counts anew.
Posting for work in construction services and the need to register workers in the host country
Since 1 January 2017, posting employers have been obliged to register their employees posted to Germany using the registration portals set up for this purpose in most EU countries. These do not apply to every industry, but in the case of the provision of construction services it is necessary. The declaration of the workers on the portal means that the workers can be controlled by the control body responsible for combating illegal employment. In Germany, for example, this function is performed by the German Customs Office (Zollamt).
The German portal can be accessed via the following website www.zoll.de under the heading or directly via the website www.meldeportal-mindestlohn.de.
The need to notify posted construction workers to the designated organisations
An employer who posts its employees from the construction industry to work in Germany should take care of a number of reporting obligations. This applies to the following organisations:
- Soka Bau - which is the German holiday fund for construction workers, employees must be reported here and holiday contributions paid for them;
- Tax Office (Finanzamt) - the employer's primary obligation towards the German tax office is to submit a list of posted employees. In addition, they must also be notified if payroll tax (Lohnsteuer) will be levied in Germany on their wages;
- BG-Bau - the statutory accident insurer for the construction and related industries;
- Deutsche Rentenversicherung - in the case of construction workers, a so-called immediate declaration (Sofortmeldung) must be made with this institution.
Posting in construction services and sector specificity using the example of Germany
As a general rule, every employee is entitled to a wage from his or her employer at least equal to the legal minimum wage. The minimum wage in Germany is:
- as of 1 July 2021. - EUR 9.60 gross per hour,
- from 1 January 2022 - EUR 9.82 gross per hour,
- as of 1 July 2022. - €10.45 gross per hour.
All employers based in Germany or abroad are obliged to pay the minimum wage as long as they employ workers in Germany and the sectoral regulations of the positions for which the workers are to be employed do not stipulate otherwise. The construction industry is covered by a collective agreement throughout Germany. Accordingly, this agreement regulates, in addition to minimum wages in the individual areas of Germany:
- additional remuneration components,
- overtime allowances,
- holidays or holiday fund.
