This article is a continuation of a previous topic - concerning the employer's obligations when posting employees to Germany. The two previous articles on this topic, where I focused in particular on the issue of the posting of carers from third countries to Germany, you can find here and here.
There are a number of obligations to be met by an employer who posts workers. Previous articles have dealt with, inter alia, obligations relating to:
- the need to legalise the foreigner's stay in Germany,
- social insurance,
- registration.
Of course, these are not the only obligations that should be respected, in the case of posting of workers, under the free provision of services to Germany.
Delegation of carers - legislation enforcing its application
To begin with, a few words about what extortionate legislation actually is.
In short, these are the rules of the host countries which, as the name implies - enforce the need to apply them in the case of the posting of workers from other EU countries, for temporary work. The recent revision of the EU regulation governing posting has expanded the scope of these rules.
They currently concern:
- Salaries - including overtime rates, excluding employee pension schemes.
- Minimum annual paid leave.
- Maximum working hours and minimum rest periods.
- Conditions for the hiring of workers, in particular by temporary employment agencies.
- Safety, health and hygiene in the workplace . Including requirements for workers' accommodation if provided by the employer. Directly or indirectly, paid or unpaid. And in addition to workers who are posted away from their permanent place of work.
- Protective measures relating to the working and employment conditions of pregnant women, women who have recently given birth, children and adolescents.
- Gender equality and other non-discrimination legislation.
- Allowances or reimbursements of travel, accommodation and subsistence expenses for employees who are away from their place of residence for work-related reasons.
If the employer's registered office is located abroad, it is obliged to comply with the enforcing legislation. This is also the case if he employs an employee in Germany by making him available to a principal whose registered office is in Germany.
Employees/contractors are entitled to reimbursement of expenses if:
- they must travel to or from their permanent place of employment to the place of work;
- are temporarily seconded by their employer from their permanent place of work in Germany to another place of work in Germany or to another EU country.
These expenses do not count towards the so-called minimum wage.
Posting of carers from third countries - their minimum wage
As I mentioned earlier, the necessity to comply with minimum wage conditions does not only apply to the regulatory minimum wage (as was the case until now). It now includes all other mandatory components of remuneration arising from labour legislation and other regulations governing the rights and obligations of employees (so-called industry regulations).
First of all, if the activities carried out by caregivers in the homes of their residents (as defined in the Regulation on Mandatory Working Conditions in the Care Sector (Vierte Pflegearbeitsbedingungenverordnung - 4. PflegeArbbV) of 22. April 2020. ) do not exceed 50% working hours for caregivers, then the employees do not fall under the care sector regulations.
The minimum wage, on the other hand, is set by the Minimum Wage Act in Germany, the so-called Mindeslohngesetz. According to this law, every employee is entitled to a wage at least equal to the minimum wage. From January 2021, the minimum wage is €9.50 (gross) per hour. However, from July 2021. - will increase to €9.60 (gross) per hour.
Nursing activities are those relating to personal hygiene, nutrition, mobility, prevention (prophylaxis), independence support and communication provided to residents.
Salary supplements
The employee is entitled to wage supplements that are not taken into account when calculating the minimum wage.
The allowances to be paid in addition to the minimum wage include:
- for night work;
- paid to reimburse the costs actually incurred in connection with the posting (posting costs). They cannot be offset against the minimum wage. (Posting costs are considered to be, in particular, travel and accommodation costs);
- for board and lodging.
Posting of carers - obligation to keep records at the place of assignment
First of all, employers are obliged to keep employee records to verify that the working conditions of posted persons are in line with those found in:
- German Minimum Wage Act MiLoG,
- AEntG Posting of Workers Act and
- in sectoral acts.
The employer should keep all documentation in German and post it at the employees' place of work. In particular, this concerns documentation that includes, among other things, the employee's time recording documents or the A1 certificate.
People doing domestic help or care work in the private homes of their residents should always have one with them:
- current residence permits,
- permission to work in Poland,
- passport with Vander Elst visa pasted on
- Alternatively, a Fiktionbescheinigung, which is a confirmation of application for a residence permit in Germany.
Posting of carers from third countries to Germany
In summarising the subject of posting of workers to EU countries, one cannot fail to point out that it is complex. If only because - despite the fact that the general framework for posting is regulated by an EU regulation - these regulations are implemented and even interpreted differently in each EU country.
There are countries where it is not necessary to apply for additional work permits. However, there are others, such as Germany, where additional conditions must be met in order to legally post workers from third countries.
An employer posting its employees to Germany to work temporarily as carers/caregivers is obliged to, among other things:
- check whether the foreigner has a valid document authorising him/her to stay and work in the territory of Poland. He or she should keep a copy of this document in the employee file for the entire period of the foreigner's work;
- to conclude with a foreigner a contract of employment, a contract of mandate or an annex to such contracts in writing. Provide the foreigner with a translation of the contract into a language he/she understands before signing it. If possible, it is advisable to draw up a contract in a bilingual form;
- provide the foreigner with 1 copy of the work permit (the foreigner should sign that he/she has received such a document);
- to comply with the mandatory legal provisions enforced by the posting employer in the host country;
- keeping records in German of the working time and activities performed by persons posted in Germany;
- to apply to ZUS for a certificate confirming insurance in Poland;
- registration of foreign workers on the portal of the German customs office (Zollamt). In the case of being subject to the regulations of the care industry - performing care activities during more than 50% working time.
Summary
The purpose of drafting the articles was:
- provide a compact overview of the extensive subject of employment of non-EU nationals and
- posting them to Germany to provide care services in the private homes of individuals.
The topic of the posting of workers is a rather difficult one, extensively regulated by many pieces of legislation in both the sending and receiving state. In addition, every employer should comply with sectoral regulations, where each sector has its own. It is therefore advisable to consult a specialist on the entrepreneur's existing posting model. This will certainly avoid risks related to hiring, legalisation of stay and work or other obligations incumbent on the employer.
Above all, a correctly defined posting procedure in the company, order in the employee documentation kept both in Poland and Germany will allow to avoid many uncomfortable situations related to employment control. Above all, it will make it possible to save on fines, which are not among the lowest in our neighbouring countries.
