【KPMG Global】European Union – Focus on Enforcement of Rules for Posted Workers

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2024-108 | May 9, 2024

GMS Flash Alert

Employment Law

2024-108 | May 9, 2024

European Union – Focus on Enforcement of Rules for

Posted Workers

On 30 April 2024, the European Commission published a report about the implementation of the

rules for posting of workers1 and an accompanying document.2 They provide insight into the ways

in which national authorities across the European Union (EU) have implemented the rules for

posted workers.

The European Commission identifies several areas in respect of local implementation of the rules

that need more focus, including monitoring and enforcement of the rules (e.g., inspections,

campaigns, etc.).

The Rules for posting of workers will not be subject to amendments any time soon and the focus

will therefore be put on improving implementation and enforcement of the current rules.

WHY THIS MATTERS

Obligations to comply with the rules for posted workers in the EU are exclusively the employer’s responsibility.

Employers must provide certain terms and conditions for employment according to the rules in the host

country during the posting and employers must register all their posted workers in the host country before

commencement of work.

Failure to comply with the rules for posted workers carries significant financial and reputational risk, and it can

lead to imprisonment. The report about the implementation of the rules for posted workers shows that local

and EU authorities will continue to focus on the enforcement of current rules, as the protection of rights for

posted workers is at the very core of the free movement of people and freedom to provide services in the EU

Single Market.

Employers and employees should become familiar with the rules and take appropriate steps to be in

compliance.

2024-108 | May 9, 2024

Report about Implementation of Rules for Posted Workers: Highlights

Third-Country Nationals

Posting of workers within and to the EU who carry non-EU citizenship has been on a steep increase during

last couple of years.3 It is expected that the increase of posted third-country nationals will continue as an

important intra-EU mobility channel that is driven by labour and skills shortages across the EU.4

Research has shown that third-country nationals are generally more exposed to abusive practices, including

fraudulent posting, labour rights violations, and lack of payment of social security contributions; in addition,

they are also less inclined to report breaches of rights as they depend on the employer to renew their

residence/work permits.5

Further, third-country nationals may not be aware of their rights due to language and cultural barriers, and

employers may face difficulties finding relevant information about the rules that apply to them when they post

third-country nationals to another EU member state.6

When a worker is posted from one EU member state to work temporarily in another EU member state, the

posting is governed by the same rules irrespective of the worker’s citizenship.

However, employer organisations report that it is necessary to highlight that the rules for posting also apply to

third-country nationals.7 This observation stands in contrast to a survey done by the EU Commission in which

local authorities responded that they saw no necessity to adopt specific measures related to postings of third-

country nationals.8

In conclusion, the EU Commission calls for EU member states to provide better access to information about

labour rights specifically focused on posted third-country nationals, including information on national websites,

flyers in more than one language, creating a helpline, etc.

The EU Commission calls for regular exchanges of information between member states about posted third-

country nationals, including information from immigration authorities.

Lastly, the EU Commission calls for more and better enforcement of rules for posted workers – work that

is already supported by the European Labour Authority.

Posting through a Temp Agency

A “double” or “chain” posting describes a situation where a worker is recruited by a temp agency and hired out

to perform work for a host company, and the host company then posts the worker temporarily to another EU

member state. The temp agency and host company can be established in the same EU member state or in

different EU member states. Rules that govern the posting of workers apply in both instances.

When the host company posts a worker, that host company is obliged to inform the temp agency, as the temp

agency is responsible for complying with the rules on posting of workers.

Employer organisations and temp agencies point out that complexity in the legal framework for posting by

temp agencies may lead to non-compliance. It was also emphasised that companies may not have resources

to gain access to information about postings in the host country.9

In conclusion, the EU Commission highlights that even though EU member states have transposed rules on

posting of workers into their national legislation, the requirements for compliance with the rules may not

always be clearly communicated to the parties subject to those rules.

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©2024KPMGBulgariaOOD,aBulgarianlimitedliabilitycompanyandamemberfirmoftheKPMGglobalorganizationofindependentmemberfirmsaffiliatedwithKPMGInternationalLimited,aprivateEnglishcompanylimitedbyguarantee.Allrightsreserved.PrintedintheU.S.A.2024-108|May9,20241GMSFlashAlertEmploymentLaw2024-108|May9,2024Eu...

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