When is a worker considered a posted worker?

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There are occasions when companies use the posted worker resource to send one or more employees to another EU country to carry out a specific task or activity.

Of course, the time a person can spend working in another country is limited and, when the purpose or objective has been achieved, he or she must return to the country from which he or she was sent.

However, there are a number of conditions or characteristics that an employee must meet in order to be considered a posted worker.

In this article we will discuss these conditions.

In addition, we will explain the employee’s obligations and rights, as well as the responsibilities of the company posting the employee.

But, let’s start with the basics, the definition of a posted employee under Spanish law.

What is a dislocated worker?

A worker who has been posted by his or her employer to another EU country to perform transnational work, provided that there is an employment relationship between the employer and the employee for the duration of the posting.

It is important to mention that the nationality of the worker is not a determinant of displaced status, but rather the place of origin of the company.

For example, if a worker from France with Spanish natural nationality is posted by his employer to Spain to carry out a job, he is considered a posted employee, even if his native nationality is that of the destination country.

Difference between posted and expatriate worker

Some people think that posting of workers and expatriation are the same thing, but nothing could be further from the truth.

A seconded employee is one who is moved by a company to perform a task in another country, while an expatriate is one who works and lives in a country other than the one in which he/she was born, with no set time limit.

From a legal point of view, expatriates are 100% subject to the legal, insurance and tax provisions of the country in which they are based.

When is a person considered to be a posted worker?

The characteristics and conditions that must be met for a person to be considered a posted worker in Spain and the rest of the European Union are as follows:

  • You go to another EU, EEA or Swiss country for a limited period of time to carry out a mission, task or service determined by your employer or on your own account.
  • You continue to pay social security contributions and taxes in the country of origin during the posting.
  • You apply for and obtain the A1 form or the “Certificate of Applicable Legislation” which certifies the Social Security legislation that applies to you.

It is important to note that the posting of workers can last up to 24 months, extendable in only some cases.

If the duration is foreseen to be longer, an exception to the general rule of territoriality has to be requested in order to be under the yoke of the law on each occasion and in each case.

And, if you work simultaneously in two or more EU countries, you must work at least 25% of your working day in your country of residence in order to remain covered by the Spanish social security system.

Rights and obligations of posted workers

The rights to which posted workers are entitled are as follows:

  • More beneficial remuneration, only when the new country has better benefits than the old one.
  • Benefits and reimbursement of travel, subsistence and accommodation expenses for the duration of the travel.
  • Occupational health and safety.
  • Working conditions and benefits associated with pregnant, breastfeeding and young women.
  • Equal conditions and treatment of male and female employees.
  • Arranging for the company to find accommodation.
  • No special work permits are required.
  • The worker’s professional qualifications do not have to be accredited.
  • It is not necessary to re-register with the social security authorities in the country of destination.
  • Has access to education in the new country, in case the worker moves with his/her family.

The obligations to which these workers are subject are as follows:

  • Maximum working periods.
  • Minimum rest periods.
  • Respect for the labour laws of the country of posting.
  • A registration as a resident must be made with the administration of the country to which the employee was posted.

Employer responsibilities in the posting of workers

For their part, companies must comply with the following responsibilities when posting workers:

  • Communicate in advance to the Ministry of Labour and Social Economy the posting of workers using the Posting of Workers Information System (SEDT) and obtain the certificate of communication.
  • Guarantee posted workers adequate conditions of work and employment that are recognised in Spain by law or by generally applicable collective agreements.
  • Respect Spanish legislation on the posting of workers.
  • Designate a representative in Spain to act as a contact person with the authorities.
  • Retain all documentation relating to the posting for a minimum period of three years.

Time spent in Spanish territory

The posted worker may stay in the country of posting for up to 24 months when the posting is within the European Union.

In this period, adequate working, housing and social development conditions must be guaranteed for the person involved.

How is the labour displacement carried out?

The process starts when the employer notifies the worker that he/she will be posted to a new country to carry out a specific action.

Of course, a number of requirements have to be met, such as a service contract, the employee has to be sent to an industrial sector equal to his or her own and, in the case of a temporary agency, has to be sent to a company in another Member State.

The necessary legal steps are then taken with the competent authorities.

Accommodation and all basic amenities are then found for the posted worker and the move proceeds.

When is a worker illegally displaced?

By violating one of the requirements and steps set out, violations are committed that lead to the employer falling into illegal posting of workers.

For example, if the A1 certificate is not requested from the Social Security, it is a legal error.

In addition, appropriate registrations must be made with the Information System for the Posting of Workers (Sistema de Información de Desplazamiento de Trabajadores, SEDT).

Without a doubt, knowing how the posting of workers works is an extremely relevant aspect for companies and individuals undergoing these processes.A posted worker must fulfil certain conditions, such as going to an EU country, paying social security contributions in the country of origin and filling in the A1 form or the “Certificate of Applicable Legislation”.

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