The Posting of Workers Directive (Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services) was revised on 28 June 2018 (Directive (EU) 2018/957 of the European Parliament and of the Council amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services). The deadline for transposition into national law was on 30 July 2020.
The Directive regulates the working conditions of posted workers, who are employees sent by his/her employer “to carry out a service in another EU Member State on a temporary basis, in the context of a contract of services, an intra-group posting or a hiring out through a temporary agency”.
The 1996 Directive entitled posted workers to a set of core rights in force in the host Member State. “This set of rights consists of:
- minimum rates of pay;
- maximum work periods and minimum rest periods;
- minimum paid annual leave;
- the conditions of hiring out workers through temporary work agencies;
- health, safety and hygiene at work;
- equal treatment between men and women”.
The revised Directive is much more specific in terms of remuneration and the obligations related to the length of posting.
“The main changes introduced by the revised Directive are as follows:
- application to posted workers of all the mandatory elements of remuneration (instead of the “minimum rates of pay”);
- application to posted workers of the rules of the receiving Member State on workers’ accommodation and allowances or reimbursement of expenses during the posting assignment;
- for long-term postings (longer than 12 or 18 months), application of an extended set of terms and conditions of employment of the receiving Member State”.
The new rules have not been transposed in all European Member States yet.
Beyond the changes indicated above, the Swedish Act introduced new direct obligations for employers who are posting workers in Sweden, such as further obligations to report short term postings to the Swedish Work Environment Authority and the appointment of a contact person in Sweden.
New responsibilities were also foreseen for the recipients of posted workers to ensure that the procedure of reporting the posting is respected.
From a representation and industrial action perspective, the revised legislation extends the possibility to take industrial action for instance in order to push employers to comply with the obligation to apply to posted workers all mandatory elements of remuneration as defined in the revised Directive.
The Swedish Work Environment Authority is the national institution providing advice and information both to employers and posted workers, both on the laws and the collective agreements applying in Sweden.
The Confederation of Swedish Enterprise took part in the social dialogue process leading to the amendments to national regulation. While trying to present constructive criticism to the draft text, it underlined that the revision would make rules “more complicated, administrative burdensome and legally uncertain” and proposed to change the law to ensure clarity and respect of the national industrial relations system.
For instance, the revised Directive changes the reference to the minimum pay to “all the mandatory elements of remuneration”. According to the Confederation of Swedish Enterprise, “although the wording of the directive is clear, the draft law has chosen to only propose that the term ‘minimum wage’ of the Posting of Workers Directive Section 5(a) shall be replaced by ‘salary’, and so omits the reference to the mandatory components of remuneration. This can be misleading and may induce posting employers to think that they are obliged to pay elements of salaries that are not mandatory according to the applicable collective agreement.”
As for the obligations of the Swedish trade unions, the Confederation of Swedish Enterprises proposed that sanctions should be considered for unions that do not provide the Swedish Work Environment Authority with the “terms and conditions of employment”, whose violation would allow them to call for legitimate strike action. In other words, the Confederation believes that, under the terms of the Swedish industrial relations system, trade unions should only be able to resort to industrial actions to enforce the terms and conditions of employment that are submitted to the Authority. However, no sanctions were introduced in the new legislation yet.