The effects of the EU Amending Directive on Posting of Workers

The EU Amending Directive on Posting of Workers that entered into force and had to be transposed in the national legislations by 30 July 2020 (1), introduced new requirements for employers who send their employees to provide services temporarily in another EU member state..

The key changes it introduced are:

• A maximum posting period of 18 months whereby the initial posting should last up to 12 months with an option for an extension up to 6 months. If the posting continues after the end of this period, the Labor law of the host country will apply in full to the posted worker with the sole exception of rules on termination and occupational pension schemes.
  
  
• All mandatory elements of remuneration as per host country legislation shall be considered when determining the remuneration package of the assignee instead of the previously applicable “minimum rates of pay”.
  
  
• Travel, lodging and boarding expenses or allowances to / from the host country are explicitly added to the conditions which the posted worker should enjoy the more beneficial labor law treatment.
  
  
• The more beneficial treatment - under host or home country legislation, should be ensured for the provided by the employer accomodation in the host country.
  
  
• The temporary work agencies shall guarantee the same work conditions applicable to the workers as if they were directly employed by the host country.
  
  
• Conditions agreed in universally applicable collective agreements across all sectors will apply to posted workers.
  
  
• Further to the adoption of a Directive laying down specific rules with respect to the road transport sector (2), the amended EU Directive for Posted Workers will apply to the road transport sector as of 2 February 2022.

The new Posting of Workers Directive is not transposed in Bulgaria yet. Current legislative proposal for amendments to the Bulgarian Labor Code falls short of its claim to get the Directive transposed. There is no information that amendments in secondary legislation are in process of preparation either. However, to the extent that the Labor Code includes just a single paragraph on posting and the detailed regulation is included in an Ordinance regulating the posting of workers (3), the detailed changes transposing the new Directive are expected to be reflected in the Ordinance. It remains to be seen when this would become part of the agenda of the competent bodies.

The Amending Directive has direct vertical and indirect effect. It is also transposed in a number of EU countries. Therefore, EY Bulgaria strongly recommends that companies review and update their policies and practices on posting of workers to avoid unplanned expenses and group exposure to penalties in foreign jurisdictions.

(1) Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services
(2) Directive (EU) 2020/1057 of the European Parliament and of the Council
(3) ORDINANCE on the rules and procedures for posting and secondment of workers and employees within the framework of the provision of services (in Bulgarian “НАРЕДБА за условията и реда за командироване и изпращане на работници и служители в рамките на предоставяне на услуги”) of the Council of Ministers.