Three years after it was passed, Directive 2014/67/EU of the European Parliament and of the Council, of May 15, 2014, has been transposed into the Spanish legal system.
The purpose of the European legislation is to ensure compliance with Directive 96/71/EC on the posting of workers under a services provision framework, which established:
- A list of national control measures to increase the protection of the rights of workers posted on a temporary basis.
- Mechanisms to facilitate increased information on the applicable working conditions.
- Mechanisms to strengthen increased administrative cooperation between Member States.
- Measures to prevent and sanction the abuse and failure to comply with the applicable regulations.
While the 2014 Directive was being transposed, the Directorate-General of Labor and Social Security Inspection passed Technical Criterion number 97/2016 on the posting of workers providing cross-border services, in order to clarify the interpretation of certain situations and update and adapt the previous Technical Criterion 42/2005 to the new European legislation.
However, the actual transposition was implemented by Law 45/1999, of November 29, 1999 on the posting of workers providing cross-border services, through Royal Decree-Law 9/2017, of May 26, 2017, which transposes European Union (EU) directives on financial, commercial and health matters, as well as the posting of workers.
The most important amendments introduced by the Law include the following, which are intended to strengthen the legal controls relating to the temporary posting of workers in the EU:
- Notification of cross-border posting to the Spanish authorities must now be sent by electronic means (pending regulation) and a central registry of notifications will be created by the Ministry of Employment and Social Security, in conjunction with the Autonomous Communities (also pending).
- The notification must now include: the identification and contact details of the natural or legal person in Spain appointed by the company posting the worker, as its representative and liaison with the Spanish authorities and for the forwarding and receipt of documents and notifications; and the identification and contact details of a person that can represent the company in Spain, with respect to the information, consultation and negotiation procedures affecting posted workers.
- It is now mandatory to make the following documents available during the term of posting, either at the work center or in digital format for immediate consultation, which must be translated into Spanish or the co-official language of the territory in which the services are to be provided: the employment contract or any other document containing the essential elements of the contract; salary receipts and proof of payment to the workers; the working hour records kept, stating the start and finishing times, as well as the duration of daily working schedules; a document certifying that a work permit has been granted to citizens of other countries, according to the laws of the relevant State.
In addition to these mandatory documents, the absence of which is now punishable by new administrative penalties, the Law contains a list of facts that help to determine whether or not a specific situation is considered as a temporary posting of workers.
We will have to wait and see whether or not the objectives of the Directive are achieved by the new measures in the medium and long term; for the time being and, in the short term, the next few months will see the publication of the regulations passing the new electronic notification procedure and the creation of a central electronic registry of notifications.
Garrigues Labor and Employment Law Department