The same salary for the same work in the same location?

29. 8. 2018

A Posted Worker is an employee who is sent by their employer to carry out a service in another EU member state on a basis of a contract entered into between the employer and the party which is the recipient of the service, an employee sent to another member state within a corporate group or an employee whose employer provides employment services and sends their worker to a business company in another member state, who makes use of their services.

Generally, the aim of the above Directive is to ensure the employees equal working conditions and health and safety in the workplace in the member state where they temporarily perform their duties. It means that the same rules that are stipulated by the legislation of the host country as well as by generally applicable collective agreements and arbitration awards should apply for posted workers with respect to the following:

  • maximum work periods and minimum rest periods,
  • minimum paid annual leave,
  • minimum rates of pay including overtime remuneration rates,
  • conditions of hiring-out of workers, in particular the supply of workers by temporary employment undertakings,
  • health, safety and hygiene at work,
  • protective measures regarding the working conditions of pregnant women or women who have recently given birth, of children and of young people,
  • equality of treatment between men and women and general provisions on non-discrimination,

Even though the revision’s topic is medially labelled as “the same salary for the same work in the same location” and causes quite a stir with public, no radical changes have been introduced in fact, as the above rules have applied for rather a considerable length of time and are adhered to by the EU member states at present.

The principal change to the status quo will regard expansion of range of components of salary in respect of minimum salary – except for the salary components and extra pays which EU members states included into the minimum salary in their legislations, all obligatory bonuses that are prescribed in the given EU member state are to be incorporated in the minimum salary.

Furthermore, extra pays and travel reimbursements for additional travels on official duty beyond the scope of the posting are to follow the stated points.

In accordance with the principle of equal treatment, the EU member states will also have to ensure posted agency employees equal conditions which apply for agency employees who secured employment in the member state in which the duties are performed.

Another novelty will also regard limitation of the posting period. Temporary work carried out in another member state may not exceed the period of 18 months with a standard period of 12 months and a possibility of prolongation by further 6 months. Should the limitation period be exceeded, the employee concerned will be deemed a domestic one whose rights and obligations will be subject to the legislation of the host country to the full extent (except for conditions and formalities regarding concluding and termination of contracts of employment, non-competition clauses and supplementary occupational retirement pension schemes). The posting period relates to a specific position and task and should such position be assumed by more employees successively; the periods of their posting are to be added up. Also, member states will have to report the up-to-date and accurate information about the remuneration components and all working conditions applying for long-term posted workers on a national information website.    

On top of the above, a possible expansion of binding rules for stipulation of working conditions. Newly, the member states will be entitled to expand the scope of the rules with those concerning collective agreements and arbitration awards which are not generally applicable but have a general effect on all similar businesses of the said work sector or employment in the region or which were concluded by nationally recognized organizations of employers and employees and apply within the whole area of the given member state.

The deadline for the Directive implementation in the domestic legislation so that it would oblige Czech employers has been set to no later than two years after the Directive becomes effective; it means that the new rules should be applicable by 20 July 2020, at the latest.

It may be concluded that the revision does not introduce “the same salary for the same work in the same location” nor does it prescribe levelling out the salary of posted and domestic workers. In principle, the revised Directive still defines the minimum salary rate of a posted worker, which means that the real market salary of a domestic employee may by higher than that of a posted one. The expansion of the applicable salary components will, however, result in the new minimum being higher than the current one in most cases.

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