Posted workers

Posted workers

The definition of a posted worker is regulated by Directive 96/71/EC of the European Parliament and of the Council regarding the posting of employees in connection with the provision of a service (Directive 96/71/EC). For the purposes of Directive 96/71/EC, a posted worker is a worker who, for a limited period, is posted by their employer to another EU Member State to provide a service within the framework of the company’s business activity or as a temporary agency worker or as a temporary employee by an employment agency.

A posted worker is distinguished from a worker who is on a business trip in particular by the fact that the posted worker always has a specific recipient, i.e. a recipient of services, a parent company or a subsidiary belonging to the group or, in the case of temporary agency work, a user undertaking. Thus, the posted worker has a company in the host country which organizes their work or the working environment. In the case of Estonia, when going on a business trip, for example, to participate in a trade fair, no one is accepting an employee in the destination country.

Regardless of the law applicable to the employment contract, the posted worker must be guaranteed certain working conditions in the country of destination. The posted worker's employer must ensure that the worker is subject to the following conditions in the country of destination:

• maximum work periods and minimum rest periods;
• minimum paid annual leave;
• remuneration, including overtime rates (this point does not apply to supplementary occupational retirement pension schemes);
• the conditions of hiring-out of workers, in particular the supply of workers by temporary employment undertakings;
• health, safety and hygiene at work;
• protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people;
• equality of treatment between men and women and other provisions on non-discrimination;
• the conditions of workers’ accommodation where provided by the employer to workers away from their regular place of work;
• allowances or reimbursement of expenditure to cover travel, board and lodging expenses for workers away from home for professional reasons.

Read also: Posted Workers in the Construction Sector (ELA).

 

The difference between an employee on a business trip and a posted workers

Employee on a business trip

A posted worker

Pursuant to the Employment Contracts Act valid in Estonia, an employee on a business trip is an employee who has been sent by the employer to a place outside of the place of performance of work prescribed in a valid contract of employment in Estonia, either domestically or abroad, but not for a period longer than 30 consecutive calendar days, unless the employee and the employer have agreed upon a longer term (section 21 of the Employment Contracts Act).

Pursuant to subsection 3 (1) of the Working Conditions of Employees Posted to Estonia Act, an employee posted to Estonia is a natural person who normally works in a Member State of the European Union, a Member State of the European Economic Area, or the Swiss Confederation, and whom the employer posts to work in Estonia for a specified period of time for the provision of a service.

 

An employee may be a posted worker and be on a business trip at the same time. In this case, both the provisions on business trip set out in the Employment Contracts Act and the European Union directives on posted workers (in particular 96/71/EC, 2014/67/EU, 2018/957/EU) must be complied with. This means that if a worker is in the status of a posted worker while working abroad, he or she must be guaranteed certain conditions in force in the country of destination and at the same time be paid a daily allowance.

Example 1 An employee (builder) usually works in Estonia, i.e. Estonia is indicated as the place of work in the employment contract. Estonian law therefore applies to the employment contract. The builder's employer’s contractor is a Finnish company to which the service is provided sometimes. This means that the employer occasionally sends its employees to work for a Finnish company (e.g. to install a modular house manufactured in Estonia).

As the employee's place of work is Estonia, the employee is on a business trip abroad while working in Finland. Thus, the employee must be paid a daily allowance during the business trip in Finland. In addition, the employee is also a posted worker, as he or she is temporarily posted by the employer to provide a service to a Finnish company. This means that the employee must also be guaranteed the conditions listed above (including the salary valid in Finland).

Example 2 A builder works normally in Finland. Thus, the employee's employment contract must state Finland as the place of work and the employee is also subject to Finnish law (section 35 subsection 2 point 1 of the Private International Law Act) unless it is established in accordance with subsection 3 that the employment contract is more closely connected with another country. In this case, it is not an employee posted from Estonia and he or she is not paid a daily allowance for a business trip abroad.

Example 3 A builder who works in several countries but is employed in Estonia is likely to be subject to Estonian law (section 35 subsection 2 point 2 of the Private International Law Act) unless it is established in accordance with subsection 3 that the employment contract is more closely connected with another country. For example, the employee's "base" is in Finland, from where the employee goes to perform work in Norway and Sweden. In this case, the law applicable to the employment relationship is Finland's. Also, the employee is not an employee posted from Estonia and he or she is not paid a daily allowance. However, if the starting point is Estonia, the usual place of work can also be Estonia, which means that the worker is a posted worker and is also entitled to a daily allowance for posting abroad.

Specific rules on the posting of drivers

Who is a posted driver?

The specific rules for the posting of drivers in international carriage have been established by Directive (EU) 2020/1057 of the European Parliament and the Council (hereinafter Directive 2020/1057). The special provisions established by Directive 2020/1057 have been extended to cases where a driver employed by a transport operator has been posted to the territory of another Member State to provide a service to a contracting party. The special provisions delimit carriage (including exceptions) where it is obligatory to comply with the posting requirements established by Directive 96/71/EC of the European Parliament and the Council (hereinafter Directive 96/71) and establish a uniform sector-based information system for the notification of posting (posting declarations).

• European Labour Authority: Posted drivers - know your rights and obligations.
• Questions and answers on the posting of drivers under Directive (EU) 2020/1057 in the context of transport of goods

 

Important provisions

From 2 February 2022, transport operators have to take into account the following:

Posted drivers must be ensured the minimum working conditions in the country they are posted to as established by Directive 96/71/EC. Minimum working conditions must be complied with if they are more favourable than the working conditions applicable in the employee’s home country.

For example, a posted employee must be paid the minimum wage of the country of posting (including pay for overtime, etc.) if it is higher than the employee’s usual wage.

 

Registration of posted drivers and submission of data

A posting declaration must be submitted to the competent authority of the country of posting no later than by the commencement of the posting, using the public interface of the Internal Market Information System (IMI), and it must be kept up to date.

The posting declaration must include the following:

1. the name and address of the driver’s employer as well as the Community licence number, if available;
2. the contact details of the transport manager of the driver’s employer or the person representing the employer;
3. the name, date of birth, residential address and driving licence number of the driver;
4. the start date of the driver’s contract of employment, and the law applicable to it;
5. the estimated start and end date of the posting;
6. the number plates of the motor vehicle;
7. whether the transport services performed are carriage of goods, carriage of passengers, international carriage or cabotage.

The Working Conditions of Employees Posted to Estonia Act is available at: https://www.riigiteataja.ee/en/eli/529032022006/consolide 

The IMI public interface to submit a posting declaration: https://www.postingdeclaration.eu.

The user manual of the IMI public interface with videos and FAQs: https://www.postingdeclaration.eu/help.

The driver must have a copy of the posting declaration (paper or electronic form) and present it upon request.

 

Supervision

The Labour Inspectorate may initiate proceedings in order to supervise posted drivers, in which case the employer must respond to the request of the Labour Inspectorate within eight weeks and submit the following documents via the public interface of the Internal Market Information System (IMI):

1. evidence of the transport operations taking place in the host Member State, such as transport documents (i.e. the consignment note of the goods or an e-CMR);
2. the working and rest time data of tachographs as established by Regulations (EC) No 561/2006 and (EU) No 165/2014. According to the new use requirements of tachographs, as of 2 February 2022, drivers must record each crossing of the border of a Member State with their country code (Article 34(6) and (7) of Regulation (EC) No 165/2014;
3. documents on the remuneration of the driver during posting;
4. the contract of employment or an equivalent document;
5. the working time schedule regarding the driver’s work and the details of the driver’s remuneration.

 

Exceptions 

Posting requirements do not apply if:

• the driver passes through a country without loading or unloading goods and without picking up or setting down passengers (transit);
• the driver is engaging in bilateral carriage of goods or passengers;
  • in addition to performing a bilateral transport operation, the driver may perform one activity of loading and/or unloading (in the case of carriage of passengers, entering and exiting the vehicle), provided that the goods are not loaded and unloaded in the same Member State;
  • in the case of a bilateral transport operation which starts from the Member State of establishment and for which no additional activity is performed, the exception of up to two additional loading and/or unloading activities applies to the return journey.

From 21 August 2023, the exceptions specified in clauses i and ii may only be carried out when using the SMART 2 tachograph.

 

More information:

• The IMI public interface to submit a posting declaration (FAQ)
• Practical guide on posting
• European Commission: FAQ Posting rules of drivers. 
• Association of Estonian International Road Carriers