Ministerio de Empleo y Seguridad Social. Posting of workers to Spain in the framework of the transnational provision of services

Posting of workers to Spain in the framework of the transnational provision of services

  1. Applicable basic regulations
  2. Scope of application
  3. The concept of posting workers
  4. Terms and conditions of employment of posted workers
  5. Body competent for the provision of information on the terms and conditions of employment of posted workers
  6. Posting notification
  7. Additional obligations of undertakings that post workers to Spain to carry out work under a system of subcontracting in the construction sector
  8. Representatives of posted workers
  9. Inspection actions
  10. Social order infractions and sanctions
  11. Cooperation with the Public Administrations of other States regarding information and inspection
  12. Social jurisdiction competency
  13. Obligations and responsibilities of user undertakings and of undertakings that receive the provision of services in Spain from posted workers
  14. Transitional law

  1. Applicable basic regulations

    Law 45/1999, of 29 November, on the posting of workers in the framework of the transnational provision of services: it transposes 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.

  2. Scope of application

    Article 1 of Law 45/1999

    Law 45/1999 shall apply to undertakings established in an EU Member State or in a state that is a signatory to the European Economic Area Agreement that temporarily post their workers to Spain in the framework of the transnational provision of services, excluding merchant navy undertakings as regards seagoing personnel.

    This law shall not apply to postings carried out for the performance of training activities that do not satisfy the classification as a transnational provision of services.

  3. The concept of posting workers

    Article 2.1.1 of Law 45/1999

    "Posting in the framework of the transnational provision of services" shall be understood as a posting to Spain carried out by undertakings included within the scope of application of this law that are carried out for a limited period of time in any of the following cases:

    1. The posting of a worker by an undertaking on its account and under its direction, under a contract concluded between that undertaking and the party for whom the services are intended, which is established or operates in Spain.
    2. The posting of a worker to a work centre of the undertaking itself or that of another undertaking of the group of which it forms part.
    3. The posting of a worker by a temporary employment undertaking to hire out a worker to a user undertaking established or operating in Spain.
  4. Terms and conditions of employment of posted workers.

    Article 3 of Law 45/1999

    The employers included in the scope of application of this law that post their workers to Spain in the framework of the transnational provision of services must guarantee these workers, irrespective of the legislation applicable to the work contract, the terms and conditions of employment set out under Spanish labour legislation with regard to the issues listed hereunder.

    For these purposes, the terms and conditions of employment set out under Spanish labour legislation shall be those contained in the legal or regulatory provisions of the State and those set out in the collective agreements and arbitration awards applicable in the place in question or in the sector or branch of activity concerned.

    This is without prejudice to the application to posted workers of more favourable terms and conditions of employment resulting from the provisions set out in the legislation applicable to their work contract, in collective agreements or in individual work contracts.

    For these purposes, the length of the posting shall be calculated on the basis of a reference period of one year from the beginning of the posting, including, where applicable, any previous periods for which the post has been filled by a posted worker.

    1. 4.1. Legal or regulatory provisions applicable to the terms and conditions of employment of posted workers

      1. Work periods
      2. The rate of pay, except in postings that do not exceed eight days and which are carried out by undertakings that are not temporary employment undertakings, under the terms set out in article 4 of Law 45/1999.
        • Applicable regulations:
          • Royal Decree 742/2016, of 30 December, setting the minimum wage (MW) for 2017.
            • The MW for 2017 is set at 23.59 euros/day or 707.70 euros/month, depending on whether the wage is set by days or by months.
            • In the annual calculation, the MW rate for 2017, including any extraordinary payments, shall not be less than 9,907.80 euros for workers with full legal working hours.
          • Without prejudice to the foregoing, under all circumstances the minimum wage set out in the collective agreements and arbitration awards applicable in the place in question or in the sector or branch of activity concerned for the professional group or professional category corresponding to the work performed by the posted worker shall be paid. See section "B) Collective agreements applicable to the terms and conditions of employment of posted workers".
        • Composition of the minimum wage rate:

          The minimum wage rate shall be understood as that which, in the annual calculation and without discounting taxes, the interim payments of these taxes and social security contributions payable by the worker, comprises the basic wage and supplements, the extraordinary bonuses and, where applicable, the payment corresponding to overtime and night-time work. Under no circumstances shall the minimum wage rate include any voluntary protective enhancements with regard to social security.

          With regard to workers contracted by temporary employment undertakings to be hired out to user undertakings, see the section "Terms and conditions of employment of workers posted by temporary employment undertakings".

          To make a comparison between the wage rate that the posted worker receives in accordance with the legislation applicable to his work contract and the wage rate guaranteed in accordance with the sections above, the allowances corresponding to the posting shall be taken into consideration, to the extent that these are not paid as reimbursement of expenses originated through the posting such as travel and accommodation expenses and per diems.

      3. Equality of treatment and direct or indirect non-discrimination on the grounds of gender, origin (including racial or ethnic origin), marital status, age within legal limits, social condition, religion or convictions, political ideas, sexual orientation, union membership and affiliation to union agreements, kinship with other workers employed by the undertaking, language or disability, provided that the workers possess the skills to perform the work or job in question.
      4. Child labour.
      5. Occupational health and safety, including regulations on protection of mothers and children.
        • Article 19 "Occupational health and safety" of the Workers’ Statute.
        • Law 31/1995, of 8 November, on occupational health and safety.
        • A full compendium of the regulations on health and safety can be found at the following link of the National Institute of Occupational Health and Safety (INSHT): Regulations - INSHT.
      6. Non-discrimination of temporary and part-time workers.
        • Non-discrimination of temporary workers: Article 15.6 of the Workers’ Statute.
        • Non-discrimination of part-time workers: Article 12.4.d) of the Workers’ Statute.
      7. Respect for the right to privacy and due consideration for the dignity of workers, understood as protection against verbal or physical offences of a sexual nature.
      8. Freedom of association and the rights to strike and assembly.
    2. 4.2. Collective agreements and arbitration awards applicable to the terms and conditions of employment of posted workers

      Employers shall also guarantee the terms and conditions of employment set out in the collective agreements and arbitration awards applicable in the place in question or in the sector or branch of activity concerned with regard to the issues referred to in the section above. (To determine which collective agreement or arbitration award is applicable, see section 4.4. "Sources for the consultation of collective agreements and arbitration awards applicable to posted workers").

    3. 4.3. Terms and conditions of employment of workers posted by temporary employment undertakings

      In postings of workers by temporary employment undertakings to hire them out to a user undertaking established or operating in Spain, temporary employment undertakings, in addition to guaranteeing their posted workers, irrespective of the legislation applicable to the employment contract, the terms and conditions of employment referred to in the previous section with regard to Spanish labour legislation, must comply with the conditions set out in Law 14/1994, of 1 June, which regulates temporary employment undertakings, for the hiring-out of workers to user undertakings.

      According to article 22.1.c) of Law 14/1994, chapter III of this law shall not be applicable except with regard to the provisions set out in section 1 of article 11. This section sets out that workers contracted to be hired out to user undertakings shall have the right during the periods of service provision at these undertakings to the application of the fundamental terms and conditions of employment that would correspond to them if they had been recruited directly by the user undertaking for the same post.

      For these purposes, fundamental terms and conditions of employment shall be those that refer to compensation, the length of the working day, overtime, rest periods, night-time work, holiday periods and public holidays.

      Compensation shall include all the economic payments, whether fixed or variable, established for the position in the collective agreement applicable to the user undertaking. It shall include, in all cases, the proportional part corresponding to the weekly rest period, extraordinary payments, public holidays and holiday periods. The user undertaking shall be responsible for setting the final payments received by the worker and, to this end, said user undertaking shall set forth the compensation referred to in this paragraph in the contract issued to the worker.

      By the same token, workers contracted to be hired out shall have the right to be subject to the same provisions as workers of the user undertaking with regard to the protection of pregnant and breastfeeding women and of children, in addition to the equality of treatment between men and women and to the application of the same provisions adopted to combat discrimination based on gender, race or ethnic origin, religion or beliefs, disability, age or sexual orientation.

      In accordance with article 23 of Law 14/1994, the relationship between the worker posted to Spain and the user undertaking shall be in accordance with the provisions established in chapter IV of this law.

    4. 4.4. Sources for the consultation of collective agreements and arbitration awards applicable to posted workers

      • Register of collective agreements (REGCON) and the Collective Agreement Code Search Engine: collective agreements pertaining to all scopes, both territorial (state, regional and provincial or smaller) and functional (business or smaller, section and sector). With regard to the search for sector collective agreements, see below "Instructions for searching in REGCON for collective agreements and arbitration awards applicable to workers posted at the place in question or in the sector or branch of activity concerned".
      • Link to websites of Autonomous Communities with search engines for collective agreements within the regional scope: http://www.empleo.gob.es/es/sec_trabajo/ccncc/C_Registro/BDEnlacesCCAA.htm
      • Links to the websites of employers’ and labour organisations:
      • Instructions for searching in REGCON for collective agreements and arbitration awards applicable to posted workers in the place in question or in the sector or branch of activity concerned.

         

        There are two options. However, you should consult the labour authority of the territory where the service is to be provided to determine the applicable collective agreements and arbitration awards.

        1. Public consultation of the REGCON: https://expinterweb.empleo.gob.es/regcon/pub/consultaPublicaEstatal

          You must simultaneously select the following elements (to do this you need to hold down the ‘Control’ key or the ‘Shift’ key):

          1. Tipo de trámite [Type of process]:
            • "Nuevo acuerdo" ["New agreement"]
            • "Texto nuevo" ["New text"]
            • "Laudo arbitral" ["Arbitration award"]
          2. Naturaleza [Type]:
            • "Convenio colectivo" ["Collective agreement"]
            • "Laudo arbitral" ["Arbitration award"]
          3. Ámbito Funcional [Functional scope]:
            • "Sector inferior a la provincia (comarcal, local, etc.) ["Sector smaller than the province (district, local, etc.")]
            • "Sector igual o superior a la provincia" ["Sector equal to or bigger than the province"]
          4. Autoridad Laboral [Labour Authority]:
            • Province/s where the service is to be provided
            • Autonomous Community where the service is to be provided
            • "Estatal" ["State"]
          5. CNAE: National Classification of Economic Activities

          WARNING: Once the search has been carried out, you must check that the collective agreement remains in force. To do this, when you click on "View" you should see "Not denounced", or "Denounced" provided that in this case it remains in force through extended validity in accordance with the provisions set out in article 86 "Validity" of the Workers’ Statute and in the collective agreement itself. For informative purposes, you may check the information provided in the collective agreement in the section "Basic details 2", subsection "Details concerning the denouncement of the agreement".

          EXAMPLE: Search for collective agreements or arbitration awards applicable in the province of Barcelona in the construction sector.

          Register of collective agreements (REGCON)

          This search would obtain the following results:

          Results of searching

        2. Search engine for sector collective agreement codes: https://expinterweb.empleo.gob.es/regcon/pub/buscadorCodigosConvenioSector

          If you do not know the name of the applicable sector agreement, select the second section "b) No conoce la denominación del convenio colectivo sectorial que aplica" [b). You do not know the name of the applicable sector collective agreement].

          On the next screen, mark the provinces where the services are to be provided and then enter the CNAE of the economic activity of the undertaking. If you do not know it, you can search by the name of the economic activity by clicking on the link to "Búsqueda de actividades económicas por el literal" [Search for economic activities by name] provided by the INE (Spanish National Institute of Statistics).

          The result is a list of sector collective agreements of the provinces selected, plus the state ones, that contain the indicated CNAE.

          If the agreement you are looking for is not shown on the list, you can carry out a new search or contact the corresponding labour authority.

  5. Body competent for the provision of information on the terms and conditions of employment of posted workers

    Article 7 of Law 45/1999.

    Competent body:

    • Labour authority of the Autonomous Community where the services are going to be provided in Spain.
    • If the services are going to be provided in the Autonomous Cities of Ceuta and Melilla, the work and immigration departments of the respective Government Delegations shall be competent.

      (See the section below "Contact details of the labour authorities for the purposes of information about the terms and conditions of employment and posting notification".)

    This information can be requested by:

    • Information bodies of other Member States of the European Union or the European Economic Area.
    • Undertakings that are going to post workers to Spain or the associations that represent these undertakings.
    • Recipients of the transnational provision of services or the associations that represent them.
    • Posted workers or workers that are going to be posted or other bodies that represent them.

    Liaison offices at national level to consult in the event of any doubts with regard to the competent labour authority: Subdirección General de Ordenación Normativa [Subdirectorate-General for Regulations], Dirección General de Empleo [Directorate-General for Employment] (sgon@antispammeyss.es)

  6. Posting notification

    Article 5 of Law 45/1999

    The business owner that post workers to Spain in the framework of the transnational provision of services must notify the posting, prior to commencement and irrespective of its duration, to the labour authority of the Autonomous Community where the services are to be provided. If the services are to be provided in the Autonomous Cities of Ceuta and Melilla, the information on the posting must be addressed to the work and immigration departments of the respective Government Delegations.

    Unless the undertaking is a temporary employment undertaking, there shall be no need to notify the posting if the duration of the same is not greater than eight days.

    The notification on the posting shall contain the following details and information:

    1. Identification of the undertaking that is posting the worker.
    2. The tax address of this undertaking and its tax identification number for the purposes of Value-added Tax.
    3. The personal and professional details of the posted workers.
    4. The identification of the undertaking or undertakings and, where applicable, of the work centre or centres where the posted workers shall provide their services.
    5. The scheduled start date and duration of the posting.
    6. Determination of the provision of services that the posted workers are going to carry out in Spain with an indication of the corresponding case.
    7. The identification and contact details of a physical or legal person in Spain designated by the company as its representative, to liaise with the competent Spanish authorities and to send and receive documents or notifications, as necessary.
    8. The identification and contact details of a person in Spain who may represent the service company in workers’ information and consultation procedures and in negotiation procedures affecting workers who are posted to Spain./li>

    When the undertaking that posts workers to Spain is a temporary employment undertaking, the notification of the posting must also include the following:

    1. Accreditation that it satisfies the legal requirements of its State in order to temporarily place its contracted workers at the disposal of other user undertakings.
    2. The statement of the temporary needs of the user undertaking to be satisfied with the contract, indicating the corresponding case pursuant to those set out in article 6 of Law 14/1994, of 1 June, regulating temporary employment undertakings.

    When the undertaking that posts workers to Spain wishes to be contracted or subcontracted for works on a construction site, said undertaking must also be registered with the Register of Accredited Companies (REA) (see the section below on "Additional obligations of undertakings that post workers to Spain for the performance of works on a subcontracting basis in the construction sector").

    The procedure to notify the posting shall be that determined by the competent Autonomous Community. (See below the details of the regional labour authorities and the websites of the Autonomous Communities where further information can be found).

    The obligation to report the posting is understood without prejudice to compliance with whatsoever other obligations concerning notification, information or declaration of activities to be made to the Public Administrations by business owners by virtue of other provisions.

  7. Additional obligations of undertakings that post workers to Spain to carry out work under a system of subcontracting in the construction sector

    Additional provision one of Royal Decree 1109/2007, of 24 August, which implements Law 32/2006, of 18 October, regulating subcontracting in the Construction Sector.

    • They shall provide substantiation of observing the requirements set out in Article 4.2 a) of Law 32/2006, of 18 October, by providing documentation that proves compliance with the obligations set out in the national rules that transpose articles 7 "Protective and preventive services" and 12 "Training of workers" of Council Directive 89/391/EEC, of 12 June 1989, on the introduction of measures to encourage improvements in the health and safety of workers at work.
    • In the event of postings for longer than eight days, these must be registered with the Register of Accredited Companies (REA) of the labour authority in whose territory the services are to be provided in Spain.

      To this end, the first notification of the posting carried out pursuant to article 5 of Law 45/1999 (see the previous section on "Posting notification") shall be considered to be an application for registration, which must be accompanied by a declaration pursuant to the form established in Annex I.A of Royal Decree 1109/2007. The application thus formulated shall provisionally enable the undertaking to take part in the subcontracting process until the date of registration or refusal.

      Once the registration has been completed, notifications concerning subsequent postings must include, together with the legally required details, the registration number in the Register of Accredited Companies.

  8. Representatives of posted workers

    Additional provision three of Law 45/1999

    Representatives of workers posted to Spain, who hold such status pursuant to national legislation practices, may exercise administrative or judicial actions under the terms recognised for workers’ representatives in accordance with Spanish legislation.

    Representatives of workers of user undertakings and undertakings that receive in Spain the services from the workers posted under the aegis of the provisions set out in this Law shall have the terms of reference with regard to these workers as acknowledged under Spanish legislation, irrespective of the place where the temporary employment undertaking or the undertaking providing the services is located.

  9. Inspection actions

    The Labour and Social Security Inspectorate (ITSS) is responsible for ensuring compliance with the obligations imposed on business owners that post their workers to Spain. In order to apply legal provisions concerning posting of workers, and in order to ensure compliance therewith, the competent authorities may carry out a comprehensive review of factual information, such as the location at which the company performs its primary activity and the nature of the activities of the posted worker.

    Business owners to which the Law on the Posting of Workers applies must appear, if so requested by the Labour and Social Security Inspectorate, at the designated government office and provide any documentation that has been demanded as evidence of compliance with said Law, including documentation proving that the company was validly incorporated.

    Without prejudice to the provisions of the above section, during the posting period business owners must have the following documents available for immediate consultation at the place of work or in digital format, among others:

    1. Employment contracts or the documents referred to in Article 5 of Royal Decree 1659/1998, of 24 July, implementing Article 8.5 of the Workers' Statute Law concerning informing workers of the essential elements of employment contracts, when the information referred to in said article does not appear in the written employment contract, for each worker.
    2. The payslips for each worker and the proof of payment of wages or salaries to each worker.
    3. Records of working hours, indicating the beginning, end and duration of the working day.
    4. The document evidencing the authorization to work held by citizens of third countries, pursuant to the legislation of the State in which the undertaking is established.

      Once the posting has been completed, the business owners must provide the documents referred to in the above paragraphs when requested to do so by the Labour and Social Security Inspectorate.

      Business owners must notify the Labour Authority in writing, as determined by regulations, of any harm to the health of posted workers caused during or by the work performed in Spain.

      The documentation referred to in the above paragraphs must be submitted translated into Spanish or the co-official languages of the regions where the services are to be rendered.

    Further information about the Labour and Social Security Inspectorate: http://www.empleo.gob.es/itss/web/index.html

    Details about the Provincial Labour and Social Security Inspectorates: http://www.empleo.gob.es/itss/web/Quienes_somos/Estamos_muy_cerca/index.html

    Details about the Directorate-General for the Labour and Social Security Inspectorate:

    DIRECCIÓN GENERAL DE LA INSPECCIÓN DE TRABAJO Y SEGURIDAD SOCIAL [DIRECTORATE-GENERAL FOR THE LABOUR AND SOCIAL SECURITY INSPECTORATE]

    Subdirección General de Relaciones Institucionales y Asistencia Técnica [Subdirectorate-General for Institutional Relations and Technical Assistance]

    Agustín de Bethencourt, 4

    28071 MADRID

    +34 913 631 163

    +34 913 930 678

    +34 913 630 682

    Information on how to submit a complaint to the Labour and Social Security Inspectorate:

    Technical Guidelines 97/2016 on Posting of workers in the framework of the provision of services for the Labour and Social Security Inspection:
    http://www.laboral-social.com/sites/laboral-social.com/files/CT_97_2016.pdf

  10. Social order infractions and sanctions

    Article 10 of the revised text of the Law on Social Order Infractions and Sanctions approved through Royal Legislative Decree 5/2000, of 4 August.

    The following are minor infractions:

    1. Formal deficiencies in the notification of posting of workers to Spain as part of transnational provision of services, pursuant to legally established terms.
    2. Failure to report minor occupational accidents and minor work-related illnesses to the competent labour authority in a timely and correct manner, pursuant to prevailing provisions.

    The following are serious infractions:

    1. Submission of the posting notification after said posting has begun; submission without appointing a company representative to liaise with the competent Spanish authorities and to send and receive documents or notifications; or submission without appointing a person to represent the service company in Spain in worker information and consultation procedures or negotiations, when such procedures affect workers posted to Spain.
    2. Not having the documentation regarding a posting to Spain available in Spain, pursuant to established legal provisions.
    3. Failure to report occupational accidents and work-related illnesses to the competent labour authority in a timely and correct manner, pursuant to prevailing provisions, when such accidents and illnesses are serious, very serious or result in death.
    4. Failure to submit the documentation requested by the Labour and Social Security Inspectorate or submission of untranslated documents.

    Failure to report a posting is a very serious infraction, as are the falsification or concealment of information when submitting a notification.

    Without prejudice to the above, the failure to ensure that workers posted to Spain are provided with the working conditions set forth in Spanish labour legislation, no matter the legislation applicable to their employment contract, is an administrative infraction, as is the failure to fulfil requirements arising from European legislation. Spain's requirements regarding working conditions are defined in Article 3 of Law 45/1999, of 29 November, on the posting of workers in the framework of the transnational provision of services, the related implementing regulations, and the collective bargaining agreements and arbitral decisions applicable to the location and sector or line of activity in question.

  11. Cooperation with the Public Administrations of other States regarding information and inspection

    Article 9 and additional provision seven of Law 45/1999

    The labour authority and the Labour and Social Security Inspectorate may request the cooperation and assistance required to perform their duties from the Public Administrations of other Member States of the European Union or of the Contracting States of the Agreement on the European Economic Area. Such cooperation and assistance may include cross-border notification and application of administrative penalties for failure to comply with provisions regarding the posting of workers.

  12. Social jurisdiction competency

    Articles 15, 16 and 17 of Law 45/1999.

    The Spanish social order jurisdictional bodies shall be competent to rule on any litigious issues that arise in application of Law 45/1999 whenever the worker is or has been temporarily posted to Spain.

  13. Obligations and responsibilities of user undertakings and of undertakings that receive the provision of services in Spain from posted workers

    Additional provision two of Law 45/1999.

    User undertakings and undertakings that receive in Spain the services from the workers posted under the aegis of the provisions set out in this Law shall assume with regard to these workers the obligations and responsibilities set out under Spanish legislation, irrespective of the place where the temporary employment undertaking or the undertaking providing the services is located.

  14. Transitional law

    Transitional provision three, Royal Decree-Law 9/2017, of 26 May.

    1. Notifications of posting of workers to Spain sent before 27 May 2017 shall be governed by the provisions prevailing on the date on which they were sent.
    2. Until the planned implementing regulations have been issued, notifications of posting of workers to Spain may be sent by the means used prior to 27 May 2017.
    3. Without prejudice to the above paragraphs, amendments made to Law 45/1999, of 29 November, by Royal Decree-Law 9/2017, of 26 May shall apply to posting begun before 27 May 2017, provided that on that date the posted workers are continuing to render services in Spain.

De interés...

  • Programa Nacional de Reformas. Estrategia de Lisboa
  • administracion.gob.es

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