Specific rules on remuneration of posted drivers
While posting workers to another Member State employers are obliged to apply a clearly defined set of terms and condition of employment in place in the receiving country. These terms and conditions of employment are laid down in the Member State where the work is carried out by law, regulations or administrative provisions as well as by collective agreements or arbitration awards. As a consequence, operators are obliged to guarantee posted drivers “remuneration, including overtime rates” applicable in the receiving country. European rules applicable to terms and conditions of employment, including remuneration, are laid down by the Posting of Workers Directive 96/71/EC as well as revised Directive 2018/957.
The concept of remuneration
According to the Posting of Workers Directive (PWD) from 1996 in case of posting employers were obliged to pay to the posted workers minimum rates of pay of the receiving country. The revised posting of workers Directive 2018/957, that entered into force on 30 July 2020, has replaced the obligation to guarantee the minimum rates of pay with the obligation to pay remuneration. These revised rules started to apply in the transport sector on 2 February 2022- the moment lex specialis Directive entered into force. As there is no common European definition of remuneration the revised PWD provides some clarity on the concept of remuneration as well as allowances, controlling measures and MSs’ obligation to publish information on single official national websites.
Article 3 paragraph 1 of Directive 2018/957 clearly states, that “the concept of remuneration shall be determined by the national law and/or practice of the Member State to whose territory the worker is posted and means all the constituent elements of remuneration rendered mandatory by national law, regulation or administrative provision, or by collective agreements or arbitration awards (…)”. It means, that operators posting drivers must observe definition and constituent elements of remuneration as well as due amount according to the legislation of the Member State, to which the driver is being posted.
However, it has to be noted, that posted workers cannot be deprived of terms and conditions of employment which are more favourable to them. In case the amount of remuneration calculated on the basis of legislation of the sending Member State is greater than amount of remuneration due according to the legislation of the receiving country, then the higher amount shall be paid to the driver.
Allowances specific to the posting
The revised Directive has also introduced some clarity with regards to allowances specific to posting.
Article 3 paragraph 7 of the revised Directive 2018/957 clearly states, that: “Allowances specific to the posting shall be considered to be part of remuneration, unless they are paid in reimbursement of expenditure actually incurred on account of the posting, such as expenditure on travel, board and lodging. The employer shall (…) reimburse the posted worker for such expenditure in accordance with the national law and/or practice applicable to the employment relationship.” Recital 19 further clarifies, that: “It is for Member States, in accordance with their national law and/or practice, to set rules with regard to the reimbursement of such expenditure.”
The Directive also clarifies, what happens in case of doubt about the nature of the allowance: “Where the terms and conditions of employment applicable to the employment relationship do not determine whether and, if so, which elements of the allowance specific to the posting are paid in reimbursement of expenditure actually incurred on account of the posting or which are part of remuneration, then the entire allowance shall be considered to be paid in reimbursement of expenditure.”
Obligation to publish information on remuneration on single official national websites
The revised Posting of Workers Directive puts on the Member States obligation to publish information about applicable remuneration on their single official national websites: “Member States shall publish the information on the terms and conditions of employment, in accordance with national law and/or practice, without undue delay and in a transparent manner, on the single official national website (…), including the constituent elements of remuneration (…) and all the terms and conditions of employment (…). Member States shall ensure that the information provided on the single official national website is accurate and up to date. The Commission shall publish on its website the addresses of the single official national websites.“
Links to all single official national websites can be found on the Your Europe website. Unfortunately, many of the single official national websites are still not up to date and lack detailed information about constituent elements of remuneration and applicable rates.
Control of remuneration
Recital 18 of the revised Positing of Workers Directive also provides some guidance on how payment of remuneration shall be controlled: “When comparing the remuneration paid to a posted worker and the remuneration due in accordance with the national law and/or practice of the host Member State, the gross amount of remuneration should be taken into account. The total gross amounts of remuneration should be compared, rather than the individual constituent elements of remuneration which are rendered mandatory as provided for by this Directive. Nevertheless, in order to ensure transparency and to assist the competent authorities and bodies in carrying out checks and controls it is necessary that the constituent elements of remuneration can be identified in enough detail according to the national law and/or practice of the Member State from which the worker was posted. Unless the allowances specific to the posting concern expenditure actually incurred on account of the posting, such as expenditure on travel, board and lodging, they should be considered to be part of the remuneration and should be taken into account for the purposes of comparing the total gross amounts of remuneration.”
The Directive also contains a safeguard clause for operators in case a Member State fails to publish information on the single official national website: “Where (…) the information on the single official national website does not indicate which terms and conditions of employment are to be applied, that circumstance shall be taken into account, in accordance with national law and/or practice, in determining penalties in the event of infringements of the national provisions adopted pursuant to this Directive, to the extent necessary to ensure the proportionality thereof.”
Conclusions
- Operators posting drivers must observe definition and constituent elements of remuneration as well as due amount according to the legislation of the Member State, to which the driver is being posted. It has to be noted, that posted workers cannot be deprived of terms and conditions of employment which are more favourable to them.
- Allowances specific to posting, which are not paid as reimbursement of costs incurred by the driver, are part of remuneration. Allowances paid as reimbursement of the costs incurred by the driver such as expenditure on board, lodging and accommodation cannot be part of remuneration.
- The employer shall reimburse the posted worker for expenditure on board, lodging and accommodation in accordance with the national law and/or practice applicable to the employment relationship between the driver and the operator.
- Terms and conditions of employment applicable to the employment relationship between the driver and the employer shall clearly state which elements of allowances specific to posting are paid as reimbursement of costs. In case of uncertainty the entire allowance can be excluded from the remuneration.
