CONTROLS OF DRIVERS’ REMUNERATION – COMMON APPROACH
More than three years after lex specialis Directive has entered into force, operators are still being confronted with an important level of uncertainty when it comes to controlling of remuneration paid to posted drivers. Due to highly complex nature of European regulations and national salary systems, there are currently not many controls of remuneration and these, that have been launched, haven’t been concluded to a wide extend. This leads to lack of clarity on how to calculate remuneration due to posted drivers and how to prepare controlling documents, so that they can be smoothy accepted and checked by national controlling authorities.
In order to have a common understanding of these complex issues and to achieve a more harmonised approach to controls, the European Labour Authority has organised a workshop gathering representatives of road transport operators and controllers. This meeting was part of a project “IMI-PROVE Road Transport – Series of workshops on enforcement of the remuneration of posted drivers” and took place on 16 June.
Common problem, one solution?
Operators and controllers have presented their perspective and practice.
This has confirmed the complexity of the process as well as certain mismatch between controllers’ expectations and capacities of operators to take into account all obligatory constituent elements of remuneration when calculating amounts due to posted drivers. Both sites are being faced with complexity of national remuneration systems and differences in terms of structure, definitions and amounts. Despite various efforts taken by ELA, access to reliable and user-friendly information about remuneration due and calculation method is still lacking, which makes it often impossibly to comply with EU rules.
This is why there is a need to agree on an approach, that will be acceptable to national controlling authorities and operators with common goals to provide drivers with wages they deserve and to build mutual trust between transport companies and controllers.
With this in mind International Road Union (IRU), as representative of transport operators, has presented a number of following recommendations for operators, drivers and controlling authorities.
General approach to controls of remuneration
Member States can control remuneration due for the posting period as a result of a roadside check or as a result of a random check, following posting declarations registered in IMI. During control via IMI operators are asked to provide a closed set of documents, that should be sent via IMI, at the direct request of competent authorities and after the period of posting.
It is foreseen, that in standard cases operators are expected to provide the following documents with regards to controlling period: copy of IMI declaration, tachograph records, CMRs as well as documentation relating to the remuneration of the driver in respect of the period of posting, the employment contract, time-sheets relating to the driver’s work and proof of payments. However, in reality remuneration of a posted driver can be checked by host Member State authorities only in cases, when driver has been actually posted to a territory of a given Member States. This is why, operators are recommending to apply a “step by step” approach:
- check tachograph records to determine presence of the driver on the territory of a given MS and CMRs to determine posting situation;
- in cases, where driver has been posted, check documents with regards to remuneration covering only these months, in which the driver was posted.
Controlling documents
To control remuneration paid to posted drivers, operators are obliged to present the following set of documents:
- documentation relating to the remuneration of the driver in respect of the period of posting,
- the employment contract,
- time-sheets relating to the driver’s work and
- proof of payments.
With respect to controlling documents IRU has presented the following recommendations.
With regards to documentation relating to the remuneration, operators should be expected to present original payslip or equivalent document according to law and practice of the sending country (in terms of format, constituent elements, language). However, in order to present the mount that has been paid for posting period in the given host country, operators have been advised to present an additional document indicating the due amount and the method of calculation.
Time-sheets are equally important, as they help to calculate the working time covered by posting rules. IRU believes, that in case of absence of a dedicated time-sheet tachograph records should be treated as a document of equivalent value. However, if a separate time sheet is expected, IRU believes, that this document should cover the following elements: date and time of entry and exit from the territory of a MS; driving time and other work (working time); resting time and availability time.
It is also important to make sure, that employment contract includes an obligatory list of elements in line with article 4 of Directive 2019/1152 on transparent and predictable working conditions.
Proof of payment shall be understood as a document confirming, that the amount of remuneration due for employee (monthly nett amount provided in pay slip) has been transferred to driver’s account. According to operators, controllers should not expect separate transfers with regards to amounts due for posting in various countries.
Gross amounts and calculation of remuneration
According to revised Posting of Workers Dircteive, Recital 18, “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 that Directive”.
It has to be noted however, that there is no common EU definition of gross amounts. As a result, national gross amounts may include different constituent elements, social security contributions and taxes.
Operators represented by IRU have recommended, that for the purpose of controls transport companies and controlling authorities should agree on a single definition of gross amount used by Eurostat for the purpose of Structure of Earnings Survey. This definition reads as follow: “Mean monthly gross earnings in the reference month cover remuneration in cash paid before any tax deductions and social security contributions payable by wage earners and retained by the employer, and are restricted to gross earnings which are paid in each pay period during the reference month.”
In case of transport, calculation of remuneration due in the receiving countries is extremely complicated due to the highly mobile nature of transport services. Remuneration due to a driver shall be calculated according to rules of the sending country. This shall be confirmed by a pay slip containing nett and gross amounts. However, in case of posted drivers employers need to take into account differences in remuneration rates and rules governing various component elements of remuneration applicable in the receiving MSs. This is why access to user-friendly information about remuneration rates in MSs is even more vital in case of international road transport, than in case of other sectors.
To facilitate calculation of due remuneration as well as controlling procedures, IRU has recommended to Member States to provide a table/ matrix including applicable average remuneration rates taking into account classification of drivers, transport mode and types of vehicles. These rates could be used as a reference point by employers when calculating due amounts for posted drivers. Operators would be also expected to take into account other factors such as overtime, work during night, work during holidays etc. IRU believes, that such tables should be available on single official national websites but also via IMI.
What’s next?
Recommendations presented by IRU will be subject to further discussions and work under the leadership of ELA. The aim is to agree, if possible, on a common approach and common understanding between operators and controlling authorities with regards to how remuneration due to posted drivers shall be calculated and controlled.
To find out more
You can find this article on new regulations for 40 tons, euro 5 and Euro 6 vehicle and others linked to it in our dedicated section, by clicking here: Posting rules
