Thematic feature - posted workers

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This article examines the Spanish situation, as of June 2003, with regard to: legislation and collective bargaining on the pay and conditions of posted workers (ie workers from one EU Member State posted by their employer to work in another); the number of such posted workers; and the views of the social partners and government on the issue.

EU Directive 96/71/EC concerning the posting of workers in the framework of the provision of services seeks to avoid 'social dumping' by ensuring that a minimum set of rights is guaranteed for workers posted by their employer to work in another country. The basic principle is that the working conditions and pay in effect in a Member State should be applicable both to workers from that State, and those from other EU countries posted to work there. The Directive covers undertakings established in a Member State, which, in the framework of the transnational provision of services, post workers to the territory of another Member State.

The Directive establishes a core of essential regulations aimed at ensuring employees' minimum protection in the country in which their work is performed. It guarantees the application of the host country's statutory and regulatory provisions relating to:

• maximum work periods and minimum rest periods;
• minimum paid annual holidays;
• minimum rates of pay, including overtime rates (excluding supplementary occupational retirement pension schemes);
• the conditions of hiring-out of workers, in particular the supply of workers by temporary employment agencies;
• 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; and
• equality of treatment between men and women and other provisions on non-discrimination.

As well as these generally applicable statutory and regulatory provisions, a Member State's collectively agreed provisions on these issues must also be applied to workers in the construction sector (where these are based on 'collective agreements or arbitration awards which have been declared universally applicable').

The Directive allows for a number of exceptions to all or some of these 'minimum provisions' for: the crew of merchant ships; staff involved in the initial assembly and/or first installation of equipment; postings lasting less than a month; and where 'the amount of work to be done is not significant'. The Member States were obliged to transpose the Directive by 16 December 1999.

In 1999, the European Industrial Relations Observatory (EIRO) conducted a comparative study on posted workers and the implementation of the Directive. In June 2003, the EIRO national centres in each EU Member State (plus Norway), have updated the basic information in the earlier comparative study, four years on, in response to a questionnaire. The Spanish responses are set out below (along with the questions asked).

Regulatory framework

What changes were made to national legislation in your country in order to implement the Directive? And have there been any further changes to the relevant legislation since then?

The Directive was implemented in Spain by Law 45/1999 of 29 November 1999 on the posting of workers in the framework of a transnational provision of services (Ley sobre el desplazamiento de trabajadores en el marco de una prestación de servicios transnacional), published in Official Journal 286/1999, as existing Spanish law did not unequivocally and explicitly guarantee the objectives of the Directive. The law applies to postings from both the EU Member States and the other countries of the European Economic Area (EEA) - ie Norway, Iceland and Liechtenstein.

Please outline very briefly the current legal position of posted workers in your country - are they covered by specific or general employment legislation, what is their position with regard to social security (are they covered under the social security system in their country of origin or the host country?) etc. Also, have any specific measures been taken to prevent abuses arising from the posting of temporary agency workers (eg an agency hiring temporary workers through a subsidiary in a low labour cost country and sending them to work for a user company in a higher labour cost country)?

The 1999 legislation makes it compulsory to provide workers posted to Spain, whatever legislation is applicable to their employment contract, certain employment conditions laid down by Spanish law in respect of: working time; minimum wages; under-age work (as defined in the Workers' Statute); non-discrimination against temporary and part-time workers; respect for privacy and dignity; occupational risk prevention, freedom to join trade unions; and the right to strike and hold meetings.

The Labour and Social Security Inspectorate (Inspección de Trabajo y Seguridad Social, ITSS) monitors and ensures observance of the legislation. The employer concerned is obliged to communicate, appear before and provide documentation to the labour and social security authorities on posted workers who provide services transnationally. The labour authorities of the country of origin should inform those workers interested in a posting of the employment conditions guaranteed in Spain. The legislation provides for cooperation on information and inspection with the public administrations of other countries concerned. Companies established in Spain that temporarily post their workers to other EEA countries must guarantee that they receive the employment conditions laid down in those countries' measures transposing the EU posted workers Directive.

The 1999 law states that it also applies to postings to Spain by companies established in countries outside the EEA, insofar as such companies can provide services in Spain by virtue of applicable international agreements.

The Social Security Law (Ley de Seguridad Social) provides social security protection for all people who exercise their occupation on Spanish territory and pay social security contributions in Spain, even if they work there temporarily. Forms of protection are also provided for Spanish nationals working abroad.

With regard to temporary agency work, the 1999 legislation amended Law 14/1994 on temporary employment agencies. Because the 1999 law regulates the posting of a worker to Spain by a temporary employment agency based in an EEA country to work in a Spanish user company, the 1994 temporary employment agencies legislation was modified to take account of this possibility and also allow Spanish temporary agencies to carry out their activity in the other EEA countries. Agencies must comply with Law 14/1994 when they post workers.

Workers posted to Spain by temporary employment agencies must receive during the period of service at least the total pay established for the job in the collective agreement applicable to the user company. This includes proportional elements corresponding to weekly time off, bonuses, public holidays and annual leave. The user company is responsible for the final amount to be paid, which must be laid down in the contract. Spanish temporary agencies that post workers to another country must accredit that they comply with the legislative requirements for providing temporary workers and specify the temporary needs of the user company concerned.

Have there been any collective agreements concluded on the issues covered by the Directive? Have the social partners been consulted as part of the legislative and policy-making process and, if so, in what way? Have the social partners taken any other initiatives related to posted workers?

There are no known collective agreement in Spain that deal with these issues. The social partners were consulted and participated in the drawing up of the draft law on posted workers through the consultative Economic and Social Council (Consejo Económico y Social).

The workers affected

Please provide the latest figures available on the number of employees who are posted from your country to other EU Member States.

Please provide similar figures, if available, for employees posted to your country from other EU Member States.

There are no statistics available on the number of workers posted from Spain to other countries or vice-versa. Such postings are common within Spain (for example among farm and construction workers), but there is thought to be little posting between countries and no statistics are gathered. Intra-EU posting between Spain and other countries tends to involve managers or other highly qualified workers who negotiate their employment conditions individually, as in engineering, consultancy, chemicals, civil engineering, specialised industries etc. For example, the large-scale presence of firms based elsewhere in the EU in Spain suggests that some managerial staff will be posted there. According to the social research company Colectivo IOE, in 1999 there were 2.2 million Spanish residents abroad (two-thirds in South America and the rest in European countries) and 0.7 million foreign residents in Spain. Some of these may be posted workers, but presumably not many. Among workers from other EU countries registered for social security in Spain - a group which, again, may include an unknown number of posted workers - many are from the UK and Germany, followed by France, Portugal and Italy. Overall, posting of workers is probably more common in other EU countries than in Spain.

Workers in the construction industry

The EU Directive, although of general application, is aimed particularly at workers in the construction industry (building and public works), in which discrepancies between practice and legal standards are often observed. Has any special action been taken by the social partners or the state to address the situation of posted workers in this industry?

There has been no action of note by the social partners or government with regard to posted workers in the construction sector. The current sectoral collective agreement for the construction industry deals with issues related to geographical mobility, but does not consider the question of posting as defined in the EU Directive.

The positions of the social partners and government

Please outline the stances adopted by the social partners and the public authorities/government on this issue. Particular attention should be given to unions and employers in the construction industry.

The posted workers issue is not currently a subject of debate. The 1999 law that transposed the Directive reflected the consensus view of the social partners and government. The construction sector does not appear particularly concerned about this question - as widespread use of subcontracting characterises the industry, so it is not regarded as necessary to post workers abroad or vice-versa. (Daniel Albarracín, Fundació CIREM).