Directive 2018/957/EU: not transposed by all Member States

By: Anthony Kerr, UCD Sutherland School of Law, Dublin.

Directive 2018/957/EU, amending Directive 96/71/EC (the Posted Workers Directive), was to be transposed by the Member States no later than 30 July 2020. The main changes include an expansion of the core minimum working conditions to encompass accommodation, if provided by the employer, applying in the host Member State, and the same mandatory allowances for travel expenses; collective agreements that have been declared “universally applicable” will cover posted workers in all sectors, not just the construction sector; posted workers, after 12 months, will be entitled to all mandatory working conditions in the host Member State save for rules regarding the conclusion and termination of the employment contract and supplementary occupational retirement pension schemes; the principle of equal treatment between temporary agency workers and those directly employed will apply to posted temporary agency workers; and much more robust provisions in the event of non-compliance are to be provided. These monitoring, control and enforcement obligations are in addition to those required by Directive 2014/67/EU (the Enforcement Directive).

My colleagues on the European Labour Law Network have advised the writer that the Directive has only been transposed on time in Belgium, the Czech Republic, Estonia, France, Germany, Hungary, Italy, Lithuania, Malta, the Netherlands, Portugal, Poland, Slovakia and Sweden.

In France, the Directive was transposed by Government Ordinance no. 2019-116 of 20 February 2019, the provisions of which come into operation on 30 July 2020. The French Labour Code now provides that employers posting workers to France must guarantee each posted worker equal treatment with locally employed workers under the same conditions. Employers will have to guarantee each posted worker the minimum or basic wage, as well as all other benefits and add-ons paid, directly or indirectly, in cash or in kind, by the employer to the worker by reason of his or employment. Where a worker has been posted for more than 12 months, taking into account the period worked before 30 July 2020, he or she will automatically be subject, from the 13^th month, to all provisions of the French Labour Code except those regarding the hiring of workers, modification or termination of the employment contract, the secured voluntary mobility scheme, and fixed-term employment contracts.

* My thanks are due to Professor Francis Kessler for the information on the French transposition measures and to all the other ELLN colleagues who responded to my query.