KPMG: The global "new reality" of the market, reflected in the seventh edition of the "Guide to the posting of workers"

Romania - the appropriate authority must still be notified in writing, by post or e-mail

2021 was the first full year in which the new requirements of Directive 2018/957 / EU were applied: the Directive entered into force in the first year of the pandemic and its most important requirement relates to posted workers, who received the right to remuneration equivalent to that received by a local employee in the country where they will work. For the global market, 2021 also market the beginning of the adaptation to the new post-pandemic reality for both employees and organizations, in which the only constant was the need for people to travel. For many countries, the implementation of the Directive has meant increasing the complexity of registration requirements or different mechanisms for calculating the reference duration of the secondment.

"The main purpose of this year's Guide is to give companies an overview of the general principles governing the posting of workers, as well as to help employers understand whether and how the new reality of 'work from anywhere' can generate additional risks or obligations for organizations or mobile employees”, explains Mădălina Racovițan, Tax Partner and Head of People Services, KPMG in Romania.

The KPMG Guide shows that, so far, apart from Estonia, all EU countries have transposed the Directive into local law, but also talks about the developments that have taken place - the requirements for notifying the posting may, with some exceptions, be more complex than in previous years: a distinction is made between short-term missions - less than 12 months, and long-term missions - more than 12 months. Moreover, the duration of the posting calculation mechanism may differ from one Member State to another.

Belgium, Bulgaria, Croatia, Cyprus, France, Germany, Greece, Hungary, Malta, Netherlands, Poland, Slovenia and Sweden – calculate the 12-months period as starting from the beginning of the assignment (irrespective of when the Directive was implemented), while Austria, the Czech Republic, Denmark, Finland, Italy, Latvia, Lithuania, Luxembourg, Romania, Spain and Slovakia – calculate the 12-months period as starting from the implementation date of the Directive.

In relation to the exceptions to registration requirements, we mention the case of Germany, where the notification requirement depends on whether the posting falls within one of the relevant sectors and/or collective bargaining agreements. Norway is another example of a country where there is no registration requirement irrespective of the period. Current Romanian legislation does not provide any exception from the notification requirements based on the duration of the posting.

Since the UK has left the EU and ceased to be an EU member state, the Posted Worker Directive no longer applies to the posting of EU workers to the UK or to the posting of UK workers to the EU (and therefore the employment rights of EU workers who are posted to the UK will depend on UK law). However, the UK complied with the need to implement Directive 2018/957/EU during its transition period - by issuing the Posted Workers (Agency Workers) Regulations 2020 which came into force on 30 July 2020 (the date set by the Directive).

At the same time, according to the latest edition of the KPMG Global Guide, the last months of 2021 brought an increase in terms of employee mobility, as well as an adaptation to a "new reality" - in which we meet both posted employees and ”work from anywhere” employees focused more on their activity and less on the fixed place where they have established their office. For many organizations, this involved re-evaluating global mobility programs, analyzing potential risks and outlining processes and procedures to ensure that new ways of working were compliant with relevant legislation.

In terms of obligations related to posting of workers, what we learnt from looking at this year’s data was that for international postings, most EU Member States have put in place an electronic system that allows the registration of international postings. However, there are also still countries, including Romania, where the labor inspectorate must be informed through a written notification which is sent by letter or e-mail.

In terms of “work from anywhere”, we noticed that generally, remote workers are not considered posted workers, and thus the provisions of the Posting Directive do not apply to them.

Nevertheless, the domestic legislation of the country where the work is carried out still needs to be observed as specific registration requirements may still apply and income tax, social security and immigration implications may arise.

”In addition, similar to the previous editions, the guide continues to provide information on the minimum wage levels in each of the Member States, with the aim of giving companies a clear view/perspective on rules on the posting of workers since the adoption of Directive 2018/957/EU but also on the potential implications related to remote working”, concludes Mădălina Racovițan, Tax Partner and Head of People Services, KPMG in Romania.