Posted Worker Notifications: Challenges for Companies and the New E-declaration Initiative

Following the adoption of the Posted Workers Enforcement Directive in 2014, EU Member States were offered a set of tools to monitor the working conditions of the employees temporarily sent or ‘posted’ to their territory. One of these tools is the filing of a Posted Worker Notification. The goal of this EU-wide initiative was simple and noble -  implementing control measures to safeguard minimum employment law protection for workers temporarily located in another EU Member State.

The Enforcement Directive set the general legal and procedural parameters that would guide EU member states in rolling out the Posted Worker Notification system at a national level. It also offered extensive scope to implement the Directive. The result of this flexibility, unfortunately, has created disparity in the practical implementation of the Posted Worker Notification, and with it, a heterogeneity in the formalities and requirements across Europe.

As a result, the administrative burden businesses face with the intra- and inter- European mobility of their workers is significant. In addition, the principles of free movement of workers and the freedom to provide services on the EU internal market struggle to coexist with the dissimilar administrative requirements and costs imposed by each member state.

Fragomen, during its ongoing roundtables with clients, has gathered feedback from businesses on the challenges they face in remaining compliant with Posted Worker Notification requirements, and has in turn voiced these national and regional hurdles to government authorities (most recently to the European Commission (EC) and to the European Labour Authority (ELA) ultimately advocating in favor of streamlining the process to alleviate the challenges companies are facing.

The challenges that companies encounter when filing a Posted Worker Notification are typically two-fold: The practical challenges and the challenges pertaining to the definition of the legal scope.

While the practical challenges vary from country to country, Fragomen has identified some common hurdles companies experience. These include electronic pre-registration requirements or ‘digital certificates’ that present technical challenges, host-country language requirements, and differences in the data requested from country to country. In addition, several countries have delegated the competency of the Posted Worker Notification to their own regional authorities, which has further fragmented the Posted Worker Notification process. Other procedural obstacles include technical limitations in the country’s filing portals that hinder the ability to file multiple Posted Work Notifications for several consecutive assignments in a defined time frame, the need to upload personal and corporate documents when filing, and the inability to amend data and information in an existing notification.

In addition to these operational difficulties, the definition of the legal scope also varies. This is evident in the perceived scope of application. Approximately half of EU member states have opted to reduce the applicability of the Posted Worker Notification to intra-EU postings only, while the remaining member states also include non-EU based employers that send employees temporarily to the EU.

In its interaction with government authorities, and in light of the feedback received, Fragomen has proactively advocated in favor of streamlining the process to mitigate these challenges and encourage authorities to simplify the process for businesses. We also advocate for interdepartmental data sharing to enable this objective. The EC has taken notice of these challenges and has started working on establishing a voluntary, EU-wide, multilingual, common e-declaration form aimed at simplifying the Posted Worker Notification process across the European Union. The implementation of the EC’s initiative is expected by the end of 2023.

In the meantime, Fragomen strives to ease businesses’ obligations when filing Posted Worker Notifications by establishing procedural practices geared towards legal compliance (as established by the competent authorities in the EU member states) and the lessening of procedural challenges. In that sense, Fragomen’s innovative Nomadic technology, with a fully automated work readiness solution for short-term travelers, enables companies to reduce the burden of being compliant with Posted Worker Notification requirements in Europe.

Need to Know More?

For further information and advice on this topic, please contact Client Engagement Director, Wim Cocquyt at [email protected] or Immigration Consultant, Carlos Saenz de Tejada at [email protected]. This blog was published on 15 July 2022, and due to the circumstances, there are frequent changes.

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