What administrative obligations in terms of labor must be fulfilled when internationally posting workers from Spain?
In the first place, it is important to clarify that we will talk about labor administrative obligations in the event of a posting (continuous registration with Spanish Social Security) and not in the case of an expatriation (withdrawal from Spanish Social Security and suspension/termination of the employment contract).
When we talk about posting, we find two administrative labor obligations to take into account: the posting letter and the Posted Workers communication.
Letter of posting of workers abroad
The letter of employment posting gathers together in writing the modifications of the essential conditions of the employment relationship. On this basis, the employer must expressly inform the worker, at the least, of these four aspects (RDL 1659/1998, Article 3):
- Duration of posting;
- Currency in which the salary is to be paid;
- What part of the salary will be paid in money and what part in kind;
- Aspects concerning repatriation.
However, in our experience, it is advisable to include more aspects in a posting letter, such as compensation for expenses (putting in writing which salary aspects would be increased to mitigate the costs that the posting would entail, so that these increases are clearly separated from salary).
Finally, it is important to note that the posting letter is not only a private agreement between the parties, but is an obligation determined by law because it affects the essential conditions of the employment contract.
Posting and its communication to the labor authority in the destination
In addition to the posting letter, there is an administrative obligation derived from the Posted Workers Directive. It only affects workers posted within the European Union.
This obligation entails that the employer must inform the labor authority in the destination about the worker's posting within the European Union, indicating the time that they will be posted for, identifying their activity, and indicating a legal representative who can act as an interlocutor with the labor authorities in the destination.
This Directive, recently transposed in Spain through the modification of Law 45/99, establishes a series of minimum labor requirements that workers posted within the European Union must meet.
Equitable remuneration (Posted Workers Directive)
The Posted Workers Directive establishes equitable remuneration for the posted worker under the same conditions as the workers in the country of destination, without taking into account the salary increase intended to compensate for the posting. This happens during the first 12 months, extendable for 6 more months.
In the event that the posting is longer than 12 months (or 18 if an extension has been communicated), the Posted Workers Directive establishes that all applicable working conditions must be applied according to the labor legislation in the country of destination. In other words, in such a case, the employment relationship will be 100% linked to the labor legislation in the destination, which would roughly amount to the opening of a work center in the destination country.
This situation requires specific advice on the destination country, since companies that post their workers must comply with all that is established in the legislation of the destination, such as collective agreements, etc. GD Global Mobility can help you, so do not hesitate to contact our expatriation and worker posting policies service. Our professionals will be happy to offer you specialized advice on international worker mobility.
Do you want to know more about the European Directive and the rights of posted workers? Further information is laid out here: New guidelines on posted workers
