Posted workers: Employment
Content
Posting of workers to Spain as part of the transnational provision of services
To whom does Law 45/1999 on posting of workers as part of the transnational provision of services apply?
It applies to companies established in an EU Member State or in a State that is a party to the Agreement on the European Economic Area (EEA: Iceland, Liechtenstein, Norway) when they temporarily post their workers to Spain as part of the transnational provision of services.
Which workers are not affected by Law 45/1999?
It does not apply to seagoing personnel in merchant navy undertakings.
Nor does it apply to postings made for the purpose of implementing training activities that are not considered a transnational provision of services.
What is understood by posting of workers as part of the transnational provision of services? (Article 2(1)(1) Law 45/1999)
A posting to Spain for a limited period of time by the above companies. It occurs in the following cases:
- The posting of a worker on behalf of and under the supervision of their company in order to execute a contract signed by the company and the recipient of the services provided that is established in, or exercises their business activity in Spain. In the road transport sector, the special provisions of Chapter V of the Law apply to this case. The provisions are summarised in the final section on this page.
- The posting of a worker to the workplace of their company or of another company from the same business group as that company.
- The posting of a worker by a temporary employment company in order to offer their services to a user company that is based in or exercises their business activity in Spain.
¿Qué normas se aplican a los empleados que viven en un país diferente (empleo transfronterizo)?
In the case of cross-border workers, only the labour law and Social Security practices of the place where they provide their services apply. In this case, that is Spain.
Does Law 45/1999 apply to workers who live in a different country and are regularly posted to another country (in this case, Spain) to work and then return to their home at the end of the working day (cross-border workers)?
No, Law 45/1999 does not apply to these cases, as the legal concept of ‘posted workers’ is not the same as cross-border services.
According to labour law, cross-border workers are subject to the laws of the country where they work, in this case, Spain. They are only affected by the applicable Social Security laws of the country where they provide their services which, in this case, is Spain.
Posted workers
Posted workers are workers who, regardless of their nationality, are posted to Spain by their company (service provider) for a limited period of time as part of a cross-border provision of services, on the condition that there is an employment contract between the company (service provider) and the worker during the posting period and that the worker is habitually employed in the country of origin.
Working conditions of posted workers (Article 3 of Law 45/1999)
Regardless of the legislation applicable to the employment contract, companies (see preceding section) must guarantee their posted workers the working conditions established by Spanish labour law in relation to the following matters:
- Working time: Articles 34-38 of the Workers' Statute
and Royal Decree 1561/1995 on special working hours . - Amount of salary, within the meaning of Article 4 of Law 45/1999 of 29 November on the posting of workers as part of a cross-border provision of services in compliance with the legal provisions and regulations on the minimum wage and collective agreements applicable in the place and sector, or branch of activity concerned.
- Equal treatment and no direct or indirect discrimination for reasons of gender, origin (including racial or ethnic), civil status, age (within the established legal limits), social condition, religion or convictions, political ideas, sexual orientation, affiliation or non-affiliation to a trade union and its agreements, relations of kinship with other workers in the company, language or disability, provided the worker is fit to carry out the work or job in question ( Articles 17 and 28 of the Workers’ Statute ; Royal Decree 901/2020, equality plans ).
- Work carried out by minors ( Articles 6 and 7 of the Workers’ Statut e).
- Occupational risk prevention, which includes rules for protecting maternity and minors ( Law 31/1995 on occupational risk prevention ).
- Non-discrimination of temporary and part-time workers (Articles 15(6) and 12(4) of the Workers’ Statute ).
- Respect for privacy and consideration due for the dignity of workers, which includes protection against verbal or physical abuse of a sexual nature (Articles 4(2)(e) , 18 and 20 of the Workers’ Statute ).
- Freedom of association and the right to strike and meet ( Organic Law 11/1985 on right to organise ; Royal Decree-Law 17/1977, on labour relations ; Articles 77-81 of the Workers’ Statute ).
The above working conditions are those envisaged in the Spanish laws and regulations, and in the collective agreements and applicable arbitration awards in the location and in the sector or branch of activity in question.
Without prejudice to the application to posted workers of more favourable working conditions derived from the provisions of the legislation applicable to their employment contracts, in collective agreements or in individual employment agreements.
Duration of the posting
Notification of the posting
- Mandatory. Regardless of the duration, with the exception of postings under Article 2(1)(1)(a) and (b) of Law 45/1999 which must not exceed 8 days, and the exception of special postings in the road transport sector (regulated by Chapter V of Law 45/1999 as summarised in the final section on this page) which must be communicated in any case, no matter what their duration.
- Prior to the posting. Either electronically or by registering before the relevant administration. Addressed to the Spanish labour authorities in the autonomous community where the services are to be provided. In the special case of the road transport sector, as regulated by Chapter V of Law 45/1999, transport companies will use an interface in the IMI information system to communicate, under the terms set out below.
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An electronic central register for communications is expected to be set up in the future.
- The notification will contain the following data and information:
- Name of the company posting the worker.
- Tax address and company tax registration number, for VAT purposes.
- Personal and professional details of the posted workers.
- Name of the company or companies and, as applicable, the workplace or workplaces where the posted workers will provide their services.
- Planned start date and duration of the posting.
- Provision of services to be carried out by the posted workers in Spain. Indication of the type of posting that corresponds from those set out in Article 2(1)(1).
- Identification and contact details of a natural person or company present in Spain designated by the company as their representative to serve as a liaison with the Spanish authorities and for sending and receiving documents or notifications, if need be.
- Identification and contact details of a person who can appear in Spain on behalf of the company providing the services in any worker information and consultation procedures and negotiations that affect the workers posted to Spain.
- When the posting is made by a temporary employment company, apart from the above, the notification will also include:
- Proof that they comply with the requirements established by the laws of the State in which they are established to act as a temporary employment company.
- A description of the temporary employment needs of the user company and grounds for the manpower supply contract that is being signed.
- The labour authority will inform the Labour and Social Security Inspectorate and the State Tax Administration Agency of the posting notifications received.
Information on the relevant body
- Directorate-General for Labour of the Ministry of Labour and Social Economy
- The labour authority of the autonomous community in Spain where the services are to be provided.
- Functional Work and Immigration Areas of the Government Offices in the Autonomous Cities of Ceuta and Melilla.
Persons who can request information
- Information bodies of other EU or EEA member states.
- Companies posting workers to Spain or the associations that represent them.
- The recipients of the transnational provision of services or the associations that represent them.
- The posted workers or workers who are going to be posted, or other bodies that represent them.
National liaison centre to be contacted in the event of queries about the competent labour authority:
Sub-Directorate General for Regulatory Organisation, Directorate General of Employment ( sgon@mites.gob.es ).
Inspection and Cooperation with the Public Administrations of other States
- The implementation of the functions of surveillance and enforcement of compliance with Law 45/1999 is the responsibility of the Labour and Social Security Inspectorate.
- The labour authority and the Labour and Social Security Inspectorate may obtain cooperation and assistance and provide them on a reciprocal basis to the Public Administrations of other EU or EEA member states responsible for information and surveillance of compliance with the working conditions foreseen in Law 45/1999 or in the national transposition rules of Directive 96/71/EC.
- Processing of personal data as a result of applying this Law will be carried out under the terms foreseen in Organic Law 15/1999 of 13 December, on Personal Data Protection.
Posting of workers by companies established in Spain (first additional provision of Law 45/1999)
Companies established in Spain which temporarily post their workers to other EU or EEA member states (Iceland, Liechtenstein, Norway) as part of the transnational provision of services must guarantee their workers the working conditions foreseen in the posting location by the national transposition rules of Directive 96/71/EC, except for more favourable working conditions, in accordance with the legislation applicable to their employment contracts.
All those interested in such temporary postings can obtain information by contacting the information bodies of those countries. Likewise, the Spanish Labour Authority will transfer all requests received to the other states and communicate the requested information and that received directly from those other states.
Actions or omissions that constitute a breach of the applicable working conditions, in accordance with the transposition rules of Directive 96/71/EC will be regarded as administrative infringements, which are classified and sanctioned in accordance with the Spanish labour legislation.
The Labour and Social Security Inspectorate may also initiate the sanctioning procedure on their own initiative following the notification of the Public Administrations responsible for ensuring compliance with working conditions in the location of the posting.
Special posting rules for the road transport sector
In the road transport sector, Chapter V of Law 45/1999 lays down specific rules for the provision of services in the performance of a contract concluded between the company (service provider) and the recipient of the services.
The following are not considered to be postings:
- Bilateral transport services taking place between the country of establishment and another Member State.
- Parallel transport services operating as a part of bilateral transport, on the condition that they operate between different Member States and are limited to one additional service on the outgoing journey, or two additional services on the return journey if none of these services were available on the outgoing journey.
The following are considered to be postings:
- Cabotage operations: involving loading and unloading within the same country.
- Non-bilateral transport: between two countries, neither of which is the country of establishment.
- Additional operations parallel to the bilateral transport outside the exceptions described in the previous paragraph.
In such cases, the transport company must communicate any posting through an interface in the IMI information system. More information on how such information can be communicated is available in a video (in Spanish) on the European Labour Authority’s website .
Information for each Autonomous Community
Andalucía Aragón Asturias, Principado de Balears, Illes Canarias Cantabria Castilla y León Castilla-La Mancha Cataluña Ciudad de Ceuta Ciudad de Melilla Comunitat Valenciana Extremadura Galicia Madrid, Comunidad de Murcia, Región de Navarra, Comunidad Foral de País Vasco Rioja, La
