Posting of workers to work in Germany and the minimum wage

Service

The principles of protection of the rights and privileges of employees working outside their home country were introduced by Directive 96/71 / EC of the European Parliament and of the Council of 16 December 1996 on the posting of workers in the framework of the provision of services (Journal of Laws UE.L.1997.18. 1 of 1997.01.21). What conditions must be met in order for workers to be posted to another country?

Directive 96/71 / EC as a guarantee of the minimum remuneration of workers posted abroad

Employees whose place of work has been established outside Poland should be provided with working and pay conditions at a level not worse than that applicable in the country where they work. Then, the remuneration conditions should be at least at the level of the basic standards set out in the generally applicable laws in a given country and in the provisions regulating labor law in a specific industry. It is worth noting that the mandatory minimum protection regulations that remain in force in the host country should not prevent the application of employment conditions that are more favorable to employees (point 17 of the introduction to Directive 96/71 / EC).

Pursuant to Art.3 sec. 1 of the above directive 'Member States shall ensure that, irrespective of the law applicable to the employment relationship of the undertakings, they guarantee workers posted to their territory terms and conditions of employment covering the following matters which, in the Member State where the work is carried out, are determined by:

  • laws, regulations or administrative provisions and / or

  • collective agreements or arbitration awards recognized as commonly used within the meaning of para. 8, insofar as they concern the activities listed in the Annex:

  • maximum work periods and minimum rest periods;
  • minimum period of paid annual leave;
  • minimum wage rates, including overtime rates - this subsection does not apply to supplementary occupational pension schemes;
  • conditions for hiring employees, in particular by temporary employment companies;
  • health, safety and hygiene in the workplace;
  • protective measures in relation to the terms and conditions of employment of pregnant women or women immediately after the birth of a child, children and adolescents;
  • equality of treatment between men and women and other non-discrimination provisions ”.

It is worth pointing out that, according to the above directive, the concept of the minimum rate of pay should be defined by national law or by the practice of the Member State to whose territory the worker is posted. It should be recalled that the minimum wage should not include allowances paid as reimbursement of expenses actually incurred as a result of the posting, such as travel, food and accommodation expenses (Article 3 (7) of Directive 96/71 / EC).

Article 3 of the above-mentioned Directive provides as a general rule the free choice of law for the parties; in the absence of a choice, pursuant to Art. 6 sec. 2 the contract is governed by the law of the country in which the employee performing the contract normally carries out his work, even if he is temporarily posted to another country or if the employee does not normally perform his work in one and the same country - by the law of the country in which the place of business is located employing an employee, unless it results from all the circumstances that the contract has closer ties with another country and in such a case the law of that other country applies (point 8 of the introduction to Directive 96/71 / EC).

Pursuant to Art. 6 sec. 1 of this Directive, the choice of law by the parties may not entail the deprivation of the worker of the protection guaranteed by the mandatory provisions which would apply in the absence of choice (point 9 of the introduction to Directive 96/71 / EC).

When can derogations from the minimum wage be applied?

This directive allows some flexibility in the application of the rules on the minimum wage and the minimum period of paid annual leave.If the posting period does not exceed one month, Member States may, under certain conditions, derogate from the minimum wage rules or provide for derogation through collective agreements. . Also, in the case of minor work to be performed, Member States may derogate from the provisions on the minimum wage and the minimum period of paid annual leave (paragraph 16 of the introduction to Directive 96/71 / EC).

It is worth pointing out that the Member States may stipulate in their internal regulations that the minimum wage does not have to include employees posted to work on their premises in the case of initial assembly or first installation of products for the supply of products that are an integral part of the contract, and which are necessary to start the delivered products. and performed by skilled or specialized workers from the supply company, the provisions on the minimum wage, maximum working periods and minimum rest periods do not apply if the posting period does not exceed eight days. This provision does not apply to activities in the field of construction works listed in the Annex to this Directive (Article 3 (2) of Directive 96/71 / EC).

It is worth adding that the above regulations relating to the working conditions and remuneration in relation to persons posted outside of Poland will not apply to persons on business trips, shorter delegations of employees, or to persons performing orders on the basis of civil law relations (unless in during their secondment, they will be treated as employees based on the regulations in force in that country).

Therefore, long-term postings of workers outside Poland should take place in accordance with this Directive on the basis of secondment with the change of the place of work in the contract.

Example 1.

An employee employed under an employment contract incidentally leaves for 2-3 days a year on a business trip to Germany. Then the employer should apply the provisions on posting in accordance with the Polish Labor Code. In the event that an employee employed on the basis of an employment contract works in a branch of the company, e.g. for 7 months outside Poland, the employer should apply the provisions on secondment to him in accordance with the above directive. Therefore, the remuneration of this employee should not be lower than the minimum wage of the employee posted to another country.

Delegations of employees and different rates of remuneration in the contract

According to the jurisprudence, two different rates of remuneration may be included in the employment contracts of employees working in Poland and abroad. In the contract, the employer may enter one amount of remuneration for work performed in Poland and another amount due for work performed abroad. Then the employee receives remuneration in accordance with the place of work at the specified time.

Example 2.

The employee was employed on the basis of an employment contract in Poland and Germany. In his contract of employment, the employer specified two rates of remuneration in accordance with the different places of work. For work in Poland, the employee was due a gross remuneration of PLN 6,000, while for work in Germany, the monthly remuneration was PLN 10,000 gross. Each month, the employee worked in Poland and Germany. Therefore, the calculation of the monthly remuneration for work should be in accordance with the worked schedule of working hours along with the overtime worked (if any). In the case of overtime, we calculate the overtime separately from the remuneration for work in both countries, dividing the amount of remuneration in Poland by the number of hours to be worked separately, and then the result obtained is multiplied by the number of overtime hours and we analogously divide the remuneration received in Germany by the number of hours to be worked, and then the result we multiply by the number of overtime hours.

It is worth recalling that a part of the remuneration of employees employed in Germany (or in another EU country) by Polish entrepreneurs in the form of a daily allowance paid for business trips to Germany for each day of stay should not be included in the contribution base.

German regulations on the posting of workers

An employer who decides to post employees to work in Germany should comply with the basic working and pay conditions, which are regulated in the German Act on the Posting of Workers. This Act implements the provisions of the above Directive 96/71 / EC and contains minimum provisions regarding the remuneration of posted employees.

In view of the above, the Polish employer should pay particular attention to the regulations on the minimum wage, overtime pay, paid annual leave, working and rest time, protection of working conditions and pay for pregnant women. It is worth pointing out that the posted workers performing work in the construction industry may be subject to German collective labor agreements, which will be binding on other employers from the European Union countries. Hence, any additional remuneration components provided for in the Supplementary Regulations will also have to be paid to posted workers.

Minimum wage and the choice of Polish law

Pursuant to the provisions of the German Act on the Posting of Workers, the minimum wage of each employee from January 1, 2017 is EUR 8.84 gross per hour. Therefore, employees posted in Germany from other European Union countries should be remunerated at a level not lower than the indicated minimum wage. An employee employed by a Polish employer who performs work in Germany should receive the minimum wage specified in the above Act. It is worth adding that even if the Polish law is chosen as applicable to an employee working in Germany, the German provisions on the minimum wage should be applied, as well as German industry regulations (e.g. collective agreements generally applicable in the construction industry), which provide for other bonuses to remuneration. . The sum of per diems paid to the employee on a flat-rate basis is included in the minimum wage of an employee employed in Germany, if it does not constitute reimbursement of the actual costs incurred. To calculate the salary of an employee posted to work in Germany, the number of hours worked in Germany is multiplied by the minimum hourly wage.

Example 3.

In November 2017, the employee worked 60 hours in Germany, which we multiply by the amount of 8.84 euros, which equates to 530.04 euros of the employee's remuneration for work in Germany. The salary may be increased by appropriate salary allowances provided for in the German industry regulations.

Example 4.

A Polish entrepreneur posted workers to perform construction work in Germany for a period of 5 months. Construction workers in Germany receive allowances that are not provided for by the Polish Labor Code in accordance with the German building regulations. Therefore, despite the choice of Polish law when concluding an employment contract, an entrepreneur from Poland should pay the posted workers the minimum German salary together with industry-specific bonuses provided for by the provisions of German law.

It is worth adding that employees posted to work in Germany should receive a salary supplement if it is lower than the German minimum wage. The minimum wage should be paid irrespective of the citizenship or the minimum period of work of the posted worker.

It should be recalled that the minimum wage should not include: night work allowance, hard working conditions allowance, overtime allowance, and disposition allowance.

In conclusion, the provisions of the labor law in Germany, where the posted employee from Poland has been posted, take precedence over the provisions of the Polish Labor Code, unless the Polish working and pay conditions are more favorable to the employee. The minimum wage for work in Germany is 8.84 euros gross per hour. All additional remuneration components provided for in the German regulations in a specific industry should be paid to the posted worker by the Polish employer. It is worth noting that despite the fact that the contract is drawn up in Polish, the protection of an employee posted to Germany should comply with the applicable German labor law. It is worth mentioning that in the case of claims for the payment of the minimum wage, Polish employees posted to work in Germany may file a claim against a Polish employer before German labor courts.