Step 5 - Classification of the Work
PWD obligations are primarily triggered by the nature of the work performed, not the duration of the posting or the formal (contractual) designation of the job or the worker.
The next step is determine whether or not the PWD applies to the work or if it is exempted.
Whether the PWD applies to the work depends not only on the specific conditions stipulated in the contract between the sending employer and the service recipient in the host country, but also on how the work is actually carried out and which party benefits from it:
The work must involve sending workers to carry it out.
The duration of the work: temporary from the onset.
The location of the work: in another member state than where the worker is employed.
The work must add value to the recipient in the host country.
Exemptions in EU Law, Nationals laws and Collective Labor Agreements (CLAs).
From a cost and time savings point of view, exemptions from PWD obligations are highly relevant for organizations seeking to navigate compliance efficiently.
However, it is crucial for employers to thoroughly research the specific national legislation of each host country, as the interpretation and implementation of these exemptions vary significantly across the EU. Failure to apply the exemption properly can result in substantial fines and legal consequences.
See under Elaboration.
Elaboration
Sending workers to carry out the contract
The core principle defining a posted worker within the PWD is whether the work involves temporarily sending workers across borders within the EU to fulfill a contract.
Caution
CLA Applicability
The general principle for identifying the applicable collective agreement in the host state is based on the business sector of the sending employer. However, some countries, like Austria and France, deviate from this, requiring consideration of the business sector of the recipient (the user company). This is a critical distinction to remember.
Employer Tip
Even short-term assignments can trigger PWD rules. When in doubt, it is safer to treat the trip as a posting and comply with all notification and legal requirements.
It is imperative to check the national law of each specific Member State, as exemptions vary considerably.