16.06.2021

POSTING AND SENDING OF EMPLOYEES TO A COUNTRY OF THE EUROPEAN UNION

This material aims to give an overview of the current legislation applicable to the posting of employees in the framework of the provision of services in a country of the European Union.

The topic is gaining popularity again as Europe and the world begin to slowly but surely shake off the Covid-19 crisis and the physical movement of people on the Old Continent is beginning to intensify.

In addition, at the beginning of the year, amendments to the Ordinance on the terms and conditions for posting and sending employees in the framework of the provision of services (the Ordinance) were adopted, which significantly changed the regulatory framework.

The basic regulation is in art. 121a of the Labor Code. General posting and sending of employees in the framework of the provision of services occurs when a Bulgarian employer posts a worker or employee in the territory of another EU Member State, on the basis of a contract concluded between the employer and a third party - user of services or when the employee is seconded to an undertaking in the same group. Of course, the regulation is also applicable when the employer is a person registered under the legislation of another EU Member State and posting an employee on the territory of the Republic of Bulgaria, as well as in cases where it is an enterprise that provides temporary work.

This article will focus on the posting of workers and employees by a Bulgarian employer on the basis of a contract concluded between the employer and a third party - user of the services. The remaining cases will be the subject of further materials.

First of all, there should be an employment relationship between the employer and the employees valid for the entire period of the secondment.

The posting of workers is carried out under a contract which the employer, as a contractor or subcontractor, concludes with a contracting authority from an EU or EEA Member State. In view of the above, it is mandatory to have a contract between the Bulgarian employer and the user of services in the other Member State.

The ordinance requires the employer and the employee to agree with an additional written agreement on a change in the existing employment relationship between them for the duration of the secondment. This additional agreement should regulate: the nature and place of work, the start and end date of the secondment, the amount of basic and additional remuneration, the length of working days and weeks, holidays, housing conditions, type of vehicles and route, etc.

An essential element of the posting relationship is that posted workers cannot and should not be placed at a disadvantage (working conditions) by local workers for a position in the host country. The general concept of "working conditions" should be understood as: minimum rest, maximum working hours, minimum paid annual leave, remuneration, health and safety at work, etc.

In case the conditions of employment in our country are more favorable for the employee than the conditions in the host country, these more favorable conditions will be applicable.

The employer is obliged to accrue and pay the employee the agreed remuneration, but not less than the established amount of the basic salary and additional remuneration for the same or similar work in the host country, for the entire period of secondment or dispatch.

Not only Bulgarian insurance legislation applies (by virtue of certificate A1), but also the laws in force in the host country.

A1 is a certificate issued by the competent territorial directorate of the NRA in accordance with European Regulation (EC) № 883/2004. The purpose of the certificate is to determine in which country the employee's social security contributions will be paid, namely - whether in Bulgaria or in the country where the employee is posted (host country).

The application for an A1 certificate shall be submitted before the staff are sent to the host country. The request can be made after the start of the business trip. In the absence of a valid certificate or a refusal to issue it by the NRA, the competent institutions in the host country may charge social security contributions. The issuance of Certificate A1 is applicable if you work in another EU country for more than one month and up to a maximum of 24 months. After the expiry of the maximum period, the mission must be suspended for at least two months.

The issuance of the certificate (respectively the applicability of the Bulgarian insurance legislation) is presupposed by a number of conditions that the employer must meet, including: to have an economic history - at least 3-4 months to operate in Bulgaria in the same field, in which employees will be seconded; at least 25% of the company's turnover, compared to the total, must be realized on the territory of Bulgaria, with Bulgarian contractors, for the previous 12 months or from the moment of starting the activity; at least 25% of the staff employed in the main activity of the employer should continue to work in Bulgaria.

As mentioned, the regulation of the institute is extensive and detailed, and when posting employees of a company should be considered all the conditions and requirements applicable to the case.