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In Which Cases Shall the Directive Apply?

Viimati uuendatud: 23.02.2017

The Directive 96/71/EC concerning the posting of workers in the framework of the provision of services shall be applied in three cases:

1) Employer posts workers to the territory of a member state in their name and governance, under a contract concluded between the sending employer and the service recipient.

Under this clause, often craftsmen, artisans, and other specialists are posted.

Example. Estonian company orders construction works from a Polish company, to be carried out in the Republic of Estonia. The Polish company will post their workers to Estonia to fulfil the order. The Polish employer is responsible for the contract fulfilment and instructing their employees, the Estonian ordering company is responsible for fulfilling the working environment demands.

2) A company posts workers to the territory of another member state, into a company belonging to the same group.

Under this clause, often field managers, specialists, and craftsmen are posted.

Example. An Estonian employee is sent from an Estonian parent company to work in a Finnish subsidiary. The work of the Estonian employee shall be organized by the Finnish company who shall also be responsible for the fulfilment of the working environment requirements during the time when the Estonian employee works there.

3) A company mediating temporary work force sends an employee to a company situated or operating at the territory of another member state.

This is lease work, and a three-sided employment relationship arises between the mediating employer, leased employee, and the leasing company. This type of posting is primarily used in agriculture, servicing, or food sector.

Example. A Lithuanian employee is sent by a Latvian mediating agency to work in Norway. The Latvian and Norwegian companies have concluded a service provision contract to mediate workforce. The employment contract is concluded between the Lithuanian employee and Latvian mediating agency according to Norwegian law. Work tasks are given and their fulfilment checked by the Norwegian company who is also responsible for the Lithuanian’s working environment and safety. In this situation, the remuneration could be paid by the Latvian or the Norwegian company.

If the remuneration is not paid in due time, the employee must turn to the Latvian employer, as the person obliged to guarantee the remuneration is the actual employer, not the third party for whom the employee works (Norwegian company).

In all three cases, the posting company (employer) and employee must have concluded an employment contract, which must last during the entire posting period. If the employment contract ends during the time the employee is abroad, and the employee concludes a contract with the employer at the destination country, they are no longer a posted employee, as defined by the directive.

The posted worker, as understood by the directive, is distinguished from the person on a business trip as defined by Estonian law, mostly by the circumstance that the posted worker always has a recipient or service recipient, the parent company or subsidiary of the group, or the using company (in the case of leased employees). Thus, the posted worker has a company that organizes their work or working environment abroad. When going on a business trip (as defined by Estonian law), for instance, to participate at a trade fair, there is no one to receive the employee abroad.

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