National Laws in Spain
Applicable basic Regulation. Law 45/1999 of 29 November 2002 on the resettlement of workers in the framework of transnational provision of services: transposed Directive 96/71 of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services. Law 45/1999 applies to companies established in a Member State of the European Union or in a signatory to the Agreement on the European Economic Area, which temporarily transfers its workers to Spain in the framework of the transnational provision of services, with the exception of merchant shipping companies with regard to their navigation staff. This law does not apply to journeys made due to the development of training activities which do not correspond to the provision of services of a transnational nature. “Movement within the framework of a transnational provision of services” means that which is carried out in Spain by companies included in the scope of this Act for a limited period of time in the following cases: Transfer of a worker to an account and under the direction of his company pursuant to a contract concluded between him and the recipient of the service which is established or carries on business in Spain. Moving a worker into a work center of the company itself or of another company in the group to which he is a member. Moving a worker from a temporary employment agency to provide it to an enterprise established or operated in Spain. Working conditions of posted workers Article 3 of Law 45/1999 Employers covered by this law who move their workers to Spain as part of a transnational provision of services must ensure that, irrespective of the legislation applicable to the employment contract, the working conditions provided by the Spanish labor legislation on the subject matter, mentioned below. For this purpose, the working conditions provided for in Spanish labor law will be those contained in the laws or regulations of the State and in the collective agreements and arbitration awards applicable to the place and sector or branch of activity. This is without prejudice to the application of more favorable working conditions for displaced workers resulting from the provisions of the legislation applicable to their employment contract in collective agreements or individual employment contracts. For these purposes, the duration of the transfer shall be calculated in a reference period of one year from the beginning, including, where appropriate, the duration of the relocation of another worker who has previously been replaced by replacements.
An employer who posted workers to Spain in the framework of a transnational provision of services must notify the posting, prior to its commencement and regardless of its duration, to the employment authority of the Autonomous Region where the services will be provided. In case services are provided in the autonomous cities of Ceuta and Melilla, attention should be paid to the displacement in the working and immigration areas of the respective governmental delegations, communicating electronically. To this end, the Ministry of Employment and Social Security has established, in coordination with the Autonomous Communities, a central electronic register of these communications.
Unless the company’s business is temporary, relocation communication will not be necessary if the duration of this is not more than eight days.
The information on posted workers shall contain the following data:
- Identification of the company that posted the worker.
- The fiscal location of that company and its identification number for the purposes of value added tax.
- Personal and occupational data of posted workers.
- Identify the company or companies and, where appropriate, the center or work centers where displaced workers will provide their services.
- Expected starting date and duration of the trip.
- Determination of the provision of services to be posted by the posted workers in Spain, with reference to the relevant case.
- Identity and contact information of a natural or legal person present in Spain designated by the company as his representative to serve as liaison with the competent Spanish authorities and to send and receive documents or notifications if necessary. Identifying information and contact details of a person who can act in Spain on behalf of a company providing services in information and consultation procedures for workers and negotiations concerning workers posted to Spain.
Where the company transferring workers to Spain is a temporary employment agency, the message of dispatch should also include the following:
- Accreditation that meets the requirements required by the legislation of the State in which it is established to temporarily provide to another company users of workers hired by it.
- The accuracy of the temporary needs of the user company which they are trying to satisfy with the accessibility agreement, indicating the relevant case of the temporary work agencies provided for in Article 6 of Law 14/1994 of 1 June.
- When the company sending workers to Spain intends to be hired or assigned to work on a construction site, it must also be registered in the Register of Accredited Companies (REA)
The obligation to make the posting notice is understood to be without prejudice to the fulfillment of other obligations in relation to the communication, information or declaration of activities that entrepreneurs are required to undertake by public administrations under other provisions.