Navigating the Posted Workers Directive for business travellers

Inconsistency across the EU

Each Member State has implemented the Directives in a slightly different way resulting in different reporting requirements as to how and when a PWD notification is required for example, with some MSs having carve outs based on de-minimis days of presence and/or exempt purposes of travel. Equally, each MS has implemented its own penalty structure for non-compliance. There are varying degrees of audit activity in different MSs, though generally we are seeing increased audit activity across the board with PWD forming part of wider social and labour audits.

The difficulty with business travellers
As the Directives apply to those temporarily working abroad in other EEA MSs, both business travellers and assignees fall under the Posted Workers legislation, depending on transposition into national law,

The specific challenges employers face around business travellers’ PWD compliance lie with their identification, impacted volumes and data gathering particularly given the PWD notification is a pre travel requirement. This can mean that a larger and more comprehensive implementation/set-up project is typically required to enable compliance with PWD legislation for business travellers. This is necessary for various reasons, primarily to maximise the chances of achieving the desired levels of compliance, to minimise any negative impact on employee experience, and to drive down the administrative burden/cost of compliance with the Directives.

Typically, the lead time for assignments is longer and volumes fewer, meaning that achieving PWD compliance for this population is less challenging from a time perspective and puts fewer demands on resource for data gathering and tracking.

Exemptions – a varying landscape
Over the past few years there have already been some exemptions and clarifications introduced by various EEA MSs to alleviate PWD compliance for business travellers (e.g. de-minimis thresholds, exempt purposes of travel) and recent guidance from the Commission may lead to further changes. However, due to inconsistencies generated by transposition into national laws, the topic of PWD compliance in a business traveller context is here to stay and challenges for employers will likely continue to be just as significant as they currently are. The mixed landscape of exemptions and de-minimis threshholds across the EEA MSs means that some employers are likely to favour a centrally enforced definition across the board.