If the employee is posted for more than 30 calendar days, their explicit written consent shall be required.
The dynamic development of transboundary providing of services in the European Community led to the need for many Bulgarian enterprises to temporarily employ people abroad in order to work on the territory of another Member State. This finds a legal regulation in the institute of posting, which is regulated by a number of local and European acts.
The Labour code introduces some general rules about posting. According to its provisions, if it is necessary because of the demands of the enterprise, the employer can post the employee to perform their employment duties outside their permanent workplace. If the employee is posted for more than 30 calendar days, their explicit written consent shall be required. The protection for a pregnant woman or a woman in a final stage of in-vitro process or a mother of a child, younger than 3 years old is enhanced. In these cases, regardless of the period of posting, the written consent of the employee is always required. Directive 96/71/EC of the European Parliament and the Council concerning the posting of employees within the service providing, regulates three cases of posting of employees in another Member State:
- When the employer posts an employee on the territory of a Member State for their own account and under their guidance, under a contract between the employer and the person in the host country, for which the services are designated
- When the employer posts an employee of an organization or enterprise owned by the group on the territory of a Member State
- When the employer is a company that provides temporary employment and offers for hiring an employee to a company, acting or having its registered office in a Member State.
Is a work permit required
According to the Treaty concerning the accession of the Republic of Bulgaria to the EU, during the first seven years of the membership, the existing Member States have the right to restrict the free movement of Bulgarian citizens by imposing authorization for working on their territories. Nowadays, most of the Member States do not apply restrictions, but there are also such, which still take advantage of the legal opportunity they are given. Under the EU rules, posted employees by a Bulgarian employer in a Member State do not fall within the scope of this general mode and it is not required for them to be issued a work permit, as far as the employment relationship between the employee and the employer will be maintained throughout the whole period of posting. Exceptions to this rule are Germany and Austria, which impose temporary restrictions on posting of employees from Bulgaria by companies in certain branches.
The posting of the employee is based on the written order of the employer, which must contain specific details, determined in the Ordinance on official business trips and specializations abroad. The employer is required to provide the posted employee, additionally to his monthly salary, with:
- travel expenses in the amount of the expenses actually incurred by the shortest and most economic route, unless the person posted uses in some way a form of free travel
- daily and accommodation costs in amounts and currencies according to Annex No 2 of the Ordinance on official business trips and specializations abroad and according to the conditions in the same Ordinance, as the employer is entitled to determine other than the established in Annex No 2 amount for daily allowances as long as it does not exceed twice the amount of the statutory quotas (in case the host country provides full board in kind, the posted persons should be paid 30% of the amount of their daily allowances)
- medical insurance for the time of posting.
In accordance with the requirements of Directive 96/71/EC Bulgarian legislation introduces a specific rule, stating that when the period of posting within the providing of services in another Member State of the EU is longer than 30 calendar days, the parties should reach an agreement for at least the same minimum working conditions during the term of posting as the established for employees performing the same or similar work in the host country with regard to:
- the duration of the work day and the duration of the breaks between work days and weekend breaks and the break at the end of the work day
- the duration of the paid annual leave
- the amount of the salary
- additional payment for extra hours
- occupational health and work safety
The enterprises, providing temporary employment within the providing of services in another Member State, must also provide the posted employees with at least the same minimal working conditions, as established for works and employees, performing the same or similar job in the host country.
Before going on a business trip, the employee must receive an A1 form from their employer, which is published by the Labour Inspectorate in Bulgaria. This form allows the employee and their dependents to remain part of the domestic social security system. Condition for this is the posting in the Member State to be for a no longer than two years period.
The employee must be able to submit the A1 form to the authorities at any time of their stay in the Member State, where they are posted. If the employee does not do that, they can be required to pay their social contributions there. However, if the employee is examined and has a valid A1 form, the host Member State is obliged to recognize it.
If after the end of the posting the employee wants to keep insurance in their home country for a second period of posting abroad, there should be a break of at least two months between the two business trips. If the employee continues to work abroad without such interruption they will automatically receive the status of “expatriation person”, which means that they will have to pay social security contributions in the country in which they are posted.
An exception of this general rule would be there only if the employee has failed to finish the job, pointed in the A1Form, due to unforeseen circumstances (illness, bad weather, late deliveries, etc.). In this case, the employee or their employer can request an extension of the initial period of posting to the completion of the planned work, without observing the break of two months. Extension of the term should be requested by the issuing authority before the end of the initial posting period. However, the total period of time, during which the employee will be able to work in the host Member State and to remain socially insured in their home country, remains restricted to two years.
The article has been published in Bulgarian, in Capital Daily.