Posted Workers’ Rights and Working Conditions

(ECJ Case C-936/13, Sahkoalojen ammattiliitto ry)

According to the EU Legislation, a posted worker is a person who, on behalf of the employer, is sent for a limited period of time to carry out his/her work in the territory of an EU Member State (i.e.: “host” State) other than the State in which s/he normally works (i.e.: “posting” State).

The same legislation established mandatory rules regarding the terms and conditions of employment to be applied to posted employees for the purposes of (i) guaranteeing that their rights and working conditions are protected throughout the European Union and (ii) avoiding “social dumping” where foreign service providers can undercut local service providers because their labour standards are lower.

In this regard, the ECJ – in the case C-936/13 – has recently stated that the “posting” country (i.e.: Poland in the present case) may not prohibit a Trade Union to bring an action before a court of the “host” country (i.e.: Finland in the present case) in order to recover pay claims for the posted workers, which have been assigned to it in conformity with the law in force in the latter country.

In addition, the ECJ has stipulated that the definition of “minimum wage” is for the Members States to determine. However, on the one hand, it has elaborated on the element to be included or excluded from this definition and, on the other hand, it has stated that – during a period of annual leave – workers should be paid the same as during the reference period for that leave.

In Malta, according to the Posted Workers Regulation, posted workers are entitled to the same conditions as comparable Maltese employee.

In view of this, the criteria provided to determine the minimum wage have to also be applied with respect to workers who have been posted to the territory of Malta. In particular, the calculation of minimum wage is carried out on the basis of what a comparable employee would be paid in Malta in accordance with the law or in term of any collective agreement binding for any class of employees.

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