11Relocation of workers under a cross-border working arrangement within the EU and the EEA ("IMPATRIATES")
11.1 Temporary cross-border working of local hiring
As a general rule, employees temporarily posted to Spain under cross-border working arrangements can maintain the employment contract signed in their country of origin.
Both Regulation 593/2008 of the European Parliament and of the Council of June 17, 2008, on the law applicable to contractual obligations (Rome I) and Article 10.6 of the Civil Code, allows the parties to choose the applicable law, save for any mandatory matters under Spanish law.
The Law 45/1999, of November 29, 1999, establishes that in certain temporary secondments a number of minimum working conditions must be observed.
This Law applies to workers relocated by employers from the European Union, and from the European Economic Area (the EU plus Norway, Iceland and Liechtenstein) in a cross-border working agreement for a limited time period in the following cases:
- Within the same company or within a group of companies.
- Under international services contracts.
- When the workers of a temporary employment agency are posted to a client company in Spain.
The only exceptions to the above are in the case of employee relocations during training periods and postings lasting less than eight days, unless they involve workers employed by temporary employment agencies.
The minimum working conditions to be guaranteed by employers in the above countries in accordance with Spanish labor legislation and, regardless of the law applicable to the employment contract, are essentially: (i) working time; (ii) salary (which must be at least the amount provided for the same position under a statutory or regulatory provision or collective labor agreement); (iii) equality of treatment; (iv) the rules on underage work; (v) prevention of occupational risks; (vi) nondiscrimination against temporary and part-time workers; (vii) respect for privacy, dignity, and the freedom to join a union, and (viii) rights of strike and assembly,(ix) accommodation terms and(x) allowances to cover travel, accommodation and meals expenses.
When the effective duration of the assignment exceeds 12 months, companies included in the scope of application of the referred Law 45/1999, in addition to the above conditions, must guarantee the rest of the working conditions provided by the Spanish employment law, with the exception of (i) the procedures, formalities and conditions of conclusion and termination of the employment contract, including the non-competition clauses and (ii) the complementary retirement regimes.Notwithstanding, more favorable conditions applied in their country of origin, will still apply to employees assigned in Spain.
Employers in such cases must also notify postings to the Spanish Labor Authorities before the worker starts work and regardless of the duration of the posting (except for those lasting less than eight days), designating a representative in Spain. The notice must be served by the foreign company that posts the worker on the authorities of the Autonomous Community in which the posted worker is to work3 (a central electronic register of notices is still to be created). The basic contents of this notice are: identification of the company that posts the worker, as well as the company that hosts him; identification of the worker; commencement date and projected duration; and identification of the specific case of posting.
There is also an obligation to make the following documentation available (translated into Spanish or the co-official language of the place where the workplace is located) at the workplace to which the worker has been posted : employment contracts or essential elements of the contract; pay statements and evidence that workers have been paid; any records of hours kept, indicating the beginning, end and duration of the working day; work permit of third-country nationals in compliance with the legislation of the State of establishment.
Lastly, employers are under the obligation to notify the Spanish Labor Authorities of any damage to the health of posted workers occasioned upon or as a result of work performed in Spain.
The legislation on labor infringements and penalties classifies a series of infringements in this connection. Formal defects in notifying the relocation of workers to Spain or failing to serve notice of minor occupational accidents and professional diseases of those workers constitute a minor infringement, while notification of the relocation after it has taken place,or without designating a representative or giving false or inaccurate reasons for extension of the assignment, not having the aforesaid documents available during the relocation or failing to serve notice on the Labor Authorities of serious, very serious or mortal accidents of the posted workers are classed as a serious infringement as well as not complying with the request of the Inspection of filing documentation or filing it with no translation. Failing to notify the relocation or any misrepresentation or concealment of the data contained in the notification are considered very serious infringements and the fraudulent transfer of workers that do not carry out substantive activities in their State of establishment, as well as the fraudulent transfer of workers who do not usually carry out their work in the Member State of origin.
Failing to meet the minimum working conditions mentioned above, which are classified according to the penalties applicable to Spanish employers, are considered administrative infringements.
We will be under situations of local hiring instead of temporary transfers when companies without establishment in Spain hire workers in the country.
If it is not a temporary secondment, but rather, the provision of services in Spain has a vocation of permanence, the employer will sign an employment contract with the employee in accordance with Spanish regulation (“local hiring”). Foreign companies without an establishment in Spain hire locally without the need to establish a Spanish company. The foreign company, however, will have to follow the steps set out in section 10 above, but referred to the foreign company.
