Posting workers in the EU: from minimum rates of pay to remuneration, and the 12-month rule

Point (c) of the terms a host member state must guarantee a posted worker read, in the 1996 Official Journal text: “the minimum rates of pay, including overtime rates; this point does not apply to supplementary occupational retirement pension schemes”. In the replacement list enacted by Directive (EU) 2018/957 it reads: “remuneration, including overtime rates”, with the same exclusion following. The opening phrase became a single word, and nothing else on the line moved. ^{1 2}

The change is small on the page, and one thing it is easy to read as new was already in the original text. The 1996 directive stated, in the subparagraph after the list, that “the concept of minimum rates of pay referred to in paragraph 1 (c) is defined by the national law and/or practice of the Member State to whose territory the worker is posted.” ¹

What the host state must guarantee

The clause doing the structural work is “whatever the law applicable to the employment relationship”. The directive does not move the contract; it leaves the employment relationship where it is and lifts a closed list of matters to the host state’s floor. That is the difference between posting and hiring locally. A local hire has one applicable law; a posted worker has one applicable law plus a mandatory overlay on named matters.

The first four matters of Article 3(1), before and after the 2018 replacement

Point	1996 wording	Replacement wording
(a)	maximum work periods and minimum rest periods	maximum work periods and minimum rest periods
(b)	minimum paid annual holidays	minimum paid annual leave
(c)	the minimum rates of pay, including overtime rates	remuneration, including overtime rates
(d)	conditions of hiring-out of workers	the conditions of hiring-out of workers

The twelve-month clock

Recital 9 of the 2018 directive states that “Posting is temporary in nature” and that “where posting lasts for periods longer than 12 months host Member States should ensure that undertakings which post workers to their territory guarantee those workers an additional set of terms and conditions of employment that are mandatorily applicable to workers in the Member State where the work is carried out. That period should be extended where the service provider submits a motivated notification.” Recitals 10 and 11 refer to a posting that “exceeds 12 or, where applicable, 18 months”; the operative amendment inserts “Where the effective duration of a posting exceeds 12 months”. ²

When the revision started to bite

Article 3(1) of Directive (EU) 2018/957 required member states to “adopt and publish, by 30 July 2020, the laws, regulations and administrative provisions necessary to comply with this Directive” and to “apply those measures from 30 July 2020”, adding: “Until that date, Directive 96/71/EC shall remain applicable in its wording prior to the amendments introduced by this Directive.” That is a line rather than a transition. ²

Who checks, and on whose consent

Regulation (EU) 2019/1149 established the European Labour Authority. Its Article 8, headed “Coordination and support of concerted and joint inspections”, defines two instruments. Concerted inspections “are inspections carried out in two or more Member States simultaneously regarding related cases, with each national authority operating in its own territory, and supported, where appropriate, by the staff of the Authority”. Joint inspections “are inspections carried out in a Member State with the participation of the national authorities of one or more other Member States, and supported, where appropriate, by the staff of the Authority.” ³

Neither is available on demand. Article 8(3) provides that an inspection “shall be subject to the prior agreement of all participating Member States, and such agreement shall be notified via National Liaison Officers designated pursuant to Article 32.” ³

The authority’s own account gives one cumulative figure. Under the heading “CJIs in numbers” it states: “From 2021 until December 2024: 236 cross-border inspections supported, almost 19,000 workers checked in sectors where closer cooperation between national authorities is needed (transport, construction, agriculture, manufacturing, food production, HORECA and others).” The same page records that “8 such weeks of action were run in 2024 focusing on road transport, construction, HORECA, labour exploitation and remuneration.” ⁴

What posting is not

Both versions of the list put the conditions of hiring-out of workers among the matters governed by host-state rules, at point (d). Hiring-out sits inside the guaranteed floor rather than outside it. It does not follow that posting and agency work are the same object; this piece does not reproduce Article 1, to which Article 3(1) refers for the undertakings covered, and that provision should be read in the directive itself.

The conditions on which a third-country national is admitted to highly qualified employment sit in a separate instrument. Directive (EU) 2021/1883 conditions that admission on a work contract or binding job offer “for a period of at least 6 months in the Member State concerned” and on a salary threshold each member state fixes at between 1.0 and 1.6 times its average gross annual salary, with a derogation under Article 5(4) for shortage professions. Compliance was due by 18 November 2023. There the contract sits in the destination state; under Directive 96/71/EC the host state supplies a listed floor whatever the law applicable to the employment relationship. ⁵

What to establish before the next posting

Three questions are worth settling before an assignment starts. None is answered by the directive itself.

The first is what the destination state counts as remuneration. Point (c) names the concept without setting its content, and the matters in the list are those laid down by the host state’s law or by collective agreements declared universally applicable. A comparison that stops at an hourly rate does not answer the question point (c) now asks.

The second is the effective duration of the assignment as it will run rather than as it is written, and who inside the organisation produces a motivated notification if it passes twelve months.

The third is the sector. The sectors ELA names above are the ones its page attaches to those supported inspections and to the 2024 weeks of action, and a posting into them sits where two national inspectorates can compare notes with the authority’s support.

What the published material does not settle is how much of that enforcement concerns posting specifically. What ELA publishes is a single cumulative total with a sector list, and no annual series from which a trend could be read. The defensible statement today is that the enforcement layer exists and is used, not that it is intensifying.