In June 2018 a number of amendments to the EU Posted Workers Directive (2018/957/EU) were adopted. These amendments will in various ways affect employers which post workers to countries in which the directive applies.
In order to implement the amended EU directive into Danish law (ie, with regard to workers posted to Denmark), a bill amending the Posting of Workers Act entered into force on 1 January 2021. This article highlights some of the key amendments.
When workers fall within the category of employees covered by Section 1 of the Salaried Employees Act, their minimum statutory rights in Denmark that apply from the beginning of their posting have been expanded to include the right to advance payment and reimbursement of travel expenses, which is set out in Section 9(1) of the Salaried Employees Act.
When workers fall within the category of employees covered by Section 1 of the Domestic or Agriculture Positions Act, their minimum statutory rights that apply from the beginning of their posting have expanded to cover rights concerning conditions of accommodation and insurance. Such rights are set out in Sections 5 and 6 of the Domestic or Agriculture Positions Act.
Reimbursement of expenses relating to posting
A new provision has been introduced, whereby the contract applicable to postings must indicate whether an allowance, which specifically relates to the posting, will be paid during the posting. If so, the contract must indicate which parts of the allowance constitute:
- payment for the reimbursement of expenses incurred in connection with the posting; or
- remuneration.
If this is not duly stated in the contract, the entire allowance will be considered as payment for the reimbursement of expenses incurred in connection with the posting; thus, no parts of the allowance will constitute remuneration.
The new provision will affect workers who during their posting to Denmark will be covered by a Danish collective bargaining agreement providing an entitlement to a certain amount of remuneration.
Employment rights after 12 or 18 months
The bill introduces new provisions applicable to postings that are longer than 12 months. After 12 months' posting, workers will generally be entitled to all the Danish employment law rights that would have applied had they been employed directly by a Danish employer. However, such workers will not be covered by the Danish statutory provisions that concern:
procedures, procedural issues and terms in connection with conclusion and termination of employment contracts, including non-competition restrictions, as well as payments to occupational supplementary pension schemes.
If a special notification is sent to the Register of Foreign Service Providers before the posting has lasted more than 12 months, the effects of the new provisions will not enter into force until after 18 months.
However, it is not always the length of an individual worker's posting that determines whether the posting will be considered longer than 12 months. If a posted worker replaces another posted worker in order to perform the same work in the same place, the length of the joint posting period will be decisive for the question of whether the posting will be deemed to be more than 12 months.
The amendments to the Posting of Workers Act took effect from 1 January 2021.
However, for workers who have been posted to Denmark from 30 July 2020 or a later date prior to 1 January 2021 and who – on 1 January 2021 – carry out the same work in the same place as before 1 January 2021, the part of the posting period falling between 30 July 2020 and 31 December 2020 will be included in the calculation of whether the length of the posting exceeds 12 months. This special rule is a consequence of the fact that the amended EU Posted Workers Directive should have been implemented into Danish law by 30 July 2020.
