Bill on amendment of the Act on Posting of Workers adopted

The bill to implement the Amended Posted Workers Directive adopted in 2018 was recently passed.

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In June 2018, a number of amendments to the EU Posted Workers Directive were adopted. These amendments will in various ways impact on employers posting workers to countries where the Directive applies.

In order to implement the Amended Posted Workers Directive into Danish law – and, thus, vis-à-vis workers posted to Denmark – the bill to amend the Act on Posting of Workers was recently passed. The amendments include:

Payment of travel expenses
The minimum set of statutory rights in Denmark that applies from the beginning of a posting is – when the worker falls within the category of employees covered by section 1 of the Salaried Employees Act – expanded also to include the right to advance payment and reimbursement of travel expenses, which is laid down in section 9(1) of the Salaried Employees Act.

Accommodation rights
The minimum set of statutory rights that applies from the beginning of a posting is – when the worker falls within the category of employees covered by section 1 of the Act on Domestic or Agriculture Positions – expanded also to cover rights concerning conditions of accommodation and insurance. Such rights are laid down in sections 5 and 6 of the Act on Domestic or Agriculture Positions.

Reimbursement of expenses relating to the posting
A new provision is introduced, which means that the contractual basis applicable to the posting should indicate whether an allowance, which specifically relates to the posting, will be paid during the posting. If so, it should be indicated which parts of the allowance constitute payment for reimbursement of expenses incurred in connection with the posting or constitute remuneration. If this is not duly stated in the contractual basis, the entire allowance will be considered as payment for reimbursement of expenses incurred in connection with the posting – and no parts of the allowance will thus constitute remuneration.

The new provision will impact on 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.

Danish employment rights after 12 (18) months
The bill introduces new provisions applicable to postings of a duration of more than 12 months. Workers will generally – after 12 months’ posting – be entitled to all the Danish employment law rights that would have applied had the workers been employed directly with a Danish employer. Such workers will, however, 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 (RUT) before the time when the posting has lasted more than 12 months, the effects of the new provisions will not come into force until after 18 months.

However, it is not always the length of an individual worker’s posting that determines whether or not the posting will be considered to have a duration of more 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 have a duration of more than 12 months.

Effective date
The amendments to the Act on Posting of Workers take effect from 1 January 2021.

However, for workers who have been posted to Denmark as 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 Posted Workers Directive should have been implemented into Danish law by 30 July 2020.

The content of the above is not, and should not be a substitute for legal advice.

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