The free provision of services in the European Union has led to an increase in transnational service provision and free movement of workers, including the posting of workers in Spain. Community institutions have addressed this reality with measures to guarantee equitable working conditions and prevent discrimination between local and posted workers. Directive 96/71/EC establishes minimum protection standards for posted workers in the context of service provision.

The law in question incorporates this Directive into Spanish law, establishing working conditions, communication and cooperation obligations between authorities, and administrative and judicial protection mechanisms. In addition, it introduces modifications to the Temporary Work Agencies Act in relation to the posting of workers in Spain.

The posting of workers to Spain in the context of transnational service provision is regulated by Law 45/19991. The company that posts workers in Spain in the context of transnational service provision must communicate the posting, before its start if its duration is more than 8 days (except for temporary work agencies), to the labor authority of the Autonomous Community where the services will be provided. In addition, the company must designate a representative in Spain to act as an intermediary with Spanish authorities and social agents.

The employer must guarantee the posted worker the same working conditions as those applied to Spanish workers in terms of maximum working hours, daily and weekly rest periods, holidays, paid annual leave, and minimum interprofessional salaries.

Working conditions of posted workers to Spain

In the posting of workers to Spain, employers covered by this law must guarantee their workers, regardless of the legislation applicable to the employment contract, the working conditions established in Spanish legislation, including:

• Working hours
• Salaries
• Equality of treatment and non-discrimination
• Prevention of occupational hazards and protection of maternity and minors
• Non-discrimination of temporary and part-time employees Respect for privacy and dignity
• Trade union freedom and strike and assembly rights Conditions for the loan of workers
• Accommodation conditions Allowances and reimbursements for travel expenses, accommodation, and subsistence
• The conditions for paid annual leave and salaries do not apply to postings of less than eight days.

Temporary work agencies must guarantee working conditions and comply with Law 14/1994 for the loan of workers to user companies. In addition, temporary work agencies and user companies must guarantee working conditions in postings according to Article 2.2 and Law 31/1995, without prejudice to the fact that working conditions may be more favorable in their country of origin.

The duration of the posting is calculated in a reference period of one year from its start, including the duration of previous postings of other replaced employees. If a posting lasts more than 12 months, employers must guarantee the remaining working conditions, except in cases of procedures, formalities, and conditions for the conclusion and termination of the employment contract and complementary retirement schemes.

The labor conditions can be extended up to 18 months by notifying the labor authority. The effective duration of the posting is not interrupted by paid leave or other short interruptions. When a posted employee is replaced by another, the duration of the postings of both employees is accumulated. The concept of “same work in the same place” is determined taking into account various factors.

Communication and requirements in the posting of workers to Spain

When a posting of workers to Spain is carried out within the framework of transnational services, the employer must communicate such posting to the corresponding labor authority by electronic means. The communication is mandatory, regardless of the duration of the posting, except if it is less than eight days and the company is not a temporary employment agency.

The communication of posting will include information about the identification of the company, fiscal domicile, data of the posted workers, identification of the company or workplaces, start date, planned duration of the posting, type of services to be performed in Spain, and contact of representatives in Spain.

In the case of temporary employment agencies, additional requirements will be added, such as accreditation of compliance with the legislation of the establishment state and specification of the temporary needs of the user company.

The procedure for making the communication of posting will be determined by the competent Autonomous Community. This obligation does not exempt employers from complying with other obligations regarding communication, information, or declaration of activities before public administrations.

Additional obligations in the posting of workers to Spain in the construction sector

Companies that post workers to Spain to perform work under subcontracting arrangements in the construction sector must comply with additional obligations. They must demonstrate compliance with the requirements set forth in Law 32/2006, through justifying documentation of the obligations established in the national rules for the transposition of Directive 89/391/EEC, related to the safety and health of workers.

In postings of more than eight days, companies must register in the Accredited Companies Registry (REA) of the corresponding labor authority. The first communication of posting will serve as an application for registration, attaching a declaration in accordance with the model established in Royal Decree 1109/2007. This application will allow the provisional intervention of the company in the subcontracting process until registration or denial.

For subsequent postings, communications must include the registration number in the REA, together with the legally required data.

Obligation to appear and documentation retention in the posting of workers to Spain

Employers must appear before the Labor and Social Security Inspection when requested and provide the necessary documentation to justify compliance with the law, including documentation that proves the valid constitution of the company.

During the posting of workers to Spain, employers must have available at the workplace or in digital format for immediate consultation, among others, documents such as employment contracts, payslips, time records, and authorization to work for third-country nationals in accordance with the legislation of the establishment state.

Once the posting is finished, employers must provide the mentioned documents when required by the Labor and Social Security Inspection. Additionally, they must notify in writing to the labor authority the damages to the health of posted workers that have occurred on the occasion or as a consequence of the work carried out in Spain.

The mentioned documentation must be presented translated into Spanish or the co-official languages of the territories where the services are provided.

Representatives of workers posted to Spain

The representative designated for the posting of workers to Spain, under the European Directive on the Posting of Workers and its transposition into Spanish laws, must act as a point of contact for Spanish labor authorities to ensure compliance with labor and tax laws.

Their designation is mandatory and must be established in Spain and have a valid postal address in the country to receive any notification or communication from Spanish labor authorities during the posting of workers to Spain. Additionally, the representative must maintain all necessary documents and records related to the posting of workers to Spain.

It is also essential that the representative is able to communicate with labor and tax authorities in Spanish since it is the official language in Spain.

An added value when designating a Spanish professional representative is that they should have knowledge and experience in Spanish labor and tax laws to advise the foreign company on compliance with laws and regulations in Spain.

Penalties for non-compliance with posting of workers regulations in Spain

The amount of fines for non-compliance with the European Directive on the Posting of Workers in Spain varies depending on the severity of the infringement and the laws and regulations in force at any given time. Here are some examples of fines that Spanish labor authorities can impose:

• For not designating a representative in Spain: The fine can range from €3,126 to €10,000, according to the Law on Social Order Infractions and Sanctions (LISOS).
• For not complying with labor safety and health regulations: The fine can range from €2,045 to €40,985, according to LISOS.
• For not complying with hiring and employment regulations: The fine can range from €626 to €6,250, according to LISOS. For not maintaining necessary records related to the posting of workers: The fine can range from €626 to €6,250, according to LISOS.

It is important to note that these fines are indicative and may change over time depending on the laws and regulations in force. Additionally, labor authorities may also impose other penalties such as temporary suspension of activities or disqualification from operating in Spain. Therefore, it is crucial that companies posting workers to Spain from other EU countries or outside the EU comply with the requirements of the Directive to avoid sanctions and fines.

Comprehensive Advisory and Management Services for the Displacement of Workers in Spain

At Pretium Gestión, we offer comprehensive services for advising, representing, and managing administrative procedures for the posting of workers to Spain. We have a team of experts who are knowledgeable about the legislation and specific requirements regarding the posting of workers, ensuring an efficient and seamless process.

Our goal is to help companies comply with all legal and administrative obligations necessary for posting workers to Spain, including communication of the posting, registration in the Registry of Accredited Companies (REA), and communication with Spanish inspection services, among others. In this way, companies can focus on their core business while we ensure that everything is carried out in accordance with current regulations.