Groups of companies are created by enterprises with capital ties. These links are very strong. Therefore, it’s very common to post workers between enterprises belonging to the same group. If the secondment takes place to an entity belonging to a group of entrepreneurs and located in another Member State, it must fulfil the requirements determined in EU law.
1. Forms of posting
Posting constitutes a non-uniform concept. The provisions of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, hereafter referred to as the Directive, allow to distinguish several forms of secondment of employees, i.e.:
a) the posting of workers, on behalf of and under the direction of the employer, to the territory of another Member State, under a contract concluded between the posting enterprise and the recipient of services operating in the country to which the employees are posted (the so-called competent posting);
b) the posting of workers by the employer to an establishment or company belonging to a group of entrepreneurs and located in another Member State;
c) the posting of workers by a temporary employment undertaking or employment agency to the user undertaking conducting an economic activity or operating in the territory of the Member State to which the employee is seconded.
Each of the above-mentioned forms of secondment constitutes a stand-alone basis for posting. These forms are independent of each other and equivalent.
In this article, we will focus on intra-group secondment. Due to its specifity, it raises some controverses.
2. Corporate group and employees
A corporate group is made up of a set of enterprises among which one acts as the parent company and the others are subsidiaries. This relationship results from the capital ties existing between enterprises included in the group of companies. The parent company holds shares in subsidiaries and can control them on this basis.
Each of the enterprises included in the corporate group is a distinct legal entity and operates as a separate entity. This means that a group of companies, understood as a whole, can’t be an employer for persons engaged in enterprises belonging to the group Each of the entities constituting part of the corporate group is a separate employer and plays this role only in relation to workers engaged by it.
The above leads to the conclusion that an entity belonging to a group of companies can’t freely assign its employees to work for another group member. Such action must take place on the basis and within the limits of the law, taking into account the fact that the entity responsible for posting and this one to which the worker is sent constitute two separate legal entities.
3. Conditions for the intra-group secondment
Regardless of which form of posting we are dealing with, the secondment must fulfil the following conditions:
- transnational nature of the services provided,
- requirement for the existence of an employment relationship during the posting period,
- limited duration of the secondment.
Posting within a corporate group requires the fulfillment of all of the above-mentioned conditions. Moreover, a condition specific to this form of secondment must be met – the worker is posted by the employer to an establishment or undertaking belonging to a group of entrepreneurs and located in another Member State.
There is a dispute in the doctrine as to whether the conclusion of a contract between the posting employer and the entity to which the employee is sent is required in the case of the intra-group secondment. In the opinion of many supporters, it isn’t necessary to conclude a separate agreement as the basis for posting. Representatives of this view argue that intra-group secondment is based on the bond that exists between entities belonging to the same corporate group. This bond excludes the need to conclude an additional contract. The opposite view can also be encountered – posting within a group of companies requires an additional agreement between the posting employer and the entity to which the employee is sent. Supporters of this opinion believe that the mere existence of a corporate group and links within it don’t authorise the informal transfer of workers from one enterprise to another one belonging to the same group of companies. Indeed, each of the enterprises operating within the corporate group constitutes a separate legal entity and thus an independent employer. Due to the fact that if companies operating within a corporate group want to post workers among themselves, they should sign a contract for the provision of services. It is a civil law contract concluded between the posting company and that one for which the services are to be provided. This agreement should specify the rules for the provision of services between the parties concluding it. However, it can’t provide for the loan of specific workers. If such provisions were to be included in it, this could suggest that the posting agent is in fact hiring out workers, i.e. acting as a temporary employment agency. In the event of concluding a contract for the provision of services, the posting employer should be the entity responsible for the payment of remuneration to workers, the settlement of ZUS and taxes. It’s impossible to transfer these obligations to the entity to which the employees are sent. Indeed, it isn’t the employer of posted workers.
4. Legal notice
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