When will the labor law of the country through which a driver passes apply? Work on the Mobility Package is ongoing, so the question remains open. However, we do have a glimpse into what’s coming, i.e. the regulations that were proposed before the holidays which indicate that after three days of work performed in a given country, local labor laws start to apply. We asked experts to explain what that means. It turns out that this is not something that carriers may like.
The draft Mobility Package reads that the Member States do not apply the provisions on the minimum wage and annual leave, including the overtime rate for drivers performing international transport, when the period of posting to work on their territory is less than or equal to 3 days during one calendar month.
According to the representative of the MEP Danuta Jazłowiecka, Iwona Kasprzyk, this provision refers to „3 cumulative days, not consecutive days”. In other words, it’s not about 3 days spent in a row, only 3 days spent in a month in a given country.
„Day”, what does it mean?
If the posting period were longer than 3 days, Member States could require the application of the above-mentioned provisions „during the entire posting of workers on their territory”.
MEPs have even made detailed calculations about when the whole day shall be counted, and when, for example, a half day will apply. As we learned in the office of Polish politicians, there is a clear indication of how the hours are calculated:
- the daily working period for less than six hours spent on the territory of the host Member State is considered to be half a day,
- the daily working period of at least six hours in the territory of the host Member State shall be considered as a whole day,
- breaks and periods of rest and periods of readiness spent on the territory of the host Member State shall be considered as working periods.
The great unknown
These, of course, are only suggestions. After the holidays, the MEPs will return to work on the Mobility Package, so it may turn out that some changes will be introduced or that the drivers will be removed from the rules of posting at all. The latter, however, as experts say, is unlikely.
It is also expected that there will be various amendments, including to the three-day rule. Politicians are already debating whether a day should count as a minimum of 9 or 12 hours of work, not 6 as it is proposed at the moment.
It is also not known what types of transport will be covered by the posting rules. MEPs do not have doubts that these rules should include cabotage. In the case of international transport or cross trade, there is no unanimity so far.
If the proposal based on three days comes into force, carriers will face unprecedented bureaucratic burdens. They will have to follow exactly how much time their drivers spend outside their homeland. As soon as the driver is longer than three days in a country, he will be subject to the local regulations regarding, among others, leave, minimum wage, allowances or collective agreements.
It is not surprising that many carriers have seen excessive bureaucracy as the main concern when the fate of the Posting Directive was decided. The representatives of companies from Central and Eastern Europe were afraid of this. It is interesting, however, that some MEPs from the West seem not to be aware that the regulations will also affect companies from their countries.