Posting workers to Spain

What requirements must be met for a posting of workers to Spain?

The requirements, rights and obligations of workers and undertakings that displace workers are regulated by Directive 96/71/EC, of December 16, 2016, of the European Parliament, Directive that is transposed in Spain by Law 45 / 1999, of November 29.

"Posting of workers in the framework of the cross-border provision of services" is understood to be that effected to Spain by undertakings domiciled in a State signatory to the Agreement on the European Economic Area, during a limited period of time, in the following cases (in all cases, provided there is an employment relationship between the undertaking making the posting and the worker during the period of posting):

• Post workers to the territory of a Member State on their account and under their direction, under a contract concluded between the undertaking making the posting and the party for whom the services are intended, operating in that Member State.
• The displacement of a worker to a work centre of the company itself or of another company of the group to which it belongs.
• The displacement of a worker by a temporary employment agency to make it available to a user company that is established or operates in Spain.

What are the obligations of companies that post their workers?

1. Notification of the labour authority of the Autonomous Community

The employer that post workers to Spain must notify the posting prior to its beginning and independently of its duration to the labour authority of the Autonomous Community (Spain consists of seventeen Autonomous Communities, such as the Basque Country or Andalusia, and the Autonomous Cities of Ceuta and Melilla.) where the services are rendered. Notification is not required if the duration of the posting is less than 8 days, except for temporary employment agencies, which must notify the posting in any case.

This notification will be usually made by electronic means through the central electronic registry established for this purpose. The notification must contain the following information:

(i) identification of the company that carries out the posting;
(ii) personal and professional details of the posted worker;
(iii) identification of the undertaking where the posted worker will serve;
(iv) start date and expected duration of the posting;
(v) determination of services that the worker will develop in Spain;
(vi) identification and contact data of a natural or legal person in Spain designated by the undertaking for the purpose of liaison with the Spanish authorities; and
(vii) identification and contact data of a person who can act in Spain on behalf of the company  in the procedures for information, consultation and negotiation of posted workers.

2. Compliance with and guarantee of the minimum conditions established in the Spanish Labour Law.

Undertakings that post their workers to Spain must guarantee them, irrespective of the legislation applicable to the work contract, at least the minimum terms and conditions of employment set out under Spanish labour legislation (unless the conditions established in their employment contract are more favourable) with regard to the issues listed hereunder: working time, amount of salary, equal treatment and non-discrimination, child labour, prevention of occupational risks, respect for the privacy and dignity of workers, free unionization and the right to strike and assemble.

What are the obligations of the posted employees?

If a displaced worker is going to reside in Spain for a period of more than three months, he is obliged to register with the Immigration Office of his residence place. Additionally, if he is going to stay for more than 183 days in Spanish territory during the calendar year, he must notify the Treasury Administration through form 147.

In the event that the posted worker is citizen of a State that is not member of the European Union or the European Economic Area, he must be authorized to work in the State from which he is posted, but it is not necessary to provide him with a new authorization to work in Spain.

In accordance with Regulation (EC) 883/2004 of the European Parliament, a posted worker shall continue to be subject to the Social Security regulations of his State of origin, provided that the duration of his displacement does not exceed twenty-four months and that he is not sent to replace another worker. For these purposes the employer has to obtain the A1 Certificate of the worker in the State of origin. At the end of 24 months, the host State must authorize him to continue in the Social Security system of his State of origin, or else he must submit to the legislation of the State where he is posted.

Other information that may be of interest to companies posting workers to Spain

During the posting, companies must have available in Spain, at the disposal of the Labour and Social Security Inspectorate, a series of documentation regarding to the posted workers (in physical or digital format): work contracts, salary receipts and payment voucher, record schedules and authorization to work for those posted workers who are not nationals of a Member State, among others.

There are additional obligations of companies that post employees to Spain to carry out work under a system of subcontracting in the construction sector. In that case, if posting is longer than eight days, undertaking must be registered with the Register of Accredited Companies (Registro de Empresas Acreditadas-REA) of the Labour Authority of the Autonomous Community in whose territory the services are to be provided in Spain. Once it has been obtained, the registration will be valid throughout the Spanish territory for a period of 3 years.

For a company to be able to register in the REA it must prove that:

• it complies with the provisions of art. 7 of Directive 89/391/EEC on the prevention of occupational risks, that is, it has its own or joint to a Risk Prevention Service, and
• it complies with the provisions of art. 12 of Directive 89/391/ECC, through certificates accrediting the training in prevention of occupational hazards of its managers and workers, and
• at least one of the displaced workers must be a "productive worker", since according to Spanish regulations it is not possible to subcontract all construction tasks, and the contractor must perform some of those construction tasks, even if they are minimal.

For more information on this topic please check „Register of Accredited Companies (REA)”.