19. 12. 2017
The distinction drawn between business trips and the posting of workers is relevant primarily because the posting of workers abroad will be subject to a significantly stricter regulatory framework as of 1 January 2018, when the new Transnational Provision of Services Act (Zakon o čezmejnem izvajanju storitev; ZČmIS) enters into force. For more details on the amendments and changes brought about by the ZČmIS see the following link. The explanation given by the Ministry of Labour, Family, Social Affairs and Equal Opportunities (MDDSZ) of 23 October 2017 offers guidance as to under what circumstances an employee's visit abroad should be deemed a business trip or the posting of a worker abroad, and thus the transnational provision of services related thereto.
Despite the MDDSZ's explanation being non-binding for other authorities, there is a high likelihood that this stance will also be taken into account by the inspection bodies, in particular the Labour Inspectorate of the Republic of Slovenia, during inspection proceedings. We welcome these explanations of this kind because of the absence of definitions provided by the applicable regulations for both of these institutions.
The MDDSZ's explanations point to the distinguishing elements that are set out in Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and Regulation (EC) No 883/2004 on the coordination of social security systems which provide guidelines for the use of the institution of the posting of workers abroad.
In the absence of a statutory definition and taking into account that both these institutions involve temporary performance of work, the decisive factor to make a distinction between the two is the content and place of performance of work. In order to determine whether it is a business trip or a posting of workers abroad, an employer must answer the following questions:
- Will the employee perform work abroad that falls within the scope of the core business of the employer (posting) or can it merely be categorised as auxiliary / preparatory work (business trip) that cannot be interpreted as performance of the company's core business activity? To that end, the question as to who the end-user of the service is must be answered – i.e. the client/ordering party (posting) or employer (business trip).
- Was any type of agreement entered into between the employer and the person/entity where that employee provides services (even if such agreement was not in writing)? If obligations are being fulfilled under an agreement, then this will, as a general rule, be regarded as a posting of workers, and not a business trip.
- Does the employer expect direct contractually agreed payment for the performed work (posting) or not (business trip)?
- By providing these services does the company actually compete with other companies on a foreign market (posting) or not (business trip)?
The aforementioned guidelines merely serve to assist employers when determining what type of transnational provision of work is being provided. Employers will not be able to avoid making case-by-case assessments in the future with regard to whether an activity can be categorised as a business trip or as the posting of workers abroad (which according to the new regulatory framework will be more detailed and stricter).