POSTED WORKERS: INFRACTIONS AND POSSIBLE SANCTIONS IN SPAIN
In a previous article I talked about the current requirements demanded by Spanish administration to comply with new regulation related to European employee’s displacements within this territory.
Moreover, when a company plans to transfer an employee to another country in temporary basis, keeping their job contract with the home company, it is quite important to focus on the possible infractions and sanctions which can be imposed, and take them into account.
In order to do that, the first advisable approach will be to assess what is considered as an infraction.
Infractions in Spain
Minor Infringement: It will be considered as minor infringement the following actions:
- Formal defects within the labor communication before Spanish labor authorities.
- If a labor accident or professional illness occurs to the posted worker and it is not notified to the labor authority on time, as long as those accidents or illnesses are considered minor too.
Serious Infringements: On the other hand, it will be considered serious violations the next ones:
- Not submitting the secondment notification to the competent authorities before the start date, or submitting the communication on time but avoiding the company’s representative in Spain to receive notifications or the company’s representative to negotiate with employees and deal with information and consultation processes with these workers.
- Requesting a time-limit extension stating information and circumstances that are not true.
- If the host company in Spain does not keep the displacement documentation along the transfer (job contract, A1 certificate, labor communication receipt, etc.).
- If a labor accident or professional illness occurs to the posted worker and it is not notified to the authority on time, as long as those accidents or illnesses are considered serious, very serious or mortal.
- When the Labor or Social Security inspections demand displacement documentation and it is not submitted, it is partially submitted, or it is not translated into Spanish.
Very serious Infringement
- When the displacement is not notified to the competent authorities at all, or the communication contains false information.
On the other hand, we must point out that it is also considered an administrative infraction when the national labor conditions are not guaranteed to the posted workers (salary, schedule, work hours, holidays, security means, etc), according to national laws and collective agreements. These infractions will be considered as minor, serious or very serious depending on the concrete infringement.
Sanctions: Depending on the contravertion
Bearing the previous classification in mind, the companies could be fined with these sanctions, which are classified at the same time in three groups (minimum, medium, maximum):
Minor Infringements: Minimum fines between 70.-€ to 150.-€; Medium fines between 151.-€ to 370.-€; Maximum fines between 371.-€ to 750.-€.
Serious Infringements: Minimum fines between 751.-€ to 1.500.-€; Medium fines between 1.501.-€ to 3.750.-€; or Maximum fines between 3.751.-€ to 7.500.-€
Very serious Infringements: Minimum fines between 7.501.-€ to 30.000.-€; Medium fines between 30.001.-€ to 120.005.-€; or maximum fines between 120.006.-€ to 225.018.-€.
The labor or social security inspector will be able to classify the sanction, graduating the amount, assessing multiple factors, such as company’s intention, company’s size, company’s activity, workforce, etc., so it is a very discretional decision.
However, there are some infractions which can be considered as a crime, having more serious consequences than fines. In these cases, the infraction will not have an administrative consequence, but a criminal one, and the company will have to face a judicial process before the criminal court.
Avoiding double sanction
Thinking about infractions within employee’s transfers between different European countries, the most common thought it is: what happens if the company is sanctioned in one country for a concrete infraction, and later is fined in another country for the same displacement?
Well, according to our national law, if there is an infringement which has already been sanctioned in one country from a criminal or administrative perspective, the company cannot be fined twice for the same displacement, so it will not be possible to start another process in Spain.
When a company is going to transfer a European employee within EU in temporary basis, firstly they will have to check every requirement from an immigration, labor, social security and a tax perspective.
Secondly, the company will have to comply with every legal aspect.
Thirdly, if the company receives a Labor or Social Security inspection, it is important to collaborate with the agent, submitting the documentation that is required on time, and if a document is missing, this should be explained too.
From my professional point of view, it is really difficult to deal with every legal aspect before the displacement, but if the entity tries and reduces risks as much as they can, it will be difficult to be fined. Besides, if there is an inspection along the displacement, it will be essential to collaborate with the inspector to avoid or reduce as much as possible the potential fine. Notice that the inspector will be able to propose the fine depending on many factors, so if we collaborate with them, it will be possible to mitigate and reduce it.