This is the second part of two articles on the notion of secondment and posting.
The Concept of Secondment
Defining Secondment
The scenario of Secondment differs from posted worker. In a secondment situation an employee, or more than one employee, would be released and temporarily transferred to another job, whether full-time, part-time or a job share, for a defined period and for a specific purpose, to the mutual benefit of all parties.
Through a tri-party relationship, an employee will be “seconded” by their employer to a third party. The employee remains employed by his employer for the duration of the secondment and once the determined time period end, the employee simply returns to the original employer.
Therefore:
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- The employee is seconded to perform his working activity, for a specified time and place;
- The employer as the undertaking seconding the employee, retains title of employer;
- The third party, to which the employee is seconded maintains the authority to instruct the employee.
In general, domestic secondment, as its name implies, is when the employee remains at the same host/original Member State in which he/ she originally works. On the other hand, cross-border secondment contains a higher potential risk as the employee is seconded from one country to another, subject to different levels of protection with regards to employment, remuneration and other work conditions, compared to host employees.
Legislation
The system of Secondment in Malta is also generally regulated by the EU 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 into the local scene, which is transposed through S.L 452.82. There is no local legislation which specifically tackles, on its own accord the concept of secondment, with the general principles sought out through the EU Directive remain followed.
The agreement of a secondment highly depends on the agreement made between the parties concerned; the employer and the third-party for whom the employee will work for a definite time frame. There exist many secondment opportunities, especially within the European Union and as a mutually beneficial arrangement, both the employee being seconded in another State has the opportunity to gain expertise and skills they require to develop as a worker, whilst the third-party (company) in question would benefit from the skills of the employee.
EU vs Non-EU Nationals
Within the EU, there are very little to no restrictions in the free movement of workers through transferring of employees through secondment, as this is a primary right at law. Indeed, EU Nationals do not need a permit to reside and work in Malta. This is based on The Free Movement of European Union Nationals and their Family Members Order 2007 which transposes the provisions of the European Union Council Directive 2004/38 of the European Parliament, and the Council of 29th April 2004 makes provisions for the implementation and administration of EU and EEA nationals’ right, in exercising their free movement. Amendments were made to this Order by means of Legal Notice 329 of 2011 and Legal Notice 107 of 2012.
When an EU or EEA National wishes to reside and/or work in Malta for longer than three months, they are required to register their residence with Identity Malta, and then will be issued with an e-Residence card based on their scope of residence in Malta.
In the case of secondment of non-EU nationals, a work permit would be required to be able to be transferred to work in any EU state.
A main question which arises is the employee’s concern to avoid double taxation; meaning paying income tax in both the home country of original employment as well as paying income tax in the new country of work through secondment. Therefore, it is important to verify whether a bilateral tax treaty exists between the two countries concerned and seek the necessary tax advice.
Social Security in Secondment
Regulation (EEC) No. 1408/71 on the application of social security schemes to employed persons and their families (Social Security Regulation) ensures the equality of treatment of social security schemes through the enjoyment of the same benefits and subject to the same obligations, among those persons resident in the territory of one of the Member States and any other Member State as the nationals of that state. A worker employed in the territory of a Member State by an undertaking to which he is normally attached, who is posted by that undertaking to another Member State territory to perform work there, will continue to be subject to the legislation of the first Member State. However, the anticipated duration of that work cannot exceed twelve (12) months and the employee cannot be sent to replace another worker who has completed his term of posting.
If the secondment extends beyond twelve (12) months, due to unforeseeable circumstances, the legislation of the first State may continue to apply, until the completion of such work. In such a case, the competent authority of the State in whose territory the worker is posted must give its consent when the extension of secondment is beyond twelve (12) months and such consent must be requested before the end of the initial twelve (12) month period.
Conclusion
Overall, therefore, the system for posted workers as compared to secondment certainly varies. With posted workers, there is no transferring of employment to a third party, therefore the employee and employer relationship remains present, and continues in the same manner and conditions, without any third-party involvement. Rather, it is the location of where the employee is working which changes, because the employee would be living and working in another country.
In secondment, although the work environment does change, because the employee will be transferred to another employment atmosphere, the original employer-employee relationship remains unaltered upon the employee’s return, however it is for a different role or scope of work. Moreover, there is the introduction of a three-partite relationship formed among the employer, employee and the third-party ‘employer’, undertaking, company or the like.
In every case, it is crucial that the employee remains up to date regarding his rights and duties at law, and that equally, the Employer adheres to all contractual rules, thereby ensuring that any employment relationship remains valid, even for those cases of secondment and posting of employees.
Authors: Ann Bugeja & Christine Borg Millo