Is there any limitations of the right of companies- service providers established in the Member State of the European Economic Area to post workers to the Republic Croatia in the context of the provision of services?
Regarding the provision of services, there is no national measures taken with a view to limit posting of workers by service providers established in any Member State of the European Economic Area, including companies from Austria (which has limited posting the workers from Croatia in certain sectors).
That means that posted workers who are EEA nationals and third-country nationals legally employed in the country in which the foreign employer is established, do not need a work permit, but if their work should last more than three months, they should register
temporary stay for the purpose of work of a posted worker.
Temporary stay shall be granted to an alien who intends to stay or staying in the Republic of Croatia for the following purpose of the work of the posted worker (temporary stay permission) if:
- he proves the purpose of temporary stay,
- he holds a valid travel document;
- he has funds to support himself,
- he holds health insurance,
- he is not prohibited entry and stay in the Republic of Croatia,
- he is not considered to be a threat to public policy, national security or public health.
If you are an undertaking (foreign employer) posting the workers in Croatia, you must during the period of posting, comply with a number of minimum mandatory rules set by the labour law applicable in Croatia, relating to the following labour and employment conditions:
- minimum wage, including increased salaries for overtime ( salary paid to a posted worker during the period of posting may not be less than the Croatian minimum wage guaranteed at level of the rights laid down by legal regulations of the Republic of Croatia, that is, collective agreements which have been declared universally applicable to all employers and workers in a specific area, branch or activity, under a special regulation)
- the prescribed maximum duration of working hours and the minimum duration of rest;
- minimum duration of paid annual leave (you are entitled to holidays);
- health and safety at work;
- protective measures for work of pregnant women, women who have recently given birth or are breastfeeding and minors;
- rules prohibiting discrimination and for protection and promotion of gender equality
- the conditions of hiring-out of workers, in particular the supply of workers by temporary employment undertaking.
Those working conditions shall be guaranteed at the level of the rights laid down by legal regulations of the Republic of Croatia, that is, collective agreements which have been declared universally applicable to all employers and workers in a specific area, branch or activity, under a special regulation.
1. Obligation to respect the Collective Agreement in the construction sector
During posting, in relation to posted workers guaranteed rights, employers - foreign providers posting workers to temporarily carry out work in Croatia in the construction sector, should respect universally applicable collective agreement in construction sector.
Collective agreement for the construction sector, has been published in the Official Gazette No. 115/2015 of 23 October 2015, declared universally applicable to all employers and workers in the construction sector from 19 December 2015.
LINK for
construction collective agreement available:
here.
More information available at:
http://www.sgh.hr/
http://www.constructionworkers.eu/hr
http://www.constructionworkers.eu/en
http://www.constructionworkers.eu/sl
http://www.constructionworkers.eu/bg
http://www.constructionworkers.eu/cs
http://www.constructionworkers.eu/de
http://www.constructionworkers.eu/hu
2. In all other sectors:
At least minimum wage determined by the law should be applied.
The gross (bruto) minimum wage determined by the law for 2018 (period from the 1 January 2018 until the 31 December 2018) is
3.439, 80 HRK.
MINIMUM WAGE
Minimum wage determined by the law is set on annual basis and covers all workers and sectors.
The gross (bruto) minimum wage determined by the law and Regulation for 2018 is
3.439, 80 HRK. It applies in the period from the 1 January 2018 until the 31 December 2018.
The amount of the minimum wage does
not include increases in wages which belong to a worker for overtime work, night work and work on Sundays, holidays or on other days that are not working days according to the law.
Non-working days in Croatia are: 1 January, 6 January, Easter and Easter Monday, the Corpus Christi, 1 May, 22 June, 25 June, 5 August, 8 October, 1 November, 25 December, 26 December, plus members of certain religion have the right not to work: on 7 January (orthodox), on both Bairam (islamic), Rosh Hashana and Yom Kippur (Hebrew).
Minimum wage is determined by the law as the lowest monthly amount belonging to the worker for a work in a full-time working hours, which is in Croatia 40 hours a week, while the minimum wage for part-time work is determined in proportion to the minimum wage for full-time and working hours to which the worker is reported.
All workers working in Croatia have the right on minimum wage, irrespecting of the employer’s seat or registration. It is the same for all workers, irrespecting of their qualification.
By the way of exception, the lower amount of the minimum wage can be established by the collective agreement, but not lower than 95 % of the amount prescribed by the Regulation on the Minimum Wage.
The gross (bruto) minimum wage determined by the law for 2018, for the period from the 1 January 2018 until the 31 December 2018 is
3.439, 80 HRK.
The gross minimum wage for for 2017 for the period from the 1 January 2017 until the 31 December 2017 was 3.276,00 HRK.
The gross minimum wage for 2016, from the 1 January 2016. until the 31 December 2016, was 3.120,00 HRK.
CONTRACTOR'S LIABILITY IN THE CONSTRUCTION SECTOR
In all sectors except the construction sector, minimum rate of pay, including increased wage for overtime work, paid to a posted worker during the period of posting in Croatia, may not be less than the Croatian minimum wage guaranteed at level laid down in accordance with Minimum Wage Act.
In the construction sector, minimum rate of pay paid to a posted worker during the period of posting in Croatia may not be less than the wage (remuneration) guaranteed by the Collective Agreement for the Construction Sector, that has been declared universally applicable to all employers and workers in the construction sector.
Contractor's liability in the construction sector for the obligations of his or her direct subcontractor towards the subcontractor's posted workers
In subcontracting chains posted workers can hold the contractor of which the employer is a direct subcontractor liable with respect to any outstanding net remuneration corresponding to the minimum rates of pay.
In the case if a direct subcontractor fails to pay wage or a part of wage to his or her posted worker on due date, a contractor shall be jointly and severally liable for the obligations of the subcontractor towards subcontractor's posted worker for worker's claims for due and unpaid minimum wage.
The liability of the contractor is limited to worker's rights acquired under the contractual relationship between the contractor and his/her direct subcontractor, arising from the contract of provision of services in one or more construction activities.
DUE DILLIGENCE OBLIGATIONS
The contractor shall not be liable if, he or she, has taken all appropriate actions to request and receive from his/her subcontractor before the beginning or during the period of the posting:
- a copy of the submitted posting declaration and any subsequent amendments thereto,
- a list of all posted workers employed in executing a contract between a contractor and a subcontractor,
- for each individual posted worker: worker's identification number, date of birth, job description, citizenship, date of commencement and completion of posting, place or places of providing services/building site, regular working time, including overtime hours, and gross monthly wage,
- the written guarantee of the subcontractor that he will pay the posted worker guaranteed wage within due date and in the amount due to him/her during the posting,
- for the duration of the contract between the contractor and the subcontractor:
- at least once a month, for each individual posted worker: records of the working time, wage records, wage calculation (payroll account), from which all the elements, amounts and method of determining these amounts is evident, the currency to be used for the payment, a proof of payment within the time limit and in the amount to which the worker is entitled during the posting.
What if the those guaranteed working conditions (including pay) are more favourably regulated by the regulations of a State in which service provider (an employer) is established and which apply to working relationship ?
In that case, pursuant to the Article 86, paragraph 12 of the Aliens Act, more favourable right shall apply to the posted worker.
That means that Croatian legislation is applicable only if the guaranteed working conditions are more favourably regulated by the regulations of the Republic of Croatia than by the regulations of a State in which the employer is established and which apply to the working relationship (a principle of aplication of the more favourable right to the posted worker).
To which categories of posted workers are guaranteed those rights under the Croatian labour law?
The working conditions referred above are also guaranteed to posted workers assigned through temporary employment agencies.
The working conditions referred above are also guaranteed to posted workers who are not citizens of EEA Member States ( third country nationals), provided that they are legally employed by a undertaking posting the worker (according to the regulations of a state in which employer is established), and it usually it refers to obtaining a work permit in the State of the employer’s establishment.
The employer is also obliged to confirm in the posting declaration that third country nationals are legally employed according to the regulations of a State in which employer is established.
Is there any category of posted worker which is exempted of the guaranteed rights?
When the period of posting is less than 8 days and if the provision of services consists in work pertaining to the the initial assembly and/or the initial set-up essential for making the products delivered available and agreed as an essential component of a supply of goods contract, performed by a qualified worker, the employer does not have to observe the minimum rate of pay or the minimum duration of paid annual leave as prescribed in the Republic of Croatia.
This exemptions does not apply to workers posted to the Republic of Croatia by a foreign employer to carry out work in civil engineering relating to construction, repairs, maintenance, adaptations or demolition of buildings, and especially excavations, earth works, actual construction works, assembly and disassembly of prefabricated elements, the positioning of installations, alterations, renovation, repairs, disassembly, demolition, regular maintenance, maintenance, painting and cleaning or improvements.
Is an undertaking posting the workers (employer) obliged to submit a posting declaration before the commencement of posting and to which authority?
Yes, when providing services in the Republic of Croatia, every service provider (employer) posting workers to Croatia, regardless of the State of the establishment, is obliged to submit a posting declaration before the commencement of posting/ before start of any work or service in Croatia to inform Croatian authorities about his intention to post workers.
To which authority should it be submitted?
Posting declaration should be submitted to the Labour Inspectorate electronically to the following address:
e-mail:
postingdeclaration.inspektorat@mrms.hr
The form of the Posting declaration is available
here.
Is there any other obligation for the service provider posting workers?
1. An obligation to designate a contact person who, during the posting period, keeps relevant documentation in Croatia, available to the inspecting authority and other Croatian competent authorities (Article 86, paragraph 13 of the Foreigners Act)
In the Posting declaration, a foreign employer has to authorize and designate a person who shall at the territory of the Republic of Croatia, during the posting period, at the place of work or another clearly defined and available place in the Republic of Croatia, keep or make available or retain copies in paper or electronic form of the employment contract or a letter of engagement, wage calculation showing all the elements and method of determination of wage amount, payslips, proof of payment of wages time-sheets indicating the beginning, end and duration of the daily working time and or copies of equivalent documents, for third country national work permit or other act proving that a worker is legally employed, and other evidence necessary for control and supervision (such as a copy of contract between the contractor and foreign employer, documents in the field of safety and health at work), and at the request of the competent authorities to provide translation of these documents into the Croatian language and to provide the competent authorities with all other necessary information.
2. An obligation to keep certain documents after the termination of posting
The service provider/ foreign employer must keep and upon request of the competent authorities of the Republic of Croatia, submit the documents referred to in point 1., for a period of five years after the end of posting.
3. An obligation to designate domestic authorized recepient in Croatia (Article 86, paragraph 14 of the Foreigners Act)
In the Posting declaration a service provider/ foreign employer has to designate a person, residing in the Republic of Croatia, who will be authorized on behalf of and on account of the foreign employer to co-operate with the competent authorities, and, if necessary, receive, serve and send out requests, notices and other documents and forward it to the foreign employer.
What if submitted data changes during the posting?
The employer shall also report any change of those data by sending the Form 2. This notification must be submitted
at latest 3 working days after the data change, by electronic means, to the following e- mail address:
postingdeclaration.inspektorat@mrms.hr
The employer must indicate the date of the submission of the Posting Declaration or Notification being changed.
e-mail:
postingdeclaration.inspektorat@mrms.hr
What if an employer does not comply with the obligation to submit a posting declaration prior to posting or submits an incomplete or inaccurate posting declaration?
A fine in an amount from HRK 10,000.00 to HRK 30,000.00 shall be imposed for a misdemeanour on an employer – legal person if he fails to submit prior to the posting or submits an incomplete or inaccurate Posting declaration.
A fine in an amount from HRK 1,000.00 to HRK 3,000.00 shall be imposed for a misdemeanour on an employer natural person and the responsible person of the legal person.
What is the position of the employer established in a state which is not an EEA Member State when he posts workers to the Republic of Croatia?
The employer established in a state which is not an EEA Member State may not be placed in a position more favourable than the foreign employer established in an EEA Member State.
It means that that such employer also has to comply with the
basic rules on employees protection laid down by legal regulations of the Republic of Croatia, that is, collective agreements which have been declared universally applicable to all employers and workers in a specific area, branch or activity, under a special regulation.
(for example, salary paid to posted worker may not be less than the Croatian minimum wage at the the level of the rights laid down by legal regulations of the Republic of Croatia, that is, collective agreements which have been declared universally applicable to all employers and workers in a specific area, branch or activity, under a special regulation.)
Responsibility of the employer in the case of non-compliance
Inspectional supervision of the implementation of provisions relating to the conditions of work and the rights of posted workers is carried out by the state administration body competent for the labour inspection, that is the Ministry of Labour and Pension System.
Competent inspection body can impose a fine/penalty on the employer, in accordance to the provisions of the Labour Act (Official Gazette No 93/2014): Part VII. Administrative measures (Article 226) and Part VIII. Penal provisions (Articles 227-231)¸.
