Seconding VS Posting: What´s the difference?
Although both concepts share some common features and are very often used interchangeably, they do not have the same meaning.
There are some fundamental differences that are worth highlighting.
A posted worker is employed and based in one EU Member State by his employer but for a definite and limited time period, is sent and “posted” to another EU Member State, to carry out such work as stipulated by the employment contract.
This is clearly defined in the EU Directive 96/71/EC:
This Directive, also designated as the Posted Workers Directive (PWD) states “(…)’posted worker’ means a worker who, for a limited period, carries out his work in the territory of a Member State other than the State in which he normally works”; and it is identically defined in the national legislations of all EU member States.
The employment relationship between the original employer and employee, as well as the role of a posted worker in this cross-border provision of services remains the same; it is simply the location of such employee which is temporarily altered.
In the other hand, secondment consists of specific form (or variant) of posting. In a secondment an employee, or a group of workers, is temporarily transferred to a Third Party to perform another job, for a defined period and for a specific purpose, for the mutual benefit of all parties.
Through a tri-party relationship, an employee will be “seconded” by their employer to a third party who will use this employee to address his/her needs. The employee remains employed by his employer for the duration of the secondment and once the determined time period of the secondment has ended, the employee simply returns to the original employer.
Therefore:
- 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 legal employer;
- The third party, to which the worker is seconded, holds the authority to direct and supervise the employee sent from abroad.
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 is when a worker is seconded from one country to another.
Practical Example
The difference between a posting and seconding can probably be best explained and understood through an example
- Colourful Dreams Lda is a Slovakian painting company that has been awarded a contract by Major League Renovations Inc, a Belgian property management and maintenance company, to paint the exteriors of 8 high rise buildings located in Brussels and Antwerp. The duration of the the project is 12 months and the total cost 1,2 million euros.
- Helping Hand – Temporary work agency Ltd, a Romanian company signed a labour leasing agreement with Best Pet Food Inc, an Austrian pet food manufacturer. Under this agreement the Romanian Temporary work agency agrees to lease 15 workers for 12 months to the Austrian pet food producer. The Austrian company will be charged 29,50€/per hour/per worker and is totally responsible for the direction and supervision of the workers leased by Helping Hand – Temporary work agency Ltd.
Both are situations of intra-EU posting of workers.
But, only the second case can be qualified as secondment.
Why?
Because, in the first case Slovakian painting company called Colourful Dreams Lda is taking an entire unit of workers it normally employs in Slovakia, along with its own tools, machines and equipment for the purpose of executing a project in Belgium as an independent and autonomous sub-contractor or service provider. The Slovakian workforce temporarily posted to Belgium to complete this mission working under the direction and supervision of Colourful Dreams Lda which is entirely and exclusively responsible for executing the contract in accordance with the tender specifications and will be held accountable for any failures, defects or poor workmanship.
On the other hand, the Romanian temporary work agency “Helping Hand – Temporary work agency Ltd” is merely leasing labour to the Austrian pet food factory – and nothing more than that. Their client in Austria is solely and entirely responsible (legally and otherwise) for the use that is gives to the workers that have been temporarily leased from Romania, that is, the workers are obliged to follow the rules and instructions given to them by the user undertaking – it is this party that is responsible for their direction and supervision.
These examples lead us to a very simple conclusion:
All secondments are posting, but not all postings are secondments.
Posting is a broader concept that encompasses all forms of temporary worker deployment.
Therefore, secondment constitutes a specific type of posting and is often referred to interchangeably as “leasing” or “hiring out”.
If you have any questions, please don’t hesitate to get in touch. At work supply we are happy to help.
