Applicable basic regulations
Law 45/1999, of 29 November, on the posting of workers in the framework of the transnational provision of services: it transposes 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.
Scope of application
Article 1 of Law 45/1999
Law 45/1999 shall apply to undertakings established in an EU Member State or in a state that is a signatory to the European Economic Area Agreement that temporarily post their workers to Spain in the framework of the transnational provision of services, excluding merchant navy undertakings as regards seagoing personnel.
This law shall not apply to postings carried out for the performance of training activities that do not satisfy the classification as a transnational provision of services.
The concept of posting workers
Article 2.1.1 of Law 45/1999
"Posting in the framework of the transnational provision of services" shall be understood as a posting to Spain carried out by undertakings included within the scope of application of this law that are carried out for a limited period of time in any of the following cases:
- The posting of a worker by an undertaking on its account and under its direction, under a contract concluded between that undertaking and the party for whom the services are intended, which is established or operates in Spain.
- The posting of a worker to a work centre of the undertaking itself or that of another undertaking of the group of which it forms part.
- The posting of a worker by a temporary employment undertaking to hire out a worker to a user undertaking established or operating in Spain.
Further information on the concept of posting is available in the European Commission's Practical Guide on Posting of Workers (2019).
In particular, this Guide contains the following information on “business trips”:
“2.4 WHAT ABOUT “BUSINESS TRIPS” TO ANOTHER MEMBER STATE? ARE THE RULES ON POSTING APPLICABLE TO ANY MISSION ABROAD OF WORKERS?
Workers who are sent temporarily to work in another Member State, but do not provide services there, are not posted workers. This is the case, for example, of workers on business trips (when no service is provided), attending conferences, meetings, fairs, following training etc. Such workers are not covered by the Posting of Workers Directives and the administrative requirements and control measures set out in Article 9 of Directive 2014/67/EU are therefore not applicable to them.”
3.2. Specific case: chain posting of temporary agency workers
Article 2.2 of Law 45/1999
For the purposes of the definitions of posting of workers, this includes a worker from a temporary employment agency placed at the disposal of a user company established or operating in the same State as the temporary employment agency or in another Member State of the European Union or signatory to the Agreement on the European Economic Area who is sent temporarily by the latter to Spain to carry out work within the framework of a transnational provision of services in any of the following cases:
- On behalf of and under the direction of the user company in execution of a contract concluded between the same and the recipient of the provision of services, who is established or who carries out his activity in Spain.
- In a work centre in Spain of the user company itself or of another company of the group of which it forms part.
In these cases, it will be understood that it is the temporary employment agency which temporarily posts its workers to Spain, and must comply with the obligations established in Law 45/1999 for companies which temporarily post their workers in the framework of a transnational provision of services, without prejudice to the provisions of Article 3.7 of this law (section 4.3.2 of this website).
In the event that, despite the formal appearance of posting under this section, the worker, while providing services in Spain, is subject to the management power of the company established or carrying out its activity in Spain, the legal regime relating to posting provided for in section 1.1.1.c) of Article 2 of Law 45/1999 shall apply, without prejudice to the appropriate liabilities in the event of the illegal assignment of workers.
Terms and conditions of employment of posted workers.
Article 3 of Law 45/1999
The employers included in the scope of application of this law that post their workers to Spain in the framework of the transnational provision of services must guarantee these workers, irrespective of the legislation applicable to the work contract, the terms and conditions of employment set out under Spanish labour legislation with regard to the issues listed hereunder.
For these purposes, the terms and conditions of employment set out under Spanish labour legislation shall be those contained in the legal or regulatory provisions of the State and those set out in the collective agreements and arbitration awards applicable in the place in question or in the sector or branch of activity concerned.
This is without prejudice to the application to posted workers of more favourable terms and conditions of employment resulting from the provisions set out in the legislation applicable to their work contract, in collective agreements or in individual work contracts.
For these purposes, the length of the posting shall be calculated on the basis of a reference period of one year from the beginning of the posting, including, where applicable, any previous periods for which the post has been filled by a posted worker.
4.1. Legal or regulatory provisions applicable to the terms and conditions of employment of posted workers
- Work periods
- The rate of pay, except in postings that do not exceed eight days and which are carried out by undertakings that are not temporary employment undertakings, under the terms set out in Article 4 of Law 45/1999.
- Applicable regulations:
- Royal Decree 152/2022, of 22 February, setting the minimum wage (MW) for 2022.
- The MW for 2022 is set at 33.33 euros/day or 1000 euros/month, depending on whether the wage is set by days or by months.
- In the annual calculation, the MW rate for 2022, including any extraordinary payments, shall not be less than 14,000 euros for workers with full legal working hours.
- For further information on the MW, you may consult the Guía laboral (“Labour Guide”).
- Additional provision six of Royal-Decree Law 32/2021, of 28 December, which establishes that Royal Decree 817/2021 shall remain in force until a royal decree setting the minimum wage for 2022 is approved.
- Without prejudice to the foregoing, under all circumstances the minimum wage set out in the collective agreements and arbitration awards applicable in the place in question or in the sector or branch of activity concerned for the professional group or professional category corresponding to the work performed by the posted worker shall be paid. See section 4.2. “Collective agreements and arbitration awards applicable to the terms and conditions of employment of posted workers”.
- Composition of the minimum wage rate:
The minimum wage rate shall be understood as that which, in the annual calculation and without discounting taxes, the interim payments of these taxes and social security contributions payable by the worker, comprises the basic wage and supplements, the extraordinary bonuses and, where applicable, the payment corresponding to overtime and night-time work. Under no circumstances shall the minimum wage rate include any voluntary protective enhancements with regard to social security.
With regard to workers contracted by temporary employment undertakings to be hired out to user undertakings, see the section "Terms and conditions of employment of workers posted by temporary employment undertakings".
To make a comparison between the wage rate that the posted worker receives in accordance with the legislation applicable to his work contract and the wage rate guaranteed in accordance with the sections above, the allowances corresponding to the posting shall be taken into consideration, to the extent that these are not paid as reimbursement of expenses originated through the posting such as travel and accommodation expenses and per diems.
Where neither the contract of employment nor the provisions applicable to the employment relationship indicate whether the elements of the specific travel allowance are paid by way of reimbursement of expenses actually incurred as a result of travel or as part of remuneration and, where appropriate, what those elements are, the entire allowance shall be deemed to be paid by way of reimbursement of expenses.
- Equality of treatment and direct or indirect non-discrimination on the grounds of gender, origin (including racial or ethnic origin), marital status, age within legal limits, social condition, religion or convictions, political ideas, sexual orientation, union membership and affiliation to union agreements, kinship with other workers employed by the undertaking, language or disability, provided that the workers possess the skills to perform the work or job in question.
- Child labour.
- Occupational health and safety, including regulations on protection of mothers and children.
- Article 19 "Occupational health and safety" of the Workers’ Statute.
- Law 31/1995, of 8 November, on occupational health and safety.
- A full compendium of the regulations on health and safety can be found at the following link of the National Institute of Occupational Health and Safety (INSHT): Regulations - INSHT.
- Non-discrimination of temporary and part-time workers.
- Non-discrimination of temporary workers: Article 15.6 of the Workers’ Statute.
- Non-discrimination of part-time workers: Article 12.4.d) of the Workers’ Statute.
- Respect for the right to privacy and due consideration for the dignity of workers, understood as protection against verbal or physical offences of a sexual nature.
- Freedom of association and the rights to strike and assembly.
- The conditions for the transfer of workers, including those provided for in Article 3(2) and (7) of Law 45/1999.
- The conditions of accommodation of workers where the employer provides accommodation for workers who are away from their usual place of employment.
- Subsistence allowances or reimbursements to cover travel, accommodation and subsistence expenses incurred by workers posted to Spain when, during their stay, they have to travel to and from their usual place of work in Spain to another place outside their temporary residence in Spain for professional reasons or when their employer sends them temporarily from their usual place of work to another place of work in Spain or abroad.
4.2. Collective agreements and arbitration awards applicable to the terms and conditions of employment of posted workers
Employers shall also guarantee the terms and conditions of employment set out in the collective agreements and arbitration awards applicable in the place in question or in the sector or branch of activity concerned with regard to the issues referred to in the section above. (To determine which collective agreement or arbitration award is applicable, see section 4.4. "Sources for the consultation of collective agreements and arbitration awards applicable to posted workers").
4.3. Terms and conditions of employment of workers posted by temporary employment undertakings
4.3.1. General case of posting by temporary employment agencies
Article 3.2 of Law 45/1999
In postings of workers by temporary employment undertakings to hire them out to a user undertaking established or operating in Spain, temporary employment undertakings, in addition to guaranteeing their posted workers, irrespective of the legislation applicable to the employment contract, the terms and conditions of employment referred to in the previous section with regard to Spanish labour legislation, must comply with the conditions set out in Law 14/1994, of 1 June, which regulates temporary employment undertakings, for the hiring-out of workers to user undertakings.
According to article 22.1.c) of Law 14/1994, chapter III of this law shall not be applicable except with regard to the provisions set out in section 1 of article 11. This section sets out that workers contracted to be hired out to user undertakings shall have the right during the periods of service provision at these undertakings to the application of the fundamental terms and conditions of employment that would correspond to them if they had been recruited directly by the user undertaking for the same post.
For these purposes, fundamental terms and conditions of employment shall be those that refer to compensation, the length of the working day, overtime, rest periods, night-time work, holiday periods and public holidays.
In particular, in accordance with Article 10.2 of Royal Decree 901/2020 and the fourth paragraph of Article 11.1 of Law 14/1994, the measures contained in the equality plan of the user company shall be applicable to temporary agency workers during the periods of service provision.
Compensation shall include all the economic payments, whether fixed or variable, established for the position in the collective agreement applicable to the user undertaking. It shall include, in all cases, the proportional part corresponding to the weekly rest period, extraordinary payments, public holidays and holiday periods. The user undertaking shall be responsible for setting the final payments received by the worker and, to this end, said user undertaking shall set forth the compensation referred to in this paragraph in the contract issued to the worker.
By the same token, workers contracted to be hired out shall have the right to be subject to the same provisions as workers of the user undertaking with regard to the protection of pregnant and breastfeeding women and of children, in addition to the equality of treatment between men and women and to the application of the same provisions adopted to combat discrimination based on gender, race or ethnic origin, religion or beliefs, disability, age or sexual orientation.
In accordance with article 23 of Law 14/1994, the relationship between the worker posted to Spain and the user undertaking shall be in accordance with the provisions established in chapter IV of this law.
4.3.2. Specific case: chain posting of temporary agency workers
Article 3.7 of Law 45/1999
In the postings referred to in Article 2.2 of Law 45/1999 (section 3.2 of this website), temporary employment agencies and user companies must guarantee to posted workers the working conditions referred to in Article 3.1 of this law (section 4.1 of this website) and, in particular, Article 28. 5 of Law 31/1995, of 8 November 1995, on the Prevention of Occupational Risks, without prejudice to the application of more favourable working conditions derived from the provisions of the legislation applicable to their employment contract, collective agreements or individual employment contracts or the labour legislation of the State of establishment or in which the user company sending the worker temporarily to Spain carries out its activity.
4.4. Sources for the consultation of collective agreements and arbitration awards applicable to posted workers
Article 3.8 of Law 45/1999.
Concept and working conditions applicable to long-term posting
When the actual duration of a posting exceeds twelve months, the companies included in the scope of application of Law 45/1999, in addition to guaranteeing their posted workers (whatever the law applicable to the employment contract) the working conditions provided for by Spanish labour law as indicated above, , must guarantee the other working conditions provided for, with the exception of the following matters:
- the procedures, formalities and conditions for the formation and termination of the employment contract, including non-competition clauses;
- supplementary pension schemes.
Calculation of the duration of the posting
The calculation of the effective duration of the posting shall not be interrupted by the enjoyment of paid annual leave and in the event of other short interruptions such as other breaks or paid leave provided for in Spanish labour legislation under the terms of Article 3.4 of Law 45/1999, if applicable, or those based on the same causes if other legislation is applicable because it is more favourable.
Replacement of workers
When a company within the scope of Law 45/1999 replaces a posted worker with another posted worker who performs the same work in the same place, the duration of the posting shall be, for the purposes of this section, the cumulative duration of the periods of posting of each of the posted workers concerned.
The concept of "same work in the same place" referred to in the preceding subparagraph shall be determined taking into account, inter alia, the nature of the service which is the subject of the transnational provision of services to be provided, the work to be performed and the address or addresses of the workplace.
Exception in the case of reasoned notification of an extension of up to 18 months
However, when the company providing the services considers that the actual duration of the posting will exceed twelve months, it may send a reasoned notification notification to the labour authority competent to receive the notice of posting (Article 5 of Law 45/1999 and section 7 of this website), before the expiry of that period, which will extend the application of the working conditions provided for in Spanish employment legislation pursuant to Article 3.1 of Law 45/1999 for a maximum of eighteen months.
List of the main working conditions of long-term posted workers and the legal or regulatory provisions that regulate them
By way of example, the following is a list of working conditions provided for in legal provisions that apply to long-term postings in addition to those provided for in section 4. This list is not exhaustive and should be completed with the working conditions provided for in the rest of Spanish labour legislation in accordance with what is stated above in this section on “Concept and working conditions applicable to long-term posting”.
- Basic employment rights and duties in addition to those set out in section 4
- Promotion at work
- Modification of the employment contract.
- Suspension of the employment contract.
- Right to collective representation
- Chapter I of Title II of the Workers' Statute (arts. 61 - 76)
Body competent for the provision of information on the terms and conditions of employment of posted workers
Article 7 of Law 45/1999.
This information can be requested by:
- Information bodies of other Member States of the European Union or the European Economic Area.
- Undertakings that are going to post workers to Spain or the associations that represent these undertakings.
- Recipients of the transnational provision of services or the associations that represent them.
- Posted workers or workers that are going to be posted or other bodies that represent them.
Liaison office at national level to consult in the event of any doubts with regard to the competent labour authority: Subdirección General de Ordenación Normativa [Subdirectorate-General for Regulations], Dirección General de Empleo [Directorate-General for Employment] (email@example.com)
Article 5 of Law 45/1999
The business owner that post workers to Spain in the framework of the transnational provision of services must notify the posting, prior to commencement and irrespective of its duration, to the labour authority of the Autonomous Community where the services are to be provided. If the services are to be provided in the Autonomous Cities of Ceuta and Melilla, the information on the posting must be addressed to the work and immigration departments of the respective Government Delegations.
Unless the undertaking is a temporary employment undertaking, there shall be no need to notify the posting if the duration of the same is not greater than eight days.
The notification on the posting shall contain the following details and information:
- Identification of the undertaking that is posting the worker.
- The tax address of this undertaking and its tax identification number for the purposes of Value-added Tax.
- The personal and professional details of the posted workers.
- The identification of the undertaking or undertakings and, where applicable, of the work centre or centres where the posted workers shall provide their services.
- The scheduled start date and duration of the posting.
- Determination of the provision of services that the posted workers are going to carry out in Spain with an indication of the corresponding case.
- The identification and contact details of a physical or legal person in Spain designated by the company as its representative, to liaise with the competent Spanish authorities and to send and receive documents or notifications, as necessary.
- The identification and contact details of a person in Spain who may represent the service company in workers’ information and consultation procedures and in negotiation procedures affecting workers who are posted to Spain./li>
When the undertaking that posts workers to Spain is a temporary employment undertaking, the notification of the posting must also include the following:
- Accreditation that it satisfies the legal requirements of its State in order to temporarily place its contracted workers at the disposal of other user undertakings.
- The statement of the temporary needs of the user undertaking to be satisfied with the contract, indicating the corresponding case pursuant to those set out in article 6 of Law 14/1994, of 1 June, regulating temporary employment undertakings.
In the event of a chain posting of temporary agency workers (article 2.2 of Law 45/1999, section 3.2 of this website), the temporary employment agency must notify the posting and must include in the notification, in addition to the provisions of the previous sections, the following:
- The identification of the foreign user company sending the worker to Spain.
- Determination of the services that the posted workers are going to provide in Spain, indicating the corresponding case of those provided for in Article 2.2 of Law 45/1999 (section 3.2 of this website).
When the undertaking that posts workers to Spain wishes to be contracted or subcontracted for works on a construction site, said undertaking must also be registered with the Register of Accredited Companies (REA) (see the section below on "Additional obligations of undertakings that post workers to Spain for the performance of works on a subcontracting basis in the construction sector").
The procedure to notify the posting shall be that determined by the competent Autonomous Community (see the section "Contact details of the labour authorities for the purposes of information about the terms and conditions of employment and posting notification").
The obligation to report the posting is understood without prejudice to compliance with whatsoever other obligations concerning notification, information or declaration of activities to be made to the Public Administrations by business owners by virtue of other provisions.
Additional obligations of user companies in the case of chain posting of temporary agency workers
Article 23 of the Law 14/1994
8.1. Obligations of user companies established or operating in Spain
User companies established or operating in Spain which temporarily post workers transferred to them by Spanish temporary work agencies or by those established in other EU or EEA States to another EU or EEA State to carry out work in the framework of a transnational provision of services must indicate in the posting contract the estimated starting and finishing dates of the posting, either at the time of signing the contract or by means of an addendum to the contract in the event of an unforeseen need to make the posting, as well as inform the temporary work agency of the start of the posting in sufficient time before the posting so that the temporary work agency can inform the other State to which the worker is being sent of the posting, within the time limit set by the other State for this purpose.
8.2. Obligations of user companies established in other EU/EEA States
In the postings referred to in Article 2.2 of Law 45/1999 (section 3.2 of this website), user companies established in other EU or EEA States which temporarily send workers transferred to them by temporary work agencies to Spain to carry out work as part of a transnational provision of services must inform the temporary work agency of the start of the posting in sufficient time to enable the agency to notify the Spanish authorities of the posting.
Such user companies shall also be liable to the Spanish authorities for failure to comply with this obligation once the posting has taken place.
They must also comply with the provisions of Article 3.7 of Law 45/1999
Additional obligations of undertakings that post workers to Spain to carry out work under a system of subcontracting in the construction sector
Additional provision one of Royal Decree 1109/2007, of 24 August, which implements Law 32/2006, of 18 October, regulating subcontracting in the Construction Sector.
- They shall provide substantiation of observing the requirements set out in Article 4.2 a) of Law 32/2006, of 18 October, by providing documentation that proves compliance with the obligations set out in the national rules that transpose articles 7 "Protective and preventive services" and 12 "Training of workers" of Council Directive 89/391/EEC, of 12 June 1989, on the introduction of measures to encourage improvements in the health and safety of workers at work.
- In the event of postings for longer than eight days, these must be registered with the Register of Accredited Companies (REA) of the labour authority in whose territory the services are to be provided in Spain.
To this end, the first notification of the posting carried out pursuant to article 5 of Law 45/1999 (see the previous section on "Posting notification") shall be considered to be an application for registration, which must be accompanied by a declaration pursuant to the form established in Annex I.A of Royal Decree 1109/2007. The application thus formulated shall provisionally enable the undertaking to take part in the subcontracting process until the date of registration or refusal.
Once the registration has been completed, notifications concerning subsequent postings must include, together with the legally required details, the registration number in the Register of Accredited Companies.
Representatives of posted workers
Additional provision three of Law 45/1999
Representatives of workers posted to Spain, who hold such status pursuant to national legislation practices, may exercise administrative or judicial actions under the terms recognised for workers’ representatives in accordance with Spanish legislation.
Representatives of workers of user undertakings and undertakings that receive in Spain the services from the workers posted under the aegis of the provisions set out in this Law shall have the terms of reference with regard to these workers as acknowledged under Spanish legislation, irrespective of the place where the temporary employment undertaking or the undertaking providing the services is located.
The Labour and Social Security Inspectorate (ITSS) is responsible for ensuring compliance with the obligations imposed on business owners that post their workers to Spain. In order to apply legal provisions concerning posting of workers, and in order to ensure compliance therewith, the competent authorities may carry out a comprehensive review of factual information, such as the location at which the company performs its primary activity and the nature of the activities of the posted worker.
Where, following an overall assessment carried out in accordance with Article 8bis of Law 45/1999, it is established that a company is creating, improperly or fraudulently, the impression that the situation of a worker falls within the scope of this Law, the worker shall be entitled to the application of Spanish labour and social security legislation, without prejudice to the responsibilities of any kind that may be required of the company.
The foregoing shall not result in the worker in question being subject to less favourable conditions than those applicable to posted workers.
Business owners to which the Law on the Posting of Workers applies must appear, if so requested by the Labour and Social Security Inspectorate, at the designated government office and provide any documentation that has been demanded as evidence of compliance with said Law, including documentation proving that the company was validly incorporated.
Without prejudice to the provisions of the above section, during the posting period business owners must have the following documents available for immediate consultation at the place of work or in digital format, among others:
- Employment contracts or the documents referred to in Article 5 of Royal Decree 1659/1998, of 24 July, implementing Article 8.5 of the Workers' Statute Law concerning informing workers of the essential elements of employment contracts, when the information referred to in said article does not appear in the written employment contract, for each worker.
- The payslips for each worker and the proof of payment of wages or salaries to each worker.
- Records of working hours, indicating the beginning, end and duration of the working day.
- The document evidencing the authorization to work held by citizens of third countries, pursuant to the legislation of the State in which the undertaking is established.
Once the posting has been completed, the business owners must provide the documents referred to in the above paragraphs when requested to do so by the Labour and Social Security Inspectorate.
Business owners must notify the Labour Authority in writing, as determined by regulations, of any harm to the health of posted workers caused during or by the work performed in Spain.
The documentation referred to in the above paragraphs must be submitted translated into Spanish or the co-official languages of the regions where the services are to be rendered.
Further information about the Labour and Social Security Inspectorate: https://www.mites.gob.es/itss/web/index.html
Details about the Provincial Labour and Social Security Inspectorates: https://www.mites.gob.es/itss/web/Quienes_somos/Estamos_muy_cerca/index.html
Details about the Labour and Social Security Inspectorate:
ORGANISMO ESTATAL DE LA INSPECCIÓN DE TRABAJO Y SEGURIDAD SOCIAL [THE LABOUR AND SOCIAL SECURITY INSPECTORATE]
Subdirección General de Relaciones Institucionales y Asistencia Técnica [Subdirectorate-General for Institutional Relations and Technical Assistance]
Agustín de Bethencourt, 4
+34 913 631 163
+34 913 930 678
+34 913 630 682
Information on how to submit a complaint to the Labour and Social Security Inspectorate:
Technical Guidelines 97/2016 on Posting of workers in the framework of the provision of services for the Labour and Social Security Inspection:
Social order infractions and sanctions
Cooperation with the Public Administrations of other States regarding information and inspection
Article 9 and additional provision seven of Law 45/1999
The labour authority and the Labour and Social Security Inspectorate may request the cooperation and assistance required to perform their duties from the Public Administrations of other Member States of the European Union or of the Contracting States of the Agreement on the European Economic Area. Such cooperation and assistance may include cross-border notification and application of administrative penalties for failure to comply with provisions regarding the posting of workers.
Social jurisdiction competency
Articles 15, 16 and 17 of Law 45/1999.
The Spanish social order jurisdictional bodies shall be competent to rule on any litigious issues that arise in application of Law 45/1999 whenever the worker is or has been temporarily posted to Spain.
Obligations and responsibilities of user undertakings and of undertakings that receive the provision of services in Spain from posted workers
Additional provision two of Law 45/1999.
User undertakings and undertakings that receive in Spain the services from the workers posted under the aegis of the provisions set out in this Law shall assume with regard to these workers the obligations and responsibilities set out under Spanish legislation, irrespective of the place where the temporary employment undertaking or the undertaking providing the services is located.
Transitional provision three, Royal Decree-Law 9/2017, of 26 May.
- Notifications of posting of workers to Spain sent before 27 May 2017 shall be governed by the provisions prevailing on the date on which they were sent.
- Until the planned implementing regulations have been issued, notifications of posting of workers to Spain may be sent by the means used prior to 27 May 2017.
- Without prejudice to the above paragraphs, amendments made to Law 45/1999, of 29 November, by Royal Decree-Law 9/2017, of 26 May shall apply to posting begun before 27 May 2017, provided that on that date the posted workers are continuing to render services in Spain.
16.2. Transitional rules on the time limit for posting
Fifth transitional provision of Royal Decree-Law 7/2021, of 27 April
The rules on the time limit for posting established in article 3.8 of Law 45/1999 (section 5 of this website) will be applicable to workers who are posted to Spain after 29/04/2021.
For workers who were already posted to Spain before 29/04/2021, the maximum period of posting will apply from 29/10/2021, with the period starting to be calculated from the date on which the posting took place.