The amendments were introduced in the Ordinance regarding the terms and conditions for sending and posting employees in the framework of provision of services (“the Ordinance”), namely:
Posting on the part of a Bulgarian employer on the territory of a Member State of the European Union (EU) under a contract of services between the employer and the user of the services or as intra-group posting
- The scope of the application of the additional agreement is extended
The agreement shall be applied also in cases of posting by a temporary employment undertaking or a placement agency for performance of the work duties of the posted employee outside his place of permanent employment.
- Amendments are made in the contents of the above additional agreement and employment agreement upon posting by a Bulgarian undertaking of an employee to a user undertaking on the territory of the EU.
The agreement/employment agreement shall include:
- The basic and additional employment remunerations – the specification “of permanent character” is deleted;
- The conditions for lodging of the employee when it is provided by the employer during the time of the posting/sending.
- A rule is introduced regarding the paid travel, board and lodging allowances in cases when the employee performs part of its work outside the town/village where he was initially posted or sent to.
The employer or undertaking which provides for the temporary work pay the allowances in amounts specified by the legislation of the host Member State.
- The amount of the remuneration which can be agreed and should be really paid by the employer/temporary employment undertaking is specified.
That remuneration should not be at a lower amount than the one set for the basic and additional employment remunerations (and not as it was set before – the minimum remuneration and rates) for the same or similar work in the host country.
Posting or sending on the territory of Bulgaria of employees on the part of an employer in EU under a contract of services between the employer and the user of the services or as intra-group posting within undertakings from the same group or a temporary employment undertaking in EU
- The minimum work conditions in cases of posting/sending of employees in Bulgaria for the period till and over 12 months are amended.
1.1 The requirements for the same minimum work conditions as the ones provided for the Bulgarian citizens should be applied in cases of posting/sending to Bulgaria for a term till 12 months.
The following amendments in the minimum work conditions are provided:
- The basic and additional employment remunerations (and not the minimum employment remuneration) shall be part of the minimum conditions.
The minimum work conditionals shall also include;
- Lodging conditions when the lodging is provided by the employer or temporary employment undertaking;
- Travel, board and lodging allowances when the employee performs part of its work outside the town/village where he was initially posted or sent to – these allowances being in the amounts provided in the Ordinance on the business trips in Bulgaria or the Ordinance on business travels and specializations abroad.
The basic and additional employment remunerations shall include all the elements under the Labour Code and Ordinance on the structure and organization of the employment remuneration, where:
- All the allowances paid in the Member State from which the employee is posted shall be taken into account;
- Paid travel, board and lodging allowances should not be taken into account.
The rule-exception that the requirement for the same minimum work condition regarding the basic and additional remunerations, conditions for overtime and night work and the amount of payment for them and the minimum amount of paid annual leave will not apply in the cases of installation and/or putting into operation of delivered facilities, when:
- these activities are an integral part of the delivery agreement;
- are performed by a qualified employee of the supplier, and
- the employee is posted or sent for no more than 8 calendar days.
Appendix No 1 to the Ordinance is specified. It contains the activities with the types of works in the field of construction, for which the above rule-exception will not apply. These activities relate to the construction, repair, restoration, maintenance, alteration or demolition of buildings.
1.2 When the duration of the posting or sending is more than 12 months, after the twelfth month the employee is entitled to the minimum working conditions provided in the Bulgarian legislation for the same or similar work regarding:
- some particular compensations under the Labour Code;
- free food;
- regular medical examinations;
- free work clothes and uniforms;
- social-living and cultural services.
The above rules for the additional minimum work conditions under the Bulgarian legislation shall also apply when the posted or sent employee is replaced with another employee by the employer or the temporary employment undertaking, if:
- the posting/sending is for the same task at the same place and
- the total duration of the posting or sending periods is more than 12 months.
The nature of the work, the type of the service provided, the user of the service and the address or addresses of the place of work are taken into account.
For the employees posted and sent on the territory of Bulgaria the following provisions shall not apply, namely the provisions:
- singing and termination of the employment agreement;
- social security in additional professional schemes.
When there is a need that the period of the posting or sending to Bulgaria lasts more than 12 months, the employer or the temporary employment undertaking may apply the minimum working conditions under Bulgarian law:
- for a period not exceeding 18 months and
- after having submitted a motivated notification to the Executive Agency “General Labour Inspectorate” – the submission should be done electronically through the single national website of the Executive Agency “General Labour Inspectorate” before the end of the 12th month.
1.3 When the posting or sending to Bulgaria has started before the entry into force of the above amendment, the period of 12 months shall be calculated from the starting date of the posting or sending.
- Amendments are made regarding the unified national website maintained by the Executive Agency “General Labour Inspectorate” in Bulgarian and English:
- The content of the site has been specified.
- When the employer or the temporary employment undertaking has violated the requirements of the Bulgarian legislation due to outdated information on the website, the violation will be considered as committed in mitigating circumstances.
- Amendments are made regarding to the overall assessment carried out by the the Executive Agency “General Labour Inspectorate”:
- It is already about the actual sending (not just formal secondment) of employees;
- When it is found out that the posting or sending is not valid, all the requirements of the Bulgarian legislation shall be applied to the employment relationship, when they are more favorable for the employee than those provided for in the legislation of the sending country.
It is clarified that the Ordinance implements the requirements of Directive (EU) 2018/957 of the European Parliament and of the Council dated 28th June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services.