Lawyer Robert Trăilescu explains the key legal challenges businesses need to consider when managing employees across borders
Cross-border employee posting involves a set of legal obligations whose complexity companies are not always fully aware of – and which they sometimes discover far too late: when regulatory authorities in third countries or even in Romania request documents that employers cannot provide, when significant tax liabilities are established retroactively and may bring a business to a complete standstill, or when something happens to workers who are away on assignment.
From the correct classification of operations and the determination of applicable working conditions to contractual documents, mandatory notifications and responsibilities towards external partners, the compliant management of professional assignments in other countries requires preparation that goes far beyond the usual administrative formalities.
These challenges were at the center of the presentation given by lawyer Robert Trăilescu, founder of RT Legal Office, during the event “International Mobility: Legislation, Taxation and Best Practices for Employers”, held on 13 October in Sibiu, where he addressed the topic “Contractual Best Practices for Economic Operators in the Context of Employee Mobility”.
Correct legal classification of posting cases
One of the fundamental problems employers face is determining the situations in which an employee’s travel abroad constitutes a transnational posting.
Although employee posting has become a regular component of international economic activity, the applicable rules differ significantly depending on the nature of the activities carried out, the contractual relationships between undertakings, the way work is organised and the particularities of the country in which the services are provided.
Legal obligations begin before the employee goes abroad
One of the important messages of the discussions in Sibiu concerned the need to prepare cross-border operations as early as the contractual stage.
Lawyer Robert Trăilescu analysed the three main situations of transnational posting: posting in the context of the provision of services, intra-group posting and the making available of workers through temporary employment agencies. These distinctions are essential, as they influence both the employer’s obligations and the legal relationships with the beneficiary undertaking.
He also explained why the short duration of an assignment does not automatically exclude the application of the posting regime and why the mobile nature of a worker’s activity does not, in all situations, lead to the same legal consequences.
Particular attention was paid to the obligations companies must fulfil before posting: informing employees, preparing contractual documents, identifying the remuneration and working conditions applicable in the host country, as well as submitting notifications to the competent authorities in the situations provided for by law.
“If we do not assign the correct legal label to the situation involving an assignment abroad from the very beginning, we jeopardise everything that follows: from the necessary formalities to tax classifications.
What we observe in practice is that many companies sending employees to work in other European countries do not know the full set of obligations incumbent upon them – not because they refuse to comply with them, but because they do not realise that these obligations apply to the operations they carry out or simply do not know that they must complete certain formalities.
Non-compliance can begin with the way contractual relationships are structured. This is why the legal analysis must be carried out before the activity begins, not when the first inspection takes place.” – Robert Trăilescu (RT Legal Office)
Organisation of contractual relationships between undertakings, essential for preventing risks
Clearly establishing responsibilities regarding the coordination of workers, recording working time, exchanging information, bearing certain expenses and cooperating in the event of inspections can contribute significantly to preventing disputes or situations of non-compliance.
In this context, an important issue for companies is that compliance with transnational posting legislation cannot be reduced to completing a declaration or signing an addendum to the employment contract. Compliance involves aligning documents and legal obligations with the way activities abroad are actually organised and carried out.
At the same time, the correct application of the legislation does not mean imposing the same formalities on all professional assignments abroad. Identifying the exceptions, derogations and special rules applicable to certain categories of workers is just as important as identifying the obligations themselves.
Through his participation in the event in Sibiu, lawyer Robert Trăilescu brought to the attention of the business community a subject in which the rigorous interpretation of European and national rules must be accompanied by an understanding of the commercial and organisational realities of companies.
