This article previously appeared on Nieuwsblad Transport.nl: The rules regarding secondment in road transport - part 2.
Earlier, I wrote an article about the new rules from the Mobility Package that pertain to posting drivers. In it, I focused mainly on the question of exactly what forms of secondment there are and what rules apply to them. The different forms of secondment are: pure secondment, intra-company secondment and temporary employment. You can find this article here.
In this article, I explore the form of pure secondment and what secondment rules apply to it. Pure secondment includes performing a transportation assignment for a customer. This can be for the direct customer of the cargo, but also as a sub carrier for another transport company (a charter assignment). The following forms of transportation are/are not covered by the posting rules:
- Bilateral transportation is not posting;
- Transit transportation in another state is not posting;
- A trip that is part of combined transportation is not a posting, provided the trip itself is bilateral (see subsection 1).
- Cabotage transportation is always secondment.
- Non-bilateral international transport (cross-trade transport) is posting.
But what exactly does this mean? When should a transport company pay its drivers different wages if the wages in other countries are higher than its own? And how should that wage then be calculated (per country, per day, per hour, per kilometer)? There are many different options and I can imagine that companies sometimes can't see the wood for the trees, or don't know where to start implementing these new rules in their organization.
It should be noted that, unfortunately, there is still much uncertainty about the application of these new rules and that the Netherlands and many other EU countries have still not transposed the rules from the Transport Specific Posting of Workers Directive into national legislation. However, the European Commission has now provided an explanation of the application of the new posting rules. I will explain these rules to you using a number of practical examples.
Bilateral transport
That simple bilateral transportation is not posting is fairly easy to follow. A transport is loaded in its own country, unloaded in another country, where it is then loaded again for the way back home. A child can do the laundry. But what happens when there are no full loads and there are multiple unloading addresses in multiple countries?
A driver of a Dutch transport company loads his truck full in Amsterdam. On the way, he unloads a few pallets in Germany, a few pallets in Denmark, and the last part is for final destination Norway.
Again, there is no posting in this case. This assumes that multiple bilateral operations are carried out in one trip. The condition is that a separate bill of lading is available for all bilateral operations. Also on the return trip, loading is allowed at three different locations for unloading in the home country without posting.
Cross-trade transport
So if multiple transport orders are allowed within one trip (from home to another country and back again), what happens if one of those orders is not bilateral, but a cross-trade order?
A driver of a Polish transport company loads his truck in Poland for a trip to Germany, where it is fully unloaded. In Germany, it is again fully loaded for a trip to the Netherlands, where it is again fully unloaded. Finally, it is loaded in the Netherlands to return to Poland where it is unloaded again.
The first and last transport assignment for this driver are bilateral, so there is no secondment. The journey in between, between Germany and the Netherlands, is a cross-trade transport, which does involve secondment.
One exception
There is one exception to this, which is when as part of a bilateral trip, a so-called exempt cross-trade activity is added. The driver may do that once on the outward journey and once on the return journey. If he does not use it on the outward journey, he may do it twice on the return journey. The condition is that the cargo must not be loaded and unloaded in the same country. In the above example of the Polish driver, that would look like this:
A driver of a Polish transport company loads half of his truck in Poland with a load for final destination Netherlands. In Germany, he loads for destination Belgium, where the driver drives directly to and he immediately unloads the goods that were loaded last. He then drives on to the Netherlands where he then also unloads his original cargo that has been in his truck since the beginning of the trip.
Cabotage
For cabotage orders there are no exceptions, for these transports there is always posting, even when they are part of an original bilateral trip. It does not matter whether there is a full load or a partial load. When a load is loaded in a country other than the home country and also unloaded in that other country, there is always secondment.
As you can imagine, there are countless different types of transportation assignments that can take place in addition to these examples. And, of course, it is never as straightforward as outlined in such examples. So it is not easy when a driver is away from home for three weeks to determine which assignments are bilateral, which assignments are cross-trade, and which loads are loaded and unloaded in the same country. I recommend that all transportation companies therefore recommend that they start by mapping common routes within their company. That's step one.
But then we are not there yet. Step 2 is then to determine exactly which working conditions from the country in question apply to which part of the journey. Because, as you will undoubtedly have concluded while reading this article, this system can lead to a driver being posted to many different European countries within one month or period. How to handle that, I will tell you next month.
