The State Labour Inspectorate of Lithuania (SLI) approved the procedure on the basis of which SLI inspectors will conduct inspections of economic entities to verify the reasonability of the posting of workers, i.e. to establish whether workers posted by companies may indeed be regarded as posted within the meaning of 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 and whether they may be entitled to benefits set out in the Law of the Republic of Lithuania on Guarantees for Posted Workers.
The new SLI procedure will serve as a guide for companies allowing them to assess whether a worker is truly posted and where he really works and to be accordingly informed of which state taxes should be paid to.
Criteria to be taken into account when formalising the posting of workers from Lithuania:
Posting of workers from Lithuania shall be regarded as such seconding of a worker for temporary work in a foreign state where the posting employer carries out the essential part of his activities in Lithuania, also when the posted worker is employed in Lithuania and works in another state on a temporary basis.
In order to determine whether the posting employer carries out the essential part of his activities in Lithuania, the following criteria should be considered:
The part of the employer’s activities in Lithuania shall not be recognised as essential if prior to the posting of workers the employer concerned has been carrying out economic activities for less than two months in the 12 month period, if following the posting of workers the employer does not continue his operations in Lithuania or is only engaged in internal management activities in Lithuania or his income from activities pursued in Lithuania accounts for less than 10% of his total revenue over 12 months preceding the posting of workers.
In order to establish whether a worker is actually employed for work in Lithuania and performs his functions in another state on a temporary basis, the following criteria should be taken into consideration:
Criteria to be taken into account when formalising the posting of workers to Lithuania
Posting of workers to Lithuania shall be regarded as such seconding of a worker where the posting employer is an entity registered other than in the territory of Lithuania, also when the posted worker is employed in a foreign state and performs his functions in Lithuania on a temporary basis.
In order to determine whether a worker is posted for work in Lithuania and permanently performs his functions in a foreign state, the following criteria should be considered:
If it is established according to the above criteria that a worker permanently works in Lithuania and does not meet the criteria set for a worker posted to Lithuania, the Law of the Republic of Lithuania on Guarantees for Posted Workers shall not apply and such posting of the worker shall be regarded as fictitious.
SLI will conduct inspections upon receiving requests from authorities of EU or EEA Member States for cross-border assistance. Information will be managed through the use of the Internal Market Information (IMI) system which will enable SLI to receive information from foreign authorities with regard to persons established in EU or EEA Member States who post their workers to Lithuania and information about the legality of work carried out by posted workers.
By Inga Klimašauskienė, Associate Partner, law firm GLIMSTEDT
The article was published on eela.org