Darbuotojų komandiravimas į užsienį teikti paslaugų

LTReikšminiai žodžiai: Darbo sutartis; Darbo teisė; Darbuotojai; Darbuotojų komandiravimas; Komandiravimas; Laisvas asmenų judėjimas; Laisvas paslaugų judėjimas; Employees; Employment contract; Free movement of persons; Free movement of services; Labour law; Posting; Posting of employees.

ENThe article examines the legal aspect of employment in the implementation of the freedom of the provision of services - one of the four freedoms of the common market - as concerns the mandatory conditions of employment applicable to the workers of the employers who provide services of international character in that State. The analysis of the formal and factual goals underpinning the adoption of Directive 96/71/EC of the European Community, as well as of the scope of its application and principal provisions, leads to a conclusion that by establishing a list of the minimum conditions of employment, the Directive concurrently deals with the still relevant issue of the application of mandatory minimum standards of employment within the framework of the labour law chosen by the parties or determined by the colliding norms. The author further looks into the appropriateness of the concept of the transposition of the D i rective and the conformity of the transposing national legal act - the guarantees to the posted workers - to the provisions of the Directive. A s a separate issue examined by the author is the posting of employees to render services to a buyer located in the territory of Lithuania in accordance with the Directive, and indicates that Directive 96/71/EC provides for comparatively far wider possibilities for a Member State to reduce the minimum requirements for the conditions of employment in respect of workers arriving in its territory. Nevertheless, the legislation of the Republic of Lithuania does not provide for any exceptions of this character. A greater attention is paid to the cases of the "more challenging" instances of employee posting - workers of the employers from third countries have to acquire a work permit.Meanwhile, in respect of employers from the Member States, the mechanism of notification on the arrival of an employee and the conditions of employment thereof is being applied. In addition, this mechanism is applicable exclusively in cases where the services rendered are related with construction work. Irrespectively of the absence of such requirement in the Directive, the Lithuanian legislator has established in the relevant law a necessity for Lithuanian employers to apply to their employees posted in the territory of the European Union or in the European Economic Area countries the more favourable minimum conditions of employment existing in the country of posting. The minimum protection of employee rights guaranteed in every Member State may have a restrictive effect on the freedom of employers to provide services of international character, therefore the national law has always been subjected to supervision as to its conformity to the provisions of the freedom of services. Thus, in separate cases it will be necessary to resolve a dilemma of what is to be given priority - the goals of social policy and the protection of employee rights or a common market freedom, i.e. the freedom of services. [Text from author]