OL and Others v Rapidsped Fuvarozási és Szállítmányozási Zrt
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Judgement date :08/07/2021
In the present case on transnational provision of services in the road transport sector, the CJEU confirmed that the 96/71/EC Posting of Workers Directive and its provisions on remuneration can be relied upon before a national court in the sending Member State, and clarified to what extent allowances for posted workers can be considered part of the minimum wage and whether fuel saving bonuses can be considered an infringement of Article 10(1) Regulation (EC) No 561/2006 on the harmonisation of certain social legislation relating to road transport.
The facts concern Hungarian drivers posted to France who received an hourly pay for their time working in France that was both lower than contractually agreed and far below the French sectoral minimum wage. The drivers brought an action before the referring Hungarian court to remedy the situation, however their employer argued that the salary should be calculated in conjunction with both the daily allowance drivers received to cover the costs associated with posting and with the fuel saving bonus paid on a discretionary basis; this, they argued, brought the wage in line with what had been contractually agreed as well as the relevant minimum wage.
The CJEU first established that Directive 96/71 is applicable to the current case [para. 36] and therefore that a breach by an employer established in one Member State, of another Member State’s provisions concerning minimum wage, may be relied on against that employer by workers posted from the first Member State, before a court of that State, if that court has jurisdiction. [Para 45].
While the drivers could thus rely on Directive 96/71, the CJEU’s interpretation of their terms and conditions of employment established that a daily allowance, the amount of which varies according to the duration of the worker’s posting, constitutes an allowance specific to the posting and is thus part of the minimum wage unless it is a reimbursement of costs actually incurred or it alters the relationship between the service provided and the consideration received. [Para. 54].
Furthermore, on the matter of bonuses, the CJEU considered that a bonus calculated on the basis of the savings made in the form of reduced fuel consumption in relation to a journey made is not to be considered prima facie an infringement of Article 10(1) Regulation No 561/2006. It could be considered as such however if the bonus were to be rewarded based on the distances travelled and/or the amount of goods carried, in such a way as to encourage the driver to act in a manner that endangers road safety or infringes Regulation No 561/2006. [Para.63].