Global Updates – Finland, Germany, Israel, and Malaysia
FINLAND – New Notification Requirements for Posted Workers
Effective 1 September 2017, companies posting employees for assignments in Finland will have new notification requirements.
Finland has become the latest European Union member nation to revise its national laws and procedures to transpose the EU Posted Worker Enforcement Directive (2014/67/EU).
Both the new Act on Posting Workers (447/2016) and the old Posted Workers Act (1146/1999) apply to posted workers. Note that the old act will still apply to posted workers when the new act comes into force if these workers have been posted to Finland based on a contract that concluded before 18 June 2016.
Effective 1 September 2017, any company posting a foreign worker on an assignment in Finland must submit notification of the posting to the Finish Occupational Safety and Health Administration (OSH) prior to the start of the assignment, online via the electronic form on the OSH website. Companies should be mindful that:
- “Postings” include those instances where a foreign employee is assigned through internal transfers or assignments within a group of companies (an intra-company transfer), temporary agency work, and cross-border contract work, including subcontracted work;
- The notification is contractor- and workplace-specific, that is, if the job is done in several locations or for several contractors a separate notification must be made for each of them;
- Notification is not required when workers are transferred within a group of companies for up to five days in a four-month period. This exemption does not apply to companies in the construction sector; and
- In the construction sector, a subcontractor must also notify the builder and the main contractor of the posting.
Information that must be included in the notification includes:
- Identifying details of the company, contact information, foreign tax identification number, and information on the responsible persons of the posting company in the country where the company is established;
- Identifying details and contact information of the contractor;
- Identifying details and contact information of the builder and the main contractor for companies in the construction sector;
- Estimated number of posted workers;
- Identifying details and contact information of the postings company´s representative in Finland, or information indicating why a representative must not be selected;
- Starting date of the posting of workers and the estimated duration of the posting;
- Place where the work will be carried out; and
- Branch in which the worker will work.
If any of the information in the initial notification changes significantly, a subsequent notification must be submitted immediately.
Should the company fail to either submit the initial notification, or any subsequent notification of changes, the OSH may impose a penalty of EUR €1,000 to €10,000.
Companies posting foreign national employees to Finland should consult with their immigration advisor at McCown & Evans to ensure that they comply with the new notification requirements
GERMANY – New Intra-Company Transfer Permits Introduced
Germany has introduced new processes for intra-company transfers, which implement the European Union intra-company transfer (ICT) directive (Directive 2014/66/EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer”).
There are three new routes available for intra-company transferees, which came into effect on 1 August 2017:
- ICT Card for stays of more than 90 days for third-country national transferees from outside the EU;
- Mobile ICT Card for stays of more than 90 days for transferees holding an ICT card issued by another EU member state; and
- Notification for short-term intra-company transfers of up to 90 days for transferees holding an ICT card issued by another EU member state.
The intra-corporate transferee permit, or ICT Card, is a new residence category for third-country nationals on assignment in Germany from outside the EU, for more than 90 days. Requirements for the ICT card include the following:
- The applicant must be on assignment as a manager, specialist or trainee, with appropriate qualifications if applicable, within the same group of companies;
- The applicant must have been continuously employed by the group of companies for at least six months prior to the assignment;
- Managers and specialists can obtain an ICT Card for assignments up to a maximum of three years (non-renewable), while trainees may be granted a maximum of one year;
- A “cooling off” period of six months between applications applies;
- A holder of an ICT Card issued in Germany can work in another EU member state for a company of the same group, for up to 90 days in a 180-day period, without obtaining a separate permit in that country (the host country may require a notification). For stays of more than 90 days, but not longer than the assignment in Germany, a “mobile ICT permit” may need to be approved by the second EU country or countries; and
- The transferee’s spouse does not need to demonstrate German language skills to obtain a residence permit as a dependent.
Mobile ICT Card
The Mobile ICT is a new residence category for third-country nationals holding an EU ICT permit issued by another EU member state, on assignment in Germany for more than 90 days, as managers, specialists or trainees, within the same group of companies.
The transferee may not stay in Germany for longer than in the EU member state that issued their original EU ICT permit.
Notification for Short-Term Intra-Company Transfers
Third-country nationals holding an EU ICT permit issued by another EU member state, sent on assignment to Germany within the same group of companies, for up to 90 days within any 180-day period are not required to obtain a mobile ICT card.
The sending company in the EU member state for which the transferee already holds an EU ICT permit must notify the Federal Office for Migration and Refugees (BAMF) of the assignment, in advance of the trip.
Comparison with Existing Schemes
The existing residence permit for employment purposes (available for intra-company transfers) continues to be available in parallel to the new EU ICT Card.
Also still available are the expedited process for assignees hosted by companies which qualify for the International Personnel Exchange program, and the expedited process for certain short-term assignments under 90 days for fitting, installing, maintaining or repairing machines, equipment, computer program, or other technical systems for a client or a branch office within the same group of companies.
The new ICT Card is not available for short-term assignments (under 90 days) from outside the European Union. For this kind of assignment, only the existing national processes are applicable.
Under the existing schemes, the assignee must have worked for at least one year for the sending company.
For the new ICT Card, managers and specialists only require six months of seniority with the sending company.
Under the national scheme, dependent spouses are required to prove basic German language skills, unless the principal applicant is a national of Australia, Canada, Israel, Japan, New Zealand, South Korea or the United States – this is not a requirement under the new ICT Card rules, making the new process an attractive alternative for assignees travelling with their family.
Companies sending or hosting third-company nationals for assignments within the same group of companies are advised to consult with their immigration advisor at McCown & Evans for more specific advice on the most appropriate route.
ISRAEL – Relaxed Criteria for Work Permits for Foreign Experts; and Increased Immigration Audits at Client Sites
The Ministry of Interior has recently relaxed the qualifying criteria for work permits for foreign experts engaged in professions requiring a higher academic education.
Immigration authorities have also recently increased audits at client sites.
Effective immediately, the work permit sub-category for academically qualified foreign experts is open to applicants with at least two years of post-high school education. Previously, this category required at least a Bachelor’s degree.
Employers of qualifying assignees are exempt from certain additional requirements:
- A bank deposit equal to the cost of repatriating the applicant (36,000 NIS per applicant);
- Proof of a local bank account for the applicant;
- A letter from an Israeli lawyer confirming that the contract of employment is compatible with Israeli law; and
- Additional company or personal affidavits.
Despite the modification, the Working Permit Unit within the Israeli Ministry of Interior retains full discretion to classify such assignees under the sub-category of non-academically-qualified staff (professional qualifications).
Companies should be aware that the Enforcement Unit of the Immigration Authority has recently increased audits at client sites.
Foreign nationals who are found at client sites without a working visa and are suspected of engaging in work activity will be detained and deported from Israel.
Further penalties may be levied against the assignee as well as the Israeli employer, including extremely high fines, criminal charges and possible criminal indictment against the directors of the employing company.
Employers of foreign experts assigned to Israel should consult with their immigration advisor at McCown & Evans regarding the correct category of application, and the supporting documents required. In addition, all employers of foreign nationals in Israel are advised to maintain immigration compliance and to consult an immigration specialist prior to any visit of a foreign national to a client site.
MALAYSIA – Reminder: Reclassification of Employment Pass Categories from 1 September 2017
Employers in Malaysia are reminded that, from 1 September 2017, the salary threshold to qualify for the EP I category of Employment Pass (EP) has increased from MYR 5000 (about USD 1172) to MYR 10000 (about USD 2345) per month.
The applicant will be able to apply for an EP valid for a duration of up to five years, where currently the maximum duration is three years, with two years being the norm.
The EP II category will still be granted for up to two years, and the minimum salary for this category will remain at MYR 5000 per month.
The EP III salary threshold will increase from MYR 2500 to MYR 3000 per month, with no change in the maximum duration of one year with up to two renewals.
The reclassification will take effect at both the MYXpats Centre of the Expatriate Services Division (ESD) of the Ministry of Home Affairs (MOHA), and at Malaysia Digital Economy Sdn Bhd (MDEC), which processes Employment Passes for Information Communication Technology (ICT) companies and companies registered for Multimedia Super Corridor Malaysia (MSC Malaysia) status.
Employers of foreign nationals in Malaysia should consider the reclassification of Employment Pass categories. Please contact your McCown & Evans for further details.