The purpose of this summary is to provide an initial survey of risks and particular issues under Danish employment and labour law that foreign contractors or subcontractors should observe when assigning foreign employees to Denmark.
As a rule of thumb, employees seconded to Denmark from EU countries and third countries will - depending on the circumstances - normally have their closest connection to their home country if the assigned employees perform their work in Denmark only for a continuous period of approx. 2 years. This implies that indispensible labour law provisions in the respective home countries would apply as a minimum.
If, however, the assigned employees have performed their work in Denmark for a continuous period of more than approx. 2 years, Danish indispensable labour law applies.
In accordance with existing Danish practice and stipulations in the Danish Posting of Workers Act, a foreign employer is, however, obligated to ensure that the assigned employees in Denmark as a minimum are granted a number of rights – irrespective of the length of the assignment.
In general, Danish collective labour market agreements are only applicable to legal entities which:
(1) have entered into a collective bargaining agreement with the respective trade unions, or
(2) are members of the respective employers' organisation, e.g. the Danish Construction Association.
If the foreign contractors or subcontractors choose not to enter into a collective bargaining agreement, Danish trade unions are entitled to raise a claim against the foreign company that provides services to Denmark by assigning employees to Denmark for entering into a collective bargaining agreement. In this connection, the unions are entitled to take legal industrial actions (strike, embargo) against the foreign company to ensure that the employees receive remuneration amounting to what Danish employers must pay under the Danish collective agreements governing the relevant sector.
The trade unions are only entitled to raise a claim for entering into a collective bargaining agreement in relation to wages and salary conditions – other working conditions are not included.
The mentioned wages and salary conditions are calculated as one total salary to be paid as a minimum to the employee.
The tender material (if relevant) may determine that foreign contractors or subcontractors in general are obligated to comply with all employment terms and conditions (and not just remuneration rights) under the respective Danish collective bargaining agreements, e.g. working time rules and payment for working overtime etc.