Aims of study. Social and Labour Rights and EU Internal Market Law 09/10/2015

Transcription

1 Social and Labour Rights and EU Internal Market Law Presentation to EP EMPL committee, Queen s University Belfast,, University of Leeds Overview Relevance and aims of the study Traditional views: status quo in case law and legislation Perceptions and reactions of social actors in Ireland, Poland, Spain, Sweden and at EU level Our concept: the conditioned internal Some policy recommendations 2 Aims of study Provide a guide for policy making Fundamental document for the whole legislature Demonstrate whether and how tensions are experienced by social actors at national and EU levels Conclusions and recommendations provide examples, not thematic package 3 1

2 Overview Relevance and aims of the study Traditional views: status quo in case law and legislation Perceptions and reactions of social actors in Ireland, Poland, Spain, Sweden and at EU level Our concept: the conditioned internal Some policy recommendations 4 Traditional perceptions: a tension 5 We found: a contradictory picture Competition rules Social & labour rights CFREU Economic freedoms business (49, 56 TFEU) Free movement of workers 6 2

3 We found: a contradictory picture Competition rules Collective labour rights Economic freedoms business (49, 56 TFEU) Free movement of workers 7 We found: a contradictory picture Competition rules Fair working conditions Economic freedoms business (49, 56 TFEU) Free movement of workers 8 We found: a contradictory picture Competition rules Social security/assistance Economic freedoms business (49, 56 TFEU) Free movement of workers 9 3

4 Empirical research: Tensions on the ground How do socioeconomic actors at national and EU level react to those tensions? Perceptions and reactions of social actors in 4 Member States and at EU level Interlocking of posting and agency work (i) Marginal quality of employment exacerbated: abuses of posted workers rights are common, in particular posting of agency workers to combine access to lower wage labour, low taxes and limited social security (p. 77) -Case of Ireland: increase in agencies in the construction sector following fall of REAs + weak regulation of agencies makes abuse possible 11 Interlocking of posting and agency work (ii) for many other European countries it's cheaper to create a company in Ireland and to post your workers through Ireland there's some significant abuses of that in terms of agency work so people are employed by agencies who are based in Ireland but have never been to Ireland and know nothing about Ireland (Interview, ICTU) Convergence between unions and employers views in construction: binding agreements are best to protect posted workers (specifics of the sector also in other EU countries) 4

5 Challenges (posting) (i) Enforcement Directive 2014/67 on posting may improve the situation, e.g. by requiring provision of statistics of incoming and outgoing posted workers (Spanish respondents), but still challenges ahead: 1. Lack of enforcement: the resources that are dedicated to those at the European level and at the national level, to enforce the rules, are insufficient. So that there s a lot of abuse (EU Rights Clinic) 13 Challenges (posting) (ii) 2. Scepticism about control mechanisms and potential abuse of joint liability clause: Instead of civilising and legalising these relations it will go deeper into the grey zone. Some companies will not resign from sending the workers (Polish NGO lobbying for effective free movement) Decisive role of trade unions to enforce rights Public procurement Robust transposition of new directive crucial to ensure improvements on the ground but still EU case law frustrates scope of social clauses in public works tendering processes (esp. in Sweden) In Ireland trade unions sought to specify social clauses through collective agreements to select provider: introduction of sanctions such as withholding of payments upon final checks for compliance with employment standards (ICTU) In Sweden aspects of new directive cited as inapplicable -there is no mechanism to achieve ministerial declaration of universal application for collective agreements yet positive example of VitaJobb model of socially responsible procurement by local authorities: prevent undeclared work + role of unions as consultants 5

6 Social security and social assistance Social security of posted workers a particularly problematic area but increasingly also for free movers : difficulties in proving habitual residence and continuity of employment hinders access to protections.there is some creeping erosion of the hitherto sanctified position of workers ( ). And we see it not only because Member States are basically unilaterally adopting guidelines to limit who benefits from worker status under European law (they are also) taking advantage of the fact that the European Court says that the final analysis of whether you get to be a worker or not is for the national courts to make (EU Rights Clinic) Reluctance of national governments to maintain the principle of equal treatment in the field of social assistance risk of frustrating free movement rights 16 Overview Relevance and aims of the study Traditional views: status quo in case law and legislation Perceptions and reactions of social actors in 4 Member States and at EU level Our concept: the conditioned internal Some policy recommendations 17 CFREU protection: contradictory? Rights of business Social & labour rights, e.g. CFREU boosts rights of people, not corporations (Articles 15, 21) 18 6

7 Solution one: differentiated rights CFREU principles Rights under investigation Rights congruent with ECHR rights (52 (3) CFREU) Rights with inherent limitations (see also Article 52 (2) CFREU) Rights only conditioned under Article 52 (1) CFREU Principles under Article 52 (5) CFREU Article 12 (Collective labour rights) Articles 12, 34 (1) (social protection) Article 31 (fair working conditions) Articles 16 (business), Article 28 (collective bargaining Article 31, 34 (disputed) 19 Solution two: equally ranked rights No right to be limited more than necessary in order to protect countervailing rights Optimisation without impacting on essence 20 Change options The Ryan Air Dispute (if it ever came before the Court) should be decided differently from Laval and Viking, with due regard to collective labour rights Danish unions: Ryanair strike from July

8 Recommendations: 3 types of action Promoting new concept of conditioned internal Legislation correcting case law/legislation based on the out-dated perception of tensions Activities and regulation by social actors (esp. social partners) 22 Recommendations (1) Promoting the conditioned Legislation correcting tensions model Activities and regulation by social actors Equal treatment of people who move: combat myth of the undeserving by empirical studies on mobile workers Support pilot projects for socially responsible public procurement Competition law and collective bargaining: research and publicity on collective agreements creating institutions for cross border social security 23 Recommendations (2) Promoting conditioned Legislation correcting tensions model Activities and regulation by social partners Posted workers (directive 96/71): ensure equal treatment for foreign workers at the place of work, whether they move as posted or agency workers or independently. Adapt to accommodate voluntary industrial relations systems Enforcing equal treatment: apply Dir 2014/54 to posted workers and social security (complementing Dir 2014/67) Create social security benefit for marginal workers who move in order to escape un(der)employment (Article 48 TFEU) 24 8

9 Recommendations (3) Promoting conditioned Legislation correcting tensions model Activities and regulation by social actors Explore scope for creating transnational collective bargaining and industrial action (aiming at social security institutions, responding to cross border moves of companies, securing adequate conditions for posted workers) Implementation of Directive 2014/54: support collective bargaining / agreements (EU/transborder) to prevent exploitation of migrant workers from within and beyond he EU (e.g. EP pilot project) 25 Thank you for your attention! Please do not hesitate to contact us for more clarification d.schiek@qub.ac.uk g.alberti@leeds.ac.uk 9