Posting of Workers Directive Armindo Silva European Commission Head of Unit, EMPL/F2 Labour Law -1-
Directive 96/71 - The background Increased posting of workers from low- to high-wage countries after enlargement gave rise to concerns of social dumping; Rome Convention (1980) offers a general legal framework but fails to define «mandatory rules» (arts. 6 & 7); Case law reduced legal uncertainty, but deemed insufficient. -2-
Directive 96/71/EC The objectives Legal basis: Article 49 ECT (freedom of services); Twofold objective: To ensure cross-border provision of services and to protect posted workers rights; It does not create new social rights; it determines which labour rules apply to a worker who is posted in a MS different from the one where he normally works; It defines a set of mandatory rules in the host country that must be complied with by the undertaking that post workers, irrespective of the rules applying in the country of origin. It sets out obligations for MS to provide information, to cooperate and to monitor and enforce compliance. -3-
Directive 96/71 Three types of posting Subcontracting of workers; Intra-company or intra-group secondments Cross-border hiring out of workers by temporary employment agencies. -4-
Aspects covered by mandatory rules Minimum pay; Maximum working time; Annual leave; Health and safety; Conditions applying to pregnant women and young people; Non-discrimination; Hiring-out of workers. -5-
Questions raised by application of Directive (1) Control measures How far can the national authorities go in controlling compliance by foreign undertakings in their own territory without infringing the principle of freedom to provide services? -6-
Questions raised by application of Directive (2) Access to information and administrative cooperation; monitoring and enforcement How to improve the work of liaison offices so that undertakings and workers get better access to information and national authorities of both origin and host countries cooperate better among themselves? How to ensure effective monitoring and enforcement? -7-
Questions raised by application of Directive (3) Interpretation of certain legal issues the temporary nature of posting; the definition of worker; public policy provisions; rules determined by collective agreements that are not of universal application. -8-
Communication 2006 The background: Proposal for a directive on services Art. 24 (1) set limitations on the controls that host country can use for verifying compliance with PW directive; Art. 24 (2) defined stronger obligations for the country of origin in ensuring compliance by posting undertakings; Art. 25 dealt with the conditions applying to posted workers of third countries -9-
Communication 2006 The aims To provide guidance to Member States about which measures they are allowed to use in order to control application of Directive 96/71 in their territory without infringing Article 49 on free provision of services. To help Member States to improve access to information, administrative cooperation and provisions on monitoring and enforcement. -10-
Communication 2006 Clarifies the nature of obligations imposed by host countries on foreign undertakings, based on ECJ jurisprudence: To have a representative in its territory To obtain authorisation or prior registration To make a declaration To hold and keep social documents in its territory -11-
Communication 2006 (cont) Clarifies the nature of obligations imposed by host countries on foreign workers, based on ECJ jurisprudence: Administrative formalities (visas, work permits) imposed on posted workers from third countries when these are lawfully employed in another MS. -12-
Communication 2006 (cont) Invites MS to step up their efforts: To improve access of workers and undertakings to information on conditions of employment To cooperate with other MS To equip liaison offices appropriately -13-
Communication 2006 (cont) Invites MS to re-examine their systems for monitoring compliance with Directive Improve effectiveness of labour inspectorates Adopt sanctions and penalties which are proportionate and dissuassive. -14-
Post-Communication 2006 Commisson has: Continued to support cooperation among MS, in the context of the expert group, and promote better exchange of information Monitored efforts made by MS to facilitate access to information and to carry out administrave cooperation Sent a questionnaire to MS and social partners Started preparation of report to assess progress since the adoption of the communication -15-
http://europa.eu.int/comm/emplo yment_social/labour_law/postin gofworkers_en.htm -16-