The Revision of the Posting of Workers Directive
SEDEC-VI/011
The Revision of the Posting of Workers Directive
The CoR opinion purports to influence the revision of the Posting of Workers directive. This directive was subjected to a 'yellow card' procedure by 14 national parliaments/chambers from 11 Member States. The European Commission has maintained its legislative proposal and argued that it does not constitute a breach of the subsidiarity principle. The CoR opinion agrees that the changes in the Directive can only be made at EU level.
On 16 October the EMPL committee in the European Parliament adopted its draft report.
On 23 October the Council reached an agreement on its position (general approach).
The Parliament largely followed the Commission's proposal. An important difference is the expansion of the legal basis for the Directive, which the Parliament proposes to extend to also cover the social acquis. The Council has agreed to bring long-term posting down from 24 to 12 months, a position defended by the CoR.
The European Parliament and the Council are now entering the formal negotiations.
On 23 October the Council reached an agreement on its position (general approach).
The Parliament largely followed the Commission's proposal. An important difference is the expansion of the legal basis for the Directive, which the Parliament proposes to extend to also cover the social acquis. The Council has agreed to bring long-term posting down from 24 to 12 months, a position defended by the CoR.
The European Parliament and the Council are now entering the formal negotiations.
THE EUROPEAN COMMITTEE OF THE REGIONS
- considers it essential to strike a reasonable balance between the free movement of services, on the one hand, and protection for posted workers and against wage and social dumping, on the other, in order to achieve public acceptance for the functioning of the internal market in the EU, particularly among people working in service sectors where posting is and can be expected to be common practice;
- shares the Commission's view that there should be a time limit beyond which the law of the host country must apply in full to a posted worker, but sees no overriding reason why the rules in Regulation No 883/2004 should be used as the basis for setting the time limit beyond which the law of the host country applies in full to employment relationships in posting situations. In the Committee's view, the time limit in the Posting of Workers Directive should be 12 months;
- draws the Commission’s attention to posting situations arising with cascade subcontracting practices, which lead to the dilution of the responsibility of the employer and sometimes to posted workers being abandoned, with no access to assistance or support. A European support fund would allow swift intervention, ensuring that these employees can return to their countries of origin under the best possible conditions. Also suggests setting up a European register placing undertakings that post workers under an obligation in all Member States to declare the posted worker at the latest upon commencement of the provision of services;
- notes that the skills of posted workers are very often deliberately underestimated by the employer so as to justify a lower level of remuneration. This practice is likely to persist as a way of circumventing the equal treatment obligation with regard to pay. The Commission should investigate the establishment of a European directory of occupations and vocational skills in order to remedy this situation and protect the interests of employees without recognised qualifications;
- points out that the changes in the directive can only be made at EU level – it is not possible, under the Treaty rules on the freedom to provide services across borders within the EU and the Rome I Regulation, to regulate at Member State level which employment law conditions are applicable in a posting situation.
- considers it essential to strike a reasonable balance between the free movement of services, on the one hand, and protection for posted workers and against wage and social dumping, on the other, in order to achieve public acceptance for the functioning of the internal market in the EU, particularly among people working in service sectors where posting is and can be expected to be common practice;
- shares the Commission's view that there should be a time limit beyond which the law of the host country must apply in full to a posted worker, but sees no overriding reason why the rules in Regulation No 883/2004 should be used as the basis for setting the time limit beyond which the law of the host country applies in full to employment relationships in posting situations. In the Committee's view, the time limit in the Posting of Workers Directive should be 12 months;
- draws the Commission’s attention to posting situations arising with cascade subcontracting practices, which lead to the dilution of the responsibility of the employer and sometimes to posted workers being abandoned, with no access to assistance or support. A European support fund would allow swift intervention, ensuring that these employees can return to their countries of origin under the best possible conditions. Also suggests setting up a European register placing undertakings that post workers under an obligation in all Member States to declare the posted worker at the latest upon commencement of the provision of services;
- notes that the skills of posted workers are very often deliberately underestimated by the employer so as to justify a lower level of remuneration. This practice is likely to persist as a way of circumventing the equal treatment obligation with regard to pay. The Commission should investigate the establishment of a European directory of occupations and vocational skills in order to remedy this situation and protect the interests of employees without recognised qualifications;
- points out that the changes in the directive can only be made at EU level – it is not possible, under the Treaty rules on the freedom to provide services across borders within the EU and the Rome I Regulation, to regulate at Member State level which employment law conditions are applicable in a posting situation.
