- Observatory: EurWORK
- Posted workers,
- Working conditions,
- Industrial relations,
- Published on: 07 Deireadh Fómhair 2010
Disclaimer: This information is made available as a service to the public but has not been edited by the European Foundation for the Improvement of Living and Working Conditions. The content is the responsibility of the authors.
Although on the legislative front there has been since 2004 a full framework of protection for workers posted to Cyprus to perform temporary work, on the practical level the implementation of the existing legislation involves an extremely small number of enterprises and workers in just two sectors of economic activity.
1. Posted workers: basic facts
1.1 Please provide basic data on the workers posted in your country:
Despite the fact that the Posting of Workers within the Framework of Provision of Services Law 137(I)/2002 was passed in July 2002 and entered into force on 1 May 2004, the first expression of interest in the framework of application of the relevant legislation was not submitted until 2006.
Specifically, according to official data provided by the Department of Labour of the Ministry of Labour and Social Insurance, as the competent authority, in order to obtain approval of the relevant applications a total of five expressions of interest were submitted between 2006 and May 2009, involving a total of 17 workers, and all of them were approved.
With regard more specifically to distribution by sector of economic activity, of the five enterprises that obtained permission to post workers, two were doing business in the construction sector and three in the financial sector. But with regard to the number of posted workers, the construction sector was clearly in the lead with 13 posted workers, compared to 4 for the financial sector. With regard to distribution by gender, there were no postings of female workers, and with regard to country of origin, 15 out of the total of 17 posted workers are EU citizens whose countries of origin are Greece and Romania, one is from Argentina and one from Nigeria.
As already mentioned, in Cyprus the scope of application of the legislation on posting of workers is particularly narrow. This, in conjunction with the fact that all the expressions of interest by enterprises have been monitored, thus far at least, by the Department of Labour as the competent service of the Ministry of Labour and Social Insurance for the proper implementation of the relevant legislation, ensures both the availability of official data and also their reliability and validity.
1.2 Are there any information on the number (by gender) and distribution across sectors of workers posted to other countries by domestic companies? If yes, please provide details.
According to the Department of Labour, to date no cases of posting have been recorded where Cyprus is the country of origin.
1.3 Are there any information on trade union affiliation and collective bargaining coverage of workers posted to your countries, including affiliation to foreign unions and coverage by foreign collective agreements, in addition and beyond the minimum requirements set by legislation? If yes, please provide details.
1.4 Are there any information on trade union affiliation and collective bargaining coverage of workers posted to other countries by domestic firms? If yes, please provide details.
1.5 Please refer the main content and results of major studies on posted workers (either in-coming or out-going), both quantitative and qualitative, which have been carried out in your country.
Thus far no studies on the subject have been carried out, most probably due to the limited extent of the phenomenon in Cyprus.
2. Regulation on posted workers
2.1 Please provide details on the current legislative framework for posted workers in your country:
a) Reference to the law adopting the posted workers directive: number, date, and link to the text, if available, in English;
The relevant legislation in Cyprus is the Protection of Workers who are Posted to Carry out Temporary Work within the Republic in Accordance with the Framework of the Transnational Provision of Services Law, No. 137(I)/2002, whose brief title is the Posting of Workers within the Framework of Provision of Services Law of 2002, which was passed on 19 July 2002 (Official Gazette, No. 3623) for the purposes of harmonization with Directive 96/71/EC. It was not possible to find an English version of Law 137(I)/ 2002, either on the website of the Ministry of Labour and Social Insurance Υπουργείου Εργασίας και Κοινωνικών Ασφαλίσεων, or on the Cyprus Legal Portal.
b) A brief account of any amendments or integrations introduced after the initial adoption;
Since the relevant legislation was first passed on the national level, the only change has been the passage of Decree No. 350 of the Council of Ministers dated 28 April 2004 setting 1 May 2004 as the date for Law 137(I)/2002 to come into force.
c) A description of the current legal framework regarding posted workers, especially:
- as regards the way employment conditions are enforced, as required by art. 3.1. of the Directive (see the briefing note for the text of the article):
As concerns the regulation of the terms and conditions of employment of posted workers, the Cypriot legislator has essentially copied the content of Directive 96/71/EC, transposing to the letter the provisions of Article 3 of the Directive into national law (Article 4). In this context, apart from the provisions of Article 3/ paragraph 1 of the Directive, Article 4/ paragraph 1 of Law 137(I)/2002 provides certain additional clarifications with regard to the issue of equal treatment and non-discrimination. Specifically, Article 4/ paragraph 1 (i) states that enterprises falling within the scope of the existing legislation that post workers in Cyprus must guarantee to the posted workers:
non-discrimination at work, particularly on grounds of racial or national origin, colour, language, physical or mental disability, provided that the workers are demonstrably capable of performing the work assigned to them, social origin, part-time employment, membership or non-membership in trade union organisations, political or religious beliefs.
- when the employment conditions are set by collective agreements or arbitration awards, please specify which is the legal instrument which make them universally applicable:
As regards in particular the definition and meaning of minimum rates of pay, Article 4/ paragraph 2 of Law 137(I)/ 2002 defines minimum pay as the emoluments which have been set by current legislation or the collective agreements currently in force that have been concluded by the most representative organisations of the social partners, consisting of wages along with any individual allowances and additional benefits that have been provided for, including compensation for overtime work. Minimum pay does not, however, include contributions to supplementary occupational pension schemes, or the benefits they provide. Also not included are any benefits granted to posted workers on grounds of the posting, provided that such benefits are paid in the form of return of expenses incurred due to the posting, such as travelling, accommodation or food expenses
d) whether the legal framework sets a maximum period for considering a worker a “posted worker” rather than a “resident worker”. If yes, please specify this maximum period.
Article 6/ paragraph 1 of Law 137(I)/2002 stipulates that the length of the posting shall be calculated on the basis of a reference period of one year from the beginning of the posting. Paragraph 2 of the same Article states that for the purpose of such calculations, account shall be taken of any previous periods during which a posted worker has filled the post.
Also important when calculating the period of posting is Article 5/ paragraph 1 of Law 137(I)/2002, according to which paragraph 1 (b and c) of Article 4 of the relevant law regarding the terms and conditions of employment of posted workers (see above), specifically regarding the minimum period of annual paid leave and the minimum levels of pay is not applicable:
In the case of initial assembly and/or first installation of goods where this is an integral part of a contract for the supply of goods and necessary for taking the goods supplied into use and carried out by the skilled and/or specialist workers of the supplying undertaking, if the period of posting does not exceed 8 days.
It is noted, however, that the above-mentioned regulation does not apply to the building activities listed in the relevant annex of the existing legislation (see below).
e) whether there are special rules for certain sectors (for instance, construction). If yes, please specify the sectors and briefly illustrate such special rules.
The activities not included in the scope of Article 5/ paragraph 1 of Law 137(I)/2002 (see above) are all building work relating to the construction, repair, upkeep, alteration or demolition of buildings, and in particular the following work:
- Earth moving
- Assembly and dismantling of prefabricated elements
- Fitting out - Installation
- Upkeep – Painting and cleaning work
2.2 Monitoring of implementation of regulation
a) whether a monitoring system for collected data and information on the number and employment conditions of posted workers was set up. If yes, please provide details on such system (bodies involved, structure, methods of collection and dissemination of information, etc.) and its effectiveness;
According to the Department of Labour of the Ministry of Labour and Social Insurance, although control and monitoring of cases of posting officially fall within the competencies of the Head of the Immigration Department, in practice they are wholly the responsibility of the Department of Labour. According to a representative of the Department, this procedure is fully effective and controlled, almost solely due to the very small number of cases of posting handled by the Department each year.
b) whether measures were introduced to make the information on the terms and conditions of employment generally available to foreign service providers and to the posted workers concerned.
According to a representative of the Department of Labour of the Ministry of Labour and Social Insurance, due to the limited interest on the part of enterprises and therefore the small number of posted workers in Cyprus, to date the need has not arisen to hold an information campaign in this regard. In this framework, to date at least, it has been possible to implement an individualized approach to providing information to the parties concerned, be they enterprises or workers.
c) whether the law envisages the implementation of special labour inspections devoted to verify the number and employment conditions of posted workers. If yes, please provide details on how these are organised and on their effectiveness and outcomes.
Although Article 9 of Law 137(I)/2002 stipulates that oversight and monitoring of the enforcement of the existing legislation is assigned to the competent authority, i.e. the Ministry of Labour and Social Insurance, according to the Department of Labour up to now no inspections have been carried out and no action plans have been drawn up. According to the same source, because the number of posted workers in Cyprus is so small, effective monitoring of the enforcement of the existing legislation can be guaranteed through the legislation itself, and specifically through the measures provided to monitor enforcement, as defined in Article 8 of Law 137(I)/2002. Specifically, the provisions of Article 8/ paragraph 1 state that enterprises falling within the scope of the existing legislation that post workers in Cyprus must, before the inception and regardless of the duration of provision of services, submit to the competent authority the following documents drawn up in Greek or English:
- A list of posted workers including data to be specified by the competent authority, on each individual worker, and
- A written statement containing the following data:
If there is any change in the above details, the enterprises must submit a supplementary list, on a case-by-case basis, within 15 days of such change. If the relevant documents are not submitted, the posting may not take place.
2.3 Please specify if particular rules have been devised to deal with specific situations of posted workers:
a) the current rules for the posting of temporary agency workers in your country
The existing legislation does not provide for any special rules for the posting of temporary agency workers. It should be mentioned however that generally the practices of finding and assigning temporary work by special temporary employment agencies are not implemented in Cyprus, at least not within a clearly defined institutional framework. In other words, no provision is made for the term temporary agency work as a separate type of employment relationship either by the law or by collective labour agreement. In this framework, as according to the Ministry of Labour and Social Insurance (Department of Labour Relations), the placement of temporary employees in companies by means of specialized agencies is practically non-existent (CY0807019Q, CY0506102t).
b) the current rules for employment conditions in public procurement
The existing legislation does not provide for any specific rules that apply in public procurement.
3. Positions and actions of the social partners and government on posted workers
3.1 Please indicate the positions and main initiatives that the social partners and the government have taken with reference to posted workers, either in-coming or out-going, and especially indicate:
a) the presence of a debate on the relevance and consequences for national labour law and industrial relations institutions of recourse to posted workers. If such debate is present, please refer its main contents and whether it refers to specific sectors.
There is no such debate in Cyprus.
b) any positions expressed or actions taken in view of the recent rulings by the European Court of Justice (cases Laval un Partneri - C-341/05, Rüffert - C-346/06, Commission v Luxembourg – C-319-06).
No relevant positions have been expressed.
3.2. The main campaigns or initiatives undertaken by the social partners specifically aimed at posted workers or firms posting workers. If such campaigns or initiatives are present, please indicate their main features and whether they refer to specific sectors.
c) Any kinds of joint action undertaken by the social partners with regard to the issue of posted workers
So far, section 3 of the present questionnaire in relation to the positions and actions of the social partners and government on posted workers seems like not applying to the case of Cyprus. In other words, the lack of relevant data with regard to both the position of the unions and employer organisations is due to the fact that the issue of posting has not been the subject of dialogue to date, either within the organisations or on the level of bipartite dialogue.
4. Collective disputes and case law on posted workers
According to the Department of Labour of the Ministry of Labour and Social Insurance no collective disputes are registered so far.
4.3 Please provide information of existing case law in your country involving posted workers.
Although on the legislative front there has been since 2004 a full framework of protection for workers posted to Cyprus to perform temporary work, on the practical level the implementation of the existing legislation involves an extremely small number of enterprises and workers. In this framework, it could be said that the limited extent of the phenomenon in Cyprus explains in a way the rather ignorant stance of both the employer organisations and the trade unions. It is striking indeed that even in the construction sector that is the sector with the higher number of posted workers so far, sectoral trade unions declare that they are not even aware of the existing situation. In relation to the situation of workers posted to other countries by domestic companies, although according to the Department of Labour, to date no cases of posting have been recorded where Cyprus is the country of origin, there are indications that in the banking sector a number of workers are posted in Greece under contractual arrangements and outside the scope of the existing legislation.
Eva Soumeli, INEK/PEO