Thematic feature - posted workers
This article examines the Danish situation, as of June 2003, with regard to: legislation and collective bargaining on the pay and conditions of posted workers (ie workers from one EU Member State posted by their employer to work in another); the number of such posted workers; and the views of the social partners and government on the issue.
EU Directive 96/71/EC concerning the posting of workers in the framework of the provision of services seeks to avoid 'social dumping' by ensuring that a minimum set of rights is guaranteed for workers posted by their employer to work in another country. The basic principle is that the working conditions and pay in effect in a Member State should be applicable both to workers from that State, and those from other EU countries posted to work there. The Directive covers undertakings established in a Member State, which, in the framework of the transnational provision of services, post workers to the territory of another Member State.
The Directive establishes a core of essential regulations aimed at ensuring employees' minimum protection in the country in which their work is performed. It guarantees the application of the host country's statutory and regulatory provisions relating to:
- maximum work periods and minimum rest periods;
- minimum paid annual holidays;
- minimum rates of pay, including overtime rates (excluding supplementary occupational retirement pension schemes);
- the conditions of hiring-out of workers, in particular the supply of workers by temporary employment agencies;
- health, safety and hygiene at work;
- protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people; and
- equality of treatment between men and women and other provisions on non-discrimination.
As well as these generally applicable statutory and regulatory provisions, a Member State's collectively agreed provisions on these issues must also be applied to workers in the construction sector (where these are based on 'collective agreements or arbitration awards which have been declared universally applicable').
The Directive allows for a number of exceptions to all or some of these 'minimum provisions' for: the crew of merchant ships; staff involved in the initial assembly and/or first installation of equipment; postings lasting less than a month; and where 'the amount of work to be done is not significant'. The Member States were obliged to transpose the Directive by 16 December 1999.
In 1999, the European Industrial Relations Observatory (EIRO) conducted a comparative study on posted workers and the implementation of the Directive. In June 2003, the EIRO national centres in each EU Member State (plus Norway), have updated the basic information in the earlier comparative study, four years on, in response to a questionnaire. The Danish responses are set out below (along with the questions asked).
What changes were made to national legislation in your country in order to implement the Directive? And have there been any further changes to the relevant legislation since then?
The Directive is implemented in Denmark by the Act on posting of wage earners (Lov om udstationering af lønmodtagere, No. 964) of 2 November 2001 (amending Act No. 933 of 15 December 1999). It was stated in §11 of the 2001 Act that the legislation had to be revised before 1 January 2003, but in December 2002 this date was changed from 2003 to 2006, and at the same time references to the provisions of recent legislation implementing parts of the EU working time Directive (DK0112158F) were added to the Act's rules on the duration of working hours (§5) .
Please outline very briefly the current legal position of posted workers in your country - are they covered by specific or general employment legislation, what is their position with regard to social security (are they covered under the social security system in their country of origin or the host country?) etc. Also, have any specific measures been taken to prevent abuses arising from the posting of temporary agency workers (eg an agency hiring temporary workers through a subsidiary in a low labour cost country and sending them to work for a user company in a higher labour cost country)?
After one month in Denmark, posted workers are covered by the relevant provisions of the collective agreement which applies to their employment - all such agreements have implemented the minimum rules laid down in the EU Directive. Where no collective agreement applies, the Act on posted workers applies.
Workers posted to Denmark are covered by the Danish social security system as long they have EU form E101. It is the responsibility of the employer to equip the worker with this form as well as with the healthcare form, E111. The same rules apply to Danish workers posted abroad.
Have there been any collective agreements concluded on the issues covered by the Directive? Have the social partners been consulted as part of the legislative and policy-making process and, if so, in what way? Have the social partners taken any other initiatives related to posted workers?
As mentioned above, much of the Danish implementation of the Directive is based on the application of existing collective agreements to posted workers, with legislation acting as a 'safety net'.
A number of foreign companies have concluded 'adoption agreements'- ie signed up to existing collective agreements - with Danish trade unions in the construction sector. Other foreign companies have joined employers’ organisation affiliated to the Danish Employers’ Confederation (Dansk Arbejdsgiverforening, DA), thereby receiving the full services of the organisation, including coverage by collective agreements.
Danish workers posted abroad are not covered by the collective agreement which applies to them in Denmark, apart from its provisions on pensions and annual leave. According to trade unions, many posted workers are not aware in advance of the fact that Danish collective agreements do not apply outside the country, and the unions try to inform workers being posted of this fact and advise them to sign individual contracts, with the collective agreement's provisions as a minimum, before they leave.
In drawing up the Act on posted workers, the Ministry of Employment consulted all the main Danish social partner organisations.
The workers affected
Please provide the latest figures available on the number of employees who are posted from your country to other EU Member States.
A 'best guess' from the cartel of trade unions in building and construction (Bygnings-, Anlægs, and Trækartellet, BAT) is that at any one time there are 3,000–5,000 Danish posted workers abroad. The largest number are found in Germany, followed by west Norway (in jobs related to the oil industry).
Please provide similar figures, if available, for employees posted to your country from other EU Member States.
Figures are not available on this point, but BAT puts the number at 'very few'. Over the past 10 years, a number of Swedish, UK and German workers have been posted to Denmark in connection with the construction of two major bridges at Storebælt and Øresund, and of the Copenhagen Metro.
Workers in the construction industry
The EU Directive, although of general application, is aimed particularly at workers in the construction industry (building and public works), in which discrepancies between practice and legal standards are often observed. Has any special action been taken by the social partners or the state to address the situation of posted workers in this industry?
There have been few specific initiatives in the construction sector (see above), though most - if not all - workers posted to Denmark are in this industry
The positions of the social partners and government
Please outline the stances adopted by the social partners and the public authorities/government on this issue. Particular attention should be given to unions and employers in the construction industry.
The issue of the posting of workers within the current EU does not seem to be a major issue for the social partners or government at present. However, there is some controversy in the construction sector over workers from the new Member States in central and eastern Europe which will join the EU in May 2004. The Danish Building Industry (Dansk Byggeri) employers' organisation has recently stated that Danish companies should employ workers from these countries, after accession, since they are much cheaper than Danish workers, as they can be hired at the minimum collectively agreed wage (which is quite legal). Because of this statement, the BAT union cartel has ceased cooperation with Dansk Byggeri (DK0307102N). (Carsten Jørgensen, FAOS)