Commission proposes new rules for posted workers
On 21 March 2012, the European Commission issued proposals for new rules governing workers posted from one country to another within the European Union. The aim is to increase protection for these workers, and to clarify the debate about the way in which ECJ case law has created clashes between employment rights and the principle of freedom to provide services. Three recent ECJ cases have examined how workers’ rights may be at odds with the rights of businesses to post workers abroad.
The Commission has been looking at the issue of posted workers for some time, in the light of a revision of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services.
In its 2010 work programme, the Commission made a commitment to issue proposals to clarify the implementation of the directive (EU1004041I), which has been the subject of much debate following decisions by the European Court of Justice (ECJ) in the Viking case (EU0706029I, EU0605029I), the Laval case (EU0801019I, SE0801019I, SE0706029I) and the Rüffert case (EU0805029I).
These three cases examined the extent to which the freedom to provide cross-border services, as set out in Article 49 of the EC Treaty, may be restricted through the exercising of other rights, such as a workers’ rights to claim the minimum wage of the country they are working in.
In launching its new proposals on 21 March 2012, the Commission stated that:
Worker protection and fair competition are the two sides of the EU single market's coin, yet findings suggest that minimum employment and working conditions are often not respected for the one million or so posted workers in the EU.
To address this, the Commission has put forward proposals to increase monitoring and compliance and to improve the way existing rules on posted workers are applied in practice.
The first document is a proposal for a new Directive on the enforcement of the posted workers Directive 96/71/EC (240Kb PDF), which concerns the posting of workers by businesses to provide services in another EU Member State. The aim of this new directive is to reconcile the exercise of the freedom to provide cross-border services under Article 56 TFEU with the appropriate protection of the rights of workers temporarily posted abroad for that purpose.
Specifically, this new directive would:
- set more ambitious standards to inform workers and companies about their rights and obligations (Article 5);
- establish clear rules for cooperation between national authorities in charge of posting (Article 6);
- provide elements to improve the implementation and monitoring of the notion of posting to avoid the multiplication of ‘letter-box’ companies, which use posting as a way of circumventing employment rules (Article 3);
- define the supervisory scope and responsibilities of relevant national authorities (Article 7);
- improve the enforcement of workers’ rights, including the introduction of joint and several liability for the construction sector for the wages of posted workers and the handling of complaints (Article 12).
The second document, dubbed the ‘Monti II Regulation’ (80Kb PDF), is a proposal to regulate the right of workers to take collective action.
This proposal addresses concerns that, in the single market, economic freedoms prevail over the right to strike. It stresses that neither the right to take collective action nor the freedom to provide services take precedence over each other (Article 2). The Commission states:
In no way does the regulation affect national legislation on the right to strike, nor would it create obstacles to the right to strike.
In the case of disputes at EU level resulting from workers exercising their right to take collective action, including the right or freedom to strike, in transnational situations or situations with a cross-border character, the proposal provides for the possibility of non-judicial settlements.
It also sets out a new alert mechanism for industrial conflicts in cross-border situations with severe implications (Article 4).
Under this mechanism, the Member State concerned should inform the Member State of establishment or origin of the service provider and/or other relevant Member States concerned, as well as the Commission. These Member States should then respond as soon as possible to requests for information from the Commission and from other Member States concerning the nature of the obstacle or threat.
The European Trade Union Confederation (ETUC), which has been calling for a revision of the Directive in order to strengthen workers’ rights, prevent abuses and reaffirm the right to take collective action in the wake of ECJ case law, has criticised the proposals.
It says they ‘fall short of correcting the problems brought about by the Viking and Laval cases. The right to take collective action is a fundamental right which must be guaranteed’.
ETUC also believes the proposed enforcement directive is too weak:
The ETUC wants a social contract for the European union where all workers fully enjoy their fundamental rights. The ETUC does not support an economic system where competition invades all spheres of society and undermines social progress.
BusinessEurope has also criticised the proposals in the belief that they will hamper business within the EU.
It has stated that:
Shifting the responsibility of enforcement onto companies is not the solution… The administrative burden and risks linked to ill-defined responsibilities will hamper development of the single market for services and undermine the competitiveness of European companies at a time when all EU policies should support EU growth.
Regarding the regulation on the right to take collective action, BusinessEurope believes this disrespects the exclusion of the right to strike from EU competences in the Treaty.
Further, it believes that the proposed European mechanism for out-of-court settlements of disputes resulting from collective action in transnational situations is not needed.
Andrea Broughton, Institute for Employment Studies