Posted workers directive is ‘not a done deal yet’


EU labour ministers reached an agreement this week on new rules to regulate workers posted from one country to another, but the compromise has been deemed “less ambitious” than what MEPs wanted, putting the Socialists under pressure.

The compromise text was agreed on Monday (9 December) after 18 months of negotiations on the so-called posted workers directive, which is supposed to curtail abuses of European Union law that enable companies to move cheaper, foreign workers from one EU country to another, but which trade unions say prevent locals from getting work, is yet to be agreed in the European Parliament.

Five months before the European elections, the matter is highly sensitive.

While the Parliament rapporteur, Polish centre-right MEP Danuta Jaz?owiecka, thinks that there is a “real chance” of finalising the negotiations before the last plenary session in April, the question will keep dividing MEPs along political and national lines until the end of the process.

The president of the employment committee in the Parliament,  French socialist MEP Pervenche Bérès, welcomed EU minister’s compromise “given the difficult circumstances” but told EURACTIV that the MEPs' report on the enforcement of the directive was more ambitious, a report which never reached the plenary, however, and was already very divisive during the committee vote.

Where the Council’s text says that only the direct subcontractor will be held liable, the Parliament’s report wanted responsibility from the entire chain of subcontractors. In addition, yesterday’s agreement by EU member states proposes that sanctions be mandatory only in the construction sector, whereas the MEPs had agreed on a text making them obligatory in all sectors, a demand formulated by labour unions, too.

“We need to find a compromise between the two institutions but we don’t want to alienate the trade unions,” Bérès said.

The European Trade Union Confederation (ETUC) said in a press release on Tuesday (10 December) that unionists would keep pressuring MEPs in the coming months.

“Problems are particularly acute in the construction sector, but not limited to it. The ETUC will continue to demand a compulsory joint and several liability covering all sectors”, ETUC said, adding that “in the upcoming negotiations ETUC will look to the European Parliament to clear ambiguities and ensure that mechanisms are put in place so that all EU workers enjoy fair and equal working conditions”.

On the campaign trail

The posted workers directive will be an important issue in the upcoming European elections in May, especially in countries like France, where the presence of foreign low cost workers is often perceived as a threat even though they represent “less than 0.5%” of the workers.

The issue is at the heart of the Social-Democrat Group’s programme and concerns, too.

Sources in the S&D group told EURACTIV that the “feeling in the group is that a majority of countries lean toward reaching strong solution”, even if it meant a “full revision” of the directive, rather than rush to a lukewarm compromise with the Council ahead of the EU elections.

>> Also read the interview with Pervenche Berès on EURACTIV France (in French)

But Social-Democrats are well aware that the divisions on the posting of workers issue are much more national than they are political.

“Even if we had the backing of the Greens and the Liberals (ALDE) on this, it might not be enough; individual members in each group would reject it, as the divisions are mainly national, making this practically a lost position”, a source said.

The French Labour Minister Michel Sapin welcomed the “progress” on articles 9 and 12.

“The directive will allow for an imposition of rules to countries that do not have them (…). It will also be possible to establish a chain of liabilities to combat fraud more efficiently (…). This directive will also protect posted workers, whose rights will be more respected and the French workers, who will not have to undergo unfair competition, as well as the companies which respect the rules”.

The European Commissioner for employment and social affairs, László Andor, welcomed the agreement by EU ministers on the enforcement of the posting of workers directive.

”The Commission very much welcomes the general approach agreed by the Council today on new rules to enforce the safeguards against social dumping laid down in the posted workers Directive. There is an urgent need to reinforce the safeguards in EU rules to ensure that posted workers' rights are respected in practice, and to allow European businesses to operate with more legal certainty and transparency. I now urge the European Parliament and the Council to definitively adopt the Directive as soon as possible”, he said in a press release.

The Belgian minister for employment, Monica De Coninck, said that the agreement will allow countries to “combat abuse linked to the posting of workers in a coordinated manner”. She also stressed that the goal of the legislation is to “tackle fraud” and not “to campaign against foreign workers”.

The president of the European Parliament, Martin Schulz, also released a statement welcoming the agreement:

“The new rules reduce the room for cheating and abuse that the current laws on posted workers have been subject to. They will make the single European market fairer by limiting the scope for social dumping and the exploitation of workers”.

Danuta Jaz?owiecka (EPP), the rapporteur on the posting of workers, said in a press statement: “The general approach adopted yesterday by Member States seems to be a good compromise. I hope this will finally stop conflicts and put an end to the negative atmosphere which emerged with regards to the posting of workers. Mobility is a very important tool in fighting the crisis and posting is one of the safest ways of working abroad”.

Pervenche Berès, president of the employment committee in the EU Parliament, said: “Now negotiations with Parliament can start. The Employment and Social Affairs Committee has a different mandate for negotiations on article 9 (control measures) and article 12 (joint and several liability in subcontracting chains). These negotiations are part of a broader dynamic to protect EU workers in order to go back to the initial spirit of the 1996 directive in cooperation with stakeholders”

The Green group’s employment policy spokesperson, Elisabeth Schroedter, called the outcome “significant”, calling however for a strengthening of the directive:

“MEPs voted for better cooperation and information in the fight against abuse and effective sanctions, and we hope this will be included in the final legislation. The EP will also have to fight to ensure meaningful provisions on joint and several liability, as the position adopted by EU governments is far less ambitious”.

The European Trade Union Confederation said that the agreement “does not set this key principle with the necessary legal clarity”.

“Despite efforts made by some governments to meet our demands and move towards a more social Europe, this compromise text does not meet our expectations: our demands remain on the table. In the upcoming negotiations ETUC will look to the European Parliament to clear ambiguities and ensure that mechanisms are put in place so that all EU workers enjoy fair and equal working conditions”, the press statement reads.

The European Construction Industry Federation (FIEC) called the agreement “an important step in the fight against social fraud and abuses in the field of “Posting of workers” which is seriously affecting those companies that comply with the legislation as well as employment in our sector”.

The British general trade union, GMB, denounced the UK government’s pressure to “water down” the directive:

“They did not want to restrict the ability of business to abuse vulnerable posted workers from other EU countries and to run down pay and conditions in Britain at will.

As far as GMB and the wider European trade union movement are concerned these enforcement measures agreed by Governments don’t go far enough. Yet here is the UK Government spurning even these weak provisions.

The hypocrisy of the UK Government on free movement is breath taking. People in Britain need to be told about it.  Their actions in Brussels contrasts  sharply with their words to a UK audience on migration from Romania and Bulgaria.

GMB will press MEPs and Ministers of EU Governments to tighten up the directive for member states to be able to apply and enforce national control measures and for joint and several liability to apply throughout the subcontracting chain for contractors and subcontractors”, the press release says.

According to a 1996 EU directive, posted workers have to comply with the labour law of the host country, a measure aimed at guaranteeing equal pay.

However, employers pay social contributions in the country of origin, which can create a gap in labour costs and boost benefits for companies.

France has complained about the rising use of posted workers, claiming that it amounts to social dumping.

The number of posted workers in France has soared since the EU enlargement to Eastern countries in 2004. Between 2006 and 2011, their number has multiplied by four, rising from 38,000 to 145,000. They are now estimated at 210,000, according to the French employment ministry

  • Next week: Preparatory meetings at group level
  • 14-17 April: Last EP plenary session before the elections
  • 22-25 May: European Parliament elections

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