Business backs Commission on dispatched worker rules

Proposals to loosen what the Commission describes as “excessive national control measures” on the posting of workers abroad are being acclaimed by business organisations and criticised by trade unions. 

On 13 June 2006, the Commission published a Communication on posting of workers, outlining what it considers to be some key problems in the implementation of the Directive: 

  • Excessively restrictive interpretation: Some provisions of the Directive, such as the temporary nature of posting, the nature of public-policy provisions and the distinction between self-employed workers and employees and rules to be followed when collective agreements are not universally applicable, are being interpreted by some member states in a way that effectively hampers the free circulation of services. Some of those cases have been brought before national tribunals and the European Court of Justice.
  • Excessive control measures: Control measures in some member states go beyond what is strictly necessary and justifiable to check compliance with the directive and ensure the protection of posted workers. Such measures may also obstruct the free provision of services.
  • Information: According to the Commission, some member states still provide insufficient or insufficiently accessible information to workers and companies. In some cases, a lack of administrative co-operation between member states is the core problem.

The Commission is proposing a number of measures to overcome these problems, ass well as citing good practice by individual member states: 

  • Setting up single liaison offices and monitoring offices where requests for information and co-operation can be directed, irrespective of where the services are being provided; 
  • setting up or improving websites  dedicated to the posting of workers; 
  • initiating awareness-raising campaigns, and;
  • engaging in bilateral agreements established to ensure improved co-operation between labour inspectorates.

ETUC, the European Trade Union Confederation, was negative towards the Commission Communication: "In its Communication, on the posting of workers, adopted today, the European Commission endangers the sensitive balance between the freedom to provide cross-border services and the need for effective instruments to monitor and enforce labour standards in the host country, embodied in the final agreement on the Services Directive. It reaffirms a very narrow interpretation of European Court of Justice (ECJ) case law, and announces procedures against member states that continue to impose requirements regarded by the Commission as incompatible with Community law." (ETUC) General Secretary John Monks added: "The Communication shows that the Commission has not sufficiently taken account of the European Parliament's recent clear position on this issue." 

BusinessEurope was far more positive. The employer and industry organisation pointed out that "a considerable number of member states still apply unjustified control measures which hamper companies' freedom to provide cross-border services", and underlined "the importance of the Commission‘s conclusion that urgent action is required to remedy this situation". BusinessEurope President Ernest-Antoine Seillière said: "Posting of workers is a positive element for both companies and workers. Removing obstacles to cross-border provision of services by member states will create jobs."  

Small business association UEAPME was equally favourable towards the Commission paper. "Today's communication strikes a good balance between the need to ensure on the one hand freedom of movement of workers across the EU, which is a fundamental right enshrined in the EU ^Treaties, and the necessity to tackle social dumping and control illegal employment and undeclared work on the other hand," said Liliane Volozinskis, UEAPME director for social affairs and employment policy. She added: "The Commission's Communication has the potential to put the issue of posting of workers in the EU on the right track, and help in addressing the obstacles to a functioning internal market in services. We look forward to reading the related EC recommendation, and we call once again on member states to increase their efforts on administrative collaboration and information exchange."

Posting is when a company sends workers who hold an employment contract to a different country within the EU, for a limited period of time. The Posting of Workers Directive declares in such cases minimum standards in force in the receiving country on issues such as pay rates, holidays, working hours, health and safety and gender equality apply. 

In April 2006, the Commission published more detailed guidelines on the application of the Directive. On 26 October 2006, the European Parliament adopted a resolution dealing with the application of the Directive and conclusions to be drawn (see EURACTIV, 27 October 2006). 

  • The Commission says that it will be taking "appropriate action against certain member states that do not apply community law in this area as interpreted by the European Court of Justice", adding that "any question on whether or not the national requirements are compatible with prevailing community law will be analysed on a case-by-case basis". 
  • In addition, the Commission will set up a high-level group to support the exchange of best practice. 

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