13 Guidance on the posting of workers
| (27445)
8666/06
COM(06) 159
+ ADD 1
| Commission Communication: Guidance on the posting of workers in the framework of the provision of services
Commission staff working document: report on the implementation of Directive 96/71/EC concerning the posting of workers
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| Legal base | — |
| Document originated | 4 April 2006
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| Deposited in Parliament | 28 April 2006
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| Department | Trade and Industry
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| Basis of consideration | EM of 11 May 2006
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | Cleared
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The Posting of Workers Directive
13.1 Article 49 of the EC Treaty requires the abolition of obstacles
to the freedom to provide services within the Community. The Posting
of Workers Directive of 1996 applies to workers employed by an
undertaking ("the posting company") established in one
Member State and who are posted temporarily to another Member
State ("the host State") to provide a service.[45]
13.2 The Directive requires each Member State:
- to ensure that the posting
company guarantees the posted worker any mandatory terms and conditions
of employment in the host country (such as minimum paid holidays;
minimum wages; and standards of health and safety at work);
- to designate liaison offices or competent national
bodies to implement the Directive;
- to tell other Member States and the Commission
the identity of the liaison offices or competent bodies;
- to make provision for co-operation between its
public authorities responsible for monitoring terms and conditions
of employment and the authorities of other Member States;
- make available information about any mandatory
terms and conditions of employment;
- to make provision for compliance with the Directive
and, in particular, ensure that adequate procedures are available
to workers to enforce their rights under the Directive; and
- to transpose the Directive into national law.
The Commission's Communication
13.3 The Communication :
- gives guidance on the application
of the Directive in the light of the case law of the European
Court of Justice (ECJ);
- invites Member States to ensure that they are
fulfilling their obligations under the Directive to provide information,
co-operate with other Member States and enable posted workers
to seek redress; and
- sets out the further action the Commission will
be taking.
13.4 In the light of the judgements of the ECJ, the
Commission gives the following advice about action by Member States
which is or is not compatible with the Directive:
- It is disproportionate for
a host State to require a posting company to have a representative
domiciled in the host country to monitor employment conditions
of the posted workers.
- It would be acceptable to appoint one of the
posted workers to act as a link between the posting company and
the host State's authorities.
- It would be disproportionate to make postings
subject to systematic prior authorisation or registration by the
host State.
- It would be reasonable for the host State to
demand information from the posting company about the posted workers,
what service they will provide, where and for how long.
- It would be reasonable for the host State to
require documents, such as time sheets, to be kept at the workplace
of the posted workers so that the host State can monitor compliance
with the mandatory terms and conditions of service; and
- The host State may not impose additional conditions
on the admission of posted workers who are nationals of a third
country if they are lawfully employed by an undertaking established
in another Member State.
13.5 The Communication asks Member States to redouble
their efforts to improve access to information about the terms
and conditions which posted workers must be guaranteed. It also
asks them to ensure that they have liaison offices and that the
liaison offices and monitoring authorities are adequately equipped
to respond to requests for information and to co-operate with
the authorities in other Member States.
13.6 The Communication asks Member States to re-examine
their systems for implementing and monitoring compliance with
the Directive and, in particular, to ensure that there are arrangements
to provide redress for deficiencies.
13.7 Finally, the Commission dictates that:
"Member States should act to ensure that the
guidance provided in this Communication gives rise to concrete
results as soon as possible. In order to assess progress, the
Commission will adopt within twelve months a report which will
examine the situation in all Member States with regard to all
aspects covered by this Communication."[46]
In order to make the assessment, the Commission will
invite comments from national authorities, organisations which
represent employers and employees and anyone else on how they
think the Directive is being implemented.
The Government's view
13.8 The Parliamentary Under-Secretary of State for
Employment Relations at the Department of Trade and Industry (Jim
Fitzpatrick) tells us that the Directive has been fully implemented
in the UK. All UK employment law applies to workers posted here.
The UK liaison office on posted workers is located in the Department
of Trade and Industry. Information is provided to other Member
States when requested.
13.9 The Minister adds that posted workers (just
like British nationals working in the UK) may complain to an Employment
Tribunal about a failure by their employer to comply with UK employment
law. Compliance with the National Minimum Wage is inspected by
HM Revenue and Customs and with health and safety law by the Health
and Safety Executive. The Employment Agency Standards Inspectorate
conducts routine inspections of agencies and investigates complaints
about them.
13.10 Commenting on the Commission's requests to
Member States to review their arrangements, the Minister says:
"We will not have to change our control measures,
as we do not place unjustifiable or disproportionate requirements
on foreign companies temporarily posting their workers to the
UK.
"Although we have information in place on the
web relating to the posting of workers, we will needed to review
this and consider its adequacy. We will be looking at what we
provide and looking at what other Member States provide and exploring
ways to improve the content and accessibility of the UK information.
"Monitoring and sanctions for non-compliance
with the employment rights specified by the Posted Worker Directive
is [sic] identical to that available to domestic workers.
The UK does not have a labour inspectorate so there are limited
ways in which monitoring can take place. We will consider how
we do it and explore options for any improvement required."
Conclusion
13.11 We consider this an important Communication
and we draw it to the attention of the House.
13.12 We are surprised that the Commission purports
to be able to instruct Member States to act on the guidance in
the Communication. That is not the right way to achieve the co-operation
for which the Directive calls and for which we see the need.
13.13 We look forward to scrutinising the assessment
the Commission intends to produce in a year's time. Meanwhile,
we are content to clear the Communication from scrutiny.
45 Directive 96/71/EC concerning the posting of workers
in the framework of the provision of services: OJ No. L 18, 21.1.1997,
p.1. Back
46
Commission Communication, page 11. Back
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