3 Posting of workers to other Member
States
| (28725)
11052/07
COM(07) 304
+ ADD 1
| Commission Communication: Posting of workers in the framework of services: maximising its benefits and potential while guaranteeing the protection of workers
Commission staff working document on the examination of the aspects covered by Communication 8666/06 on the posting of workers
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| Legal base | — |
| Document originated | 13 June 2007
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| Deposited in Parliament | 22 June 2007
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| Department | Business, Enterprise and Regulatory Reform
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| Basis of consideration | EM of 5 July 2007
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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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Purpose of the Communication
3.1 In April 2006, the Commission published a Communication[5]
which gave guidance to Member States on the implementation of
the Posting of Workers Directive.[6]
This document reports on the extent to which Member States are
complying with the guidance and implementing the Directive. It
also sets out the further action the Commission will take to improve
compliance.
The Posting of Workers Directive
3.2 Article 49 of the EC Treaty requires the abolition of restrictions
on the freedom of a person established in a Member State to provide
services elsewhere in the Community. "Services" include
activities of an industrial, commercial, craft or professional
nature.
3.3 The Posting of Workers Directive 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. The estimated number of posted workers is currently
just under 1 million. 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 cooperation between its
public authorities responsible for monitoring terms and conditions
of employment and the authorities of other Member States;
- to 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 of 2006
3.4 In April 2006, the Commission issued a Communication
which:
- gave guidance on the application
of the Directive in the light of the case law of the European
Court of Justice (ECJ);
- invited Member States to ensure that they are
fulfilling their obligations under the Directive to provide information,
cooperate with other Member States and enable posted workers to
seek redress; and
- set out the further action the Commission would
be taking.
3.5 In the light of the judgements of the ECJ, the
Commission gave 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.
- 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.
3.6 The Communication asked Member States to redouble
their efforts to improve access to information about the terms
and conditions which posted workers must be guaranteed. It also
asked 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 cooperate with the
authorities in other Member States. Moreover, the Communication
asked 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.
3.7 Finally, the Commission said that it would monitor
developments in Member States and report on them in a year's time.
3.8 The Government told 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
was located in the Department of Trade and Industry. Information
is provided to other Member States when requested. Workers posted
to 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.
3.9 Because of the importance of its subject, we
drew the Communication to the attention of the House and cleared
it from scrutiny.
The Commission's Communication of June 2007
3.10 The Commission says that the Communication
is based mainly on the replies provided by Member States and organisations
representing employers and employees in response to questionnaires.
3.11 In its Communication of April 2006, the Commission
advised, in the light of the rulings of the ECJ, that the imposition
of some requirements on posting companies would be incompatible
with Article 49 of the EC Treaty and the provisions of the Posting
of Workers Directive. The replies to the Commission's questionnaires
indicate that nearly all Member States are still imposing one
or more of those requirements.[7]
For example, 15 Member States require posted workers who are nationals
of a third country to obtain a work permit or visa even if they
are legally staying and legally employed in the Member State of
the posting company.
3.12 The replies to the questionnaires showed an
encouraging improvement in the number of Member States which make
available relevant information, as required by the Directive.
But there were very few contacts between Member States' liaison
offices. The Commission comments that this:
"indicates that Member States either ignore
this form of cooperation or have sought other forms, for instance
through bilateral contacts between monitoring authorities of neighbouring
countries."[8]
3.13 The Commission notes the doubts of the European
Parliament and the social partners about the adequacy of Member
States' arrangements to remedy deficiencies in compliance with
the Directive. The Commission also notes the difficulties of enforcing
fines imposed in host States on posting companies.
3.14 The Commission's main conclusions are as follows:
- many Member States rely entirely
on their own national measures to control service providers and
do so in a way which does not always appear to conform to Article
49 of the EC Treaty or the Posting of Workers Directive;
- there is a virtual absence of cross-border administrative
cooperation;
- Member States' provision of information relevant
to posted workers is still not satisfactory; and
- there are problems of cross-border enforcement.
3.15 The Commission intends, therefore, to:
- adopt a Commission Recommendation
(backed up by Council Conclusions) to reinforce administrative
cooperation between Member States through the use of IMI[9]
and to clarify the role of liaison offices;
- set up a High Level Committee to help Member
States identify and exchange good practice;
- take infringement proceedings against Member
States who do not comply with Article 49 of the Treaty or the
Posting of Workers Directive;
- continue to monitor Member States' performance;
and
- examine, with Member States and the social partners,
problems of cross-border enforcement and take appropriate action
in the light of the examination.
The Government's view
3.16 The Minister of State for Employment Relations
and Postal Reform at the Department for Business, Enterprise and
Regulatory Reform (Mr Pat McFadden) tells us that the Government
will be asked to take part in the High Level Committee and, if
invited, will also take part in the analysis of cross-border enforcement
problems. He adds that the Communication has no legislative or
financial implications for the UK.
Conclusion
3.17 Compliance with the requirements of Article
49 of the EC Treaty and the Posting of Workers Directive is essential
to the completion of the Single market and the elimination of
unfair discrimination against people or businesses based in other
Member States. So this Communication on compliance with the requirements
is important and accordingly we draw it to the attention of the
House. However, there are no questions that we need put to the
Minister and we are content to clear the document from scrutiny.
5 (27445) 8666/06: See HC 34-xxx (2005-06), para 13
(24 May 2006). Back
6
Directive 96/71/EC: OJ No. L 18, 21.1.97, p.1. Back
7
According to Annex 1 of the Commission staff working document
(ADD 1), the UK is the only Member State which does not impose
any of the restrictions. Back
8
Commission Communication, page 9, fourth paragraph. Back
9
IMI is a Commission information system designed to facilitate
mutual assistance and the exchange of information between Member
States. Back
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