2 The posting of workers
| (33787)
8040/12
+ ADDs 1-3
COM(12) 131
| Draft Directive on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services
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| Legal base | Articles 53(1) and 62 TFEU; co-decision; QMV
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| Department | Business, Innovation and Skills
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| Basis of consideration | Minister's letter of 14 May 2013
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| Previous Committee Reports | HC 86-xix (2012-13), chapter 7 (7 November 2012);
HC 86-i (2012-13), chapter 1 (9 May 2012);
HC 86-v (2012-13), chapter 4 (20 June 2012)
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| Discussion in Council | 20 June 2013
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background and previous scrutiny
2.1 In March 2012, the Commission proposed a draft Directive
which seeks to improve the implementation and enforcement by Member
States of a 1996 Directive establishing a legal framework for
businesses to send ("post") workers from their home
Member State to another (host) Member State in order to provide
a service on a temporary basis. The draft Directive does not
seek to amend the content of the 1996 Directive, but includes
provisions which are intended to:
- help identify "letter-box" companies that use posting
as a means of circumventing the application of employment or social
security rules;
- improve access to information on the core terms
and conditions of employment (including any minimum wage requirement)
applicable to posted workers in the host State;
- strengthen administrative cooperation and mutual
assistance between national authorities responsible for monitoring
the application and enforcement of the 1996 Directive; and
- provide effective mechanisms for workers to lodge
complaints and bring proceedings in their host or home Member
State and, in the case of construction workers, to recover unpaid
wages from their posting employer or the host State contractor
by means of joint and several liability.
2.2 Our First Report of the 2012-13 session,
agreed on 9 May 2012, provides a detailed overview of the draft
Directive and the Government's position.
2.3 We thought that improving the provision of
information on the terms and conditions of employment applicable
to posted workers would make it easier for businesses to compete
within the internal market, help to expose abusive practices,
and strengthen the protection of core employment rights. However,
we shared the Government's concern that the evidence base for
further regulatory intervention at EU level was weak, with many
of the difficulties cited by the Commission as a justification
for EU action being based largely on anecdotal reports. In particular,
the Government questioned whether there was sufficient evidence
to support the introduction of joint and several liability in
the construction sector, which would require a change to UK law,
and suggested that Member States should determine how to enforce
the 1996 Directive in line with their own methods for enforcing
labour laws.
2.4 The Government's consultation of stakeholders,
summarised in our 19th Report of the 2012-13 session, revealed
broad support for provisions in the draft Directive clarifying
what constitutes a posting and requiring information on applicable
working conditions to be made widely available, as well as sharp
differences of opinion on provisions dealing with the enforcement
of the rights of posted workers, including the introduction of
joint and several liability within the construction sector (Articles
11 and 12), and national control measures which Member States
may apply to ensure that service providers posting workers to
their territory comply with the 1996 Directive (Article 9). We
asked the Government to explain how these differences of opinion
would influence its negotiating position and to provide progress
reports on the negotiations.
The Minister's letter of 14 May 2013
2.5 The Minister for Employment Relations and
Consumer Affairs (Jo Swinson) anticipates that the Employment,
Social Policy, Health and Consumer Affairs (EPSCO) Council may
reach a general approach on the draft Directive at its meeting
on 20 June. She describes the Government's negotiating priorities
and the progress made so far.
"Our priorities in negotiations are to avoid
the imposition of a requirement that all Member States must introduce
a system of joint and several liability in the construction sector
for posted workers (which would make contractors responsible if
their sub-contractors do not correctly pay posted workers) and
to ensure that there is an appropriate balance in the permitted
national control measures which Member States can impose on businesses
seeking to provide services in their territory. These Articles,
12 and 9 respectively, have remained the most difficult to agree
in negotiations thus far with strong positions held in Council.
"Our position on the draft directive has reflected
our concern that any measures which are agreed should not create
hurdles to the Single Market. HMG agrees that Member States should
help ensure that posted workers benefit from the protections set
out in the Posting of Workers Directive, in particular that there
should be mechanisms which ensure workers are able to receive
outstanding remuneration. Article 11 of the proposed Directive
does this. However, the imposition of a mandatory system of joint
and several liability in Article 12 is not the appropriate approach.
We do not agree that the same enforcement mechanism should be
prescribed for all Member States. Member States which have chosen
to introduce joint and several liability should be free to maintain
those systems but we believe that Member States should be given
the flexibility to decide how best to enforce this objective,
in line with what works best for their country.
"On national control measures, [...] a considerable
body of European Court of Justice case law has developed to assess
the national control measures which Member States can put in place.
This strikes a delicate balance in permitting mechanisms to enable
enforcement and protect workers whilst still ensuring businesses
are fully able to exercise their freedom to provide services and
make full use of the Single Market, and is well reflected in the
Commission's proposal. I believe it is important to ensure we
retain that balance."
2.6 The Minister indicates that there is a greater
degree of agreement on other provisions of the draft Directive
which seek to protect vulnerable workers and ensure fair competition
for businesses. She continues:
"These include increasing awareness of rights
and responsibilities for workers and businesses (Article 5), improving
exchange of information between Member States to support enforcement
(Article 6), requiring mechanisms to support workers in enforcing
their rights (Article 11) and ensuring there is a system to enforce
these rights across borders (Chapter VI)."
2.7 Given the difficulties encountered in negotiations
on Articles 9 and 12 of the draft Directive concerning national
control measures and joint and several liability, the Minister
considers that the Presidency's timetable for agreeing a general
approach in June may be ambitious. She adds:
"I consider that it is important for us to agree
upon the right Directive, one that respects the underlying principles
of Union law such as the freedom to provide services, rather than
to agree something quickly. Nevertheless, the Presidency is pushing
forward to identify a compromise and it is possible that an agreement
could be reached which would pave the way for a general approach
in June. I will write to you again should this appear to be the
case, but as negotiations may move swiftly at that point I wanted
to update you on progress in advance."
Conclusion
2.8 We thank the Minister for her letter and
welcome her undertaking to write to us again with details of any
compromise proposal put forward by the Presidency to secure a
general approach at the June EPSCO Council. We ask the Minister
to provide us with a copy of the text which will form the basis
for the general approach or to provide full details in her letter
of any changes to the Commission's original proposal and their
impact for the UK. Meanwhile, the draft Directive remains under
scrutiny.
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