5 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 23 November 2013
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| Previous Committee Reports
| HC 83-xvi (2013-14), chapter 3 (9 October 2013);
HC 83-iii (2013-14), chapter 2 (21 May 2013);
HC 86-xix (2012-13), chapter 7 (7 November 2012);
HC 86-v (2012-13), chapter 4 (20 June 2012);
HC 86-i (2012-13), chapter 1 (9 May 2012)
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| Discussion in Council
| 9 December 2013 |
| Committee's assessment
| Legally and politically important
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| Committee's decision
| Not cleared, but waiver granted on 9 October 2013 under paragraph (3)(b) of the Scrutiny Reserve Resolution; further information requested
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Background and previous scrutiny
5.1 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:
· prevent businesses
using 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 a system of joint and several
liability.
5.2 Our earlier Reports provide a detailed overview
of the draft Directive, the Government's position, and the progress
of negotiations.[24]
5.3 We agreed with the Government 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.
We shared the Government's concern that the evidence base for
further regulatory intervention at EU level, notably through the
introduction of a mandatory system of joint and several liability
for posted workers in the construction sector, was weak. We also
noted that the Government's own consultation of stakeholders revealed
sharp differences of opinion on two Articles in particular: Article
9 setting out the national control measures that Member States
may apply to ensure that service providers posting workers to
their territory comply with the 1996 Directive; and Article 12
on joint and several liability within the construction sector.
5.4 Disagreement on these two Articles prevented
a deal being reached on the draft Directive at the Employment,
Social Policy, Health and Consumer Affairs (EPSCO) Council in
June 2013. The Government anticipated that sufficient progress
had been made for an agreement at the EPSCO Council on 15 October
and invited us to consider clearing the draft Directive from scrutiny
or granting a waiver to enable the Government to support a general
approach if it met the Government's principal negotiating objectives.
We agreed to grant a scrutiny waiver on the strength of the Government's
assurance that it would continue to resist the imposition of a
mandatory system of joint and several liability, as well as the
possibility for Member States to impose (by means of open-ended
national control measures) unreasonable burdens on businesses
posting workers abroad.
The Minister's letters of 23 October and 23 November
2013
5.5 In her first letter, the Minister for Employment
Relations and Consumer Affairs (Jo Swinson) confirmed that a general
approach was not agreed at the October EPSCO Council, adding:
"A compromise text proposed
by the Lithuanian Presidency was discussed, and whilst it fell
short on the day, it may become the basis of a future compromise.
This proposal set out a core list of control measures but also
allowed for the introduction of new control measures subject to
their meeting requirements of necessity and proportionality (Article
9). It would also have allowed Member States to apply joint and
several liability in subcontracting chains, although it would
not have made introduction mandatory (Article 12)."
5.6 The Minister expected the Presidency and Commission
to continue attempts to secure an agreement and reiterated the
Government's commitment to securing a Directive that "strikes
the right balance between protecting posted workers' rights and
the effective functioning of the single market". She continued:
"I consider that elements
of the Directive offer gains in protecting vulnerable workers
and preventing unfair competition. This includes requirements
to ensure that all Member States have provisions in place to ensure
that workers are able to receive the money due to them, with action
being possible in either the host or home State; measures to improve
Member State cooperation so that cases involving posted workers
can be looked into more swiftly; and provisions which ensure that
where there has been a transgression any penalty due can be enforced
across borders, including after the end of the posting."
5.7 In her second letter, the Minister says that
the EPSCO Council on 9 December is expected to agree a compromise
text similar to the one it considered in October. She adds:
"Article 9, which concerns
the administrative requirements that Member States can require
of businesses posting workers, is expected to set out a core list
of national control measures but also allow for the introduction
of new measures which are necessary and proportionate, and which
will be verified by the Commission. This would meet the UK's aim
of avoiding unnecessary administrative burdens for businesses.
"Secondly, concerning
Article 12, the UK will not agree to anything that would mandate
Member States to apply joint and several liability in subcontracting
chains in the UK. We do not have such a tradition in the UK, and
introducing such a provision would impose significant burdens
on businesses using posted workers. The UK would be willing to
agree to an anticipated compromise [which] would allow Member
States to introduce joint and several liability if they wished
to do so."
5.8 The Minister asks us to confirm that the scrutiny
waiver we granted at our meeting on 9 October continues to apply
and undertakes to write to us again after the December EPSCO Council.
Conclusion
5.9 We thank the Minister for her letters and
confirm that our scrutiny waiver continues to apply on the basis
set out in our Seventeenth Report of 2013-14, agreed on 9 October
2013. We look forward to receiving a further report on the outcome
of the December EPSCO Council which explains whether and how the
Government has achieved its negotiating objectives for Articles
9 (on national control measures) and 12 (on joint and several
liability). Meanwhile, the draft Directive remains under scrutiny.
24 See headnote. Back
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