1 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 17 December 2013
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| Previous Committee Reports | HC 83-xxiii (2013-14), chapter 5 (4 December 2013);
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 | General approach agreed on 9 December 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
1.1 We last considered this Directive at our meeting
on 4 December 2013. Its purpose is 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.
1.2 Our earlier Reports provide a detailed overview
of the draft Directive, the Government's position, and the progress
of negotiations.[1]
1.3 The Government expected the December 2013 Employment,
Social Policy, Health and Consumer Affairs (EPSCO) Council to
agree a general approach, based on a Presidency compromise text.
It told us that it would only support the general approach if
it included a satisfactory outcome for the UK on Articles 9 and
12. Article 9 concerns the administrative requirements and control
measures that a host Member State may impose on businesses posting
workers to its territory to ensure that they comply with the rules
on posting. The Government said that it would resist the possibility
for Member States to introduce open-ended national control measures
which would place unreasonable burdens on business.
1.4 Article 12 concerns the introduction of joint
and several liability within the construction sector to make it
easier for posted workers to recover unpaid wages where there
is a sub-contracting chain. The Government told us that it would
not agree any compromise text that would require the UK to introduce
joint and several liability as it would impose significant burdens
on businesses using posted workers.
1.5 We noted that we had granted a scrutiny waiver
at our meeting on 9 October 2013 to enable the Government to agree
a Council general approach on the terms it had outlined to us
in correspondence. We asked the Government to report back to
us on the outcome of the December EPSCO Council, indicating whether
it had achieved its negotiating objectives.
The Minister's letter of 17 December 2013
1.6 The Minister for Employment Relations and Consumer
Affairs (Jo Swinson) informs us that the EPSCO Council agreed
a general approach which was not in line with the UK's negotiating
priorities and that the Government, accordingly, voted against
it, as did a number of other Member States.
1.7 Turning first to Article 9 on national control
measures, the Minister explains:
"Whilst the UK was not able to secure a closed
list [...] in Article 9, the agreed approach does contain several
safeguards which mean this is not an open list. All control measures
imposed to ensure compliance must be justified and proportionate.
Additionally the Commission will have to report regularly to
the Council on measures notified by Member States and, where appropriate,
on the state of play of its assessments/analysis.
"Read as a whole, this Article goes a long way
to meeting the UK's aim of avoiding unnecessary administrative
burdens and increasing transparency and certainty for businesses.
For example, there is a requirement that control measures must
be notified to the Commission, and made clearly available to service
providers on a single national website."
1.8 The Minister expresses greater concern about
the agreement reached on Article 12:
"the Council position means the UK will have
to have appropriate enforcement measures or sanctions to tackle
fraud and abuse in situations where subcontracted posted workers
have difficulty obtaining their rights (essentially in relation
to receiving their wages). Whilst this is not ideal, it does
not require Member States to implement joint and several liability.
We think the UK's input throughout the day secured significant
concessions and there is some flexibility as to how the liability
requirements could be introduced."
1.9 The Minister notes that trilogue discussions
with the European Parliament are expected to begin early in 2014
and undertakes to provide further progress reports.
Conclusion
1.10 We understand that the general approach agreed
by the EPSCO Council would not require the UK to introduce joint
and several liability in sub-contracting chains in the construction
sector, but would require the Government to demonstrate that it
has equally effective enforcement measures in place to ensure
that unpaid wages can be recovered. We ask the Minister whether
she anticipates that new legislation would be needed to give effect
to this obligation, or whether she considers that existing laws
and practices in the UK provide an adequate level of protection.
1.11 We note that the Government's earlier consultation
on the Commission's original proposal revealed sharp differences
of opinion amongst representatives of business and workers on
provisions dealing with the enforcement of rights of posted workers,
including Article 9 on the scope of national control measures
and Article 12 on joint and several liability. We ask the Minister
whether she intends to consult again on the Council general approach
and to indicate whether the Government's position on Articles
9 and 12 is supported by UK stakeholders.
1.12 We welcome the Minister's undertaking to
provide regular progress reports on trilogue negotiations with
the European Parliament. We ask her to summarise the main changes
being sought by the European Parliament and the Government's position
on them. Meanwhile, the draft Directive remains under scrutiny.
1 See headnote. Back
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