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 9 March 2014
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| Previous Committee Reports
| HC 83-xxxiii (2013-14), chapter 1 (12 February 2014);
HC 83-xxvii (2013-14), chapter 1 (15 January 2014);
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
| For debate in European Committee C
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Background and previous scrutiny
1.1 The purpose of this draft Directive
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. In particular, it seeks to ensure that core
working conditions set out in the 1996 Directive are properly
implemented and enforced in the host State without, however, modifying
the content of that Directive.
1.2 The draft Directive includes provisions
which are intended to:
· help the host State determine
whether a posting is genuine, rather than an attempt to circumvent
the application of more onerous employment protection 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.
1.3 The Government had sought a scrutiny
waiver last October to enable it to support a possible Council
general approach on the draft Directive but, in the event, voted
against it at the Employment, Social Policy, Health and Consumer
Affairs (EPSCO) in December 2013 as it was dissatisfied with the
outcome reached on two Articles. The first, Article 9, concerns
so-called control measures — the administrative requirements
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 second, Article 12, concerns the arrangements for
recovery of unpaid wages in the construction sector in cases where
there is a sub-contracting chain.
1.4 The Government's negotiating objectives
were to resist the possibility for Member States to introduce
open-ended national control measures, under Article 9, as well
as the imposition of joint and several liability in the construction
sector, under Article 12. The Government accepted that the Council
general approach contained some useful safeguards in relation
to Article 9 but described the outcome on Article 12 as "not
ideal". Our earlier Reports provide a detailed overview
of the draft Directive, the Government's position, and the progress
of negotiations.[1]
1.5 In previous correspondence, the
Government told us that UK stakeholders supported its position
on Articles 9 and 12 and expressed confidence that existing domestic
arrangements for the recovery of unpaid wages through Her Majesty's
Revenue and Customs or employment tribunals would be sufficient
to satisfy the requirements of Article 12 of the Council's general
approach, without the need to introduce joint and several liability.[2]
1.6 We noted that the summary of responses
to its consultation on the draft Directive, published by the Department
for Business, Innovation and Skills in October 2012, revealed
"significant differences of opinion" on Article 9 control
measures and on joint and several liability under Article 12.
We asked the Government to explain how these differences had
been overcome and sought its assurance that the Government's position
commanded broad stakeholder support. We also repeated an earlier
request for a summary of the main changes being sought by the
European Parliament and the Government's position on them, adding:
"This will help us to see where
the pressure points in trilogue negotiations are likely to be
and facilitate any subsequent request for scrutiny clearance if
an acceptable compromise deal emerges."[3]
The Minister's letter of 9 March 2014
1.7 The Minister for Employment Relations
and Consumer Affairs (Jenny Willott) writes to inform us that
trilogue negotiations involving the European Parliament, Commission
and Council concluded on 27 February (after 12 trilogue sessions)
with a provisional agreement on a compromise text. She adds that
the text was approved by the Committee of Permanent Representatives
(Coreper) on 5 March, and notes:
"Negotiations were challenging
as both the Parliament and Council dug in and the feedback available
to Member States was limited, with compromise proposals only becoming
available in recent days."
1.8 She continues:
"The UK Government worked with
other Member States to press for adoption of the General Approach,
which had itself been difficult to reach and resulted in Member
States making concessions. For the UK, this meant agreeing that
the [European] Parliament could explicitly lay out their concerns
about bogus self-employment and illegal work, although this is
not covered in the operative part of the text. The Presidency
was, therefore, able to secure agreement on a final compromise
text which continues to keep in place the broad structure which
the UK has been able to support, subject to your consent to lift
the Committee's scrutiny reserve."
1.9 The Minister sets out the outcome
on three key Articles of the draft Directive:
· "Article 3 —
which allows for Member States to implement a justified and
proportionate risk-based assessment of whether a posting is
genuine, reducing the burden of proof on employers.
· "Article 9 —
the broad structure is maintained, ensuring that there are limits
on the administrative requirements (control measures) a Member
State can ask a business to provide before sending a worker to
another EU country. The Presidency's text sticks closely to the
Council's General Approach, requiring Member States to be transparent
about any existing or new control measures they intend to apply
to service providers.
· "Article 12 —
remains unchanged from the General Approach, providing flexibility
for Member States to determine how to implement the subcontracting
liability provisions whilst providing sufficient protection for
workers."
1.10 The Minister explains the factors
which informed the Government's position, noting that a key concern
has been to:
"mitigate the risk of the enforcement
directive being abandoned in favour of reopening the 1996 Directive.
Such a move could have led to some Member States pushing for
the Directive to be renegotiated from scratch after the European
Parliament elections, with a new proposal [....] meaning that
the scope of the Directive, including self-employment and agency
workers could have been revisited. This would have been much
harder for the UK to negotiate in relation to our aspirations
around the single market. On balance, the deal now provides
greater transparency and protection for workers and limits unnecessary
burdens than a new Directive in the future."
1.11 We had asked the Minister to explain
how the "significant differences of opinion" expressed
by UK stakeholders on control measures and joint and several liability
(Articles 9 and 12) had been overcome and sought an assurance
that the Government's position commanded broad stakeholder support.
The Minister tells us:
"We have discussed the position
with stakeholders throughout the process. Like us, the CBI and
EEF (the Manufacturers' Organisation) and TUC are clear that whilst
this is not the outcome we hoped for at the beginning of the negotiations,
we have taken a balanced and pragmatic approach. The TUC are
naturally disappointed that specific protections for employees
have not been made explicit on the face of the Directive, but
are content that this can be addressed through domestic policy,
which the agreed text gives us the flexibility to implement.
"We have also met, as far as
possible, the aims of the recommendation of the EU Business Taskforce,
which recommended that no mandatory and complex rules are introduced
in relation to subcontracting. They also recommended strict limits
on the paperwork a Member State can ask a business to provide
before sending a worker to another Member State."
1.12 The Minister expects the compromise
text agreed during trilogue negotiations to be considered by the
European Parliament's Employment Committee on 18 March and approved
at the European Parliament's April Plenary session. She says
that the Government intends to support the agreed text and invites
us to clear the draft Directive from scrutiny.
Conclusion
1.13 We asked the Minister for a
summary of the main changes being sought by the European Parliament
and the Government's position on them on 15 January and made clear
that this information would help to facilitate any subsequent
request for scrutiny clearance if an acceptable compromise deal
were to emerge. No summary has been provided and the Minister
now informs us that, after a period of intensive negotiations
involving no less than 12 trilogue sessions, an agreement has
been reached which, as far as we can tell, broadly reflects the
Council general approach. The Minister does not explain why a
text that the UK voted against last December, on the grounds that
it was "not in line with UK priorities", is now considered
by the Government to be acceptable.
1.14 It appears, moreover, that UK
stakeholders have mixed views on the outcome of the negotiation.
We note the Minister's observation that the TUC is disappointed
at the lack of specific protections for employees and its acceptance
that "this can be addressed through domestic policy, which
the agreed text gives us the flexibility to implement".
We think this statement merits further explanation. We would
also like to hear why the Government intends to support a text
which it opposed last December, and how it envisages that the
UK will implement the obligations contained in Article 12. For
these reasons, we consider that the draft Directive should be
debated in European Committee C before the proposal returns to
the Council for its formal approval after the European Parliament's
April Plenary session.
1 See headnote. Back
2
See letters of 17 December 2013 and 5 February 2014 to the Chair
of the European Scrutiny Committee. Back
3
HC 83-xxxiii (2013-14), chapter 1 (12 February 2014). Back
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