Workers posted abroad temporarily to provide services would be better protected by a draft law informally agreed upon by Parliament and Council negotiators on Thursday. Parliament's negotiators strengthened the draft to clarify rules for companies, by distinguishing genuine posting from attempts to circumvent the law, but also gave EU member states some flexibility in carrying out compliance inspections.
The new text aims to ensure that rules on posted workers’ working conditions are better enforced, as required by the 1996 directive, and prevent abuses.
“Today's agreement shows that EU institutions are shouldering their responsibilities. The proposed text aims to ensure workers’ protection and clarify the rules for companies. We have struck a balance between freedom to provide services and protecting workers' rights. This is good news both for the single market and for posted workers”, said rapporteur Danuta Jazlowiecka (EPP, PL).
"Thanks to Parliament, bogus ‘self-employment’ is clearly defined and thus will be better tackled. Member states will have more flexibility when carrying out checks, because although they will have to communicate new inspection measures to the European Commission but will not have to seek its prior authorisation for them. Social partners will also be more extensively involved”, said Employment and Social Affairs Committee Chair Pervenche Berès (S&D, FR).
Identifying genuine posting and preventing abuses
Parliament clarified the rules to help member states to assess whether a posting is genuine or an attempt to circumvent the law.
To determine whether a company really supplies services abroad, national authorities will be able to ascertain where it is registered, where it pays tax and social security contributions, where it recruits posted workers, where its business activity takes place and how many contracts it has to supply services.
To assess whether a worker is really posted temporarily, member states will be able to ascertain for how long the service is supplied and the date on which the posting began. The absence of an “A1” social security certificate may also indicate that the posting is not genuine, says the agreed draft, which includes a requirement to identify posted workers.
Member states which suspect that a worker is falsely ‘self-employed’ may also check whether work was done and assess work relationships, including his or her subordination and remuneration, adds the text, at Parliament’s request.
Stepping up inspections
To ensure that the 1996 Directive is properly enforced, the deal provides includes a list of national control measures, to which member states could nonetheless add further ones.
As proposed by Parliament, member states would have to communicate new control measures to the European Commission, but this does not constitute a prior authorisation requirement, and leaves member states some flexibility.
Enforcing workers' rights in subcontracting chains
In cases where work is contracted out in the construction industry both the main contractor and subcontractors would be held jointly and severally liable for any failure to pay posted workers or to respect their rights.
Once the new rules enter into force, member states will have two years to transpose them into their national laws. The European Commission would be required to report on their application, and if necessary propose further measures, within the following three years.
The informal deal still needs to be endorsed by member states' permanent representatives (COREPER), Parliament’s Employment and Social Affairs Committee, Parliament as a whole and the Council. The committee vote will take place on 18 March.
Procedure: co-decision, first reading