Further to the ETUC declaration on the Commission proposals for a Monti II Regulation and Enforcement Directive of the Posting of Workers Directive adopted on 19 April, this position paper sets out the ETUC’s key demands regarding the Enforcement Directive. It should, however, be noted that since the Enforcement Directive does not address the core provisions of the Posting of Workers Directive, the ETUC’s demand for a revision of the Directive remains.
In order to ensure that the Enforcement Directive is not a pure internal market instrument based solely on Art. 53 (1) and 62 TFEU, a social dimension must be included at least by creating a dual legal basis through the addition of Art. 153 TFEU (social policy).
The Enforcement Directive should ensure adequate protection of workers regardless of their status and also in case of change of status. The relationship with the Rome I Regulation, which lays down the rules for the choice of the applicable law, therefore needs clarification. This could be achieved by introducing a presumption that the habitual place of work within the meaning of Rome I is in the host Member State unless it is proved otherwise.
Furthermore, the applicable situation to temporary agency workers in case of posting needs to be clarified. The equal treatment principle provided for by the Temporary Agency Work Directive must also be respected in situations of posting. The Enforcement Directive should ensure that it applies to temporary agency workers unless they are guaranteed more favorable treatment regarding their terms and conditions of employment in another instrument.
Criteria determining the notion of posting
An indicative list of criteria for establishing whether an undertaking is genuine and whether a posted worker is temporarily carrying out his or her work in another Member State, as proposed by the Commission, gives Member States the possibility to pick and choose the least cumbersome criteria. This creates legal insecurity and makes the Enforcement Directive inefficient. The list of criteria should be binding in every Member State. It should also include quantitative elements and be non-exhaustive, i.e. Member States must as a minimum transpose the listed criteria to be able to make an overall assessment of the relevant elements. Furthermore, the Enforcement Directive should clarify when Member States are supposed to examine if the criteria are fulfilled.
To reduce the possibility of circumvention of the Posting of Workers Directive and the Enforcement Directive through false self-employment, criteria based on the ILO Recommendation No. 198 on the employment relationship should be added.
Preventing abuse and circumvention
The Enforcement Directive does not propose effective and dissuasive measures for combatting fraud or preventing abuse, misuse or circumvention. Therefore, it is essential to add provisions preventing successive assignments to the same post and so-called letter-box companies.
Moreover, workers whose employing company in the alleged Member State of establishment is in fact a letter-box company must benefit from the Treaty provisions on free movement of workers and equal treatment. The Enforcement Directive should also ensure that a posted worker cannot be sent to replace another posted worker in order to perform a similar task, except for objective reasons such as illness or termination of the contract by the posted worker.
The introduction of a joint and several liability mechanism is indispensable in protecting workers from abuses. Otherwise, a contractor could easily evade national regulations or collectively agreed labour standards and working conditions by creating extremely complex networks of subcontractors.
The Commission’s proposal, however, is limited to the construction sector and direct subcontractor situations. It is also undermined by the stipulation that a contractor that has taken due diligence cannot be held liable.
Joint and several liability must apply to any sector of activity. The Enforcement Directive should also introduce a mandatory chain liability, which stipulates that the main contractor(s) is liable for the compliance of all subcontractors, with the applicable terms and conditions of employment, and social security contributions.
The concept of “due diligence” should be deleted. There is no definition at the European level and it would therefore vary from one Member State to the other. It has been indicated that in order to escape liability, it might be sufficient for the contractor to check the identity of the subcontractor and their history.
Control and monitoring
The onus should not be on the Member State of establishment to carry out the control and monitoring, but the host country in which the posted worker is actually working. Since effective cooperation between Member States does not seem to be the rule in practice, it is not acceptable that host Member States can only act at the request of the Member State of establishment.
National control measures should be mandatory and not limited to those listed in the Enforcement Directive. Governments must be free to take other measures as well. It should also be made clear that the article on national control measures applies to the host Member State. In addition, the Enforcement Directive should impose an obligation on the service provider to declare the use of posted workers prior to the posting.
With the purpose of improving the enforcement of the Posting of Workers Directive, public authorities, together with trade unions should have access to documents such as the employment contract. The translation of these documents cannot be limited to those that are “not excessively long and standardised”. Workers and service providers must have access to information in their own languages.
The ETUC welcomes the obligation to designate a contact person, but this person should be a representative of the employer, have a legal capacity and their role should not be restricted to negotiations. The contact person should reside in the host Member State during the entire period of the service provision.
It is important that Member States are able to ensure effective labour inspection. Therefore, the Directive should not create a right for employers to challenge enforcement action simply because a risk assessment was not carried out.
The Enforcement Directive provides trade unions with the possibility of engaging in judicial or administrative proceedings on behalf or in support of a posted worker. This possibility should also apply to the enforcement of the obligations under the Posting of Workers Directive. In order to ensure coherence with collective agreements and all national legal systems, the chapter on enforcement should make it possible for a trade union to act on behalf or in support of a posted worker without the approval of the worker.
The possibility for posted workers to lodge complaints should not be restricted to outstanding remuneration or refund of excessive costs. The posted worker should also be able to claim any other entitlement due to him/her. A provision protecting posted workers when taking judicial and administrative proceedings should be included.
Sanctions should be effective and dissuasive not least concerning letter-box companies in order to prevent social dumping and the abuse of posted workers. To avoid weakening existing national legislation, a clause of non-regression is necessary as well as the granting of the right to Member States to maintain or improve the already existing control and surveillance mechanisms.