Brussels, 04/03/2016 (Agence Europe) - The proposal for targeted revision of the 1996 directive on the posting of workers (96/71/EC) is due to be adopted by the college of commissioners at the European Commission on 8 March. It is expected to include the idea of limiting posting to 24 months and reducing the difference between pay for posted and local workers. Nonetheless, the proposal has provoked rumblings of discontent in at least 12 member states and within the European Parliament in all the different political camps.
This proposal is expected to include a succinct two-page legislative section that particularly targets articles 2 and 3 in the basic directive, as EUROPE observed in the draft proposal. The first point involves the period of posting, which the Commission would like to limit to 24 months for all activities carried out by the same worker in the same workplace (beyond this period, the worker would no longer be considered as a “posted” worker and all national rules would apply). The accumulation of different periods would be taken into account when the posting in question is less than six months.
The Commission is also expected to propose the scrapping of the reference to the “minimum wage” and include in the directive, the need to guarantee, during posting, the application of the rules on “pay applicable to local workers that are necessary to the protection of workers”, which is an attempt to improve adaptation to the different national wage systems, including those where the minimum wage is determined by a specific sector and collective agreements. Member states would also be able to apply this rule throughout the sub contracting chain.
The Commission would at the same time like member states to set up a public system (Internet website) providing information about the level of pay for posted workers and all elements that could be used to increase it, such as bonuses, overtime rates and clarification about holiday pay. The Commission would also like to make it incumbent on member states to ensure that temporary job agencies that post workers are only subject to the rules of the directive on temporary work (2008/104/EC).
The Commission would also like the annex to the directive to be removed, which focuses on activities in the construction sector, which would make the directive apply in a uniform way to all sectors of activity, particularly collective agreements in the host country.
These proposals have already been described by the EPP group as being very “vague” and only reflecting the interests of western member states. Although the reasons are slightly different, the judgment made at the S & D group is just as critical and some members of the group have even described the proposal as “ridiculous” because it does not constitute legal clarification on certain points, whilst creating legal uncertainty on others. The 24 month limit is de facto in force by way of regulation 883/2004 on the coordination of social security systems, explained a number of different sources. Many questions also arise on the way in which the Commission is positioning its proposal with regard to the 2014 directive of application, which has not yet been transposed by member states, as well as subsequent revision of the 883/2004 regulation planned after the British referendum at the end of June.
According to one diplomatic source, 12 member states are already mobilising to express their opposition to the Commission. Without awaiting the adoption of the proposal by the college of commissioners, the Polish Prime Minister, Beata Szydlo, sent a letter to the President of the Commission, Jean-Claude Juncker, on Thursday 3 March, to express her concern about the approach adopted in this targeted revision. The scenario of a minority block, set up during the negotiations on the 2014 directive of application, may, however, prove more difficult to reproduce. On this occasion, the United Kingdom would not be able to be part of a minority, in addition to a majority of member states in central and eastern Europe because London recently obtained agreement on reform of its EU membership and revision of the rule on the coordination of social security systems, explained one source. (Original version in French by Jan Kordys)