A report on the review of the posted (seconded) workers directive, voted through on Monday 16 October by the European Parliament’s employment and social affairs committee (EMPL), backs the key principle underlying the European Commission’s proposal, namely equal work for equal pay at the same workplace, but with divergence on a raft of the proposal’s proposals.
Speaking ahead of the vote at a press conference on Wednesday 11 October at the side of the other co-rapporteur, Agnes Jongerius (S&D, the Netherlands), who said it was the text of the ‘mandate,’ co-rapporteur Élisabeth Morin-Chartier (EPP, France) said it was a text that reforms the directive at the foundation of social Europe. Hence the two rapporteurs and shadow rapporteurs mostly wanted to go further than the European Commission’s proposal during the negotiations.
As we reported in a number of previous articles (see EUROPE 11884, 11881), amendments have been made to the duration of secondment, remuneration, transport cost compensation, per diems, lodging and collective agreements, subcontracting, transparency, better cooperation among member states and the legal basis of the directive and international road transport. In this article, we will consider only the major differences from the European Commission’s initial proposal.
Firstly, we were told that the MEPs decided to extend the legal basis to Article 153 (1a and b) of the TFEU to give the directive two main aspects: the free circulation of services (Article 53§1 and article 62 of the TFEU) and worker protection, in order to make it compulsory in the future to consult the social partners ahead of any revision of the said directive and give the European Court of Justice (ECJ) the possibility of making rulings more favourable to workers.
The maximum duration of a seconding of a worker is 24 months, explained the MEPs, as suggested by the European Commission. Beyond this, the seconded worker will be subject to the host member state’s rules and social laws except where the contract is broken early. Here the MEPs introduced greater flexibility into the European Commission’s proposal and made it possible for companies to ask for an extension of secondments for more than 24 months (to be requested from the host member state’s authorities).
MEPs tightened the rules for replacement and consider that the period of secondment is counted by mission rather than seconded individual, in other words, it starts on the first day of secondment, even if another worker is being replaced. The Commission proposed, for reasons of proportionality, that secondments should be of at least six months before they are totted up. A Parliament source says this measure is problematic because it would allow unscrupulous companies to get around the maximum secondment period by arranging secondments of less than six months.
In terms of compensation, the MEPs say that it should be considered separately from pay as such, a concept that should replace the idea of minimum wage in the current directive (Directive 96/71) – and should be based on the host member state’s indexes. A European source descried this as a great novelty. In terms of lodging, the host member state’s rules will apply from the first day of secondment.
In terms of collective agreements, the MEPs wanted to go further than the European Commission’s initial proposal to monitor the decentralising of collective bargaining that is being seen ever more frequently both regionally and at sectoral level. The Commission proposed that the directive should only apply to collective agreements of general application but the MEPs suggest that non-universal collective agreements should also be taken into account.
The vote broadly welcomed by the two political groups that provided the co-rapporteurs, and also by the Greens phantom rapporteurs, Terry Reintke (Germany) and Karima Delli (France). The latter expressed concern about keeping a mention of international road transport in the directive at the Council. Denmark’s Rina Ronja Kari, shadow rapporteur for the GUE/NGL, also supported the text. On the other hand, however, the rapporteur for ALDE, Czech national Martina Dlabajová, issued a press release saying she voted against because an approach reconciling the freedom to supply services and the protection of workers’ rights hadn’t been achieved.
Sharp East-West divide. What had initially seemed to be an isolated position of the rapporteur for the liberal group was not isolated, it turned out. Looking at the vote breakdown, all MEPs from the liberal group voted against, apart from Robert Rochefort (ALDE, France). The divide between member states in the West and East was clearly visible. The EPP largely supported the text, apart from Michaela Šojdrová (Czech Republic), who voted against, and a number of other East European MEPs who abstained, including Danuta Jazłowiecka (Poland), who had been rapporteur on the 2014 implementation directive. At the S&D, there was one abstention, by Pavel Emilian (Romania).
Construction sector trade unions pretty satisfied. The European Trade Union Confederation (ETUC) welcomed the main compromises ahead of the vote, particularly the double legal basis, but was concerned about the 24-month maximum secondment duration. The ETUC is particularly worried about developments at the Council, where the text seems to be on shaky ground. SMEs in the construction sector, represented by the EBU (the ‘European Builders Confederation’), welcomed the report but insisted that the maximum duration for secondment should be six months.
Possible postponement at Council. A number of diplomatic sources say that three big issues need to be settled at the employment and social relations (EPSCO) council on 23 October, namely, the maximum secondment period, international road transport, and the time left for transposing the directive. A diplomatic source said the outcome remains uncertain and it was possible that the vote would be postponed until December. (Original version in French by Pascal Hansens)