Inter-institutional negotiations on the posted workers directive are continuing under the Bulgarian Presidency of the Council of the EU, although several informal agreements have been reached between the co-legislators - informal agreements upon which the European Parliament has been successful in leaving its mark, according to the information we received on Monday 19 February.
The agreement reached particularly focuses on the definition of remuneration, the rules applying to the allowances posted workers benefit from, the posting of temporary workers and collective agreements applying to posted workers (see EUROPE 11957).
The question of remuneration was cleared under the Estonian Presidency of the Council. According to our information, the main principle of equal treatment between national and posted workers has been maintained. The definition of remuneration in force in the host member state should therefore apply to posted workers.
On collective agreements, the European Parliament has succeeded in getting its position to prevail (see EUROPE 11885, 11884): the provisional compromise would now also include non-universal collective agreements (such as branch agreements) in addition to universal collective agreements.
With regard to allowances, the European Parliament has put forward its position by introducing reimbursement allowances into the compromise text (accommodation, food, transport) in addition to daily allowances - the latter compensates the worker at a fixed rate for the work carried out a long way away from their customary residence according to the rules in force in the host member state.
The payment of reimbursement allowances would now be compulsory but the modalities for reimbursement will be set out on the basis of the rules of the worker’s member state of origin. The European Parliament would like the rules of the host member state to apply.
With regard to the posting of temporary workers, the informal agreement stipulates comprehensive equal treatment between the workers and “comparable” temporary workers according to the principle of equal treatment included in directive 2008/104/EC on temporary work. The debates particularly focused on "triangular" postings, for example, when a company in member state(A) posts a worker from country (B) to a host country (C). The agreement reached does not prohibit this kind of practice, as sought by the European Parliament, but it does clarify that the employer is the company of state A and that the country of posting is state C. The objective would be to ensure the responsibility of the company responsible for posting the worker.
The most divisive questions, however, still need to be tackled, namely: the extension of the legal basis, the Lex Specialis on road transport and the duration of the transposition of the directive and long-term postings. According to several sources, the last point is easily the most difficult and the European Parliament and Council have both indicated a red line around their respective positions (12 months extended by 6 months for the Council, 24 months with the possibility of extending for the European Parliament). Nonetheless, one European source has indicated that Parliament, bolstered by its victories on the question of allowances and non-universal agreements, could possibly show some flexibility on these last remaining questions.
The Bulgarian Presidency of the Council of the EU would like to obtain an agreement before the Employment and Social Policy Council (EPSCO) on 15 March. Two inter-institutional meetings are still planned for 28 February and 8 March next but the latter still needs to be confirmed. (Original version in French by Pascal Hansens)