The transposition of the directive on the posting of workers by all Member States has improved the working conditions of posted workers, particularly with regard to their pay, equal treatment of posted temporary workers and the reimbursement of posting-related expenses (e.g. travel, food and accommodation costs), the European Commission concluded on Tuesday 30 April in a new report on this instrument, which was adopted in 1996 and revised in 2018.
The Commission also concludes that, at this stage, there is no need to revise the directive, even though its report identifies shortcomings in these areas.
“Member States’ legislation substantially complies with the directive’s requirements. However, the Commission has identified various issues of non-conformity of national measures transposing the directive that could be subject to further actions”.
These problems relate to various provisions, such as double or chain postings, remuneration, the two new elements of the host Member State’s employment conditions (housing conditions and reimbursement of posting expenditure), long-term postings, equal treatment of temporary workers, posting allowances and the monitoring, control and enforcement of legislation.
With regard to temporary work, the Commission notes that there are “strong concerns that the practical application of the provisions of the directive related to posted temporary agency workers may result in situations where less favourable conditions may be applied to such workers. This could be due to an actual intention to circumvent the rules, but it could also result from a limited awareness on the part of the temporary employment agencies and the user undertaking(s) of the relevant rules that apply in other Member States, particularly regarding collective agreements”.
Employers have pointed out “that the complexity of the legal system regulating temporary cross-border work (e.g., posting) may lead to inadvertent non-compliance, in particular by smaller companies. Easily accessible and understandable legal information is therefore required”.
The report also expresses concern about the lack of transparency in subcontracting chains and calls for limits to be placed on the levels of subcontracting.
In addition, the Commission has noted certain difficulties in determining the remuneration applicable to posted workers, with all its compulsory elements (including expenses). The ELA (European Labour Authority) could, for example, develop a tool to facilitate the calculation of posted workers’ remuneration and make it more transparent, it proposes.
The Commission also raises concerns about the accommodation conditions that may affect posted workers, which vary from country to country. “National inspection authorities and social partners (particularly trade unions) could, together with ELA, develop targeted awareness-raising campaigns”.
The Commission also notes that some Member States have not included in their national legislation specific provisions on posting allowances and the reimbursement of posting-related expenses, again with disparities in the way these expenses are taken into account and reimbursed.
Only Finland and Denmark would reimburse these costs under exactly the same conditions as for costs incurred by national workers.
Link to the report: https://aeur.eu/f/c1f (Original version in French by Solenn Paulic)