On 8 March 2016, the European Commission published a proposed revision of Directive 96/71/EC (the Posting of Workers Directive).
The proposed revision targets three main issues:
1. Remuneration of posted workers
2. Rules on temporary work agencies
3. Long-term posting
Rates of pay
The Posting of Workers Directive currently provides that posted workers must be paid the minimum rates of pay of the host Member State. The proposed revision replaces the reference to “minimum rates of pay” with a reference to “remuneration”. According to the European Commission, remuneration would include not only minimum rates of pay, but also other elements like bonuses or allowances. The Commission has proposed that the same rules on remuneration of the host Member State must apply to posted workers where such rules have been laid down by law or by universally applicable collective agreements. The competence to set rules on remuneration will remain with each Member State.
Temporary agency work
The Commission has proposed applying the principle of equal treatment for temporary agency workers to posted temporary agency workers. The Commission has also proposed giving Member States the option of obliging undertakings to subcontract to sub-contractors only where such sub-contractors abide by certain rules on remuneration (whether resulting from universally applicable collective agreements or not).
Long term postings
Finally, the Commission has proposed that where workers are posted for longer than two years, the employment laws of the host Member State will apply to the employment contract of the posted worker if no other choice of law has been made by the parties. Even where a different choice is made, such choice could not have the result of depriving the posted worker of the protection of mandatory rules of the host Member State.
If implemented, this provision will apply from the commencement of the posting where it can be anticipated that the worker will be posted for more than 24 months. In all other cases, it will apply as soon as the duration of posting exceeds 24 months.
BusinessEurope, of which Ibec is a member, has reacted strongly to the publication of the Commission’s proposals. It has argued that these proposals risk opening yet another divisive debate among EU Member States at a time where restoring trust and unity is the priority. It has stated that this reopening of the Posting of Workers Directive may serve only to reduce posting activities because of the uncertainty and complexity surrounding the proposed new measures, thus undermining the free movement of services across the EU and impeding competitiveness.
Ibec has already recently provided its views on the transposition of the Posted Workers Enforcement Directive and is currently engaging with the Department of Jobs Enterprise and Innovation on these new proposed changes. We encourage Ibec members who are affected by the proposals to contact Ibec’s employment law services unit at 01 605 1500 with their views.
Saturday, 30 January 2016