Workers from the European Union are increasingly moving in between the various States of the Union and in doing so, exercising the right to freedom of movement laid down in Articles 56 to 62 of the Treaty on the Functioning of the European Union (TFEU), both as migrant workers, but also as workers posted by their employers for a limited period of time. According to the case law of the European Court of Justice, the freedom to provide services may be restricted in order to achieve a legitimate objective, such as the protection of workers, provided that the measures in question are appropriate to ensure the achievement of that objective and commensurate with what is necessary to achieve it.
When it comes to posted workers affected by this cross-border mobility, and their working and employment conditions, a series of directives[1] have been put forward with the aim of ensuring the protection of posted workers[2] for the duration of their posting, through mandatory provisions regarding their working conditions, the protection of their health and safety, as well as conditions relating to the application of social security and conditions related to tax obligations.
Having in mind all of the above, the EU-funded project "Informing on the Rules of Posting", IOR[3], has analyzed the challenges related to the implementation of the above-mentioned Directives on the Posting of Workers in the framework of the transnational provision of services, focusing on Information in order to improve the implementation and ensure the correct application of the European rules on the posting of workers.
The main objective of the IOR project is: to increase the accessibility, transparency and quality of information regarding the terms and conditions of employment, including practices in the Member States; and is specifically geared towards workers and employers who post workers in the agriculture, care and construction sectors; social partners; liaison offices and public authorities. The ultimate goal of the project is to facilitate the transnational exchange of information and best practices during its implementation, extending its impact to non-EU countries, in particular candidate countries.
Based on this objective, a series of activities and actions have been carried out during the implementation of the project with the aim of improving the understanding of the posting rules and applying adequate solutions to the actual problems faced by posted workers in the abovementioned sectors; as well as by posted third country nationals.[4]
As a result, the analyses carried out and the discussions held during the various activities of the IOR project were focused on addressing the necessary aspects of understanding the rules on the posting of workers: familiarity with EU legislation; raising awareness among representatives of the agricultural, care and construction sectors, their posted workers and the posting companies about the rules of posting; and building the capacity of the social partners by familiarizing them with the European legislation on posting rules.
In addition, as a result of the analysis, the ideas and experiences exchanged between the consultants and the target groups, as well as of the discussions which unfolded, a set of possible solutions has been identified that can be applied to the actual problems encountered in the posting of workers in the agricultural, care and construction sectors.
These solutions have been set out in a document entitled Recommendations and good practices, structured in five thematic segments which take a look at the different needs for improvement in the posting of workers, some of which are listed below:
Recommendations related to non-compliance with terms and conditions of employment and fraud in hiring
- Guarantee working and employment conditions and develop improved control over fraud in terms of irregular employment and the underground economy, incorporate more efficient detection mechanisms; strengthen national labor inspections and establish effective, dissuasive and proportionate sanctions for those who do not comply with the working conditions of workers.
Recommendations for improving the application and enforcement of EU regulations
- Ensure less ambiguity in the contents of the Directives in order to avoid confusion in their application and doubts in their interpretation, request their immediate transposition; establish more mandatory regulations, while respecting the autonomy of the various States; and implement digital tools that facilitate the implementation of the regulations in the process of posting workers; promote their implementation in candidate countries.
Recommendations for ensuring adequate information
- Ensure the centralization of basic information on national websites, translate documentation regarding publications into all native lanugauges; and strengthen the role of trade unions and other organizations in the dissemination of information, in order to facilitate access to information at the time of posting.
- Ensure a uniform approach in the digitalization of contracting procedures, in order to be aware of the actual circumstances of postings, and guarantee observance of the defined deadlines, as well as access to these procedures.
Recommendations for improving the working conditions of posted workers (PWs) and third country nationals (TCNs)
- Ensure the extension and application of existing collective agreements in a State so as to include PWs posted to work in that State; as well as employment conditions and occupational safety and health standards.
- Promote the education and training of employers, workers and trade unions on their legal obligations and labor rights with regard to posting.
- Guarantee equal treatment as regards working conditions for nationals, PWs and TCNs; promote gender equality, uniform criteria in terms of working conditions and wages, and promote transnational cooperation in these matters.
- Define a professional qualification that can be the subject of certification procedures in the EU related to the competencies of caregivers in care services.
[1] The first of these directives, Directive 96/71/EC has been amended twice: by virtue of Directive 2014/67/EU, aiming to "ensure compliance with and practical effectiveness of" Directive 96/71, in addition to establishing administrative cooperation by virtue of the Internal Market Information System, IMI (EU Regulation 1024/2012); while the more recently published Directive (EU) 2018/957 of the European Parliament and of the Council of June 28, 2018 was used to amend Directive 96/71/EC.
[2] The concept of a posted worker is set out in Article 2.1 of Directive 96/71, and entails: "any worker who, for a limited period of time, carries out his work in the territory of a Member State other than that in which he normally carries out his activity"; with a set of defining characteristics: the temporary nature of the posting which is not meant to exceed 12 months; that it may not be carried out for the purpose of replacing another worker whose posting period has already expired; that there is a relationship of dependence with the posting company for the duration of the posting; and that the work is being carried out on behalf and in the interest of the posting company and in an establishment of the company in another Member State
[3] The project leader is the Fundación Antonio Bustamante para el desarrollo de las profesiones y el movimiento sindical independiente, FAB, from Spain; with the participation of nine employer and trade union organizations from six EU member countries: Zwiazek Zawodowy Pracownikow Rolnictwa W Rzeczypospolitej Polskiej, ZZPR, and Polskie Stowarzyszenie Pracownikow Migracyjnych, PSPM, from Poland; the Federation of Associations of Young Businesswomen and Entrepreneurs of Castilla La Mancha, AJELM, and the Independent Trade Union Coalition of Workers, CSIT UNIÓN PROFESIONAL, from Spain; the Europaischer verein fur Wanderarbeiterfragen EV, EMWU, from Germany; the Stichting Used Amsterdam-Social Enterprise Agency, SU-ASEA, from the Netherlands; the Svaz Podnikatelu Ve Stavebnictvi, SPS/ABE, from the Czech Republic; and the Sdruzhenie Bulgarska Targovsko- Promishlena Palata, BCCI, from Bulgaria.
[4] Third-country nationals (TCN) are citizens of countries that are not member states of the European Union, the European Economic Area (EEA) or Switzerland. If a more formal definition is required, we can use the one established in Regulation (EU) 2016/399 of the European Parliament and of the Council of March 9, 2016 establishing a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code), whose paragraph 6 of Article 2, states that a "third-country national" is: "Any person who is not a citizen of the Union within the meaning of Article 20 (referring to EU citizenship), paragraph 1 of the TFEU and who is not covered by item 5 of this Article."
With regard to these persons, the Charter of Fundamental Rights, proclaimed on December 7, 2000 in Nice, lists the basic rights that both the Union, as well as Member States, must respect when implementing Union law; among them, fundamental rights such as dignity; freedom (including the right to education and work); equality (and prohibition of discrimination); solidarity (with the right to fair and just working conditions and the right to social security and health protection); citizenship; and justice (reaffirming the right to an effective remedy).
