PowerPointpresentatie

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ETUI-REHS Education course Free movement of
workers Posting of Workers The application of
the Directive with regard to the construction
industry
Runö, 7-10 February 2007 Werner Buelen, EFBWW
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Directive 96/71/EC concerning the posting of
workers in the framework of the provision of
services
theory and reality
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Objective
Facilitation of the transnational provision of
services by creating a balance between ensuring
fair competition and respect of workers' rights
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• Background
• Core defines a 'hard core' of terms and
  conditions of employment in force in host country
  that must be applied to posted workers
• Irrespective of the rules applying to the
  employment relationship
• Legal basis Article 49 EC (freedom to provide
  services)
• Article 50 EC (equal treatment)
• Twofold objective Ensure cross-border provision
  of services and protect posted workers' rights

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STRUCTURE OF THE DIRECTIVE

• Article 1 Scope
• Article 2 Definition
• Article 3 Terms and conditions of
  employment
• Article 4 Cooperation on information
• Article 5 Measures
• Article 6 Jurisdiction

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ARTICLE 1 SCOPE (1)

• Undertakings established in a MS, post workers to
  the territory of another MS, in the framework of
  the provision of services
• What is posting? 3 situations (par. 3)
• a) performance of a work by an undertaking under
  a contract concluded between that undertaking
  and a service-receiver
• b) posting within the same group
• c) hiring out of workers for use by an
  undertaking

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ARTICLE 1 SCOPE (2)

• In all three situations during posting
  employment relationship between undertaking
  making the posting and the worker
• Directive does not apply seagoing personnel of
  merchant navy undertakings
• Undertakings established outside EU, not more
  favourable treatment

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ARTICLE 2 DEFINITION

• Posted worker - limited period
• Worker 'host' Member State

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ARTICLE 3 TERMS AND CONDITIONS OF EMPLOYMENT (1)

• Does not affect law applicable to the employment
  relationship (Rome Convention)
• Certain minimum requirements for conditions of
  employment in the Member State, where the work is
  carried out, apply to the posted worker
• Max work periods and min rest periods
• Min paid annual holidays
• Min rates of pay
• Conditions of hiring-out of workers
• Health, safety and hygiene at work
• Protective measures for pregnant women, women
  haven given birth, children and young people
• Equality of treatment between men and women and
  other provisions on non-discrimination

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ARTICLE 3 TERMS AND CONDITIONS OF EMPLOYMENT (2)

• By law and/or
• By collective agreement which has been declared
  universally applicable "must be observed by all
  undertakings in the geographical area and in the
  profession or industry concerned"
• For the construction industry, but par. 10

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ARTICLE 3 TERMS AND CONDITIONS OF EMPLOYMENT (3)

• Derogations
• Public policy provisions

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ARTICLE 4 COOPERATION ON INFORMATION

• Designation of liaison offices to ensure the
  cooperation between the national authorities
  responsible for the monitoring of conditions of
  employment.
• Notification of the designated liaison offices to
  Commission and other Member States
• Ensuring that information on conditions of
  employment is made generally available

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ARTICLE 5 MEASURES

• Appropriate measures in the event of failure
• Adequate enforcement procedures for workers
  and/or their representatives

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ARTICLE 6 JURISDICTION
Possibility to institute judicial proceedings in
the Member State in whose territory the worker is
or was posted
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Implementation vs application and operation

• Application and operation
• Making the Directive work
• Four fundamental questions?
• Why?
• What?
• Who?
• Whow?
• When?

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Directive 96/71/EC of the European Parliament and
of the Council of 16 December 1996 concerning the
posting of workers in the framework of the
provision of services
Article 3 Terms and conditions of employment 1.
Member States shall ensure that, whatever the law
applicable to the employment relationship, the
undertakings referred to in Article 1 (1)
guarantee workers posted to their territory the
terms and conditions of employment covering 1.
Par. 6 Equality of treatment, within the meaning
of this Article, shall be deemed to exist where
national undertakings in a similar position -
are subject, in the place in question or in the
sector concerned, to the same obligations as
posting undertakings as regards the matters
listed in the first subparagraph of paragraph 1,
and - are required to fulfil such obligations
with the same effects.         
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Directive 96/71/EC of the European Parliament and
of the Council of 16 December 1996 concerning the
posting of workers in the framework of the
provision of services
Article 4 Cooperation on information 1. For the
purposes of implementing this Directive, Member
States shall, in accordance with national
legislation and/or practice, designate one or
more liaison offices or one or more competent
national bodies. 2. Member States shall make
provision for cooperation between the public
authorities which, in accordance with national
legislation, are responsible for monitoring the
terms and conditions of employment referred to in
Article 3. Such cooperation shall in particular
consist in replying to reasoned requests from
those authorities for information on the
transnational hiring-out of workers, including
manifest abuses or possible cases of unlawful
transnational activities. The Commission and the
public authorities referred to in the first
subparagraph shall cooperate closely in order to
examine any difficulties which might arise in the
application of Article 3 (10). Mutual
administrative assistance shall be provided free
of charge. 3. Each Member State shall take the
appropriate measures to make the information on
the terms and conditions of employment referred
to in Article 3 generally available. 4. Each
Member State shall notify the other Member States
and the Commission of the liaison offices and/or
competent bodies referred to in paragraph
1.        
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Directive 96/71/EC of the European Parliament and
of the Council of 16 December 1996 concerning the
posting of workers in the framework of the
provision of services
Article 5 Measures Member States shall take
appropriate measures in the event of failure to
comply with this Directive. They shall in
particular ensure that adequate procedures are
available to workers and/or their representatives
for the enforcement of obligations under this
Directive.   Article 7 Implementation Member
States shall adopt the laws, regulations and
administrative provisions necessary to comply
with this Directive by 16 December 1999 at the
latest. They shall forthwith inform the
Commission thereof.     
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The application and operation of the Posting of
Workers Directive
1. Why? Whereas any such promotion of the
transnational provision of services requires a
climate of fair competition and measures
guaranteeing respect for the rights of workers
(recital 5) 2. What? Legislative clarification
definition worker, wages, Administrative
communication via documents, websites,
information sheets, brochures, Administrative
coordination internal and external Checks and
investigations Sanctions 3. Who? The member
states and their administrative bodies 4.
Whow? Internal and external cooperation (social
partners, labour inspectors, ) Interpretative
laws, administrative regulations and
procedures Adequate functioning liaison offices
and/or competent bodies 5. When?  Immediately    
     
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Situation experience in the ANTWERP area
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Situation experience in the ANTWERP area
Cheaper wages for posted workers No respect for
safety rules labour regulations (50 or more
hours a week, 6 or 7 days a week) Extreme
flexibility (unfair competition) Fraud with
posting of workers
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1 execution of the contract in Belgium 2
official contractor/ employer (only post adress
in UK fiction, Cy lead by Dutch people) 3
Dutch Cy specialised in recruting posting
people go-between 4 German sister Cy of the
Dutch one (lead by the same Dutch people) , or
other subcontractor for Nr. 2 (the real
contractor) 5 Poland recruited workers, in
reality working for Nr. 4, but with UK labour
contract with Nr. 2 Some of them only officially
residing in Poland , but practically living AND
WORKING in Belgium for prolongued uninterrupted
periods.
2
3
5
1
4
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PARTIAL declaration to Social Security Construct
ions set up across countries (fraude
engineering) the posted worker most often
doesnt respond to the EC-status of being
posted (EC 96/71) Falsified attestations E101 -
falsified pay-slips etc. RESULTS fraude less
contributions to Social Security in country of
origin
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Practical tips regarding the application and
operation of the Posting of Workers Directive

• European Court of justice cases,
• Know-how and experiences of
• Member states,
• Governmental and paritarian Institutions,
• Labour inspectorate,
• Social partners (national and European)

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Questions?

• Werner Buelen
• European Federation of Building and Woodworkers
• Rue Royale 45/3 Phone [phone] 1000
  Brussels Fax [phone]
• Belgium E-mail wbuelen_at_efbh.be
• http//europa.eu.int/comm/employment_social/labour
  _law/postingofworkers_en.htm