Posted workers: the end of carelessness?

(B2) The European Parliament approved, yesterday in Strasbourg, the strengthening of the rules on posted workers. Where does this regulation come from, what does it provide for, what are the abuses, how does Parliament intend to remedy them.

Why regulate this issue?

In the European Union, the principle is freedom of enterprise. An Italian or British company can thus send its workers to carry out a certain number of works, without being required to be established in the country itself. Minimum rules have been put in place to find a balance between the rules of the country of origin (where the company is established) and the rules of the country of destination (where the company provides its service).

What is the current rule on the posting of workers?

A company can "second" employees to another EU country for a maximum of two years, provided that certain rules of the host country are applied, such as the minimum wage or health and safety rules. But she continues to pay social security contributions in the country of origin. Without much control.

What's the problem ?

Workers seconded by other companies are accused of breaking the markets, of not being bound by the same rules, in particular minimum wages, as with all the other formalities and charges of national companies.

Does abuse exist?

The directive designed at the time of the enlargement of Spain and Portugal contained many legal loopholes in which unscrupulous entrepreneurs got stuck. In particular, it did provide for compliance with the minimum wage but not all of the minimum remuneration (in particular the contractual minima). Nor did it really provide for triangular relations with companies specializing in the posting of workers. “Letterbox” companies have thus been created to offer low-cost labor (below the minimum wage) without respecting all the rules or paying social security contributions. Or they resort to “false self-employed”, “real employees”. In short, pure social dumping.

 

How many posted workers are there in Europe?

It's a real question. According to the European Commission, there are 1,2 million posted workers, or barely 1% of the workforce. An estimate made with a "wet finger", from social security declarations. However, a posted worker can be the subject of several declarations (which is in a way the norm if he returns several times to the country) or not be declared at all (case of fraud). The reality... is that there are no real statistics.

How was this file developed?

The European Commission made a proposal for a directive in 2012. It was then worked on within the “Employment and Social Affairs” committee of the European Parliament, the place where legislation is drawn up, with a rapporteur.

What does the new text provide?

The new text strengthens controls and information on three points:

• 1° It obliges the employer to make a declaration prior to hiring posted workers.
• 2° It allows, in the event of proven fraud, to question not only the “formal” employer of the posted worker but the one who gave the order. This is called “joint and several liability”. A mandatory system in the building.
• 3° It sets up a one-stop shop for labor legislation. Useful device for the bona fide employer who wants to know the regulations.

How will the control of workers be done?

For example, service providers would be required to make a declaration, at the latest when they start providing the service, including the identity of the company, the number of posted workers, the representative in the country of reception, the duration of the secondment and the nature of the services justifying the secondment.

When does this text enter into force?

Once the text has been endorsed by ministers, each member state has two years to apply it. But nothing prevents anticipating this delay. Some provisions already exist in French law. They will thus be strengthened.

Nicolas Gros-Verheyde (in Strasbourg)

 

 

 

(completed version of an article published in Ouest-France, April 17, 2014)