A ‘common approach’ is how the EU trilogue (European Parliament, Council and Commission) presented the provisional agreement that was struck on the evening of 28 February, and which aims to produce draft legislation on ‘posted workers’. Caution is the watchword until all the co-legislators, and the Member States in particular, officially validate the new text.
The draft directive, adopted in March 2016 (see our article on the EELA website here), revises Directive 96/71 which defines a set of mandatory rules regarding the terms and conditions of employment to be applied to posted workers, so that posting does not lead to social dumping.
However, despite the framework in place, practices to circumvent the rules have developed, creating a situation whereby posted workers suffer inferior treatment than workers from the host country.
Principle of ‘equal pay for equal work’. In order to solve that issue, the draft directive establishes the principle of ‘equal pay for equal work’, which has been maintained in the political agreement. This principle means that a posted worker should have the same access to the same pay as a local worker. Currently the posted worker is only protected by a narrow set of minimum rights, which ensures the worker receives ‘at best’ the minimum salary that applies in the host country. Under the new text, the posted worker will have not only a minimum hourly pay (legal minimum or that contained in a collective agreement), but also the supplements that local workers are eligible for. Besides, the new rules, which will also apply to temporary workers and posted workers working on a consecutive basis, prohibit employers from deducting costs related to the posting from the worker’s salary (travel expenses, accommodation costs).
Other measures. The 28 February negotiation meeting also enabled some outstanding issues to be resolved. On the thorny issue of international road transportation, the negotiators decided to follow the Member States’ position and treat the issue within the framework of the mobility package negotiations (see our post on the EELA website here). It was also agreed that a posted worker will shift over to the labour code of the host country after 12 months (instead of 24 months in the initial proposal), with the possibility to extend this a further 6 months.
Schedule. At this stage it remains a ‘common approach’, negotiated by the European institutions’ representatives. It still needs to be approved by the institutions themselves.
In 2016, the EU saw 2.3 million posted workers cross its internal borders and generally for a period of less than four months. Germany, France, and Belgium are the most affected Member States and account for approximately 50% of the total. Poland, Germany and Slovenia are the top three countries that post workers abroad and this is primarily down to their proximity with the major host countries.