What is posting?
We say a worker is “a posted worker” when he is employed in one EU Member State but sent by his employer on a temporary basis to carry out his work in another Member State. For example, a service provider may win a contract in another country and send his employees there to carry out the contract. This trans-national provision of services, where employees are sent to work in a Member State other than the one they usually work in, gives rise to a distinctive category, namely that of “posted workers”. This category does not include migrant workers to go to another Member State to seek work and are employed there.
To guarantee that the rights and working conditions of a posted worker are protected throughout the European Union, and to avoid “social dumping” where foreign service providers can undercut local service providers because their labour standards are lower, the European Community law has established a core of mandatory rules regarding the terms and conditions of employment to be applied to an employee posted to work in another Member State. These rules will reflect the standards of local workers in the host Member State (that is, where the employee is sent to work).
The idea is that where a Member State has certain minimum terms and conditions of employment, these must also apply to workers posted to that State. However, there is nothing to stop the employer applying working conditions which are more favourable to workers such as, for instance, those of the sending member State (that is, where the employee usually works).
Which areas are covered?
The Posting of Workers Directive (Directive 96/71/EC) covers employees being sent to another Member State in three situations:
- When an employer posts a worker to another Member States on his own account and under his direction, under a contract which the employer has concluded with the party in the State for whom the services are intended;
- When an employer posts a worker to an establishment or to an undertaking owned by the group in the territory of a Member State;
- When the employer, being a temporary employment undertaking or placement agency, hires out a worker to a user undertaking established or operating n another Member States.
The employment relationship between the employer and the posted worker must be maintained during the period of posting.
What terms and conditions of employment are covered?
The core of mandatory rules on posting covers a wide range of issues such as maximum work periods and minimum rest periods, minimum paid annual leave, minimum rates of pay, equal treatment between men and women and the conditions of hiring out workers, in particular the supply of workers by temporary employment undertakings.
The legislation also tackles issues such as health and safety at work and includes protective measures in the terms and conditions of employment of pregnant women, of children and of young people.
By guaranteeing fair competition and respect for the rights of posted works, the EC legislation provides a clear framework so that businesses and workers can take full advantage of the opportunities offered by the internal market.
Furthermore, the Posting of Workers directive lays down the obligation for Member States to cooperate among themselves and to grant public access to information on national employment conditions.
Legislative initiatives 2012
- Proposal for Directive concerning the enforcement of the provision applicable to the posting of workers in the framework of the provision of services – COM(2012) 131
- Proposal for Regulation on the excercise of the right to take collective action within the context of the economic freedoms of the single market – COM(2012) 130
- Commission Staff Document: Impact Assessment, Revision of the legislative framework concerning the posting of workers in the context of the provision of services – SWD(2012) 63 – Part I / SWD(2012) 63 Part II / SWD(2012) 64 Executive Summary
- Press Release: Commission to boost protection for posted workers – IP/12/267 21/03/2012
- Report from the Commission services on the implementation of 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 (January 2003)
- Implementation Report Directive 96/71/EC concerning posting of workers in the framework of the provision of services – New Member States (July 2007)
- Study on the protection of workers’ rights in subcontracting processes in the European Union (2012) – Final Report (EN) / Executive Summary (EN, FR, DE).
- Preparatory study for an Impact Assessment concerning the possible revision of the legislative framework on the posting of workers in the context of the provision of services, Ismeri Europa (2012)
- Complementary study on the legal aspects of the posting of workers in the framework of the provision of services in the European Union (2012)
- Comparative study on the legal aspects of the posting of workers in the framework of the provision of services in the European Union – with executive summaries: EN, FR, DE (2011)
- Study on the economic and social effects associated with the phenomenon of posting of workers in the EU: Final report / Annexes (March 2011)
- Information provided on the posting of workers (Sep 2010)
- Recent study on the Posting of workers carried out for the European Foundation for the Improvement of Living and Working Conditions (Eurofound) – Pedersini, Roberto, Pallini, Massimo: Posted workers in the European Union (2010)
- Joining up in the fight against undeclared work in Europe – Feasibility study on establishing a European platform for cooperation between labour inspectorates, and other relevant monitoring and enforcement bodies, to prevent and fight undeclared work (Final Report 2010)
- Report (Executive Summaries) on the implementation of Directive 96/71/EC in Bulgaria and in Romania (2009)
- Non-EU seasonal workers: EP/Council deal on better social rights and conditions (fidest.wordpress.com)
- Labor rights group accuses garment plants of cheating workers pay (sfltimes.com)