Crunch time for posting directive

24 April 2008

The Pan-European Operation of many construction companies means their employees are likely to be posted to projects outside their main country of residence. For this reason the European Construction Industry Federation (FIEC) campaigned for the Council to adopt the current version of the Posting Directive (96/71/EC) in 1996.

The directive regulates the minimum working conditions of employees posted from one EU country to another and FIEC is keen to see this directive properly implemented and applied. But a survey and seminar undertaken jointly by FIEC and the European Federation of Building Wood Workers (EFBWW) in 2004 found that use of the directive presented a number of difficulties.

Practicalities

The study looked in detail at the practical implementation, achievement and impact of the posting directive in a number of EU member states. The survey and discussions at the seminar identified several difficulties which had been encountered at national level. One of the main issues was insufficient access to information on the rules to be respected in the host country and the need for an increased cooperation between national authorities. There was a clear need for a posting database to provide employers and workers with the necessary information.

With the support of Ius Laboris - a network of European law firms - and a grant from the European Commission, FIEC and EFBWW began work on the database in 2005. The idea was to gather together the national legal and conventional provisions which have to be respected during posting, such as minimum wages, holiday pay, compensation for bad weather and working time.

The concept of the database was not to be exhaustive, but to facilitate the process of posting workers to other EU member states. The aim was to enable employers to identify the persons or organisations who could provide more detailed information via a website which FIEC and EFBWW hope to have in place by October 2006.

The European Commission is also keen to see the Directive correctly implemented and efficiently applied, and launched a public consultation in December 2005 to investigate current implementation. FIEC responded by opposing the idea of a revision of the Directive but pointed out the practical implementation difficulties it had identified. FIEC also suggested that these difficulties could be resolved through better access to information, closer administrative cooperation between EU member states and the use of prior declarations.

In April the European Commission published a Communication on the posting of workers, COM(2006)159, which provides guidance to implement the directive at national level. In reference to rulings of the Court of Justice, the communication indicates which declarations and authorisations should be prohibited when posting a worker to another EU country and which should be allowed. This text has created some unrest, as its working is far from clear and no official explanation is available.

The Commission intends to produce a roadmap of short-term measures to be taken by member states to improve the implementation of the Directive. It also announced its intention to evaluate the impact of these guidelines in 12 months time and then decide whether or not a revision of the Directive is needed.

Fiec Position

FIEC's position is that the construction sector is opposed to a revision of the Posting Directive, and will lobby the Commission accordingly. The Commission's approach is astonishing, as a communication cannot create any new rules, it is simply the Commission's interpretation of the European Court of Justice rulings. Evaluating the impact of the communication might lead to the misunderstanding that the Commission is trying to legislate by means of a communication.

Also, the European Parliament is interested in evaluating the efficiency of the Directive. The first quarter of the year saw several hearings organised by the Employment and Social Affairs Committee of the European Parliament, designed to examine the current implementation of the directive and to decide whether it needs revision.

The hearings identified the same difficulties as the FIEC/EFBWW study. Following the hearings, an ‘initiative report' is being drafted by MEPs for adoption by the Employment and Social Affairs Committee before Summer 2006. It seems that most MEPs consider, as do FIEC and EFBWW, that the problems encountered with this Directive should be sorted out in the countries concerned, but not through a revision. The MEPs also support the view that enhanced cooperation between member states, as well as better access to information, will improve the situation considerably.

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