Posting provisions

15 April 2008

One of the distinguishing characteristics of the construction industry is that it involves activities in which the workers are particularly mobile. This is why FIEC and the European Federation of Building and Woodworkers (EFBWW) have been heavily involved in lobbying to reach agreement on the current version of the Posting of Workers Directive (96/71/EC).

The directive regulates the working conditions of workers employed in one EU country and posted to another and FIEC is keen to see it properly implemented. Nonetheless, the European Commission is looking to carry out a full revision of the directive.

During the last two years, FIEC and EFBWW undertook joint lobbying activities to prevent the recently adopted Services Directive rendering the posting directive ineffective. The two organisations have also been working to convince the institutions that the posting directive itself needs to be properly implemented and applied, rather than revised.

According to a study commissioned by FIEC and EFBWW in 2004, the difficulties identified in the practical application of the posting directive could be resolved through better access to information. This would lead to improved administrative cooperation between EU Member States and aid implementation of declarations prior to entering the “other country”.

FIEC and EFBWW decided in 2005 to produce a web-based database aimed at collecting the national statutory and conventional provisions, which have to be respected when workers are posted. This database was realised with the financial support of the European Commission (DG Employment) and the assistance of “Ius Laboris”, a network of specialised law firms across Europe.

The database contains information about laws and regulations applicable to posted workers. It includes details of the formalities relating to entry and temporary residence in the host state, the labour law applicable to the posted worker and to the posting company, such as remuneration, working hours, rest periods, paid holidays and health and safety requirements. Rules relating to social security, as well as the tax law applicable to the posted worker are also covered.

It is not intended to be exhaustive in every detail, but facilitates the process of finding out about the broad parameters involved when posting a worker to another EU country. It also allows users to identify the persons or organisations from whom they could obtain more detailed and up-to-date information. Links to reference texts are also available on the database.

The database has been conceived to be as practical as possible, in order to be easily accessible and understandable. To this extent, the database is available in English, French and German, but reference texts are not translated. The first edition of the database was completed in November 2006 and improving and up-dating the database will call for continuous effort.

This initiative by the construction industry has been warmly welcomed by the European Commission, which is enthusiastic about improving access to information related to the Posting Directive.

Following the adoption of its Communication on Posting in April 2006 (“Guidance on the posting of workers in the framework of the provision of services”, COM(2006) 159), the European Commission decided to assess the situation in all EU Member States. All national social partners, including FIEC and EFBWW member federations, were asked to answer a questionnaire in order to report on their contacts with liaison offices or monitoring authorities as regards requests for information relating to postings.

In its Communication on Posting, the Commission also committed itself to assess the progress made in the Member States on the implementation of the directive within one year, to help decide whether a full revision of the Directive might be required. Consequently, FIEC and EFBWW have recently been invited to comment on the measures and actions undertaken by national authorities and social partners since April last year.

FIEC and EFBWW oppose the idea of a revision of the Directive. They consider that most difficulties encountered can be resolved at the national level in the countries concerned through better access to information. The Posting database already provides an opportunity for greater administrative cooperation between EU Member States, but the problems can also be resolved through the implementation of advance declarations.

FIEC and EFBWW consider that prior declarations are not synonymous with prior controls, but that they are formalities which are necessary and allow the host countries to be properly informed of the existence of posted workers on their territories. They enable the host country to organise controls, if necessary, on the day when the work begins on the construction site, which is impossible to organise without advance information.

Referring to rulings of the European Court of Justice, the Commission indicated in its Communication which declarations and authorisations should be prohibited (or allowed) when posting a worker to another EU country. It stated that prior declarations would be authorised so long as they are purely informative and that no systematic control is undertaken before the work begins. In order to simplify the administrative environment for companies, FIEC and EFBWW recommend that the Commission introduces at the EU level a model “prior declaration form”.

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