39 Amendments of Agnieszka KOZŁOWSKA related to 2016/0070(COD)
Amendment 43 #
Proposal for a directive
Citation 4 a (new)
Citation 4 a (new)
Having regard to the reasoned opinions issued by national parliaments from 11 Member States objecting the Commission proposal on the grounds of subsidiarity;
Amendment 51 #
Proposal for a directive
Recital 1
Recital 1
(1) The free movement of workers, freedom of establishment and freedom to provide services are fundamental principles of the internal market in the Union enshrined in the Treaty on the Functioning of the European Union (TFEU). The implementation of those principles is further developed by the Union aimed at enhancing social cohesion among Member States and guaranteeing a level playing field for businesses and respect for the rights of workers.
Amendment 63 #
Proposal for a directive
Recital 2
Recital 2
(2) The freedom to provide services includes the right of undertakings to provide services in another Member State, to which they may post their own workers temporarily in order to provide those services there. Charging a lower price for a service should not be regarded as engaging in unfair competition where that price is the result of generally lower costs, wages and minimum rates of pay in the Member State in which the posted worker normally works and the posted worker does not earn less than other workers in that Member State.
Amendment 81 #
Proposal for a directive
Recital 4
Recital 4
(4) Almost twenty years after its adoption, it is necessary to assess whetherenforce the rules and confirm that the Posting of Workers Directive still strikes the right balance between the need to promote the freedom to provide services and the need to protect the rights of posted workers.
Amendment 118 #
Proposal for a directive
Recital 8
Recital 8
(8) In view of the long duration of certain posting assignments, it is necessary to provide that, in case of posting lasting for periods higher than 24 months, the host Member State is deemed to be the country in which the work is carried out. In accordance with the principle of Rome I Regulation, the law of the host Member Sates therefore applies to the employment contract of such posted workers if no other choice of law was made by the parties. In case a different choice was made, it cannot, however, have the result of depriving the employee of the protection afforded to him by provisions that cannot be derogated from by agreement under the law of the host Member State. This should apply from the start of the posting assignment whenever it is envisaged for more than 24 months and from the first day subsequent to the 24 months when it effectively exceeds this duration, unless two Member States concerned agree on derogation. This rule does not affect the right of undertakings posting workers to the territory of another Member State to invoke the freedom to provide services in circumstances also where the posting exceeds 24 months. The purpose is merely to create legal certainty in the application of the Rome I Regulation to a specific situation, without amending that Regulation in any way. The employee will in particular enjoy the protection and benefits pursuant to the Rome I RegulationIn order to take into account characteristics of various sectors, the 24 months should be calculated within the reference period of 36 months. For the purpose of calculating the posting period the concept of "the same task at the same place" is also clearly defined and should be determined taking also into consideration the nature of the service provided and the work to be performed.
Amendment 122 #
Proposal for a directive
Recital 8
Recital 8
(8) In view of the long duration of certain posting assignments, it is necessary to provide that, in case of posting lasting for periods higher than 24 months, the host Member State is deemed to be the country in which the work is carried out. In accordance with the principle of Rome I Regulation, the law of the host Member Sates therefore applies to the employment contract of such posted workers if no other choice of law was made by the parties. In case a different choice was made, it cannot, however, have the result of depriving the employee of the protection afforded to him by provisions that cannot be derogated from by agreement under the law of the host Member State. This should apply from the start of the posting assignment whenever it is envisaged for more than 24 months and from the first day subsequent to the 24 months when it effectively exceeds this duration. This rule does not affect the right of undertakings posting workers to the territory of another Member State to invoke the freedom to provide services in circumstances also where the posting exceeds 24 months. The purpose is merely to create legal certainty in the application of the Rome I Regulation to a specific situation, without amending that Regulation in any way. The employee will in particular enjoy the protection and benefits pursuant to the Rome I Regulation.
Amendment 139 #
Proposal for a directive
Recital 9
Recital 9
(9) It is settled case law that restrictions to the freedom to provide services are only admissible if justified by overriding reasons in theof public interest and must be proportionate and necessary. The overriding reasons relating to the public interest which have been acknowledged by the Court include the protection of workers and in particular the social protection of workers in the construction industry.
Amendment 141 #
Proposal for a directive
Recital 9 a (new)
Recital 9 a (new)
(9a) Directive 2014/67/EU on the enforcement of Directive 96/71/EC provides a number of provisions to make sure that rules on posting of workers are enforced and are respected by all service providers. Article 4 of the enforcement directive provides a list of elements that should be assessed in order to identify the genuine posting and prevent abuse and circumvention.
Amendment 150 #
Proposal for a directive
Recital 10
Recital 10
(10) Because of the highly mobile nature of work in international road transport, the implementation of the posting of workers directive raises particular legal questions and difficulties (especially where the link with the concerned Member State is insufficient). It would be most suited for these challenges to be addressed through sector-specific legislation together with other EU inwhich should be addressed through sector-specific legislation. Accordingly, this directive should apply to international road transport in a way that would not hinder internal road transport market nor compromise the principles of sincere cooperation and solidarity between Member States, while some non- posting categories of international road transport such as international haulage, transit or linked cabotage should be considered as being out of the scope of the directive. Member States are also obliged to refrain from imposing excessive requirements on carriers in posting sitiuatives aimed at improving the functioning of the internal road transport maons, namely refrain from requirements likely to render posting legally uncertain for posted workers and undertakings, and thus compromise the protection of worketrs.
Amendment 158 #
Proposal for a directive
Recital 10
Recital 10
(10) Because of the highly mobile nature of work in international road transport, the implementation of the posting of workers directive raises particular legal questions and difficulties (especially where the link with the concerned Member State is insufficient). It would be most suitTherefore transport services such as transit, international transport and linked cabotage are excluded forom these challenges to scope of this Directive and should be addressed through sector-specific legislation together with other EU initiatives aimed at improving the functioning of the internal road transport market.
Amendment 162 #
Proposal for a directive
Recital 10
Recital 10
(10) Because of the highly mobile nature of work in international road transport, the implementation of the posting of workers directive raises particular legal questions and difficulties (especially where the link with the concerned Member State is insufficient). It would be most suited for these challenges to be addressed through sector-specific legislation together with other EU initiatives aimed at improving the functioning of the internal road transport market. In cases where a short posting assignment involves a number of Member States, and thus a range of pay rates, pay structures, leave arrangements and allowance types and rates, as well as languages in which the relevant information is available, it is extremely complicated to calculate the amounts payable. Most micro-enterprises in the international road haulage sector may find the new requirements to be brought in under this proposal amending Directive 96/71/EC to be impossible to meet. There is also a risk of workers being dismissed after the first 24 months of a posting assignment because of the complications and costs involved in calculating the rate of pay that is to apply after that period. Accordingly, some of the changes to Directive 96/71/EC that are to be brought in under this proposal should not apply to the international road haulage sector.
Amendment 195 #
Proposal for a directive
Recital 12
Recital 12
(12) It is within Member States' competence to set rules on remuneration in accordance with their law and practice and in compliance with article 56 of the Treaty on the Functioning of the European Union. However, national rules on remuneration applied to posted workers must be justified by the need to protect posted workers and must not disproportionately restrict the cross-border provision of services.
Amendment 211 #
Proposal for a directive
Recital 13
Recital 13
(13) The elements of remuneration under national law or universally applicable collective agreements should be clear and transparent to all service providers and posted workers. It is therefore justified to impose on Member States the obligation to publish the constituent elements of remuneration as defined by national law and applicable collective agreements on the single website provided for by Article 5 of the Enforcement Directive as the transparency and the access to information is a key element for service providers. The provision of information on the single website should be in line with national law and practice and respect the autonomy of the social partners.
Amendment 215 #
Proposal for a directive
Recital 13
Recital 13
(13) The legal elements of remuneration under national law or universally applicable collective agreements should be clear and transparent to all service providers and posted workers. It is therefore justified to impose on Member States the obligation to publish the legal constituent elements of remuneration on the single website provided for by Article 5 of the Enforcement Directive as transparency and access to information are key elements for service providers.
Amendment 216 #
Proposal for a directive
Recital 13
Recital 13
(13) The elements of remuneration under national law or universally applicable collective agreements should be clear and transparent to all service providers. It is therefore justified to impose on Member States the obligation to publish the constituent elements of remuneration on the single website provided for by Article 5 of the Enforcement Directive. The elements of remuneration under national law or universally applicable collective agreements should be clear, up to date and transparent to all service providers. It is therefore justified to impose on Member States the obligation to publish the constituent elements of remuneration on the single website provided for by Article 5 of the Enforcement Directive. In order to provide more transparency and clarity generally applicable collective agreements should be also accompanied by clear information on applicable elements of remuneration. Social partners are also obliged to make public all collective agreements, which are applicable according to this Directive. Similarly, foreign subcontractors should be informed in writing about terms and condition of employment including remuneration they should apply towards posted workers
Amendment 219 #
Proposal for a directive
Recital 13
Recital 13
(13) The elements of remuneration under national law or universally applicable collective agreements should be clear and transparent to all service providers. It is therefore justified to impose on Member States the obligation to publish the constituent elements of remuneration on the single website provided for by Article 5 of the Enforcement Directive. It is important for each Member State to ensure that its website works properly and is updated on a regular basis. The Commission should ensure that the addresses of those websites and details of how frequently the sites are updated are available in one place.
Amendment 230 #
Proposal for a directive
Recital 14
Recital 14
(14) Laws, regulations, administrative provisions or collective agreements applicable in Member States may ensure that subcontracting does not confer on undertakings the possibility to avoid rules guaranteeing certain terms and conditions of employment covering remunerationMember States have the freedom to establish on their territory appropriate measures applicable to local and foreign service providers in order to ensure compliance with the applicable rules concerning posting in case of subcontracting chains. In the case of the construction sector Member States are obliged, by the Directive 2014/67/EU, to introduce appropriate liability measures in order to ensure fair competition and workers’ rights. WThere such rules on remuneration exist at national level, thefore laws, regulations, administrative provisions or universally applicable collective agreements applicable in Member States may apply them in a non- discriminatory mannensure that subcontracting does not confer ton undertakings posting workers to the possibilitsy territory provided that they do not disproportionately restrict the cross-border proviso avoid rules guaranteeing certain terms and conditions of servicesemployment.
Amendment 258 #
Proposal for a directive
Article 1 – paragraph 1 – point -1 (new)
Article 1 – paragraph 1 – point -1 (new)
Directive 96/71/EC
Article 1 – paragraph 2
Article 1 – paragraph 2
(–1) In Article 1, paragraph 2 is amended as follows: "2. This Directive shall not apply to merchant navy undertakings as regards seagoing personnel as well as transport services such as transit, international transport and linked cabotage."
Amendment 273 #
Proposal for a directive
Article 1 – paragraph 1 – point -1 (new)
Article 1 – paragraph 1 – point -1 (new)
Directive 96/71/EC
Article 1 – paragraph 4a (new)
Article 1 – paragraph 4a (new)
Amendment 301 #
Proposal for a directive
Article 1 – paragraph 1 – point 1
Article 1 – paragraph 1 – point 1
Directive 96/71/EC
Article 2a – paragraph 1
Article 2a – paragraph 1
1. When the anticipated or the effective duration of posting of an individual worker exceeds twenty-four months, the Member State to whose territory a worker is posted shall be deemed to be the country in which his or her work is habitually carried out.
Amendment 307 #
Proposal for a directive
Article 1 – paragraph 1 – point 1
Article 1 – paragraph 1 – point 1
Directive 96/71/EC
Article 2a – paragraph 1 a (new)
Article 2a – paragraph 1 a (new)
1a. The duration of posting of an individual worker shall be calculated within a reference period of 36 months, with a possibility to refrain from the application of par.1 following an agreement between the two Member States concerned.
Amendment 311 #
Proposal for a directive
Article 1 – paragraph 1 – point 1
Article 1 – paragraph 1 – point 1
Directive 96/71/EC
Article 2a – paragraph 1 a (new)
Article 2a – paragraph 1 a (new)
1a. This article shall not apply to undertakings operating in the international road transport sector.
Amendment 322 #
Proposal for a directive
Article 1 – paragraph 1 – point 1
Article 1 – paragraph 1 – point 1
Directive 96/71/EC
Article 2a – paragraph 2
Article 2a – paragraph 2
2. For the purpose of paragraph 1, in case of replacement of posted workerscalculating the effective duration of posting of an individual posted worker according to paragraph 1, in case of replacement of that individual posted worker by another worker performing the same task at the same place, the cumulative duration of the posting periods of the workers concerned shall be taken into account, with regard to workers that are posted for an effective duration of at least six months.
Amendment 323 #
Proposal for a directive
Article 1 – paragraph 1 – point 1
Article 1 – paragraph 1 – point 1
2. For the purpose of paragraph 1, in case of replacement of posted workerscalculating the effective duration of posting of an individual posted worker according to paragraph 1, in case of replacement of that individual posted worker by another worker performing the same task at the same place, the cumulative duration of the posting periods of the workers concerned shall be taken into account, with regard to workers that are posted for an effective duration of at least six months.
Amendment 336 #
Proposal for a directive
Article 1 – paragraph 1 – point 1
Article 1 – paragraph 1 – point 1
Directive 96/71/EC
Article 2a – paragraph 2 – subparagraph 1 a (new)
Article 2a – paragraph 2 – subparagraph 1 a (new)
For the purpose of calculating the posting period the concept of "the same task at the same place" shall be understood as the very same working place (address) where the worker is posted to the same working position to perform the same task under agreement between the same service provider and the same service receiver.
Amendment 342 #
Proposal for a directive
Article 1 – paragraph 1 – point 1
Article 1 – paragraph 1 – point 1
Directive 96/71/EC
Article 2a – paragraph 2 a (new)
Article 2a – paragraph 2 a (new)
2a. When a period of two months have elapsed from the date of expiry of the previous posting period, the calculation restarts.
Amendment 357 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point a
Article 1 – paragraph 1 – point 2 – point a
Directive 96/71/EC
Article 3 – paragraph 1 – indent 2
Article 3 – paragraph 1 – indent 2
– by collective agreements or arbitration awards which have been declared universally applicable within the meaning of paragraph 8: insofar as they are published on the single official national website referred to in Article 5 of Directive 2014/67/EU: (This amendment applies throughout the text. Adopting it will necessitate corresponding changes throughout.)
Amendment 368 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point a
Article 1 – paragraph 1 – point 2 – point a
Directive 96/71/EC
Article 3 – paragraph 1 – indent 2 – point c
Article 3 – paragraph 1 – indent 2 – point c
(c) remuneration – and, in the case of undertakings operating in the international road transport sector, minimum rates of pay –, including overtime rates; this point does not apply to supplementary occupational retirement pension schemes;
Amendment 406 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point a
Article 1 – paragraph 1 – point 2 – point a
Directive 96/71/EC
Article 3 – paragraph 1 – subparagraph 2
Article 3 – paragraph 1 – subparagraph 2
Amendment 408 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point a
Article 1 – paragraph 1 – point 2 – point a
Directive 96/71/EC
Article 3 – paragraph 1 – subparagraph 2
Article 3 – paragraph 1 – subparagraph 2
For the purpose of this Directive, remuneration means all minimum rates of pay and other elements of remuneration rendered mandatory by national law, regulation or administrative provision, collective agreements or arbitration awards which have been declared universally applicable and/or, in the absence of a system for declaring collective agreements or arbitration awards to be of universal application, other collective agreements or arbitration awards within the meaning of paragraph 8 second subparagraph, in the Member State to whose territory the worker is posted.
Amendment 415 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point a
Article 1 – paragraph 1 – point 2 – point a
Direktice 96/71/EC
Article 3 – paragraph 1 – subparagraph 2a (new)
Article 3 – paragraph 1 – subparagraph 2a (new)
In respect of undertakings operating in the international road transport sector, for the purpose of this Directive, the concept of minimum rate of pay, as referred to in paragraph 1(c), shall be defined by the national law and/or practice of the Member State to whose territory the worker is posted.
Amendment 416 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point a
Article 1 – paragraph 1 – point 2 – point a
Directive 96/71/EC
Article 3 – paragraph 1 – subparagraph 2 a (new)
Article 3 – paragraph 1 – subparagraph 2 a (new)
Amendment 427 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point a
Article 1 – paragraph 1 – point 2 – point a
Directive 96/71/EC
Article 3 – paragraph 1 – subparagraph 3
Article 3 – paragraph 1 – subparagraph 3
Member States shall publish inensure that the single official national website referred to in Article 5 of Directive 2014/67/EU the constituent elements of remuneration in accordance with point (c). works properly and is updated on a regular basis and shall publish on that website the constituent elements of remuneration, and in the case of undertakings operating in the international transport sector, the elements of the minimum rate of pay, their territorial and personal scope and the method used to calculate them, in accordance with point (c). The Commission shall post on its website a list of the addresses of those official national websites, together with details of all updates made to them.
Amendment 430 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point a
Article 1 – paragraph 1 – point 2 – point a
Directive 96/71/EC
Article 3 – paragraph 1 – subparagraph 3
Article 3 – paragraph 1 – subparagraph 3
Member States shall specify in a transparent way different elements of remuneration applicable to their territory. They shall publish in the single official national website referred to in Article 5 of Directive 2014/67/EU the constituent elements of remuneration in accordance with point (c). In case of universally applicable collective agreements a separate clear information on the applicable remuneration shall be published.
Amendment 432 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point a
Article 1 – paragraph 1 – point 2 – point a
Directive 96/71/EC
Article 3 – paragraph 1 – subparagraph 3
Article 3 – paragraph 1 – subparagraph 3
Member States shall publish in the single official national website referred to in Article 5 of Directive 2014/67/EU the constituent elements of remuneration as defined by national law and applicable collective agreements in accordance with point (c).
Amendment 445 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point a
Article 1 – paragraph 1 – point 2 – point a
Directive 96/71/EC
Article 3 – paragraph 1 – subparagraph 3 b (new)
Article 3 – paragraph 1 – subparagraph 3 b (new)
Posted workers shall be entitled to the gross amount of remuneration which does not have to comply with all the mandatory elements but with the amount required.
Amendment 446 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point a
Article 1 – paragraph 1 – point 2 – point a
Directive 96/71/EC
Article 3 – paragraph 1 – subparagraph 3 c (new)
Article 3 – paragraph 1 – subparagraph 3 c (new)
Miscalculation of remuneration due to a posted worker resulting from wrong or insufficient information published in the single official national website or transmitted to subcontractors in written form shall not be sanctioned.
Amendment 457 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point b
Article 1 – paragraph 1 – point 2 – point b
Directive 96/71/EC
Article 3 – paragraph 1 a
Article 3 – paragraph 1 a
1a. If undertakings established in the territory of a Member State are obliged by law, regulation, administrative provision or collective agreement, to sub-contract in the context of their contractual obligations only to undertakings that guarantee certain terms and conditions of employment covering remuneration, , the Member State may, on a non–discriminatory and proportionate basis, provide that such undertakings shall be under the same obligation regarding subcontracts with undertakings referred to in Article 1 (1) posting workers to its territory. This paragraph does not apply to undertakings operating in the international road transport sector.
Amendment 463 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point a
Article 1 – paragraph 1 – point 2 – point a
Directive 96/71/EC
Article 3 – paragraph 1a – subparagraph 1 a (new)
Article 3 – paragraph 1a – subparagraph 1 a (new)
In case of subcontracting the national contractors shall be obliged to inform their subcontractors in writing about applicable terms and condition of employment including remuneration.