31 Amendments of João PIMENTA LOPES related to 2016/0070(COD)
Amendment 45 #
Proposal for a directive
Recital 1
Recital 1
Amendment 70 #
Proposal for a directive
Recital 4
Recital 4
(4) Almost twenty years after its adoption, it is necessary to assess whetherrevise the Posting of Workers Directive stillin order to ensure it strikes the right balance between the need to promote the freedom to provide services andensure a fair business climate as well as the need to protect the rights of posted workers.
Amendment 92 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
(5a) The objective of this Directive is to guarantee the protection of workers and ensure a fair business climate across the EU by safeguarding the principle of equal pay for equal work at the same place of work.
Amendment 93 #
(5b) In the event no substantial employment relationship can be identified in the listed country of establishment, the applicable terms and conditions of employments should be those of the host Member State, unless these are less favourable to the worker than those of the country of establishment, in which case the latter should apply.
Amendment 94 #
Proposal for a directive
Recital 5 c (new)
Recital 5 c (new)
(5c) The right to collective bargaining and the right to take collective actions, including the right to strike, are fundamental rights recognised in Member States and at Union level. This directive guarantees the exercise of these rights.
Amendment 116 #
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 the applicable terms and conditions of employment should be those established by the host Member State in accordance with national law and/or practices, without prejudice to terms and conditions of employment which thare wmork is carried oute favourable to the worker. In accordance with the principle of Rome I Regulation, the law of the host Member States 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 Regulationagreement under the law or collective agreements of the host Member State. This should apply from the start of the posting assignment.
Amendment 136 #
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 justifican be restricted by overriding reasons in the public interest and must bethat proportectionate and necessary of workers constitutes such an overriding reason of public interest, including pay clauses in public procurement.
Amendment 159 #
Proposal for a directive
Recital 10
Recital 10
(10) Because of the highly mobile nature of work in international road transport, the implementation ofthe transport sector, 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 addresssupplemented through sector-specific legislation together with other EU initiatives aimed at improving the functioning of the internal roadworking environment and conditions in the transport marketsector.
Amendment 166 #
Proposal for a directive
Recital 11
Recital 11
Amendment 187 #
Proposal for a directive
Recital 12
Recital 12
(12) It is within Member States' exclusive competence to set rules on remuneration in accordance with their law and practice. 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 serv, including the definition of, remuneration in accordance with national law and/or practices.
Amendment 214 #
Proposal for a directive
Recital 13
Recital 13
(13) The elements of remuneration under national law or universally applicableand/or 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, in accordance with national law and practice, the constituent elements of remuneration, on the single website provided for by Article 5 of the Enforcement Directive.
Amendment 225 #
Proposal for a directive
Recital 13 a (new)
Recital 13 a (new)
(13a) In accordance with the ILO Recommendation No 198 on the Determination of Employment Relationships, the determination of the existence of such a relationship should be guided primarily by the facts relating to the performance of work and the remuneration of the worker, notwithstanding how the relationship is characterized in any contrary arrangement, contractual or otherwise, that may have been agreed between the parties.
Amendment 234 #
(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 remuneration. Where such rules on remuneration exist at national level, the Member State may apply them in a non-discriminatory manner to undertakings posting workers to its territory provided that they do not disproportionately restrict the cross- border provision of services.
Amendment 249 #
Proposal for a directive
Recital 15
Recital 15
Amendment 264 #
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 3 – point b
Article 1 – paragraph 3 – point b
(–1) In Article 1, paragraph 3, point (b) is amended as follows: "(b) post workers to an establishment or to an undertaking owned by the group in the territory of a Member State, provided it concerns a genuine provision of service and there is an employment relationship between the undertaking making the posting and the worker during the period of posting; or"
Amendment 265 #
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 3 – point c
Article 1 – paragraph 3 – point c
(–1) Point c of paragraph 3 of Article 1 is deleted.
Amendment 272 #
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 4 a (new)
Article 1 – paragraph 4 a (new)
(–1) In Article 1, the following paragraph 4a is added: 4a. This Directive is without prejudice to the competence of the Member States to apply or introduce laws, regulations or administrative provisions, which are more favourable to workers, or to permit or promote the application of collective agreement provisions, which are more favourable to workers.
Amendment 283 #
Proposal for a directive
Article 1 – paragraph 1 – point 1
Article 1 – paragraph 1 – point 1
Directive 96/71/EC
Article 2a – title
Article 2a – title
Posting exceeding twenty-fourhree months
Amendment 297 #
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 tThe anticipated or the effective duration of posting 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 outshall not exceed three months.
Amendment 312 #
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 applicable terms and conditions of employment shall be those of the Member State to whose territory the worker is posted. This is without prejudice to terms and conditions of employment that are more favourable to the worker.
Amendment 330 #
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 workers performing the same or similar tasks 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 355 #
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 – introductory part
Article 3 – paragraph 1 – introductory part
1. According to the principle of equal pay for equal work at the same place of work, Member States shall ensure that, whatever the law applicable to the employment relationship, the undertakings referred to in Article 1 (1) guarantee workers posted to their territory at least the terms and conditions of employment covering the following matters which, in the Member State where the work is carried out, are laid down:
Amendment 362 #
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 a
Article 3 – paragraph 1 – indent 2 – point a
(a) maximum work periods and minimum rest periods, including specific measures regarding night work, work performed during weekends and holidays and work performed in shifts;
Amendment 379 #
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 d
Article 3 – paragraph 1 – indent 2 – point d
(d) the conditions of hiring-out of workers, in particular the supply of workers by temporary employment undertakings;
Amendment 382 #
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 g a (new)
Article 3 – paragraph 1 – indent 2 – point g a (new)
(ga) allowances associated with the posting and/or reimbursement of expenditures on travel, board and lodging.
Amendment 458 #
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 1a
Article 3 – paragraph 1a
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 basisshall, 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 shall not preclude the application of stricter national rules or the introduction of such rules
Amendment 470 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point c
Article 1 – paragraph 1 – point 2 – point c
Directive 96/71/EC
Article 3 – pragraph 1 b
Article 3 – pragraph 1 b
Amendment 480 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point c a (new)
Article 1 – paragraph 1 – point 2 – point c a (new)
Directive 96/71/EC
Article 3 – paragraph 7 a (new)
Article 3 – paragraph 7 a (new)
(ca) the following paragraph 7a is added: 7a. In case the employer deduces costs related to posting, such as housing, board and transport costs from the remuneration of the posted worker, the posted worker has the right to claim these costs from the employer at the appropriate court. The same right exists for a worker who is deemed a posted worker or is deemed a worker of the host member state
Amendment 481 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point c a (new)
Article 1 – paragraph 1 – point 2 – point c a (new)
Directive 96/71/EC
Article 3 – paragraph 7a (new)
Article 3 – paragraph 7a (new)
(ca) the following paragraph 7a is added: 7a. This Directive shall not affect the exercise of fundamental rights as recognised in Member States and at Union level, including the right or freedom to strike or to take other collective actions, or the right to collective bargaining in accordance with national law and/or practice.
Amendment 495 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point e
Article 1 – paragraph 1 – point 2 – point e
Directive 96/71/EC
Article 3 – paragraph 10
Article 3 – paragraph 10
(e) The second subparagraph of paragraph 10 is deleted.paragraph 10 is amended as follows: 10. This Directive shall not preclude the application by Member States, in complior in accordance with the Treaty, to national undertakings and to the undertakingspractice of other States, on a basis of equality of treatment, of: – social partners, terms and conditions of employment on matters other than those referred to in the first subparagraph of paragraph 1Article 3 (1) in the case of social and public policy provisions, – terms and conditions of employment laid down in the collective agre and/or to comply with obligations under international conventions, including provisions for the improvements or arbitration awards within the meaning of paragraph 8 and concerning activities other than those referred to in the Annexf the protection of workers, equal treatment and the prevention of abusive practices and circumvention of terms and conditions of employment.
Amendment 499 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point e a (new)
Article 1 – paragraph 1 – point 2 – point e a (new)
Directive 96/71/EC
Article 3 – paragraph 10 a (new)
Article 3 – paragraph 10 a (new)
(ea) after paragraph 10 the following paragraph 10a is added: 10a. Social and public policy provisions include inter alia pay clauses in public procurement.