Activities of Donata GOTTARDI related to 2007/0094(COD)
Plenary speeches (1)
Sanctions against employers of illegally staying third-country nationals (debate)
Amendments (33)
Amendment 42 #
Proposal for a directive
Recital 4
Recital 4
(4) The provisions should not cover third- country nationals who are not illegally staying. This excludes third-country nationals who are family members of citizens of the Union exercising their right to free movement within the Community, and those who, under agreements between the Community and its Member States, on the one hand, and the countries of which they are nationals, on the other, enjoy rights of free movement equivalent to those of citizens of the Union. It also excludes third-country nationals who are in a situation covered by Community law, such as those who are lawfully employed in another Member State and who are posted by a service provider to another Member State in the context of the provision of services, to whom the treatment prescribed by legislation, collective agreements and national practice in the host country applies, in accordance with the provisions 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.
Amendment 45 #
Proposal for a directive
Recital 5
Recital 5
(5) To prevent the employment of illegally staying third-country nationals, employers should be required before recruiting a third-country national, including in cases where the third country national is being recruited for the purpose of posting to another Member State in the context of the provision of services, to check that they have a residence permit or another authorisation for staywhich is valid forat the period of employmentstart of their employment and can be renewed thereafter. The burden on employers should be limited to checking that the document is not manifestly incorrect, such as bearing a manifestly wrong photograph. To enable Member States in particular to check for forged documents, businesses and legal persons should also be required to notify the competent authorities of the employment of a third-country national. Member States may provide for a simplified system of employers' obligations in the case of private citizens employing third-country nationals as domestic help.
Amendment 46 #
Proposal for a directive
Recital 7
Recital 7
(7) To enforce the general prohibition and to deter infringements, Member States should provide for appropriate sanctions. These should include financial penalties and contributions to the costs of returning illegally staying third-country nationals, but provision should also be made for the possibility of imposing more moderate financial penalties in specified and limited cases where the workers concerned are employed as domestic help or by not-for- profit organisations or non-governmental organisations.
Amendment 48 #
Proposal for a directive
Recital 8
Recital 8
(8) The employer should in any case be required to pay to the third-country nationals any outstanding remuneration, ensuring that they receive the prescribed pay and treatment, including any associated allowances, for the work they have undertaken and any outstandor that they are treated ing taxes and social security contributionhe same way as comparable workers in ordinary employment relationships.
Amendment 54 #
Proposal for a directive
Recital 9
Recital 9
(9) Member States should ensure that claims are lodged and mechanisms are created to guarantee that recovered amounts of outstanding remuneration are received by the third- country nationals to whom they are due. In cases where the outstanding remuneration or comparable remuneration cannot be determined, the amount payable should be calculated by reference to the minimum wage laid down by national law unless the employer or the employee can prove that it should not apply. In those Member States in which no minimum wage is set, the amount of remuneration agreed should be calculated by reference to the minimum income which entitles citizens of the Member State concerned to receive social assistance in that Member State or in accordance with collective agreements or customary practice in the sector concerned.
Amendment 57 #
Proposal for a directive
Recital 10
Recital 10
(10) Member States should further provide for a presumption of a work relationship of at least six months duration so that the burden of proof is put on the employer in respect of at least a certain period and should provide for the employee also to have the possibility of proving the existence and duration of the work relationship.
Amendment 58 #
Proposal for a directive
Recital 13
Recital 13
(13) In view of the prevalence of subcontracting in certain affected sectors, it is necessary to ensure that all the undertakings in a chain of subcontracting, including temporary employment agencies providing temporary staff for firms using their services, are held jointly and severally liable to pay financial sanctions against an employer at the end of the chain who employs illegally staying third- country nationals.
Amendment 61 #
Proposal for a directive
Recital 13 a (new)
Recital 13 a (new)
(13a) Where the employer is an undertaking belonging to a group, the Member States should provide for the parent company to be held jointly liable for the payment of any penalties imposed or outstanding remuneration due.
Amendment 65 #
Proposal for a directive
Recital 19
Recital 19
(19) To supplement the complaint mechanisms, Member States should grant residence permits of limited duration, linked to the length of the relevant national proceedings, to third-country nationals who have been subjected to particularly exploitative working conditions and who cooperate in criminal proceedings against the employer. Member States should also grant residence permits of limited duration to third country nationals if they are minors, pregnant women or mothers of children up to three months old. Such permits should be granted under the same conditions as those granted under Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration who cooperate with the competent authorities.
Amendment 69 #
Proposal for a directive
Recital 21 a (new)
Recital 21 a (new)
(21a) This directive should not prevent Member States from adopting measures designed to convert undeclared employment into declared employment relationships and to regularise the situation of undeclared workers.
Amendment 70 #
Proposal for a directive
Article 2 – point b
Article 2 – point b
(b) ‘employment’ means exercise of remunerated activities for and under the direction of, or for and coordinated by, another person;
Amendment 71 #
Proposal for a directive
Article 2 – point b a (new)
Article 2 – point b a (new)
(ba) ‘remuneration’: prescribed pay and treatment, including any associated allowances, equivalent to those to which comparable workers in ordinary employment relationships are entitled;
Amendment 72 #
Proposal for a directive
Article 2 – point e
Article 2 – point e
(e) ‘employer’ means any person, including legal persons, for and under the direction of whom a third-country national exercises remunerated activities, or for whom a third-country national exercises remunerated activities and by whom those activities are coordinated;
Amendment 73 #
Proposal for a directive
Article 2 – point e a (new)
Article 2 – point e a (new)
(ea)' individual citizen acting in the capacity of an employer' means a person for whom a third country national exercises remunerated activities as a domestic worker;
Amendment 75 #
Proposal for a directive
Article 2 – point f
Article 2 – point f
(f) ‘subcontractor’ means a natural or legal person to whom the execution of all or part of the obligations of a prior contract is assigned., including temporary employment agencies and other intermediaries;
Amendment 79 #
Proposal for a directive
Article 2 – point f a (new)
Article 2 – point f a (new)
(fa) ‘business activities’ means activities carried out by a legally registered for- profit entity, excluding activities carried out by not-for-profit organisations and NGOs;
Amendment 82 #
Proposal for a directive
Article 3 –subparagraph 2 a (new)
Article 3 –subparagraph 2 a (new)
2a. The fact that it is unlawful to employ third country nationals staying illegally in the European Union does not invalidate the substance of the contract and the employment relationship.
Amendment 83 #
Proposal for a directive
Article 4 – paragraph 1 – point a
Article 4 – paragraph 1 – point a
(a) require the production by third-country nationals of a residence permit or another authorisation for stay which is valid forat the periodstart of the employment in question and can be renewed for the remaining period ;
Amendment 84 #
Proposal for a directive
Article 4 – paragraph 1 – point b
Article 4 – paragraph 1 – point b
(b) copy or record the content of the residence permit or other authorisation for stay before employment begininclude a copy of the residence permit or other authorisation for stay in the documentation required in connection with the procedures already provided for by the Member States when workers are employed and notify the competent authorities designated by the Member States of both the start and the termination of employment of third- country nationals;
Amendment 86 #
Proposal for a directive
Article 4 – paragraph 1 – point c
Article 4 – paragraph 1 – point c
(c) keep for at least the duration of the employment the copies or recordand the following twelve months the documentation relating to the employment of third-country nationals available for inspection by the competent authorities of the Member States.
Amendment 88 #
Proposal for a directive
Article 4 – paragraph 2
Article 4 – paragraph 2
Amendment 89 #
Proposal for a directive
Article 4 – paragraph 2 a (new)
Article 4 – paragraph 2 a (new)
2a. Member States may provide for a simplified system of employers' obligations in the case of individual citizens employing people to carry out domestic work.
Amendment 90 #
Proposal for a directive
Article 4 – paragraph 2 b (new)
Article 4 – paragraph 2 b (new)
2b. Member States may provide for a sufficient period of time to enable employers and workers to bring the employment situation into line with national law.
Amendment 97 #
Proposal for a directive
Article 6 – paragraph 2 – point (b)
Article 6 – paragraph 2 – point (b)
(b) payments of a contribution to the costs of return of each illegally employed third- country national in those cases where return procedures are carried out.
Amendment 98 #
Proposal for a directive
Article 6 – paragraph 2 a (new)
Article 6 – paragraph 2 a (new)
2a. Member States may provide for reduced financial penalties where the employer is a private citizen employing a third country national to carry out domestic work or where the employers are not-for-profit organisations or NGOs.
Amendment 104 #
Proposal for a directive
Article 7 – paragraph 1 – point (a) a (new)
Article 7 – paragraph 1 – point (a) a (new)
(aa) Where it is not possible to determine the remuneration in accordance with the provisions of Article 2(a)a, the amount payable should be calculated by reference to the minimum wage laid down by national law unless the employer or the employee can prove that it should not apply. In those Member States in which no minimum wage is set, the amount of remuneration agreed should be calculated by reference to the minimum income which entitles citizens of the Member State concerned to receive social assistance in that Member State or in accordance with collective agreements or customary practice in the sector concerned;
Amendment 112 #
Proposal for a directive
Article 7 – paragraph 2 – point (b)
Article 7 – paragraph 2 – point (b)
(b) provide that a work relationship of at least 6 months duration be presumed unless the employer or employee can prove differently.
Amendment 117 #
Proposal for a directive
Article 7 – paragraph 4
Article 7 – paragraph 4
4. In respect of criminal offences covered by Article 10(1)(c), Member States shall take the necessary measures to ensure that the execution of any return decision is postponed until the third-country national has received any back payment of their remuneration recovered under paragraph 1(a).
Amendment 120 #
Proposal for a directive
Article 9 a (new)
Article 9 a (new)
Article 9a Groups of undertakings Where the employer is an undertaking belonging to a group, Member States shall ensure that the parent company is jointly liable to pay: (a) any sanction imposed under Article 6, and (b) any back payments due under Article 7.
Amendment 125 #
Proposal for a directive
Article 10 – paragraph 1 – point (c)
Article 10 – paragraph 1 – point (c)
(c) the infringement is accompanied by abuse, sexual discrimination or particularly exploitative working conditions, such as which involve violence, threats, intimidation or degrading treatment and represent a significant difference in working conditions from those enjoyed by legally employed workers; or
Amendment 136 #
Proposal for a directive
Article 14 – paragraph 3 a (new)
Article 14 – paragraph 3 a (new)
3a. In respect of the prohibition contained in Article 3, and in particular the criminal offences referred to in Article 10(1)(c) and (d)), Member States shall under the conditions of Articles 4 to 15 of Directive 2004/81/EC grant residence permits of limited duration, linked to the length of the relevant national proceedings, to third country nationals who are minors, pregnant women or mothers of children up to three months old.
Amendment 143 #
Proposal for a directive
Article 15 – paragraph 2 a (new)
Article 15 – paragraph 2 a (new)
2a. Member States shall ensure that the inspections covered by paragraphs 1 and 2 shall not prejudice any controls carried out for the specific purpose of checking working conditions irrespective of the employees’ status.
Amendment 147 #
Proposal for a directive
Article 15 a (new)
Article 15 a (new)
Article 15 a Relationship to national measures This directive shall not prejudice national measures to encourage the conversion of undeclared work into declared employment relationships and to help undeclared workers to regularise their status.