40 Amendments of Elisabeth MORIN-CHARTIER related to 2012/0061(COD)
Amendment 145 #
Proposal for a directive
Recital 16
Recital 16
(16) In order to ensure the correct application of, and to monitor compliance with, the substantive rules on the terms and conditions of employment to be respected with regard to posted workers, Member States should apply only certain control measures or administrative formalities toimpose on undertakings posting workers for the provision of services. Such measures and requirements ma any conly be imposed provided that the competent authorities cannot carry out their supervisory task effectively without the requested information and the necessary information cannot be obtained easily from the employer of posted workers or the authorities in the Member State of establishment of the service provider within a reasonable delay and/or less restrictive measures would not ensure that the objectives of the national controls measures deemed necessary are attainedtrol measures or administrative formalities which are regarded as appropriate and necessary.
Amendment 146 #
Proposal for a directive
Recital 16
Recital 16
(16) In order to ensure the correct application of, and to monitor compliance with, the substantive rules on the terms and conditions of employment to be respected with regard to posted workers, Member States should apply only certaina given level of harmonisation of the control measures or administrative formalities to undertakings posting workers for the provisshould be guaranteed. Beyond that minimum requirement, Member States should be free to take any measures they deem appropriate to monitor compliance with the conditions governing the work of undertakings which are service providers on their territory and the terms and conditions of services. Suchemployment of posted workers. These control measures and requirements may only be imposed provided that the competent authorities cannot carry out their supervisory task effectively without the requested information and the necessary information cannot be obtained easily from the employer of posted workers or the authorities in the Member State of establishment of the service provider within a reasonable delay and/or less restrictive measures would not ensure that the objectives of the national controls measures deemed necessary are attained.
Amendment 147 #
Proposal for a directive
Recital 16
Recital 16
(16) In order to ensure the correct application of, and to monitor compliance with, the substantive rules on the terms and conditions of employment to be respected with regard to posted workers, Member States should apply only certainany control measures or administrative formalities to undertakings posting workers for the provision of services deemed to be effective and necessary for that purpose. Such measures and requirements may only be imposed provided that the competent authorities cannot carry out their supervisory task effectively without the requested information and the necessary information cannot be obtained easily from the employer of posted workers or the authorities in the Member State of establishment of the service provider within a reasonable delay and/or less restrictive measures would not ensure that the objectives of the national controls measures deemed necessary are attained.
Amendment 176 #
Proposal for a directive
Recital 24
Recital 24
(24) In view of the prevalence of subcontracting in the constructiocertain sectors, and in order to protect posted workers' rights, it is necessary to ensure that in such sector at least the contractor of which the employer is a direct subcontractor can be held liable to pay to posted workers the net minimum rates of pay due, any back- payments of outstanding remuneration and/or contributions due to common funds or institutions of social partners regulated by law or collective agreement in so far as these are covered by Article 3 (1) of Directive 96/71/EC in addition to or in place of the employer. The contractor shall not be held liable if he/she has undertaken due diligence. The latter may imply preventive measures concerning proof provided by the subcontractor, including where relevant based upon information emanating from national authorities.
Amendment 177 #
Proposal for a directive
Recital 24
Recital 24
(24) In view of the increasing prevalence of subcontracting in the construction sectortext of cross-border service provision, and in order to protect posted workers' rights, it is necessary to ensure that in such sector at least the contractor of which the employer is a direct subcontractor can be held liable to pay to posted workers the net minimum rates of pay due, any back- payments of outstanding remuneration and/or contributions due to common funds or institutions of social partners regulated by law or collective agreement in so far as these are covered by Article 3 (1) of Directive 96/71/EC in addition to or in place of the employer. The contractor shall not be held liable if he/she has undertaken due diligence. The latter may imply preventive measures concerning proof provided by the subcontractor, including where relevant based upon information emanating from national authorities.
Amendment 185 #
Proposal for a directive
Recital 25
Recital 25
Amendment 200 #
Proposal for a directive
Recital 26 a (new)
Recital 26 a (new)
(26a) Public and private end-clients also have a duty of care and a role to play in ensuring that the rights of posted workers are upheld where those workers are directly employed by the contractor. The joint and several liability instrument established for contractors whose posted workers are employed by the subcontractor should apply in the same way to clients whose posted workers are employed by the contractor, since it may be that workers posted by that contractor are in the same situation as workers employed by an undertaking established in the Member State of establishment of the client with regard to the possibility to claim outstanding pay or refunds of taxes or social security contributions unduly withheld. These arrangements should not apply, however, to private individuals, who are not in a position to carry out the same checks as business end-clients.
Amendment 273 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point a
Article 3 – paragraph 1 – subparagraph 1 – point a
(a) the place where the undertaking has its registered office and administration, uses office space, pays taxes and social security, has a professional licence or is registered with the chambers of commerce or professional bodies,
Amendment 298 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point e
Article 3 – paragraph 1 – subparagraph 1 – point e
(e) the abnormally limited number of contracts performed and/or size of turnover realised in the Member State of establishment.
Amendment 402 #
Proposal for a directive
Article 3 a (new)
Article 3 a (new)
Article 3a If the criteria laid down in paragraphs 1 and 2 of this Article are not met, all the laws, rules and collective agreements of the host Member State shall apply to the workers concerned.
Amendment 416 #
Proposal for a directive
Article 5 – paragraph 1 a (new)
Article 5 – paragraph 1 a (new)
1a. The Commission and the Member States shall financially support joint initiatives of the relevant social partners, at the European and national level, to set up joint instruments which are aimed to inform undertakings and workers on the applicable terms and conditions to be respected according to Directive 96/71/EC.
Amendment 435 #
Proposal for a directive
Article 5 – paragraph 2 – point c
Article 5 – paragraph 2 – point c
(c) make the information available to workers and service providers in languages other than the national language(s) of the country in which the services are provided, if possible in summarised leaflet form indicating the main labour conditions applicable and upon requests in formats accessible to persons with disabilities, and specifying the competent authority which the posted worker may apply to in cases of non-compliance with the relevant legislation;
Amendment 441 #
Proposal for a directive
Article 5 – paragraph 2 – point e
Article 5 – paragraph 2 – point e
(e) indicate, if possible, a contact person at the liaison office in charge of dealing with requests for information; and makes sure that all necessary information is made available for the posting company and posted workers;
Amendment 449 #
Proposal for a directive
Article 5 – paragraph 4
Article 5 – paragraph 4
4. Where, in accordance with national law, traditions and practices, the terms and conditions of employment referred to in Article 3 of Directive 96/71/EC are laid down in collective agreements in accordance with article 3 paragraph 1 and 8 of that Directive, Member States should ensure that the social partners shall identify these and make the relevant information, in particular concerning the different minimum rates of pay andservice providers from other Member States and posted workers are informed of these rules in an accessible and transparent way, and may, to that end, involve the social partners. The information shall specify their constituent elements of the minimum rate of pay, the method used to calculate the remuneration due and the qualifying criteria for classification in the different wage categories, , available in an accessible and transparent way for service providers from other Member States and posted workers.
Amendment 468 #
Proposal for a directive
Article 6 – paragraph 2
Article 6 – paragraph 2
2. The cooperation of the Member States shall in particular consist in replying without delay to reasoned requests for information and to carry out checks, inspections and investigations from competent authorities with respect to the situations of posting referred to in Article 1 (3) of Directive 96/71/EC, including investigation of any abuses of applicable rules on the posting of workers or possible cases of unlawful transnational activities.
Amendment 486 #
Proposal for a directive
Article 6 – paragraph 5 a (new)
Article 6 – paragraph 5 a (new)
5a. The Commission and the Member States shall provide financial support for joint initiatives taken by the social partners concerned, at European and national levels, with a view to establishing joint arrangements for informing undertakings and workers of the terms and conditions with which they need to comply under Directive 96/71/EC.
Amendment 524 #
Proposal for a directive
Article 9 – paragraph 1 – introductory part
Article 9 – paragraph 1 – introductory part
1. Member States may onlyshall at least impose the following administrative requirements and control measures:
Amendment 526 #
Proposal for a directive
Article 9 – paragraph 1 – introductory part
Article 9 – paragraph 1 – introductory part
1. Member States may onlyshall at least impose the following administrative requirements and control measures:
Amendment 527 #
Proposal for a directive
Article 9 – paragraph 1 – introductory part
Article 9 – paragraph 1 – introductory part
1. Member States may only imposeshall impose at least the following administrative requirements and control measures:
Amendment 545 #
Proposal for a directive
Article 9 – paragraph 1 – point a
Article 9 – paragraph 1 – point a
(a) an obligation for a service provider established in another Member State to make a simple declaration to the responsible national competent authorities at the latest atbefore the commencement of the service provision, whereby the declaration may only covershall cover at least: (i) the identity of the service provider, the presence of one or more clearly identifiable posted workers, their anticipated number,(ii) the anticipated number of and particulars for each of the posted workers, (iii) the anticipated duration and location of twheir presence, andre the service is to be provided, and (iv) the services justifying the posting;
Amendment 550 #
Proposal for a directive
Article 9 – paragraph 1 – point a
Article 9 – paragraph 1 – point a
(a) an obligation for a service provider established in another Member State to make a simple declaration to the responsible national competent authorities at the latest atbefore the commencement of the service provision, whereby the declaration may only covershall cover at least the identity of the service provider, the presence of one or more clearly identifiable posted workers, their anticipated number, theanticipated number of clearly and individually identifiable posted workers, the designated contact person, the beginning, anticipated duration and location of their presencewhere the service is to be provided, and the services justifying the posting;
Amendment 561 #
Proposal for a directive
Article 9 – paragraph 1 – point b
Article 9 – paragraph 1 – point b
(b) an obligation to keep or make available and/or retain copies in paper or electronic form, during the period of posting, of the employment contract (or an equivalent document within the meaning of Directive 91/533, including, where appropriate or relevant, the additional information referred to in Article 4 of that Directive), payslips, time-sheets and proof of payment of wages or copies of equivalent documents during the period of posting, forms providing information on the membership to a social security network in the country of origin or the full contact details of the social security body to which the posted workers are affiliated during their stay in the host member country (Regulations 883/2004 EC and 987/2009 EC), certificate of fitness for work issued by a qualified Occupational Health Service from the country of origin, in an accessible and clearly identified place in its territory, such as the workplace or the building site, or for mobile workers in the transport sector the operations base or the vehicle with which the service is provided;
Amendment 563 #
Proposal for a directive
Article 9 – paragraph 1 – point b
Article 9 – paragraph 1 – point b
(b) an obligation to keep or make available and/or retain copies in paper or electronic form of the employment contract (or an equivalent document within the meaning of Directive 91/533, including, where appropriate or relevant, the additional information referred to in Article 4 of that Directive), A1 forms, work and residence permits of third country nationals, payslips, time-sheets and proof of payment of wages or copies of equivalent documents during the period of posting in an accessible and clearly identified place in its territory, such as the workplace or the building site, or for mobile workers in the transport sector the operations base or the vehicle with which the service is provided;
Amendment 572 #
Proposal for a directive
Article 9 – paragraph 1 – point c
Article 9 – paragraph 1 – point c
(c) a translation of the documents referred to under (b), may be justified provided these documents are not excessively long and standardised forms are generally used for such documents in one of the official languages of the host State;
Amendment 594 #
Proposal for a directive
Article 9 – paragraph 1 – point d
Article 9 – paragraph 1 – point d
(d) an obligation to designate a contact person who can be contacted by the competent authorities of the Member State and who is authorised to negotiate, if necessary, on behalf of the employer with the relevant social partners in the Member State to which the posting takes place, in accordance with national legislation and practice, during the period in which the services are provided.
Amendment 601 #
Proposal for a directive
Article 9 – paragraph 1 a (new)
Article 9 – paragraph 1 a (new)
1a. Member States shall be free to lay down administrative requirements and control measures over and above those under points (b) and (c) provided that those requirements and measures are consistent with the Union’s principles of proportionality and necessity and on the understanding that Member States inform service providers of the new provisions in a precise, clear and accessible way;
Amendment 609 #
Proposal for a directive
Article 9 – paragraph 3
Article 9 – paragraph 3
3. Within three years after the date referred to in Article 20, the necessity and appropriateness of the application of national control measures shall be reviewed by the European Commission in the light of the experiences with and effectiveness of the system for cooperation and exchange of information, the development of more uniform, standardised documents, the establishment of common principles or standards for inspections in the field of the posting of workers as well as technological developments, with a view to assessing the necessity and feasibility of an EU-wide digital prior notification system and to proposing, where appropriate, any necessary amendments or modifications.
Amendment 610 #
Proposal for a directive
Article 9 – paragraph 3
Article 9 – paragraph 3
3. Within three years after the date referred to in Article 20, the necessity and appropriateness of the application of national control measures shall be reviewed in the light of the experiences with and effectiveness of the system for cooperation and exchange of information, the development of more uniform, standardised documents, the establishment of common principles or standards for inspections in the field of the posting of workers as well as technological developments, with a view to proposing, where appropriate, any necessary amendments or modifications.
Amendment 621 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
1. Member States shall ensure that appropriateffective checks and monitoring mechanisms are put in place and that effective and adequate inspections are carried out on their territory in order to control and monitor compliance with the provisions and rules laid down in Directive 96/71/EC and to guarantee its proper application and enforcement. Such inspections shall be based primarily on a risk assessment to be drawn up regularly by the competent authorities. The risk assessment shall identify the sectors of activity in which the employment of workers posted for the provision of services is concentrated on their territory. When making such risk assessment the realisation of big infrastructural projects, the special problems and needs of specific sectors, the past record of infringement, as well as the vulnerability of certain groups of workers shall be taken into account.
Amendment 625 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
1. Member States shall ensure that appropriate checks and monitoring mechanisms are put in place and that effective and adequate inspections are carried out on their territory in order to control and monitor compliance with the provisions and rules laid down in Directive 96/71/EC and to guarantee its proper application and enforcement. Such inspections shall be based primarily on a risk assessment to be drawn up regularly by the competent authorities. The risk assessment shall identify the sectors of activity in which the employment of workers posted for the provision of services is concentrated on their territory. When making such risk assessment the realisation of big infrastructural projects, the special problems and needs of specific sectors, the past record of infringement, as well as the vulnerability of certain groups of workers shall be taken into account.
Amendment 628 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
1. Member States shall ensure that appropriate checks and monitoring mechanisms are put in place and that effective and adequate inspections are carried out on their territory in order to control and monitor compliance with the provisions and rules laid down in Directive 96/71/EC and to guarantee its proper application and enforcement. Such inspections shallmay be based primarilyin particular on a risk assessment to be drawn up regularly by the competent authorities. The risk assessment shallmay identify the sectors of activity in which the employment of workers posted for the provision of services is concentrated on their territory. When making such risk assessment the realisation of big infrastructural projects, the special problems and needs of specific sectors, the past record of infringement, as well as the vulnerability of certain groups of workers shallmay be taken into particular account.
Amendment 709 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 1 – introductory part
Article 12 – paragraph 1 – subparagraph 1 – introductory part
1. With respect to the construction activities referred to in the Annex to Directive 96/71/EC, for all posting situations covered by Article 1(3) of Directive 96/71/EC, the Member States shall ensure on a non–discriminatory basis with regard to the protection of the equivalent rights of employees of direct subcontractors established in its territory, that the contractor of which the employer (service provider or temporary employment undertaking or placement agency) is a direct subcontractor can, in addition to or in place of the employer, be held liable by the posted worker and/or common funds or institutions of social partners for non-payment of the followMember States shall take the necessary measures to ensure that a company that is instructing another company directly with the provision of services on its behalf is held liable for its direct subcontractor regarding:
Amendment 714 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 1 – introductory part
Article 12 – paragraph 1 – subparagraph 1 – introductory part
1. With respect to the construction activities referred to in the Annex to Directive 96/71/EC, fFor all posting situations covered by Article 1(3) of Directive 96/71/EC, the Member States shall ensure on a non– discriminatory basis with regard to the protection of the equivalent rights of employees of direct subcontractors established in its territory, that the contractor of which the employer (service provider or temporary employment undertaking or placement agency) is a direct subcontractor can, in addition to or in place of the employer, be held liable by the posted worker and/or common funds or institutions of social partners for non- payment of the following:
Amendment 724 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 1 point a a (new)
Article 12 – paragraph 1 – subparagraph 1 point a a (new)
(aa) Any outstanding travel, board and lodging/ accommodation costs unduly withheld by the employer.
Amendment 751 #
Proposal for a directive
Article 12 – paragraph 2 a (new)
Article 12 – paragraph 2 a (new)
2a. Paragraphs 1 and 2 of this article shall apply equally to the final customer, unless a private individual, vis-à-vis their contractor.
Amendment 759 #
Proposal for a directive
Article 12 – paragraph 3
Article 12 – paragraph 3
Amendment 778 #
Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1
Article 13 – paragraph 2 – subparagraph 1
2. The requesting authority may, in accordance with the laws, regulations and administrative practices in force in its own Member State, request the competent authority in another Member State to recover a penalty or fine or notify a decision imposing a penalty or a fine, in so far as the relevant laws, regulations and administrative practices in force in the requested authority’s Member State allow such action for similar claims or decisions.
Amendment 816 #
Proposal for a directive
Article 18 – paragraph 2
Article 18 – paragraph 2
2. Member States may continue to apply bilateral arrangements concerning administrative cooperation between their competent authorities as regards the application and monitoring of the terms and conditions of employment applicable to posted workers referred to in Article 3 of Directive 96/71/EC, in so far as these arrangements do not adversely affect the rights and obligations of the workers and companies concerned.
Amendment 823 #
Proposal for a directive
Article 18 – paragraph 3
Article 18 – paragraph 3
3. In the context of bilateral agreements referred to in paragraph 2, competent authorities of the Member States shall use IMI as much as possible. In any event, where a competent authority in one of the Member States concerned has used IMI, it shall be used for any follow-up required and shall take precedence over the mechanism(s) foreseen in such a bilateral agreement with respect to administrative cooperation and mutual assistance.
Amendment 831 #
Proposal for a directive
Article 21 – paragraph 1
Article 21 – paragraph 1
No later than 5 years after the expiry of the deadline for transposition, the Commission shall report to the European Parliament, the Council and the European Economic and Social Committee on the implementation of this Directive, making appropriate proposals where necessary. Risk assessments drawn up regularly by the competent authorities shall be provided with the report in order to identify the sectors of activity in which employment of workers posted for the provision of services is concentrated on their territory. These risk assessments shall make it possible to produce a map, at EU level, of the special problems and needs of specific sectors, the past record of infringements, as well as the vulnerability of certain groups of workers.