53 Amendments of Patrick LE HYARIC related to 2016/0070(COD)
Amendment 30 #
Proposal for a directive
Citation 2
Citation 2
Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 53(1), 62, 151 and 62153 thereof,
Amendment 52 #
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 guaranteeing a level playing field for businesses and respect for the rights of workerfair business climate as well as respect for the rights of workers and the improvement of working conditions.
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 83 #
Proposal for a directive
Recital 4 a (new)
Recital 4 a (new)
(4a) Directive 96/71/EC stipulates that the core social rights guaranteed to posted workers include the rules on ‘health, safety and hygiene at work’. The lack of any explicit reference to collective accommodation provided by the employer means that workers have no choice but to accept accommodation which does not meet the minimum standards laid down in labour law or which is even unfit for human occupation, an unacceptable state of affairs;
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 144 #
Proposal for a directive
Recital 9 a (new)
Recital 9 a (new)
(9a) The race to the bottom only on prices would undermine and destroy the systems of collective bargaining.
Amendment 146 #
Proposal for a directive
Recital 10
Recital 10
Amendment 165 #
Proposal for a directive
Recital 10 a (new)
Recital 10 a (new)
(10a) As posting of workers is transnational and cross-border by nature, the Member States shall establish a European system of labour inspectorates and labour inspections. At least the exchange of information on posting companies and posted workers shall be established and fraud and misuse listed.
Amendment 176 #
Proposal for a directive
Recital 11
Recital 11
(11) In a competitiven internal market, service providers compete not only on the basis of a labour costs but also on factors such as productivity and efficiency, or the quality and innovation of their goods and services but should not compete on the basis of labour costs.
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 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 266 #
Proposal for a directive
Article 1 – paragraph 1 – point -1 (new)
Article 1 – paragraph 1 – point -1 (new)
(–1) in Article 1, paragraph 3, point (c) is replaced by the following: (c) being a temporary employment undertaking or placement agency, hire out a worker oto a user undertaking established or operating in the territory of a Member State, provided that: – there is an employment relationship between the temporary employment undertaking or placement agency and the worker during the period of posting; and – the worker temporarily carries out a task in a Member State other than the one in which he or she usually works, in accordance with Article 4(3) of Directive 2014/67/EC.
Amendment 267 #
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) In Article 1, paragraph 3, point c) is amended as follows: "(c) being a temporary employment undertaking or placement agency, hire out a worker to a user undertaking established or operating in the territory of a Member State, provided there is an genuine employment relationship between the temporary employment undertaking or placement agency and the worker during the period of postingat least 3 months prior to and during the period of posting and provided the worker temporarily carries out work in a Member State other than in the habitual place of work in accordance with Article 4(3) of Directive 2014/67/EU."
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 275 #
Proposal for a directive
Article 1 – paragraph -1 a (new)
Article 1 – paragraph -1 a (new)
Directive 96/71/CE
Article 2 – paragraph 2 a (new)
Article 2 – paragraph 2 a (new)
(-1a) In Article 2, the following paragraph 2a is added: 2a. Workers can only be considered posted within the meaning of this Directive if their employer meets the following cumulative conditions in relation to the Member State in which it is established: – its principal place of business, e.g. its registered office or a subsidiary, branch or agency, is located in that Member State; – it is liable for applicable direct taxes or turnover taxes in that Member State; – it is registered as an employer and for payment of social security contributions in that Member State; – its operating authorisation is issued by that Member State; – in the preceding year it generated, in the country of origin, a turnover of at least 33.3% of the total turnover generated in the country of establishment and in the country to which the employee is posted.
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 299 #
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 exceeds twenty-four months over a maximum continuous period of 36 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 304 #
Proposal for a directive
Article 1 – paragraph 1 – point 1
Article 1 – paragraph 1 – point 1
Directive 96/71/EC
Article 2a – paragraph 1a (new)
Article 2a – paragraph 1a (new)
1a. For the purpose of this Directive, an employee working in the Member State in which the employer on whose behalf he or she has been assigned for a period of at least 90 days full time in the 12 months preceding the first day of the posting is established shall be considered to be habitually working in the territory of that Member State. In respect of temporary workers within the meaning of Article 1(3)(c), the length of service condition provided for in the preceding subparagraph shall be assessed in the territory of the Member State in which their employer is established.
Amendment 306 #
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. In case of prima facie evidence, which justifies doubts about a genuine self-employed worker, the concerned worker shall be deemed a posted worker. In case of prima facie evidence, which justifies doubts about a genuine posted worker or a genuine posting company, the concerned worker shall be deemed a worker of the host member state.
Amendment 310 #
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 anticipated or the effective duration of posting shall not exceed three months. Where the posting period expires, Article 45 TFEU apply to the terms and conditions of employment.
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 326 #
Proposal for a directive
Article 1 – paragraph 1 – point 1
Article 1 – paragraph 1 – point 1
Directive 96/71/CE
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 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 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 343 #
Proposal for a directive
Article 1 – paragraph -1 a (new)
Article 1 – paragraph -1 a (new)
Directive 96/71/CE
Article 2a – paragraph 2 a (new)
Article 2a – paragraph 2 a (new)
2a. Workers can only be considered posted within the meaning of this Directive if their employer meets the following cumulative conditions in relation to the Member State in which it is established: – its principal place of business, e.g. its registered office or a subsidiary, branch or agency, is located in that Member State; – it is liable for applicable direct taxes or turnover taxes in that Member State; – it is registered as an employer and for payment of social security contributions in that Member State; – its operating authorisation is issued by that Member State; – in the preceding year it generated, in the country of origin, a turnover of at least 33.3% of the total turnover generated in the country of establishment and in the country to which the employee is posted.
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 359 #
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:
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 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 465 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point b a (new)
Article 1 – paragraph 1 – point 2 – point b a (new)
Directive 96/71/EC
Article 3 – paragraph 1a a (new)
Article 3 – paragraph 1a a (new)
(ba) The following paragraph is added: 1aa. The principle of joint and several liability of the employer is applicable along the whole subcontracting chain.
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 486 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point d
Article 1 – paragraph 1 – point 2 – point d
Directive 96/71/EC
Article 3 – paragraph 9
Article 3 – paragraph 9
Amendment 488 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point d
Article 1 – paragraph 1 – point 2 – point d
Directive 96/71/EC
Article 3 – paragraph 9 – subparagraph 1 a (new)
Article 3 – paragraph 9 – subparagraph 1 a (new)
(d) PIn paragraph 9 is deleted, the following subparagraph is added: Where the conditions listed in Article 1(3) (c) are not fulfilled, Article 2 a a new shall apply.
Amendment 490 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point d a (new)
Article 1 – paragraph 1 – point 2 – point d a (new)
Directive 96/71/EC
Article 3 – paragraph 9 a (new)
Article 3 – paragraph 9 a (new)
(da) after paragraph 9, the following paragraph is inserted: 9a. Prior to posting, the posting company shall transmit information regarding the posting to the competent authority of the Member State to whose territory the worker will be posted. Information shall include inter alia the name of the posted worker, the name of the posting company, the tasks and duties of the posted worker, the place of work, the name of the company where the work is to be carried out, the first day of work and the planned duration of the posting.
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.
Amendment 500 #
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)
Amendment 508 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 a (new)
Article 1 – paragraph 1 – point 2 a (new)
Directive 96/71/CE
Article 4 – paragraph 2 – subparagraph 2 a (new)
Article 4 – paragraph 2 – subparagraph 2 a (new)
(2a) Article 4(2) is amended as follows: Where the liaison office or competent national authority in the country from which the worker is posted is unable to provide the information sought by the labour administration in the host country, the administration in the country from which the worker is posted shall seek that information from the administration or body able to provide it.
Amendment 509 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 a (new)
Article 1 – paragraph 1 – point 2 a (new)
Directive 96/71/EC
Article 4 – paragraph 2 a (new)
Article 4 – paragraph 2 a (new)
(2a) in article 4, after paragraph 2 the following paragraph is added: 2a. The Member States' labour inspectorates shall establish a regular exchange of information about posting coordinated by the Platform for Undeclared Work.
Amendment 512 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 a (new)
Article 1 – paragraph 1 – point 2 a (new)
Directive 96/71/EC
Article 4 – paragraph 4 a (now)
Article 4 – paragraph 4 a (now)
(2a) In Article 4, the following paragraph 4a is inserted: 4a. In order to enhance the cooperation referred to in paragraph 2 and to examine clear abuses and fraud in relation to the posting of workers, a coordination body shall be established comprising representatives of each Member State. It shall have the power to recall liaison offices or competent national authorities in the event of a failure to reply or an incomplete reply on their part. In the event of a persistent delay in providing information to the competent authority, that authority shall refer the matter to the competent body or administration where the liaison office from which the information is sought is unable to provide it.
Amendment 514 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 a (new)
Article 1 – paragraph 1 – point 2 a (new)
Directive 96/71/EC
Article 5 – paragraph 1
Article 5 – paragraph 1
Amendment 516 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 b (new)
Article 1 – paragraph 1 – point 2 b (new)
Directive 96/71/EC
Article 5 – paragraph 2
Article 5 – paragraph 2
(2b) in Article 5 paragraph 2 is replaced by the following: They shall in particular ensure that adequate procedures are available to workers and/or theirworkers' representatives for the enforcement of obligations under this Directive."
Amendment 517 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 c (new)
Article 1 – paragraph 1 – point 2 c (new)
Directive 96/71/EC
Article 5 – paragraph 2 a (new)
Article 5 – paragraph 2 a (new)
(2c) in Article 5 after paragraph 2 the following paragraph 2 a is added: 2a. In the event a posted worker or a posting undertaking do not meet the conditions to be a posted worker or a posting undertaking, Article 45 TFEU apply to the terms and conditions of employment.
Amendment 522 #
Proposal for a directive
Article 2 – paragraph 2 a (new)
Article 2 – paragraph 2 a (new)
2a. Within 12 months of the implementation of Directive 2014/67/EU, the Commission shall establish a European body of labour inspectors to assist local authorities in the application of this Directive.
Amendment 523 #
Proposal for a directive
Article 2 – paragraph 2 b (new)
Article 2 – paragraph 2 b (new)
2b. Within 12 months of the implementation of Directive 2014/67/EU, the Commission shall draw up a blacklist of undertakings convicted of failing to apply this Directive or reported as being non-cooperative by the local authorities responsible for ensuring compliance with the Directive, or by the European body of labour inspectors.