Activities of Nadja HIRSCH related to 2012/0061(COD)
Shadow reports (1)
REPORT on the proposal for a directive of the European Parliament and of the Council on the enforcement of directive 96/71/EC concerning the posting of workers in the framework of the provision of services PDF (697 KB) DOC (1 MB)
Amendments (34)
Amendment 84 #
Proposal for a directive
Recital 4 a (new)
Recital 4 a (new)
(4a) In the event of non-compliance, such as the bogus posting of a worker, the legislation of the country in which the service is provided shall apply to the undertaking in question.
Amendment 108 #
Proposal for a directive
Recital 10 a (new)
Recital 10 a (new)
(10a) Rigorous, regular and flexible monitoring procedures in the Member States are essential and adequate funding must be provided to enable the competent authorities to detect and combat circumvention. Member States are entitled to perform any inspections necessary to ensure full compliance with Directive 96/71/EC and the provisions of this Directive.
Amendment 143 #
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 certainthe necessary control measures or administrative formalities to undertakings posting workers for the provision of services. 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 153 #
Proposal for a directive
Recital 17 a (new)
Recital 17 a (new)
(17a) In order to enforce effectively the terms and conditions of employment it is also necessary to counter bogus self- employment. This is of decisive importance in preventing possible abuses. The responsible authority must have the necessary resources to establish whether ostensibly self-employed workers are not in fact to a large extent repeatedly working for the same employers or bound to them by some form of hierarchical relationship.
Amendment 170 #
Proposal for a directive
Recital 24
Recital 24
(24) In view of the prevalence of subcontracting in the construction sector, and in order toorder to combat abuse of subcontracting and protect posted workers' rights, it is necessary to Member States must ensure that, in suchall 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-s, contractors can be held liable for 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 authoritieamounts owing to posted workers.
Amendment 186 #
Proposal for a directive
Recital 25
Recital 25
(25) In specific cases, other contractors may, in accordance with national law and practice, be also held liable for failure to comply with the obligations under this Directive, or their liability may be limited, after consultation of the social partners at national or sectoral levelMember States are free to introduce or continue to apply more rigorous provisions regarding the entitlements of posted workers.
Amendment 189 #
Proposal for a directive
Recital 26
Recital 26
Amendment 236 #
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 thathe national language(s) of the Member State from which the posting is made, the language of the Member State of origin of the worker and service provider and in English, and not only in 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;
Amendment 273 #
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 documentsall relevant documents, as well as of standardised but also non- standardised forms, irrespective of the length of the document or form in question;
Amendment 321 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 2 – introductory part
Article 3 – paragraph 2 – subparagraph 2 – introductory part
Such elements mayshall include:
Amendment 386 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 3 a (new)
Article 3 – paragraph 2 – subparagraph 3 a (new)
Amendment 415 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Member States shall take the appropriate measures to ensure that the information on the terms and conditions of employment referred to in Article 3 of Directive 96/71/EC which are to be applied and complied with by service providers are made generally available in a clear, transparent, comprehensive and easily accessible way at a distance and by electronic means, in formats and by web standards that ensure access to persons with disabilities and to ensure that the liaison offices or the other competent national bodies referred to in Article 4 of Directive 96/71/EC are in a position to carry out their tasks effectively.
Amendment 431 #
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 thathe national language(s) of the Member State from which the posting is made, the national language of the Member State of origin of the worker and service provider and in English, and not only in 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;
Amendment 529 #
Proposal for a directive
Article 9 – paragraph 1 – introductory part
Article 9 – paragraph 1 – introductory part
1. Member States may onlyust at the minimum impose the following administrative requirements and control measures:
Amendment 546 #
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 atprior to the commencement of the service provision, whereby the declaration may only cover the identity of the service provider, the presence of one or more clearly identifiable posted workers, their anticipate. This declaration shall state that the service provider has been informed of the minimum working conditions pursuant to Article 3 of Directive 96/71/EC and has agreed to comply with them. It shall contain at least details of the identity of the service provider, the name and address of the representative and person authorised to accept service appointed by him/her, the duration of the posting, the date on which it commences, the identity and number, of the anticipated duration and location of their presence, and the services justifyposted workers, the duties they are to perform and their place or work and place of residence ing the phosting Member State;
Amendment 556 #
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 ofduring the period of posting, and for two years after provision of the service has ended, in an accessible and clearly identified place in the Member State to which the workers are posted, such as the workplace, or for mobile workers the vehicle with which the service is provided, copies in paper or electronic form of the following documents in particular: - proof of the identity of the posted worker, - a copy of the A1 form by way of evidence of social insurance in the Member State of establishment, - 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), - pay slips, 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, - time-sheets, - an assessment of the occupational health and safety risks pursuant to Directive 89/391/EC, - if the post workers in the transport sector the operations base or the vehicle with which the service is provided; s a third-country national, copies of his/her work permit and residence permit;
Amendment 565 #
Proposal for a directive
Article 9 – paragraph 1 – point b a (new)
Article 9 – paragraph 1 – point b a (new)
(ba) an obligation for the service provider to inform the competent authority very soon: - if the posting does not take place, has not taken place or was terminated ahead of schedule, - if the activity is interrupted, - if the posted worker is assigned by his employer to a different undertaking in the Member State of establishment, particularly in the event of transfers or mergers of undertakings;
Amendment 567 #
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 documentsall relevant documents, both standardised and non-standardised forms, irrespective of the length of the document or form in question;
Amendment 589 #
Proposal for a directive
Article 9 – paragraph 1 – point d
Article 9 – paragraph 1 – point d
(d) an obligation to designate a contact person to negotiate, if necessary, on behalf of the employer with the relevant social partnlegal or mandated representative to assume the responsibilities of the service providers 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 and officially authorised to take delivery on behalf of the posting company.
Amendment 606 #
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 appropriateffectiveness 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 613 #
Proposal for a directive
Article 9 – paragraph 3 a (new)
Article 9 – paragraph 3 a (new)
3a. For the duration of a worker’s posting, responsibility for the inspection of working conditions shall lie with the authorities or the body in charge in the Member State to which the posting takes place. They may carry out factual checks and controls on their own initiative and shall not be bound by the results of any checks or controls;
Amendment 622 #
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 641 #
Proposal for a directive
Article 10 – paragraph 2
Article 10 – paragraph 2
2. Member States shall ensure that inspections and controls of compliance with Directive 96/71/EC are not discriminatory and/or disproportionate.
Amendment 651 #
Proposal for a directive
Article 10 – paragraph 4
Article 10 – paragraph 4
4. In Member States where, in accordance with national law and practice, the setting of the terms and conditions of employment of posted workers referred to in Article 3 of Directive 96/71/EC, and in particular the minimum rates of pay, including working time, is left to management and labour they may, at the appropriate level and subject to the conditions laid down by the Member States, also the monitor the application of the relevant terms and conditions of employment of posted workers, provided that an adequate level of protection equivalent to that resulting from Directive 96/71/EC and this Directive is guaranteed.
Amendment 661 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
1. For the enforcement of the obligations under Article 6 of Directive 96/71/EC and thisthis Directive and under Directive 96/71/EC, Member States shall ensure that there are effective mechanisms for posted workers to lodge complaints against their employers directly, as well as the right to institute judicial or administrative proceedings, also in the Member State in whose territory the workers are or were posted, where such workers consider they have sustained loss or damage as a result of a failure to apply the applicable rules, even after the relationship in which the failure is alleged to have occurred has ended.
Amendment 668 #
Proposal for a directive
Article 11 – paragraph 3
Article 11 – paragraph 3
3. Member States shall ensure that trade unions and other third parties, such as associations, organisations and other legal entities which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions of this Directive and Directive 96/71/EC are complied with, may engage, on behalf or in support of the posted workers or their employer, with their approval in any judicial or administrative proceedings provided for with the objective of implementing this Directive and/or enforcing the obligations under this Directive .
Amendment 711 #
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 referMember States shall ensured to inhat the Annex to Directive 96/71/EC, for all posting situdirect employer shall be liable to pay any outstanding remuneration as 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 sub1 paragraph 5 a, the refund of excessive costs according to Article 11 paragraph 5 b, any back-payments or refund of taxes or social security contributions. This shall also be ensured after the employee has returned to his/her home countracty or 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:other Member State. Member States may apply more stringent rules at national level or introduce such rules.
Amendment 716 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 1 – point a
Article 12 – paragraph 1 – subparagraph 1 – point a
Amendment 726 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 1 – point b
Article 12 – paragraph 1 – subparagraph 1 – point b
Amendment 733 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 2
Article 12 – paragraph 1 – subparagraph 2
Amendment 741 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
Amendment 753 #
Proposal for a directive
Article 12 – paragraph 3
Article 12 – paragraph 3
Amendment 762 #
Proposal for a directive
Article 12 – paragraph 4
Article 12 – paragraph 4
Amendment 779 #
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 retroactive social security contributions or notify a decision imposing a penalty or a fine or retroactive social security contributions, 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.