Posting of Workers


Posting of Workers :

EU Directive 96/71/EC of 16 December 1996 concerning the posting of workers in the framework of the provision of services is intended to remove uncertainties and obstacles that may impede the freedom to provide services, by increasing legal certainty and allowing identification of the terms and conditions of employment applicable to workers who carry out temporary work in a European Union (EU) Member State other than that whose law governs their employment relationship and to avoid the risks of abuse and exploitation of posted workers. The Directive applies to undertakings that, in the framework of the transnational provision of services, post workers to the territory of a Member State: (1) On their account and under their direction, under a contract concluded between the undertaking making the posting and the party for whom the services are intended; (2) To an establishment or to an undertaking owned by the group; (3) As a temporary employment undertaking, to a user undertaking. For the purposes of the Directive, "posted worker" means a worker who, fora limited period, carries out his or her work in the territory of a EU Member State other than the State in which he or she normally works. The definition of a worker is that which applies in the law of the Member State to whose territory the worker is posted. Member States must ensure that undertakings guarantee posted workers a central core of mandatory protective legislation laid down in the Member State in which the work is carried out: (a) By law, regulation or administrative provision; and/or (b) By collective agreements or arbitration awards that have been declared universally applicable, in so far as they concern the activities set out in the Directive's annex. Conditions of work and employment to be covered are: (1) maximum work periods and minimum rest periods; (2) minimum paid annual holidays; (3) minimum rates of pay, including overtime rates; (4) conditions of hiring-out of workers, in particular by temporary employment undertakings; (5) health, safety and hygiene at work; (6) protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people; (7) Equality of treatment between men and women and other provisions of non discrimination. The principle of immediate application of the rules is subject to a certain degree of flexibility with regard to minimum rates of pay and/or paid annual holidays in the case of postings other than by temporary employment undertakings. Member States may apply a period of grace of no more than one month for application of minimum rates of pay, after consulting employers and labour. They may provide for agreement-based exemptions from this period of grace or from immediate application of minimum rates of pay, again subject to a limit of one month. They may also provide for exemptions to be granted in respect of application of minimum rates of pay and paid holidays, where the amount of work to be done is not significant. Under certain conditions, the provisions concerning minimum wage and paid holidays are not applicable in the case of initial assembly and/or first installation of goods. The period of posting must not exceed eight days. This provision does not apply to building and civil engineering. In calculating the period of posting (on the basis of a reference period of one year from the beginning of the posting), any periods during which the post has previously been filled by another posted worker are taken into account. The above provisions do not prevent application of terms and conditions of employment that are more favourable to workers. Allowances specific to the posting are considered to be part of the minimum wage, unless they are paid in reimbursement of expenditure actually incurred on account of the posting. "Collective agreements or arbitration awards which have been declared universally applicable" means collective agreements or arbitration awards that must be observed by all undertakings in the geographical area, and in the profession or industry concerned. Equality of treatment is where national undertakings in a similar position are subject, in the place in question or in the sector concerned, to the same obligations as posting undertakings and are required to fulfill such obligations with the same effects. EU Member States may provide that undertakings must guarantee temporarily posted workers the terms and conditions that apply to temporary workers in the Member States where the work is carried out. Member States must designate one or more liaison offices or one or more competent national bodies, and notify the other Member States and the Commission accordingly. Member States must make provision for cooperation between the public authorities that, in accordance with national legislation, are responsible for monitoring terms and conditions of employment. Mutual administrative assistance is provided free of charge. Member States must take the appropriate measures to make the information on terms and conditions of employment generally available. They must ensure that adequate procedures are available to workers and/or their representatives for the enforcement of obligations under the Directive. In order to enforce the right to the terms and conditions of employment guaranteed by the Directive, judicial proceedings may be instituted in the Member State in whose territory the worker is or was posted

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