The EU Commission has approved a reform of the directive 96/71/EC concerning the posting of workers in the framework of the provision of service to fight the social dumping.
Posted workers are EU citizens who have an employment contract in their home country but are temporarily moved to another EU country (host Country) by their employer to carry out a service on a temporary basis. The reform wants to ensure that the freedom to provide services in the Union is implemented in the respect of the workers’ rights.
Posted workers are different from the local and EU mobile workers, since they remain in the EU host Country only temporarily, not stabilizing their residence there and not integrating in the local labor market. This difference involves problems related to social dumping and to social protection, in fact, posted workers result to be less protected than the local one. The number of such subjects is currently growing, even if they represent nowadays only the 1% of the total work force in the Union.
This situation particularly involved the EU institutions and concerns at the most workers coming from East Europe. After the 2004 EU enlargement toward Central-East Europe, in fact, the phenomenon has become more worrying. An Italian Member of the European Parliament, Brando Benifei, has noticed, for example, that in Italy polish truck drivers are paid less than Italian truck drivers. Therefore, social dumping is a problem both for workers and enterprises too, since they have to face disloyal competition phenomena.
In 2015 the European Parliament approved a resolution to oppose social dumping and the abuse and elusion of the social and job right through the practice of posted workers, with consequent damage to the liberty of circulation of workers in the European Union. Furthermore, social dumping is also in contrast with the fundamental rights enunciated by the European Union Charter, like the right to the parity between men and women in all the fields.
Twenty years after the adoption of Directive 96/71/ EC, the European Commission has noted that this legal act no longer correspond to the current economic and social needs of Member States and that’s the reason why a new legislative proposal has been submitted by EU Commission on March the 8th, 2016. The proposal aims to reach equality between local and posted workers concerning salaries and social guarantees and to avoid discriminations and unfair competition by 2022. Until now, in fact, posted workers, in accordance to the Directive 96/71/EC, could be paid according to the minimum remuneration level laid down by the Host Country. The proposal is for a targeted revision of the Posting of Workers Directive which would introduce changes in three main areas: remuneration of posted workers, including in situations of subcontracting; rules on temporary agency workers; and long-term posting.
Before the European Commission intervention, the Court of Justice of the European Union intervened in 2015, following a preliminary ruling promoted by Finland, clarifying the notion of “minimum wage” and claiming that this should be calculated on the basis of the labor legislation in force in the Host Country but it must also be inclusive of additional benefits, such as holidays remuneration. The case involved a Polish company operating in Finland, where employees complained of not being paid on the basis of the minimum wage provided by the Finnish category contract.
Another important point on which the European Commission intervened concerns the maximum workers posted time: it may be for a maximum of 12 months and 6 additional months with a reasoned statement of the sending enterprise, then the worker will be subject to the labor laws of the host country. In practice, the worker can’t no longer be considered detached and therefore must be considered as a local worker.
After more than one year of discussions and proposed amendments, a final proposal was discussed and approved by The Council during last meeting on October the 23rd, 2017. The vote was not unanimous, many eastern European countries, such as Poland and Hungary, are, in fact, against this law, fearing negative repercussions on their own domestic economy that can provide cheaper labor force. The issue has divided the EU down the middle, with Western member states (with France on the picket line) backing a change and Eastern countries supporting the status quo. This new legislation will apply also to the transport sector, but Ministers agreed on a special mechanism to take into account the “mobile nature” of the work and the entering into force is going to be link with an ad hoc law to be passed. So, the posted workers in this field will still be subject to the provisions of Directive 96/71/EC.
Now the ball is back to the European Parliament, which is expected to take the final decision. It is in fact important to remember that a law to be passed must be approved in the same text from the Council and from the EU parliament. According to this one year discussion, we expected the law to be passed also by the Parliament in a short time.
 CGUE, sent. 12 febbraio 2015, C-396/13 Sähköalojen ammattiliitto ry / Elektrobudowa Spółka Akcyjna