SPEECH/10/100
Mr László ANDOR
EU Commissioner for Employment, Social Affairs and Inclusion
"Moving forward on the Posting of
Workers Directive"
Conference on Posting of Workers and Labour Rights
Oviedo, 17 March 2010
Excellencies,
Ladies and gentlemen,
First, my warm thanks to the President of the Province of Asturias and the Mayor of
the city of Oviedo for their hospitality. I greatly appreciate the opportunity to visit this
wonderful region.
I also want to thank Minister Corbacho for organising this Conference. It shows that
Spain is determined to make its Presidency a politically ambitious one and is not
shying away from tackling such difficult and complex issues.
The topic — the posting of workers and labour rights — has been controversial
since the European Court’s judgments on the Viking, Laval, Rüffert and
Luxembourg cases.
These judgments address two key issues:
First, the consequences of free movement of services for the protection of workers'
rights as well as trade unions’ right to take collective action;
And second, the way some provisions of the Posting of Workers Directive are to be
interpreted.
***
On the protection of workers' rights and trade unions’ right to take collective action, I
believe the Court’s judgments neither call the principle, nor the substance of
worker's rights into question.
The Court has recognised that the right to take collective action is a fundamental
right. It has also confirmed that trade unions will continue to be able to take action
to protect workers, provided this is done in line with existing Community law.
I also want to make it clear that the free movement of workers, which sets out the
right to work in another Member State, the freedom of establishment and the
freedom to provide services, are fundamental principles of the European Union.
These principles are translated into Community law to guarantee a level playingfield for people and businesses. The aim is to maximise every opportunity for
innovation and growth.
This is exactly what the Commission wants to achieve. So we will continue to work
to protect the rights of mobile workers in line with the case-law of the Court —
whether they move on their own initiative or are sent abroad by their employer.
But we will not promote worker mobility or economic freedoms when they are used
deliberately to downgrade working conditions.
We also recognise the unions' role in defending the genuine interests of the workers
they represent — even in the case of cross-border disputes.
***
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On the second issue the rulings tackled: the way some provisions of the Posting of
Workers Directive are to be interpreted — may I remind you that each year at least
one and a half million workers in the EU are affected by the posting of workers.
These are workers sent from their country of employment by their employer to
perform work temporarily in another country.
This kind of posting is vital for the cross-border provision of services in a number of
sectors — such as construction, agriculture and transport as well as temporary work
agencies.
It also plays a key role in temporary migration flows. The importance of posting is
set to grow with higher cross-border mobility of work and labour-intensive services.
Especially as long as wage differences continue to exist between the countries and
regions of the Union.
But it would be misleading to say that workers are only posted in one direction —
from the newer to the older Member States.
The phenomenon is much more widespread and the problems it raises are far from
new. And they are not necessarily linked to recent enlargements of the Union. The
large case-law on posting dating back to the 1990s makes that clear.
When it was adopted in 1996, the Posting of Workers Directive played a key role in
clarifying the legal situation. And since then, much of the uncertainty in previous
case-law has been cleared up.
The Directive did this by developing the concept of core employment conditions that
the host country has to impose on foreign companies.
This was an intelligent compromise between the need to facilitate the cross-border
provision of services and the protection of employment conditions for posted
workers, while avoiding social dumping.
I am convinced that this compromise is still valid today. It continues to strike the
right balance between worker protection and economic freedoms, including worker
mobility.
The Commission is fully aware of the difficulties that some Member States are
experiencing in applying the Directive. It raises such questions as:
- How can minimum rates of pay be set in countries where industrial relations
systems do not allow for universally agreed collective agreements?
- What do minimum rates of pay cover and how can they be compared between
countries?
- To what extent can the core employment conditions applied to posted workers be
extended by the law of the host country?
- What type of checks and controls can the host country’s inspection authorities
carry out without creating undue obstacles to the free provision of services?
- How can enforcement be improved and abuses and failures to comply with
legislation effectively reduced?
- How can administrative cooperation between national authorities and social
partners become more effective?
These difficulties are real. And in some countries, and among some stakeholders,
they have helped to create a negative image of posting generally and in particular of
posted workers.
Some go as far as drawing a parallel between posting and undeclared work. We
must fight this comparison which is dangerously protectionist as well as xenophobic.
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I see our major task as assessing whether these difficulties can be handled within
the framework of the existing Directive, or whether they require a comprehensive
review of the Directive.
I am not yet convinced of the need for a complete overhaul of the Directive as it
stands.
But that does not mean that we should not look for solutions to improve aspects
where we feel the implementation of the Directive has been less satisfactory —
such as the lack of administrative cooperation, effective enforcement, information or
a lack of clarity on controls.
President Barroso underlined last year to the European Parliament that he is fully
committed to considering a legislative proposal to improve legal certainty and
ensure the Directive is applied and enforced more uniformly across the Member
States.
I intend to translate that commitment into a proposal, which I will submit to the colegislators within one year — after taking into account the findings of a consultation
of all the stakeholders, including the European social partners.
In the meantime, the Commission has started preparations, including several
evaluation studies, conferences and projects.
An ex-post assessment of the impact of the Directive covering the social, economic
and legal aspects is also under way.
An expert committee comprising representatives of all the Member States and the
social partners has been set up to address difficulties of interpreting the Directive
and to clarify outstanding issues.
We have also supported a number of transnational projects. These will allow those
closely involved in posting workers to exchange concrete experiences and best
practice related to posting.
We will continue to give to this matter our utmost attention. It is a top priority for the
European Commission, as the reference to it in the Commission's proposal for the
Europe 2020 strategy shows.
***
Ladies and gentlemen,
I hope that discussion at this Conference will be fruitful, allowing us to open a new
chapter on the important issue of the posting of workers.
I look forward in particular to hearing the result of the European social partners’
analysis of the consequences of the Court’s rulings in connection with mobility and
globalisation. These are expected to be presented at this Conference.
I am confident that we will make progress soon on the issues the posting of workers
raises.
And I am sure you will have suggestions and new ideas for reconciling social rights
and economic freedoms.
That's why, together with my colleagues from the Directorate-General for
Employment, Social Affairs and Equal Opportunities here today and tomorrow, we
will be listening very carefully.
Thank you.
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