Monti II Regulation and Enforcement Directive on Posting of Workers CBSP Committee

1. MontiII Regulation and EnforcementDirective on Posting of Workers CBSP Committee 7 November 2012 Jorma Rusanen

2. The issues • Monti II Regulation • EnforcementDirective on Posting of Workers

3. 1. Monti II Regulation • The European Commission gave its proposals on Monti II Regulation and enforcement Directive on posting on 21 Mars 2012 • The twoproposalswereconsidered as a packageby the Commission • A Regulation ”on the exercise of the right to takecollective action within the context of the freedom of establishment and the freedom to provideservices” • A Directive”on enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services” • The Commissionwithdrawitsproposal for a Regulationon 12 September 2012 • Whathappened and why?

4. Monti II Regulation (2) • The EuropeantradeunionssaidNO to the Monti II Regulationproposalbecauseitunderminedthe right to strike • The overallimpact of the Regulationin the proposedformwasdamaging for the fundamentalrightto takecollective action • The ETUC warnedthe Commission, thatitwouldnotbeable to supportMonti II if a solutionwerenotfound to keyissues • TillJune 12 national Parliamentsissued a ”yellowcard” on the Commissionproposal for a Regulation • The EuropeanParliament and someGovernmentssupported the tradeunionsopinion => So, the Commissionhad to recognisethatitsproposaldidnotget the politicalsupportwithin the EP and Council to enableits adoption

5. Monti II Regulation (3) • ETUC and ETUF’s were particularly concerned about the following three points in Monti II proposal: • Proportionality test • Fundamental rights do not take precedence over economic freedoms • The alert mechanism was likely to cause further obstacles to the exercise of the right to strike • Legal base of the proposal • The EP’srole: only to approveorreject, no amendments

6. Monti II Regulation(4) Whatshouldhappennext? • The tradeunionswelcomed the Commission’sdecision to withdrawitsproposal for a Monti II Regulation • But the withdrawal of the proposaldidnotsolve the problemscreatedby the EuropeanCourt of Justice in the Viking and Lavaljudgments • The ETUC threreforecontinues to call on the Commission to putforward a proposal for a social protocolto beattached to the EuropeanTreaties • The protocolshouldclarify the relationshipbetweenfundamental social rights and economicfreedoms

7. 2. EnforcementDirective on Posting • EnforcementDirective on Posting [COM(2012) 131 final] • The proposalfallsshort of Europeantradeuniondemands for a revision of the Posting of WorkersDirective • HoweverCommissionerAndorassuredthat the EnforcementDirectivewouldnotexcludefurther action for a revision • So, the proposal is a step in the rightdirectionto preventabuses • Content of the draftDirective • Proposal contains innovations for better control and enforcement but is weak and also too restrictive • In order to avoid ”forum shopping” the relationshipwith the Rome I Regulationneeds to beclarified • Definition of postedworker; the criteriashouldbemoreprecise • Introduction of a joint and several liability mechanism; but proposal needs strengthening  BusinessEurope’s attacks • Commissiontries to restrict the national controlmeasures • Directive: normal co-decision making process in the EU institutions => cooperation with the EP necessary

8. EnforcementDirective (2) • Reality: extremelycomplexnetworks of subcontractors • A contractorcanevaderegulations and collectiveagreed labour standards • => Joint and severalliability is indispensable to protectworkersfromabuses • ETUC, ETUF’s: • Liabilitymustapply to anysector of liability(Commission: onlyconstructionsector) • Mandatorychainliability is indispensable(Commission: directsubcontractorsituations) • No ”duediligence” loophole(Commission: a contractorthathastakenduediligencecheckcannotbeheldliable)

9. EnforcementDirective(3) • Whatnext? • The ETUC’s and ETUF’ssuggestions for amendments for the EuropeanParliament • The EP Committees: EMPL and IMCO • Timetable in IMCO: • Deadline for amendments 6 Nov, vote 18 Dec • Timetable in EMPL: • Deadline for amendments 13 Dec, vote 21 Feb • The EuropeanParliamentplenaryApril/May 2013

10. EnforcementDirective(4) The ETUC Resolution (December 2011): • Firm and fair ‘rules of the game’ in the single market • Trade unions’ demand for a Social Progress Clause is more relevant than ever • Posting: finding the right response to the challenges caused by the ECJ cases • The social objectives of the PWD must be restated • The fundamental right to collective bargaining and to take collective action must be safeguarded • The PWD must only cover situations of temporary postings • The minimum character of the PWD must be restored • The different industrial relations models must be more clearly respected • Public authorities should be allowed via social clauses in the procurement contract to demand observance of locally applicable collective agreements • The very restrictive interpretation of public policy provisions must be revised (Article 3.10 PWD) • Effective monitoring and enforcement mechanisms must be put in place

11. Thank you for listening!jorma.rusanen@industriall-europe.eu