ECJ EUROPEAN Cleaning Journal

The European Parliament has adopted a legislative proposal for a directive of the European Parliament and the Council on the enforcement of directive 96/71/EC concerning the posting of workers in the framework of the provision of services.

The directive aims to establish a common framework of provisions, measures and control mechanisms necessary for better and more uniform implementation, application and enforcement in practice of directive 96/71/EC on the posting of workers.

It essentially aims to guarantee respect for an appropriate level of protection of the rights of posted workers for the cross-border provision of services, especially the enforcement of the terms and conditions of employment that apply in the member state where the service is to be performed.

New provisions have been introduced so member states shall designate one or more competent authorities. National labour inspectors will be guided by common lists of elements when checking whether posting is genuine. To determine whether a company really provides services abroad, national authorities will be able to ascertain where it is registered, where it pays tax and social security contributions, where it recruits posted workers, where its business activity takes place and how many contracts it has to provide services.

The aim is to exclude cases of persons falsely declared as self-employed and to ensure proper protection of workers who were not genuinely posted.

There will be an indicative open list of national administrative requirements and control measures that member states may apply to inspect foreign companies that post workers on their territory. Additional requirements, provided that they are justified and proportionate, can be applied. Member States will have to simply communicate them to the European Commission, without constituting a prior authorisation requirement.

The European Federation of Cleaning Industries (EFCI), which represents the contract cleaning sector in Brussels, has been monitoring progress of this new legislation closely. Together with UNI Europa, the European trades union organisation, it commented: "We welcome the Commission’s intention to enforce the right application of the Posting of Workers Directive (PWD) by establishing a general common framework of appropriate provisions and measures to prevent any circumvention or abuse of the rules.

"Indeed, its diverse implementation at national level is a source of legal uncertainty and consequently tensions between social partners as seen in the recent case laws of the European Court of Justice (ECJ)."

Both EFCI and UNI Europa emphasise that better administrative cooperation and mutual assistance between member states is promoted and put in practice as far as possible. They say national control measures and inspections are crucial in order to ensure fair competition between companies and equal treatment of employees.

However Andreas Lill, EFCI's director general, warned against an exhaustive list of possible administrative requirements and control measures. "This would significantly reduce member states' abilities to carry out effective inspections," he said. "A limitation such as this restricts to an excessive extent the member states' control options without tangible need.

"In labour intensive sectors, such as cleaning, it can be seen in practice that new 'innovative' forms of circumventing minimum working conditions and minimum wages are regularly being found. Therefore, national control authorities must be granted a broad margin of discretion in order to adapt their control measures promptly and flexibly."

www.efci.eu