Rewizja dyrektywy ws. delegowania pracowników nie jest potrzebna - list do Komisarz Bieńkowskiej
2016-07-15
Komisja Europejska przyjęła wniosek dotyczący dyrektywy zmieniającej dyrektywę o delegowaniu pracowników w dniu 8 marca 2016. Konfederacja Lewiatan, podobnie jak BusinessEurope, jest przeciwko decyzji Komisji w sprawie przeglądu tej dyrektywy. W tej sprawie, tłumacząc nasze stanowisko, wysłaliśmy list do komisarz Elżbiety Bieńkowskiej. Jego treść poniżej.
Dear Ms. Elżbieta Bieńkowska
Commissioner for Internal Market, Industry, Entrepreneurship and SMEs
Dear Ms. Commissioner,
The Commission has adopted the proposal for a directive amending the Posting of Workers Directive on 8 March 2016 [1]. Polish Confederation Lewiatan, just as BusinessEurope, is against the Commission's decision to revise the Posting of Workers Directive (PWD), because:
- PWD already provides very clear safeguards to protect the social rights of posted workers and to prevent social dumping, and strikes an appropriate balance between the protection of workers' rights and the freedom to provide services:
- the policy focus should be on fighting undeclared work, bogus self-employment and other illegal practices. Implementing the 2014 enforcement directive should be the priority to make progress on the ground.
Since the beginning, the Commission's proposal has raised emotional debate dividing European Union and being harmful for the Single Market. The debate is carried out on the basis of incorrect assumptions which are contrary to the latest facts and data. What is more, in countries where posting of workers is hotly debated most examples mentioned in the public debate are in fact illegal practices. Hence the debate is not solely, or even principally, about the merits of the legal framework of posting of workers.
In the opinion of the Polish Confederation Lewiatan the proposal will only contribute to competitive exclusion of legitimate cross-border service providers through increasing their costs, legal uncertainty and imposing new burdens for their services. The Commission's proposal:
- aim at limiting the freedom to provide services guaranteed by the Treaty on the functioning of EU. The proposed measures are contrary to the substance of the Treaty freedom and an institution of posting arising therefrom;
- was not consulted with social partners. Public consultation with organisations and citizens, which was the basis for the proposal, concerned the wrong subject. The Commission used the public consultation with citizens and organisations carried out for a social security coordination purposes (the revision of Regulation (EC) No 883/2004 and (EC) No 987/2009) to underpin the proposal on revision of the Posting of Workers Directive, which means that the obligation of public consultation has not been fulfilled;
- do not take into account a joint position of European social partners (ETUC, BUSINESSEUROPE, UEAPME, CEEP) which requested deeper consultations to explore various possible solutions;
- do not address real problems pointed out by business community, i.e. continuous increase of the administrative burdens, disproportional non-payrol costs of the posting of workers and repressive inspections of the local authorities;
- is based on assumptions which are opposite to the recent fact-based research. Particularly, Commission's Impact Assessment is based on myths and assumptions that are completely contrary to the conclusions from the latest studies prepared by leading European universities and research institutes;
- refers to the international road transport sector what is questionable.
More importantly proposal infringes the principle of subsidiarity as prosed solutions do not ensure the achievement of goals of the intended action at the EU level in a better way than available means and actions taken at the domestic level. The European Commission failed to fulfil its obligations to inform and duly justify the proposal with regards to its compliance with the principle of subsidiarity and inter alia:.
- regulations concerning the precise definition of a posting period and the temporary nature of posting at the same time are not necessary to achieve the goals set by the European Commission. Member States already have relevant means to analyse the temporary nature of posting, e.g. on the basis of Directive 2014/67/EU, and to enforce the regulations;
- the proposals concerning the application of collective agreements that are declared universally applicable to all sectors and not only to the types of activities specified in the Annex (works connected with the construction, repair, maintenance, reconstruction or demolition of buildings) or the proposal referring to Directive 2008/104/EC are useless. Member States have the right to achieve the goals set out by the proposal of directive already on the basis of applicable legal measures;
- the proposal will interfere in national wage formation and by introducing unclear arrangements and terms (e.g. reference to complex notion "remuneration") will only lead to results completely opposite to those which were intended;
- the Commission does not provide any evidence or justification for introducing further rules applicable specifically to subcontracting. Moreover, if introduced, the rules would have impact on all subcontracting situations - both cross-border, and purely domestic.
As a result, not surprisingly, National Parliaments have shown a yellow card to the Commission's proposal. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol (art. 5 of TEU).
Having regard to the position of the National Parliaments, highly controversial nature of the Commission's proposal, possible negative effects for the Single Market as well as posted workers themselves, the Polish Confederation Lewiatan calls for the Commission to withdraw the proposal. Currently, it is essential to encourage, monitor and support Member States to fight illegal practices inter alia by the transposition and effective application of the Enforcement Directive 2014/67/EU, and not to change the basic rules to make legitimate mobility of services difficult, risky and unprofitable.
Yours sincerely,
Henryka Bochniarz
President
Polish Confederation Lewiatan
[1] Proposal for a directive amending Directive 96/71/EC of The European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services targeted revision of the rules on posting of workers (COM (2016) 128).
