Worth knowing

The posting of workers is a form of temporary labour migration. However, unlike labour migration, it is based on the freedom to provide services within the Union rather than on free movement of people. In order to enjoy the freedom to provide services in another Member State, a service provider established in one Member State must be able to post their workers to the other Member State to carry out the work necessary for the provision of services. A worker who performs temporary work for their employer in the territory of another Member State is called a posted worker.

Posting is a way to provide those working temporarily abroad with an opportunity to maintain strong family, social and economic ties with Poland. Unlike migrant workers, posted workers maintain economic ties with their country of origin, in which they remain insured, raise their children and spend most of their earnings..

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Our country is an indisputable leader in the provision of cross-border services in terms of both the number of workers posted from Poland to work abroad and the number of workers posted to Poland from other countries. According to the European Commission’s figures presented in the proposal for the enforcement directive, there are approximately one million posted workers in Europe, 23% of whom are Poles. France and Germany rank second and third, respectively, with an estimated 200 000 posted workers. The posting of workers has important consequences for Polish economy as a source of one of its competitive advantages on the internal market.

Directive of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services came into force on 17 June 2014. In order to better protect the rights of posted workers, the directive strengthens the EU legal framework on posted workers and governs the control measures applied to posting companies. The specific provisions of the directive concern, inter alia, the facilitating of cooperation between the responsible national authorities, the requirement to put in place a website with information on the rules and conditions of employment in the Member State concerned and the introduction of joint and several liability of contractors and direct subcontractors for non-payment of remuneration to workers in the construction sector.

Negotiations on the enforcement directive lasted several years, as they posed a challenging task of reconciling the conflicting interests of different Member States. The work on the directive demonstrated the difficulty in striking a balance between an improved protection of the rights of posted workers and the freedom to provide services. The Labour Mobility Initiative actively contributed to a public consultation on the directive in the course of the legislative process. Among other things, our efforts secured an assurance from the European Commission that the provisions of the enforcement directive would not be interpreted as a ban on the possible replacement of a posted worker by another posted worker. This was finally confirmed in the joint statement by the European Parliament, the Council and the Commission on Article 4(3)(g), which forms part of the enforcement directive currently in force.

National prejudices and protectionism-laden claims of social dumping surfaced during the work on the enforcement directive. In the EMPL Committee, the S&D group and trade unions (ETUC) clearly raised claims of social dumping on the part of countries from which workers are posted to work in abominable conditions, for deplorably low pay, without the right to holidays or any social protection, and often in breach of working time regulations. While such instances indeed occur in Europe (and constitute unfair competition arising from a breach of the law), they must not be equated with the posting of workers, which is the safest way of working abroad.

If applied in a fair manner, the posting of workers does not involve any social dumping, not least because of the favourability principle enshrined in the labour law, whereby employers are required to apply the provisions of the labour law on pay, leaves, working time and other working conditions that are more favourable to an employee. Under the 1996 directive concerning the posting of workers in the framework of the provision of services, a posted worker is entitled to the minimum rate of pay applicable in the country to which they are posted if it is higher than the minimum rate of pay applicable in their country of origin. For example, a Polish worker posted to France will receive the minimum rate of pay applicable in France, as it is higher than the minimum rate of pay applicable in Poland. And conversely, a French worker posted to Poland will still be eligible for the minimum rate of pay applicable in France. Social dumping would occur if a posted worker did not receive the minimum rate of pay which they were eligible for, i.e. if they were paid less than required by law, which would be illegal.

One of the four main objectives of the Labour Mobility Initiative is to prevent human trafficking and exploitation of workers through education and the promotion of safe and legal work abroad. Looking for a job abroad – in isolation from one’s family, in an alien culture, in an unfamiliar working environment – may give rise to new risks such as unequal treatment of workers by reason of nationality or origin, insufficient protection of workers’ rights, illegal employment and, in the worst case scenario, contemporary human trafficking. In all its activities, the association has been promoting the posting of workers as the safest way of working abroad. Under this arrangement, a person goes abroad for work pursuant to a contract signed with the employer in Poland. A worker posted abroad remains within the precincts of Polish law, which adds to their feeling of comfort and security.

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