Marcin Kiełbasa, LMI Lawyer: one worker, two workplaces

On the pages of daily newspaper Dziennik Gazeta Prawna, current situation concerning revision of the Posting Directive is studied. At the moment the EP is working on its revision. Posting of workers is one of the pillars of the European freedom to provide services and it’s used on a large scale by Polish companies.

EC proposal of revision of directive on posting of workers (96/71/WE) is stiring up emotinons and objections from the very begining. Mainly due to the lack of social consultation, basing on perception, assumptions and no real knowlede. What is more, not all of the countries have implemented Enforcment Directive (2014/67/UE). One thing are threats caused by proposal and second one are huge amount of amendments at EP, ofently harmful for Polish companies. Currently, there is 700 different amendments submitted in different Comissions (i.a. EMPL, IMCO)

Malta, which holded Presidency at the EU Council till the end of June, initially planned on 15 June a vote on the issue of posting of workers. Coalition consisting of Poland and approx. 10 different EU countries which are against the proposed changes probably would lose the voting. However, new French proopsal requires consultation at the EU, so Malta left this issue for the next presidency – Estonia.

Article provides statistics which indicate that in the total EU workforce 0,7% are posted workers and number of posted workers in the EU has increased by 45% between 2010-2014.

Dr. Marcin Kiełbasa, Labour Mobile Initiative lawyer comments on this case for Dziennik Gazeta Prawna

The less favourable proposals refer to limitation of the posting time by extortioning change of so called “habitual place of work” by posting worker – in certain cases from the first day of the posting. European Commission uses a model based on regulations of coordination of social security systems. So that is why EC proposed in art. 2a 24-months “time limit” of posting of workers to the same place to do the same job. What is important, this restriction refers to all foreign workers, even if thir place of residence is in a different Member State. This parallel existing of confusingly similar rules in both labour law and coordination of social security system will result with unprecdented legal uncertainty and chaos.  Posted worker will be under the provision of sending Member State’s social security system where according to European regulation Rome I has habitual place of work. Further, based on Commission’s proposal habitual place of work will be in receiving state as well. It can be said that it will create a new category of worker: “half-posted”.

During work at the EP appeared new amendments which restrict possible time of posting. Instead of 24-months primarily suggested by European Commission it has been proposed to restrict posting time to 12, 6 and 3 months. Belgian MEPs suggest to restrict posting to 6 months in “high-risk sector” (for instance building sector). There is a risk that local inspectors will be able to subjectively change posted worker’s legal basis and then punish their employers for indicating wrong basis.

Additionaly, some socialistic MEPs have proposed amendment concerning calculation of posted time and term “substitution” (included in art. 2a). There is a term of “posted workers doing the same or similiar tasks in the same place”. Furthermore, while calculating this term they would like to take into consideration total time of work – “other posted worker” and “the same posted worker, returning after a break”. Acceptance of an amendment would result to significant disruption or even to prevention of freedom to provide services by posting of workers in the EU.  This same would also apply to workers posted for the first time.

Amendments about tightening legislation concerning “substitution” are included in plenty of socialists proposals.

When it comes about favourable amendments I would like to indicate especially amendment number 288 prepared by Labour Mobility Initiative and proposed by MEP Danuta Jazłowiecka. This proposal is based on reference to the rule of European coordination of social security system. It protects worker against situation on not doubling the allowances and contributions which posted workers are entitled to in the host and sending country, whlie having blank A1. It will refer to workers posted for first time too.


Labour Mobility Initiative

Labour Mobility Initiative is Europe’s largest think thank dealing with work, moility and posting of workers. Since 2013 it has been bringing together scholars, enterpreneurs, trade unions and public administration to create the only Polish and the largest European substantive forum for exchanging knowledge on the posting of workers in the framework of freedom to provide services.