Essential information on the posting of workers within the freedom to provide services on the EU market.
Posting of workers is a form of temporary labour migration. However, unlike the labour migration, it is based on the freedom to provide services within the European 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 and 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.
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.
On 17 June 2014 Directive 2014/67/EU 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. Aiming for better protection of the posted workers, the Directive strengthens the EU law provisions and regulates the measures of inspection of the posting companies. The Directive’s details concern i.a. improving cooperation between the national institutions responsible for the posting of workers issues, obligation to launch an online service providing information about employment rules and conditions in particular member states, introduction of the joint responsibility of contractors and direct subcontractors in the construction sector for any failure of remuneration payment to the workers.
Negotiations on the Enforcement Directive lasted a few years and were among the toughest ones due to the differing interests of particular member states. The works on the document showed how difficult it is to achieve balance between improvement of the protection of the posted workers’ rights and the freedom to provide services. In progress of the legislative procedure, the LMI actively participated in the public consultation. Due to our efforts, it was possible to obtain the European Commission’s assurance that the provisions of the Directive can not be interpreted as the prohibition of replacement of one posted worker by another, as it was finally confirmed in the Joint Statement of the European Parliament, Council and Commission on the art. 4 sec. 3 let. G), attached to the applicable text of the Directive.
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.