Activities of Mady DELVAUX related to 2016/0070(COD)
Shadow opinions (1)
OPINION on the proposal for a directive of the European Parliament and of the Council 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
Amendments (14)
Amendment 14 #
Proposal for a directive
Citation 1
Citation 1
Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 53(1) and 62, Article 62, Article 151 and points (a) and (b) of Article 153(1) thereof,
Amendment 36 #
Proposal for a directive
Recital 8
Recital 8
(8) In view of the long duration of certain posting assignments, it is necessary to provide that, in case of posting lasting for periods higher than 246 months, the host Member State is deemed to be the country in which the work is carried out. In accordance with the principle of Rome I Regulation, the law ofapplicable terms and conditions of employment should be those established by the host Member States therefore applies to the employment contract of such posted workers if no other choice of law was made by the parties. In case a different choice was made, it cannot, however, have the result of depriving the employee of the protection afforded to him by provisions that, without prejudice to more favourable terms and conditions of employment afforded to the worker under provisions from which the parties cannot be derogated from by agreement under the law of the host Member State. This should apply from the start of the posting assignment whenever it is envisaged for more than 24 months and from the first day subsequent to the 24 months when it effectively exceeds this duration. This rule does not affect the right of undertakings posting workers to the territory of another Member State to invoke the freedom to provide services in circumstances also where the posting exceeds 24 months. The purpose is merely to create legal certainty in the application of the Rome I Regulation to a specific situation, without amending that Regulation in any way. The employee will in particular enjoy the protection and benefits pursuant to the Rome I Regulationnational law which would have applied otherwise. This rule does not affect the right of undertakings posting workers to the territory of another Member State to invoke the freedom to provide services.
Amendment 63 #
Proposal for a directive
Recital 14 a (new)
Recital 14 a (new)
(14a) In the interests of transparency and in accordance with Directive 2014/67/EU1a of the European Parliament and of the Council, the continuity of the undertaking which posts the workers should be ensured in order to fight against the creation of letterbox companies. In addition, every employer should be able to demonstrate that a worker has an adequate length of service with the undertaking posting him or her. _________________ 1aDirective 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 and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System ('the IMI Regulation') (OJ L 159, 28.5.2014, p. 11).
Amendment 64 #
Proposal for a directive
Recital 14 b (new)
Recital 14 b (new)
Amendment 75 #
Proposal for a directive
Article 1 – paragraph 1 – point 1
Article 1 – paragraph 1 – point 1
Directive 96/71/EC
Article 2 a – title
Article 2 a – title
Posting exceeding twenty-foursix months
Amendment 76 #
Proposal for a directive
Article 1 – paragraph 1 – point 1
Article 1 – paragraph 1 – point 1
Directive 96/71/EC
Article 2 a – paragraph 1
Article 2 a – paragraph 1
1. When the anticipated or the effective duration of posting exceeds twenty-four months, the Member State to whose territory a worker is posted shall be deemed to be the country in which his or her work is habitually carried outsix months, or when the posting is not considered to be genuine under Directive 2014/67/EU, the terms and conditions of employment of the Member State to whose territory a worker is posted and where the service is provided shall apply as long as they are more favourable for the worker than those pursuant to the law under which the individual employment contract was agreed.
Amendment 81 #
Proposal for a directive
Article 1 – paragraph 1 – point 1
Article 1 – paragraph 1 – point 1
Directive 96/71/EC
Article 2 a – paragraph 2
Article 2 a – paragraph 2
2. For the purpose of paragraph 1, in case of replacement of posted workers performing the same or a similar task at the same place, - be it by another posted worker or the same posted worker returning after a break - the cumulative duration of the posting periods of the workers concerned shall be taken into account, with regard to workers that are posted for an effective duration of at least six months.
Amendment 86 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point a
Article 1 – paragraph 1 – point 2 – point a
Directive 96/71/EC
Article 3 – paragraph 1 – subparagraph 1 – introductory part
Article 3 – paragraph 1 – subparagraph 1 – introductory part
1. Member States shall ensure that, whatever the law applicable to the employment relationship, the undertakings referred to in Article 1 (1) guarantee workers posted to their territory at least the terms and conditions of employment which covering the following matters which,laid down in the Member State where the work is carried out, are laid down:
Amendment 95 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point a
Article 1 – paragraph 1 – point 2 – point a
Directive 96/71/EC
Article 3 – paragraph 1 - subparagraph 1 - point g a (new)
Article 3 – paragraph 1 - subparagraph 1 - point g a (new)
(ga) allowances associated with the posting including reimbursement of expenditure actually incurred on account of the posting, such as expenditure on travel, board and lodging.
Amendment 98 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point a
Article 1 – paragraph 1 – point 2 – point a
Directive 96/71/EC
Article 3 – paragraph 1 – subparagraph 2
Article 3 – paragraph 1 – subparagraph 2
For the purpose of this Directive, remuneration means all the elements of remuneration rendered mandatory by national law, regulation or administrative provision, collective agreements or arbitration awards which have been declared universally applicable and/or, in the absence of a system for declaring collective agreements or arbitration awards to be of universal application, other collective agreements or arbitthe concept of remuneration shall be determined by the national law and/or praction awards within the meaning of paragraph 8 second subparagraph, ince of the Member State to whose territory the worker is posted.
Amendment 114 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point c
Article 1 – paragraph 1 – point 2 – point c
Directive 96/71/EC
Article 3 – paragraph 1 b
Article 3 – paragraph 1 b
1b. Member States shall provide that the undertakings referred to in Article 1(3)(c) guarantee posted workers the terms and conditions which apply pursuant to Art. 5 Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work to temporary workers hired-out by temporary agencies established in the Member State where the work is carried out. In so doing, equality of treatment shall be guaranteed between these temporary agency workers and national temporary agency workers.
Amendment 115 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point c a (new)
Article 1 – paragraph 1 – point 2 – point c a (new)
Directive 96/71/EC
Article 3 – paragraph 1 c
Article 3 – paragraph 1 c
(ca) The following paragraph is inserted: "1c. Member States may also, in accordance with national law and practice and on a non-discriminatory basis, base themselves on collective agreements or arbitration awards which are, as defined by the Member State where the work is carried out, representative in the geographical area, the profession or industry concerned and which offer the most favourable terms and conditions of employment to the worker".
Amendment 117 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point d a
Article 1 – paragraph 1 – point 2 – point d a
Directive 96/71/EC
Article 3 – paragraph 9 a (new)
Article 3 – paragraph 9 a (new)
(da) The following paragraph is inserted: ‘"9a. If a posting situation falls under more than two national jurisdictions, the terms and conditions of employment of the Member State to whose territory a worker is posted and where the service is provided, shall apply as long as they are more favourable for the worker than those pursuant to the law under which the individual employment contract was agreed".’
Amendment 119 #
(2b) The following Article is inserted: ‘"Article 6 b This Directive shall be without prejudice to the Member States' ability to apply or introduce laws and administrative provisions which are more favourable to workers or allow to promote the use of collective agreement provisions that are more favourable to workers".’