17 Amendments of Anna HEDH related to 2012/0061(COD)
Amendment 124 #
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), 62, 151 and 62153 thereof,
Amendment 132 #
Proposal for a directive
Recital 3 a (new)
Recital 3 a (new)
(3 a) This Directive aims at better enforcement of Directive 96/71/EC. Therefore, the provision laid down in this directive shall be applicable without prejudice to Articles 4 and 5 of Directive 96/71/EC.
Amendment 137 #
Proposal for a directive
Recital 4 a (new)
Recital 4 a (new)
(4 a) In order to assess whether a posted worker is temporarily carrying out his or her work in a Member State other than the one in which he or she habitually works, all elements characterizing such work and the situation of the worker should be examined. If the necessary proof cannot be provided by the employer, the employment relationship should be presumed to fall under the laws and regulations of the Member State where the services are performed.
Amendment 141 #
Proposal for a directive
Recital 6 a (new)
Recital 6 a (new)
(6a) In order to assess whether a posted worker temporarily carries out his or her work in a Member State other than the one in which he or she normally works, account shall be taken not just of the list of criteria in Article 3(2) relating to the employment situation of the worker. The authorities shall in the course of their verification make an overall assessment of each individual case and shall take due account of the specificities of the situation in the light of Article 14(8) of Regulation No 987/2009.
Amendment 144 #
Proposal for a directive
Recital 9 a (new)
Recital 9 a (new)
(9 a) Member States should take appropriate measures in order to prevent the misuse and /or circumvention of Directive 96/71/EC and this Directive by undertakings for the purpose of depriving posted workers of their rights or the withholding of such rights.
Amendment 146 #
Proposal for a directive
Recital 9 b (new)
Recital 9 b (new)
(9 b) The relationship between this Directive and Directive 96/71/EC on the one hand and Directive 2008/104/EC on the other hand should be clarified so as to guarantee that temporary agency workers who are also posted workers benefit from the most advantageous terms and conditions of employment.
Amendment 191 #
Proposal for a directive
Article 2 – paragraph 1 – point a a (new)
Article 2 – paragraph 1 – point a a (new)
(a a) Temporary workers This Directive and Directive 96/71/EC shall apply to temporary workers within the meaning of Directive 2008/104/EC on Temporary Agency Work, unless Directive 2008/104/EC affords these workers more favourable treatment in respect of their terms and conditions of employment.
Amendment 194 #
Proposal for a directive
Article 3 a (new)
Article 3 a (new)
Article 3 a Applicable law 1. An undertaking which cannot demonstrate that it does in fact perform substantial activities in accordance with Article 3(1) in the country of establishment indicated shall be presumed to be established in the Member State in which it carries out its services. 2. Where an employer cannot demonstrate that a posted worker is performing his or her work for a limited period in a Member State other than the Member State in which he/she normally works, it shall be presumed that the place in which the worker habitually works is that in which the service is carried out.
Amendment 200 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – introductory part
Article 3 – paragraph 1 – subparagraph 1 – introductory part
For the purpose of implementing, applying and enforcing Directive 96/71/EC the competent authorities shall tmake into accountan overall assessment of all factual elements characterising the activities carried out by an undertaking in the State in which it is established in order to determine whether it genuinely performs substantial activities, other than purely internal management and/or administrative activities. Such elements may include: Account shall be taken in particular of the following elements, which shall where applicable be demonstrated to the competent authorities by the business making the posting:
Amendment 209 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point c
Article 3 – paragraph 1 – subparagraph 1 – point c
(c) the law applicable to the contracts concluded by the undertaking with its workers, on the one hand, and with its clients, on the other handclients,
Amendment 211 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – point c a (new)
Article 3 – paragraph 1 – subparagraph 1 – point c a (new)
(c a) the law of the country of establishment applicable to the contracts concluded by the undertaking with its workers,
Amendment 225 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 2 – point a
Article 3 – paragraph 2 – subparagraph 2 – point a
(a) the work is carried out for a limited period of time in another Member State; in particular, account should be taken of the ratio between the time spent by the worker in the Member State to which he or she is posted and the time spent in his or her habitual place of work;
Amendment 227 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 2 – point c
Article 3 – paragraph 2 – subparagraph 2 – point c
(c) the posted worker returns or is expected to resume working to the Member State from which he/she isin his habitual place of employment outside the Member State of posteding after completion of the work or the provision of services for which he or she was posted;
Amendment 233 #
Proposal for a directive
Article 3 – paragraph 2 – subparagraph 3 a (new)
Article 3 – paragraph 2 – subparagraph 3 a (new)
Preventing abuses and circumvention 1. Member States shall take appropriate measures with a view to preventing the misuse and/or circumvention by undertakings for the purpose of depriving posted workers of their rights or withholding such rights, in particular, to preventing successive assignments to the same post designed to circumvent the provisions of this Directive and Directive 96/71/EC. Posted workers shall not be used to replace workers who exercise their fundamental right to collective action.
Amendment 241 #
Proposal for a directive
Article 5 – paragraph 4
Article 5 – paragraph 4
4. Where, in accordance with national law, traditions and practices and with full respect to the autonomy of the social partners, the terms and conditions of employment referred to in Article 3 of Directive 96/71/EC are laid down in collective agreements in accordance with article 3 paragraph 1 and 8 of that Directive, Member States should ensure that the social partners shall identify these and make available the relevant information, in particular concerning the different minimum rates of pay and their constituent elements, the method used to calculate the remuneration due and the qualifying criteria for classification in the different wage categories, ,. Terms and conditions of employment should be available in an accessible and transparent way for service providers from other Member States and posted workers.
Amendment 245 #
Proposal for a directive
Article 6 a (new)
Article 6 a (new)
Article 6 a 'Temporary information and consultation centres for cross-border jobs' 1. The Member States should establish a temporary information and consultation centre for cross-border jobs at the place from which workers are posted when at least two foreign service providers post workers to a place of work. 2. The prime contractor's central or local administration should be responsible for informing the local/established workers' representatives without delay and for initiating negotiations on establishing a temporary information and consultation centre for cross-border jobs. The Member States should lay down rules of procedure for this centre that comply with national regulations. 3. The temporary information and consultation centre for cross-border jobs shall be put in place for the entire duration of the job/contract and should start operations when at least two foreign service providers have posted workers to a place of work. 4. The temporary information and consultation centre for cross-border jobs shall consist of representatives of the prime contractor's administrative service and workers' representatives employed at the place of work in question. 5. The temporary information and consultation centre for cross-border jobs should enhance posted workers' rights to information and consultation at their place of work. 6. The definitions of 'information' and 'consultation' are set out in Article 2(1)(f) and (g) of Directive 2009/38/EC of 6 May 2009.
Amendment 256 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
1. The Member State of establishment of the service provider shall continue to control, monitor and take the necessary supervisory or enforcement measures, in accordance with its national law, practice and administrative procedures, with respect to workers posted to another Member State. This responsibility shall not in any way reduce the possibilities for the Member State where the posting takes place to control, monitor and take necessary supervisory or enforcement measures.