41 Amendments of Birgit SIPPEL related to 2012/0061(COD)
Amendment 60 #
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 62 #
Proposal for a directive
Citation 1 a (new)
Citation 1 a (new)
Having regard to the Charter of Fundamental Rights of the European Union, and in particular Articles 15, 21 and 28 thereof,
Amendment 109 #
Proposal for a directive
Recital 10 a (new)
Recital 10 a (new)
(10a) Effective, regular and flexible labour inspections are essential and adequate funding should be provided in order for the competent authorities to detect and combat misuse and circumvention. Member States should be entitled to perform any controls needed in order to fully comply with Article 5 in 96/71/EC and the provisions in this Directive.
Amendment 119 #
Proposal for a directive
Recital 11 c (new)
Recital 11 c (new)
(11c) 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 normally works, all elements characterizing such work and the situation of the worker should be examined. Member States should ensure that undertakings provide the necessary evidence. If it cannot be established that a worker is a posted worker within the meaning of this Directive and Directive 96/71/EC, he/she should be considered as habitually employed in the Member State to which the posting takes place, within the meaning of Regulation No 593/2008.
Amendment 144 #
Proposal for a directive
Recital 16
Recital 16
(16) In order to ensure the correct application of, and to monitor compliance with, the substantive rules on the terms and conditions of employment to be respected with regard to posted workers, Member States should apply only certainthe necessary control measures orand administrative formalities to undertakings posting workers for the provision of services. Such measures and requirements may only be imposed provided that the competent authorities cannot carry out their supervisory task effectively without the requested information and the necessary information cannot be obtained easily from the employer of posted workers or the authorities in the Member State of establishment of the service provider within a reasonable delay and/or less restrictive measures would not ensure that the objectives of the national controls measures deemed necessary are attained in order to effectively combat fraud and unfair competition.
Amendment 152 #
Proposal for a directive
Recital 17
Recital 17
(17) A comprehensive and effective system of preventive and control measures, together with deterrent penalties to identify and prevent individual instances of bogus self- employed, should contribute to combat concealed employment effectively. In this context it is essential that competent authorities in the member states have the means to check if there is a situation of dependency between the allegedly self- employed individual and his or her employer.
Amendment 154 #
Proposal for a directive
Recital 17 a (new)
Recital 17 a (new)
(17a) In order to combat bogus self- employment and other violations of existing legislation, a European register should be set up for companies that have repeatedly violated the rules laid down in this Directive and Directive 96/71/EC. The purpose of the register should also be to ensure a level playing field and fair competition among companies.
Amendment 172 #
Proposal for a directive
Recital 24
Recital 24
(24) In view of the prevalence of subcontracting in the construction sector,With a view to reducing abuses in subcontracting situations and in order to protect posted workers‘' rights, it is necessary to ensure that in such sector at least the contractor of which the employer is a direct subcontractor can be held liable to pay to posted workers the net minimum rates of pay due, any back- payments of outstanding remuneration and/or contributions due to common funds or institutions of social partners regulated by law or collective agreement in so far as these are covered by Article 3 (1) of Directive 96/71/EC in addition to or in place of the employer. The contractor shall not be held liable if he/she has undertaken due diligence. The latter may imply preventive measures concerning proof provided by the subcontractor, including where relevant based upon information emanating from national authoritiesall contractors up the chain can be held liable to pay to posted workers all entitlements due to him/her.
Amendment 213 #
Proposal for a directive
Recital 33
Recital 33
(33) This Directive and Directive 96/71/EC respects the fundamental rights and observes the principles recognised in the European Convention on Human Rights, ILO Conventions and the Charter of Fundamental Rights of the European Union, notably protection of personal data (Article 8), the freedom to choose an occupation and right to engage in work (Article 15), the freedom to conduct a business (Article 16), the right to equality (Article 20), non-discrimination (Article 21), the right to collective bargaining and action (Article 28), fair and just working conditions (Article 31), and the right to an effective remedy and to a fair trial (Article 47) and has to be implemented in accordance with those rights and principles.
Amendment 215 #
Proposal for a directive
Recital 33 a (new)
Recital 33 a (new)
(33a) Fundamental social rights should not be called into question on grounds of economic freedoms. Therefore this Directive should strengthen the enforcement of Directive 96/71/EC in particular in light of legal uncertainties resulting from the judgments of the European Court of Justice notably Viking (C-438/05), Laval (C-341/05), Rüffert (C- 346/06) and Luxembourg (C-319/06).
Amendment 226 #
Proposal for a directive
Article 1 – paragraph 1 – subparagraph 2 a (new)
Article 1 – paragraph 1 – subparagraph 2 a (new)
This Directive does not affect in any way the competences of the Member States to define mandatory labour standards and working conditions for all workers pursuing labour on their territory as stated in Article 3 (10) of Directive 96/71 as long as these standards are not protectionist or discriminatory.
Amendment 496 #
Proposal for a directive
Article 7 – title
Article 7 – title
Role of the Member State of establishments
Amendment 499 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
Amendment 502 #
Proposal for a directive
Article 7 – paragraph 2
Article 7 – paragraph 2
Amendment 504 #
Proposal for a directive
Article 7 – paragraph 3
Article 7 – paragraph 3
Amendment 507 #
Proposal for a directive
Article 7 – paragraph 4
Article 7 – paragraph 4
Amendment 513 #
Proposal for a directive
Article 7 a (new)
Article 7 a (new)
Amendment 533 #
Proposal for a directive
Article 9 – paragraph 1 – introductory part
Article 9 – paragraph 1 – introductory part
1. Member States may only impose the followingshall impose administrative requirements and effective control measures. These measures shall include in particular:
Amendment 543 #
Proposal for a directive
Article 9 – paragraph 1 – point a
Article 9 – paragraph 1 – point a
(a) an obligation for a service provider established in another Member State to make a simple declaration to the responsible national competent authorities at the latest at the commencementone month in advance of the service provision, whereby the declaration may only covershall cover in particular: - the identity of the service provider, the presence of one or more clearly identifiablespecially their first and last name, birthplace and birthdate, home address and accommodation address in the phosted workers, state during their stay, - their anticipated number, the anticipated duration and location of their presence, and and the individual identification data of the posted workers, - the anticipated duration of posting, - the place where the service is to be provided, - the services justifying the posting;
Amendment 553 #
Proposal for a directive
Article 9 – paragraph 1 – point a a (new)
Article 9 – paragraph 1 – point a a (new)
(aa) an obligation for the service provider to inform the responsible national competent authorities without delay: - in case the posting does not or has not taken place or was terminated ahead of schedule; - in case the service justifying the posting is interrupted; - in case the posted worker has been assigned by his employer to another undertaking, in particular in the event of a merger or a transfer of undertaking; - in case of any other changes related to the information provided according to Article 9.1 (a);
Amendment 555 #
Proposal for a directive
Article 9 – paragraph 1 – point b
Article 9 – paragraph 1 – point b
(b) an obligation to keep or make available documents and/or retain copies in paper or electronic form for the competent authorities and the trade unions, at the place where the service is provided, during the period of service provision and up to two years after the period of service provision. This obligation concerns the following documents in particular: - a copy of the A1 form as proof of social security coverage in the home member state, - of the employment contract (or an equivalent document within the meaning of Directive 91/533, including, where appropriate or relevant, the additional information referred to in Article 4 of that Directive), - payslips, - time-sheets and, - proof of payment of wages or copies of equivalent documents during the period of posting, - an assessment of the risks to safety and health at work, including protective measures to be taken, in accordance with Directive 89/391/EC, - where the posted worker is a third country national, copies of the work permit and of the residence permit. The documents shall be kept in an accessible and clearly identified place in itsthe territory of the host Member State, such as the workplace or the building site, or for mobile workers in the transport sector the operations base or the vehicle with which the service is provided;
Amendment 568 #
Proposal for a directive
Article 9 – paragraph 1 – point c
Article 9 – paragraph 1 – point c
(c) a translation ofin the documents referred to under (b), may be justified providedrequested official EU languages of these documents are not excessively long and standardised forms are generally used for such documentsferred to under (b);
Amendment 578 #
Proposal for a directive
Article 9 – paragraph 1 – point c a (new)
Article 9 – paragraph 1 – point c a (new)
(ca) The Member State to which the posting takes place may require that the documents referred to under (b) and any additional mandatory documents are made available without delay to the competent national authorities.
Amendment 587 #
Proposal for a directive
Article 9 – paragraph 1 – point d
Article 9 – paragraph 1 – point d
(d) an obligation to designate a contact personlegal representative with a residence in the Member State to which the posting takes place, during the period of posting and up to one year after the service provision to deal with administrative and judicial proceedings and to negotiate, if necessary, on behalf of the employer with the relevant social partners in the Member State to which the posting takes place, in accordance with national legislation and practice, during the period in which the services are provided.
Amendment 597 #
Proposal for a directive
Article 9 – paragraph 1 – point d a (new)
Article 9 – paragraph 1 – point d a (new)
(da) other administrative requirements and control measures without which competent authorities cannot carry out their supervisory tasks effectively. These requirements shall be made publicly available.
Amendment 604 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
2. Member States shall ensure that the procedures and formalities relating to the posting of workers can be completed easily by undertakings, at a distance and by electronic means as far as possible.
Amendment 612 #
Proposal for a directive
Article 9 – paragraph 3
Article 9 – paragraph 3
3. Within three years after the date referred to in Article 20, the necessityeffectiveness and appropriateness of the application of national control measures shall be reviewed in the light of the experiences with and effectiveness of the system for cooperation and exchange of information, the development of more uniform, standardised documents, the establishment of common principles or standards for inspections in the field of the posting of workers as well as technological developments, with a view to proposing, where appropriate, any necessary amendments or modifications.
Amendment 615 #
Proposal for a directive
Article 9 – paragraph 3 a (new)
Article 9 – paragraph 3 a (new)
3a. The Member State of establishment and the Member State to which the posting takes place have both the competence to check the regularity of labour relations and working conditions. In cases of conflicting interpretations the law of the Member State to which the posting takes place prevails.
Amendment 616 #
Proposal for a directive
Article 9 – paragraph 3 b (new)
Article 9 – paragraph 3 b (new)
3b. During the period of posting of a worker, inspection of the working conditions shall lie within the responsibility of the authorities or competent body of the Member State to which the posting takes place. They can carry out factual checks and controls on their own initiative and are not bound to any results of checks or controls carried out by the Member State of establishment.
Amendment 619 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
1. Member States shall ensure that appropriateffective checks and monitoring mechanisms are put in place and that effective and adequate inspections are carried out on their territory in order to control and monitor compliance with the provisions and rules laid down in this Directive and Directive 96/71/EC and to guarantee its proper application and enforcement. Such inspections shall be based primarily on a risk assessment to be drawn up regularly by the competent authorities. The risk assessment shall identify the sectors of activity in which the employment of workers posted for the provision of services is concentrated on their territory. When making such risk assessment the realisation of big infrastructural projects, the special problems and needs of specific sectors, the past record of infringement, as well as the vulnerability of certain groups of workers shall be taken into account.
Amendment 637 #
Proposal for a directive
Article 10 – paragraph 2
Article 10 – paragraph 2
2. Member States shall ensure that inspections and controls of compliance with this Directive and Directive 96/71/EC are not discriminatory and/or disproportionate shall allocate the necessary resources for such inspections and controls.
Amendment 644 #
Proposal for a directive
Article 10 – paragraph 2 a (new)
Article 10 – paragraph 2 a (new)
2a. Measures to control the application of Directive 96/71 and to detect abuses in relation to the posting of workers are to be considered public policy provisions in the meaning of Declaration No 10 on Article 3 (10) of Directive 96/71, recorded in the minutes of the Council of the European Union when Directive 96/71 was adopted. Provisions of Member States to fight undeclared labour and to prevent social dumping cannot be restricted on grounds of potentially hampering the freedom to provide services as long as they are not protectionist or discriminatory.
Amendment 697 #
Proposal for a directive
Article 12
Article 12
Amendment 700 #
Proposal for a directive
Article 12 – paragraph 1
Article 12 – paragraph 1
Amendment 701 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 1
Article 12 – paragraph 1 – subparagraph 1
Amendment 718 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 1 – point a
Article 12 – paragraph 1 – subparagraph 1 – point a
Amendment 736 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 2
Article 12 – paragraph 1 – subparagraph 2
Amendment 744 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
Amendment 755 #
Proposal for a directive
Article 12 – paragraph 3
Article 12 – paragraph 3
Amendment 771 #
Proposal for a directive
Article 12 a (new)
Article 12 a (new)
Article 12a Subcontracting and liability 1. Each Member State shall take the necessary measures to ensure that an undertaking which appoints a subcontractor to provide services is liable, in addition to and/or in place of that subcontractor, for obligations of that subcontractor and any other intermediate. 2. This shall not in any way preclude the application of already existing more stringent rules at national level nor the introduction of those. 3. Member States shall limit vertical subcontracting to three levels provided that the limitation is not discriminatory.
Amendment 825 #
Proposal for a directive
Article 19 a (new)
Article 19 a (new)
Article 19a Clause of non-regression - More favourable provisions 1. This Directive and Directive 96/71/EC are without prejudice to the Member States' right to apply or introduce legislative, regulatory or administrative provisions which are more favourable to workers or to promote or permit collective agreements concluded between the social partners which are more favourable to workers. 2. The implementation of this Directive shall under no circumstances constitute sufficient grounds for justifying a reduction in the general level of protection of workers in the fields covered by this Directive and Directive 96/71/EC. This is without prejudice to the rights of Member States and/or management and labour to lay down, in the light of changing circumstances, different legislative, regulatory or contractual arrangements to those prevailing at the time of the adoption of this Directive, provided that the minimum requirements laid down in this Directive are respected.