Sunday 26. September 2021
#194 - June 2016

Red card against social dumping

Can the EU establish a European labour market with a fairer deal for the mobility of workers?

In 2014, according to official statistics, around 1.9 million postings were recorded in the EU in the sectors of construction, manufacturing industry and personal services. The average term of a fixed-term posting is four months. What is a “posted worker”? This refers to a salaried worker being sent by his employer into another Member State to carry out work over there on a temporary basis. But is he paid the same rate as the workers in the host Member State where the work is performed? That is the nub of the debate on social dumping.


The Directive that came into force in 1996 contains minimum provisions covering the rights of posted workers. However, the employer is not obliged to pay a posted worker more than the minimum rate of pay fixed by the host country. “The current Directive has been undermined by a series of court judgements, and a revision is absolutely necessary to re-establish the fundamental principle of equal pay for equal work,” says Luca Visentini, General Secretary of the European Trade Union Confederation (ETUC).


That is what the European Commission has done when on 8 March it issued a targeted revision of the rules for posting workers. Posted workers will benefit from the same rules governing pay and working conditions as local workers.


All very well, but a number of Member States have begged to differ. On 10 May 2016 the national parliaments of 11 Member States launched a “Yellow Card” procedure, as provided for in the Treaty of Lisbon, to ask the European Commission to review its proposal. This procedure allows a third party, made up of a minimum of nine national parliaments, to sound the alarm if they believe that either an EU programme is unnecessary or that the problem can be resolved satisfactorily at national or regional level. This forces the Commission to rewrite its text.

The national parliaments who spoke up were most notably those of the ten Eastern European members. Flashing the “yellow card”, they are challenging the argument that this proposed legislation respects the principle of subsidiarity. Basically the Eastern European countries are the main suppliers of posted workers and, as explained by Elżbieta Rafalska, the Polish Minister for Family, Labour and Social Affairs, “the Commission’s proposal hampers the idea of internal market and European competitiveness.”


On the other side, Germany, France and Belgium are the three Member States attracting the highest numbers of posted workers and they want – as do many other countries – stricter rules to mitigate social dumping. This now looks like a different political East-West perception.


In the wake of the announcement that the yellow card procedure had been triggered, Luca Visentini, emphasises the importance of finding a solution that is as fair for workers as for employers. “This [revision] is in the interests of all workers, especially posted workers and honest companies. Using posting to drive down wages and undermine working conditions benefits no one except bad employers.”  Europe’s trade unions are unanimous, he points out. “All trade unions in Europe, including in countries where parliaments have supported the yellow card procedure, strongly support revision of the Posting of Workers Directive.


There is a long list of problems still looking for a solution in this context: corporate ‘shopping lists’, the flouting of social norms, the lack of cross-border implementation, the difficulties in tracking down traces of rule-breaking in a transnational context, and the weaknesses in sanctions systems. All this has turned the framework of the free provision of services into an Achilles heel for the practice of recruiting workers on a cross-border basis.


Ahead of 10 May 2016, trade unions in these eleven countries were campaigning vigorously to prevent their parliaments (for example, Estonia) from backing the yellow card procedure. Today the trade unions of 90 national organisations representing 45 million workers under the banner of the European Trade Union Confederation (ETUC) are calling on the European Commission “to maintain the existing proposed revision of the Directive.”  


The EU is the only body capable of establishing fair rules of the game regarding worker mobility inside the Single Market. European workers are waiting for the European institutions to flash the red card against the social dumping which is hugely undermining confidence in the European project. But it not use it against posted workers or against the other workers.


Thomas Miessen

Confederation of Christian Trade Unions (ACV)


Translated from the original text in French

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Note: The views expressed in europeinfos are those of the authors and do not necessarily represent the position of the Jesuit European Office and COMECE.