pruh+znak_PF_13_gray5+fialovy_RGB PF_PPT_en Posting of Workers Coordination in the Social Security Systems The law applicable to contractual relations www.law.muni.cz PF_PPT_nahled PF_PPT_en2 •2 nThe EU doesn‘t have competence for the harmonisation of the social security (social benefits, pensions, social security contributions, health care etc.). nThe EU law provides a coordination of the social security systems in order to protect social security rights when moving within Europe. nThe coordination doesn‘t replace national systems. nMain principles: nContributions are paid in just one country at a time. nEqual treatment. nWhen a person claims a benefit, previous periods of insurance, work or residence in other countries are taken into account. nA cash benefit from one state can be received even if a person lives in a different state. •Coordination of the Social Security www.law.muni.cz PF_PPT_nahled PF_PPT_en2 •3 Coordination of the Social Security nRelevant legal acts: nRegulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems. nRegulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems. nThe regulation is relevant also for the EEA and for Switzerland. nIt also covers health care (European Health Insurance Card). n www.law.muni.cz PF_PPT_nahled PF_PPT_en2 •4 The law applicable to contractual relations nIf a citizen of one member state performs work in another state, the applicable law for this contractual relation must be found. nRegulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I). nArt. 8.1: nAn individual employment contract shall be governed by the law chosen by the parties in accordance with Article 3. Such a choice of law may not, however, have the result of depriving the employee of the protection afforded to him by provisions that cannot be derogated from by agreement under the law that, in the absence of choice, would have been applicable pursuant to paragraphs 2, 3 and 4 of this Article. www.law.muni.cz PF_PPT_nahled PF_PPT_en2 •5 The law applicable to contractual relations nBasic rules for finding the applicable law (Art. 8.2 and 3 of the Regulation): nThe law of the country in which or, failing that, from which the employee habitually carries out his work in performance of the contract. nThe country where the work is habitually carried out shall not be deemed to have changed if he is temporarily employed in another country. nIf the abovementioned is not possible, the contract shall be governed by the law of the country where the place of business through which the employee was engaged is situated. nIt it appears from the circumstanecs that a contract is more closely connected with another country, the law of that other country shall apply. www.law.muni.cz PF_PPT_nahled PF_PPT_en2 •6 Posting of workers nRegulation in the 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. nThe basis for this Directive within the primary law is in the Art. 56 to 62 TFEU: freedom to provide services within EU. nThe goal of the directive is not a greater harmonization of labour law systems. www.law.muni.cz PF_PPT_nahled PF_PPT_en2 •7 Posting of workers nMain goals of the directive: ncombat social dumping, npromotion of the transnational provision of services by strenhgtening competition and establishing measures guaranteeing respect for the rights of workers, nabolition of obstacles to the free movement of persons and services. nThe are some controversies about the directive real effect. Some say that it creates an obstacle to the free movement of services rather than abolish it. www.law.muni.cz PF_PPT_nahled PF_PPT_en2 •8 Scope of the Directive nThe directive applies to undertakings established in a Member State which, in the Framework of the transnational provision of services, post workers, to the territory of a different Member State. nTo „post a worker“ means to temporarily assing him to work for a different company (undertaking). nThis represents the main difference between the free movements of workers and posting of workers. www.law.muni.cz PF_PPT_nahled PF_PPT_en2 •9 Definition of Posting nPossible measures reffered to as posting: nAn undertaking post a worker to another Member State on its account and under its direction, under a contract concluded between the undertaking making the posting and the party for whom the services are intended, provided there is an employment relationship between the undertaking making the posting and the worker. nAn undertaking posts a worker to another Member State to an establihmnent or to an undertaking owned by the group in the teritorry of a Member State under the same conditions as above. nTemporary employment undertaking hires out a worker to a user undertaking established in the territory of a Member State, provided there is an employment relationship between the temporary employment undertaking and the worker during the period of posting. nThe definition is important for the consideration whether the directive applies. n www.law.muni.cz PF_PPT_nahled PF_PPT_en2 •10 Definition of Posting nRelevant case law: nCase C - 586/13 Martin Meat kft v Géza Simonfay and Ulrich Salburg nCriteria for ‘hiring out workers’: nhiring-out of workers is a service provided for remuneration in respect of which the worker who has been hired-out remains in the employ of the undertaking providing the service, no contract of employment being entered into with the user undertaking, nthe movement of the worker to the host Member State constitutes the very purpose of the provision of services effected by the undertaking providing the services, nthe employee carries out his tasks under the control and direction of the user undertaking. n n www.law.muni.cz PF_PPT_nahled PF_PPT_en2 •11 Terms and conditions of employment nMember States shall ensure that, whatever the law applicable to the employment relationship, the undertakings guarantee workers posted to their territory the terms and conditions of employment covering the following matters which, in the Member State where the work is carried out, are laid down : nby law, regulation or administrative provision, and/or nby collective agreements or arbitration awards which have been declared universally applicable. n www.law.muni.cz PF_PPT_nahled PF_PPT_en2 •12 Terms and conditions of employment nA „hard core“ of terms and conditions covers: nmaximum work periods and minimum rest periods, nminimum paid annual holidays, nthe minimum rates of pay, including overtime rates; this point does not apply to supplementary occupational retirement pension schemes, nthe conditions of hiring-out of workers, in particular the supply of workers by temporary employment undertakings, nhealth, safety and hygiene at work, nprotective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people, nequality of treatment between men and women and other provisions on non-discrimination. www.law.muni.cz PF_PPT_nahled PF_PPT_en2 •13 Terms and conditions of employment nFor the purposes of the directive, the concept of minimum rates of pay is defined by the national law and/or practice of the Member State to whose territory the worker is posted. nRelevant case law: nCase C - 341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet nCase C - 396/13 Sähköalojen ammattiliitto ry v. Elektrobudowa Spółka Akcyjna n www.law.muni.cz PF_PPT_nahled PF_PPT_en2 •14 Case C - 396/13 Sähköalojen ammattiliitto nThe request has been made in proceedings between a Finnish trade union in the electricity sector, and Elektrobudowa Spółka Akcyjna (ESA), a Polish company, concerning pay claims arising out of employment relationships. nESA has a subsidiary in Finland. ESA posted 186 Polish workers to its subsidiary in Finland to carry out electrical installation work at the construction site for the nuclear power station. nWorkers claim that they are entitled to Finnish minimum wage under collective agreement. nESA argues that workers are entitled also to guaranteed piecework pay, holiday allowance, flat-rate daily allowance, compensation for daily travelling time, paid accommodation and meal vouchers and all this must be regarded as a part of minimum wage, nPreliminary questions: www.law.muni.cz PF_PPT_nahled PF_PPT_en2 •15 Case C - 396/13 Sähköalojen ammattiliitto nPreliminary questions: n Is Article 3 of Directive 96/71, read in the light of Articles 56 TFEU and 57 TFEU, to be interpreted as meaning that the concept of minimum rates of pay covers basic hourly pay according to pay groups, guaranteed piecework pay, holiday allowance, flat-rate daily allowance and compensation for daily travelling time, as those employment and working conditions are defined in a collective agreement declared universally applicable and falling within the scope of the Annex to the directive? nAre accommodation paid for by an employer who is obliged under a collective agreement mentioned in Question 6 to do so and meal vouchers provided in accordance with a contract of employment by a service provider from another Member State to be regarded as compensation for expenses caused by being a posted worker or as part of the concept of minimum rates of pay within the meaning of Article 3(1)? www.law.muni.cz PF_PPT_nahled PF_PPT_en2 •16 Case C - 396/13 Sähköalojen ammattiliitto nA daily allowance such as that at issue in the main proceedings must be regarded as part of the minimum wage on the same conditions as those governing the inclusion of the allowance in the minimum wage paid to local workers when they are posted within the Member State concerned. nCompensation for daily travelling time, which is paid to the workers on condition that their daily journey to and from their place of work is of more than one hour’s duration, must be regarded as part of the minimum wage of posted workers, provided that that condition is fulfilled, a matter which it is for the national court to verify. nCoverage of the cost of those workers’ accommodation is not to be regarded as an element of their minimum wage. nAn allowance taking the form of meal vouchers provided to the posted workers is not to be regarded as part of the latter’s minimum salary. www.law.muni.cz PF_PPT_nahled PF_PPT_en2 •17 Cooperation and information nFor the purposes of implementing this Directive, Member States shall, in accordance with national legislation and/or practice, designate one or more liaison offices or one or more competent national bodies. nEach Member State shall take the appropriate measures to make the information on the terms and conditions of employment generally available. nThe example for the Czech Republic: http://www.businessinfo.cz/en/psc/start-your-business/posting-of-workers.html n (not 100 % up-to-dated) www.law.muni.cz PF_PPT_nahled PF_PPT_en2 •18 Enforcement nMember States shall take appropriate measures in the event of failure to comply with this Directive. nThey shall in particular ensure that adequate procedures are available to workers and/or their representatives for the enforcement of obligations under this Directive. nRelevant Case law: nCase C-60/03 Wolff & Müller GmbH & Co. KG v José Filipe Pereira Félix. www.law.muni.cz PF_PPT_nahled PF_PPT_en2 •19 Directive on the enforcement nThe effectiveness of the directive is not very good. nMany cases of abusing and circumvention of the applicable rules (e.g. so called letterbox companies). nThat was the reason for adopting 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. www.law.muni.cz PF_PPT_nahled PF_PPT_en2 •20 Possible revision of the directive nVery controversial topic. nSome member states adopted much stricter regulation (e.g. German regulation of the Mindestlohngesetz - MiLoG). nOn the 8 of March 2016, the European Commission proposed a revision of the rules on posting of workers within the EU to ensure they remain fit for purpose. nOne of the key points is the remuneration of posted workers: remuneration would not only include the minimum rates of pay, but also other elements such as bonuses or allowances where applicable. nAdditional information can be found here: http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1459423564906&uri=CELEX%3A52016PC0128