Marianne Thyssen, the European Commissioner for Employment and Social Affairs

Presented on March 8 by Marianne Thyssen, the European Commissioner for Employment and Social Affairs, the draft recast of the directive on posted workers encountered the hostility of 11 member states of the European Union in the week of 9 May. Referring to the principle of subsidiarity, eleven national parliaments, most of those were from sending countries of posted workers, sent to the Commission a procedure called ‘yellow card’ which blocks any draft recast of the directive in the medium-term. The main stumbling block concerns the remuneration of posted workers in a foreign country. Defending the principle of “equal workers / equal wages” for posted and local workers, the Commission has thus encountered opposition from ten Eastern countries besides Denmark. Finding the proposed revision too restrictive, slingers states require the Belgian commissioner to redo its homework. But it seems that this review is not at all imminent. The political stalemate leaves open many issues related to social dumping.

Fighting against social dumping without jeopardizing the free movement of workers: this is the difficult balancing act of the European Commission as part of its employment plan. Even if posted workers represent only 0.7% of the workforce in the Union, the number has exploded by 45% between 2010 and 2014. Long embodied by the figure-foil of the “Polish plumber”, the detached work draws criticisms about unfair competition in sectors such as construction, health or agriculture. Most of these 1.9 million workers are from the former communist bloc. To date, almost half of them work in France, in Germany or in Belgium according to the most recent estimates of the Commission.

The first directive supposed to provide a framework for posted workers dates back to 1996. Regularly denounced by trade unions and some member states for failing to establish a strict legal framework with regard to the notion of posting, it has only been slightly modified so far. Those changes still are insufficient for its detractors.

One of the founding principles of the Directive, namely that posted workers remain subject to the payroll tax system in force in the country of origin, has not been modified by the Commission. Nevertheless, the new version of the Directive provides for the first time, equal pay for local workers and detached workers in the same country. Extending this requirement to subcontract companies and temporary work companies, the Commission also proposes that any period of secondment does not exceed twenty-four months. In some Member States, recalled Mrs Thyssen, it is common that posted workers earn up to 50% less than local people for the same work.

This inertia of the political body remains prejudicial for the companies of the social and solidarity protection. The unscrupulous arrangements elaborated by some temporary work agency imply the payment of social benefits without collecting contributions in return.

Led by Poland – country of origin of 36% of posted workers in Europe – recalcitrant states’ sling was enabled by the procedure known as “yellow card”. Under the Treaty of Lisbon, it allows the parliaments of member states to block any draft Directive provided they represent half the votes of all parliamentary chambers across the Union.

In the aftermath of the yellow card, the European Trade Union Confederation sent an open letter to the Commission concerning the action of the 11 rebellious states. While critic of a text that was drafted without the participation of social partners, the ETUC asks Mrs Thyssen to stand up again for the Directive before each Member State. The commissioner, who has to review her work, is not able to give a date for resumption. Diplomatic sources say that with the many internal difficulties currently faced by the E.U. – refugee crisis, “BREXIT”? – the Commission prefers to procrastinate on this issue not to offend the reluctant states’ sensibilities.

Ipse will invite the social partners to react against social dumping and its adverse consequences.

We will support the Parliamentary Assembly’s proposal concerning fair competition between companies as well as for maintaining a maximize level of employment and a sustainable social protection.