Agreement on the Posting of Workers Directive
The principle of "equal pay for equal work on the same place" for posted workers, at the heart of the original March 2016 reform proposal, remains unchanged. According to this, not only should at least the statutory minimum wage be paid for posted workers (as has been the case up to now), but all remuneration regulations and generally binding collective bargaining agreements should also apply.
The cep has analysed the reform proposal (cepPolicyBrief 35/2016) and is critical of the principle of "equal pay for equal work on the same place". The mandatory application of all wage regulations, including all generally binding collective bargaining agreements for posted workers, is problematic. It would be more difficult for market-based wage control to be carried out by competition of workers from other member states. As a result, there is a risk of efficiency losses. National collective bargaining agreements generally assume a level of productivity that is not necessarily achieved by posted employees from abroad - for example, due to a lower level of training. However, these employees cannot receive a lower salary in the future, which may make their continued employment unattractive for employers. The potential of these employees will then be lost. The existing obligation to pay posted workers the legal minimum wage is sufficient to ensure that posted workers can earn their living in the host country.
The proposal for a directive also infringes the freedom to provide services, which it disproportionately restricts. According to ECJ case law, the obligation for posting companies to comply with the conditions of employment in the host country can be justified by the objective of protecting workers, but must be proportionate. The obligation to pay legally binding wages does not meet this requirement, as it does not protect all workers. This obligation only protects national workers in the host Member State against price competition from posted workers. Protectionist shielding of domestic workers at the expense of foreign workers thus contradicts the freedom to provide services, it is disproportionate and therefore cannot in any way justify their restriction.