Europeisk bygning advarer mot ESA
Den europeiske bygningsarbeiderføderasjonen, EBTF, har sendt brev til sentrale EU-parlamentarikere hvor de tar opp at ESA har vedtatt å åpne en formell sak mot Norge i den såkalte Verftssaken om allmenngjøring av dekning av utgifter til reise, kost og losji for utsendte arbeidstakere.
EBTF gjør parlamentarikerne oppmerksom på at det foreligger en høyesterettsdom i Norge og at dette som nå skjer virker klossete. Føderasjonen forstår ikke hvorfor ESA har en så restriktiv tolking av det nåværende utstasjoneringsdirektivet. I forbindelse med den pågående revideringen av direktivet, ber de derfor om at det blir gitt garantier for at utstasjonerte arbeidstakere skal ha krav på dekning av reise, kost og losji.
Slik lyder brevet fra EBTF:
Posting of Workers Directive - EFTA procedure against Norway
Dear Mrs Jongerius,
Dear Mrs Morin-Chartier,
Dear Mrs Reintke,
Dear Mrs Kari,
Dear Mrs Schaldemose,
We have been informed that the EFTA surveillance authority has recently sent a letter of formal notice to Norway concerning posting of workers (see http://www.eftasurv.int/media/esa-docs/physical/Letter-of-formal-notice---Complaint-against-Norway-concerning-posting-of-workers---1.pdf).
Although Norway is not an EU-Member it complies for 100% with the Posting of Workers Directive 96/71. The EFTA Court also follows the decisions of the EUCJ. Therefore, the pending case is very relevant for you as EU legislators reviewing the current Posting of Workers Directive.
EFTA Surveillance authority (ESA) considers that the Norwegian law extending the collective agreements in the shipyard, construction and cleaning industry, which requires employers to cover expenses relating to travels, board and lodging, are in breach with the EEA agreement and thus the Posting of Workers Directive.
The current procedure is extremely awkward. In 2013 the Norwegian Supreme Court already concluded that the general application of the Agreement on coverage of expenses for travel, board and lodging were in accordance with EEA law (and the current Posting of Workers Directive 96/71EG). The Norwegian Supreme Court has grounded its argumentation on the principle that the posted workers should at least receive the Norwegian minimum wages and that wages deductions would de facto substantially reduce the wages received by the posted workers.
We absolutely do not understand why the ESA continues having a very restrictive interpretation of the current Posting of Workers Directive. You can see for yourself the argumentation of the ESA, which is mainly based on the Laval and Commission v Luxembourg cases and that there was a complaint of a Polish company. All these elements indicate that the ESA letter of formal notice is primarily based on a political restrictive interpretation, which contradicts the proposed revision of the Posting of Workers Directive.
We kindly ask you to take this case in consideration and ensure that the revised Posting of Workers Directive guarantees that the employers have to cover expenses relating to travels, board and lodging for the posted workers. In this discussion, we stress that:
• Posted workers are posted for a temporary period and already have lodging costs in their home country (often a rent or a mortgage).
• Posted Workers are employed on behalf of their companies; The Posting of Workers Directive is based on the principle “freedom of services”. Therefore it is normal that the companies have to cover the expenses relating to travels, board and lodging;
• In case the expenses relating to travels, board and lodging would be deducted for the minimum rates of pay of the posted worker, the posted worker would receive a substantially lower income than the domestic workers, which would not allow the posted worker to enjoy a decent living condition in the host country;
• It should be noted that even in a domestic context it is absolutely normal that the employers pays the expenses relating to travels, board and lodging for their workers. As an example, we would take a French worker working for a company in the South of France (e.g. Marseille) who is send to work in Paris. The worker will have to stay overnight in Paris and his/her employers would be obliged to pay expenses relating to travels, board and lodging.
• Allowing posted companies to deduct the expenses relating to travels, board and lodging from the wages of the posted workers is a gigantic legal loophole, which would generate fraud and abuse.
We kindly ask you to take these elements in your ongoing discussions.
In case you have further questions, please do not hesitate to contact me.
European Secretary EFBWW / BWI
European Federation of Building and WoodWorkers
Rue Royale 45/1