POSTING
OF WORKERS DIRECTIVE
(URN
05/1673)
Measures
to Implement the Directive in Great Britain
The
Posting of Workers Directive (Directive 96/71/EC) broadly requires that where a Member State
has certain minimum terms and conditions of employment, these
must also apply to workers posted temporarily by their employer
to work in that state. The Directive does not prevent workers
benefiting from minimum terms and conditions, which are more favourable
and are applied in the state from which they are posted.
The
Directive also establishes the principle that undertakings from
non-member countries must not be given more favourable treatment
than similar undertakings in Member States (ie. that workers from
such undertakings must benefit from the same minimum terms and
conditions of employment to those applicable to workers posted
from undertakings in Member States).
What is
a posted worker?
Broadly a
posted worker is one who, for a limited period, carries out his
work in the territory of a European Community Member State other
than the State in which he normally works. The Directive applies
to undertakings which:
- post workers
to another Member State under a contract between them and a
party in the other State for whom the services are intended;
- make intra-company
postings;
- are employment
businesses who post workers and maintain an employment relationship
during the posting.
What terms
and conditions of employment are covered by the Directive?
These are:
- maximum
work periods and minimum rest periods;
- minimum
paid annual holidays;
- minimum
rates of pay, including overtime rates;
- conditions
of hiring out workers, in particular the supply of workers by
temporary employment undertakings;
- health,
safety and hygiene at work;
- protective
measures in the terms and conditions of employment of pregnant
women or those who have recently given birth, of children and
of young people;
- equal treatment
between men and women and other provisions on non-discrimination.
Main provisions
of the Directive
Where states
have in place laws or mandatory collective agreements on terms
and conditions of employment covered by the Directive, they must
ensure that these apply to workers temporarily posted to their
territory. Member States may also apply certain other collective
agreements to posted workers and have the option not to apply
some terms and conditions to certain groups of workers. In Britain
there are no legislative provisions to apply the terms of mandatory
or other collective agreements, nor has the Government taken up
the options not to apply specified minimum conditions to certain
categories of posted workers.
Legislation
In Britain,
principal legislation relevant to the Directive is:
- the
Working Time Regulations 1998
- the
National Minimum Wage Act and Regulations 1998
- the Sex
Discrimination Act 1975
- the Race
Relations Act 1976
- the
Disability Discrimination Act 1995
-
the Part-time Workers (Prevention of Less Favourable Treatment)
Regulations 2000
-
the Fixed-term Employees (Prevention of Less Favourable
Treatment) Regulations 2002
- the
Employment Equality (Sexual Orientation) Regulations 2003
- the
Employment Equality (Religion or Belief) Regulations 2003
- health
and safety legislation
- legislation
on the employment of children
The primary health and safety legislation is the Health and Safety
at Work etc. Act 1974. Other cornerstone health and safety
legislation, which also contains special provisions for young
people, is the Management of Health and Safety at Work Regulations
1999. There are also particular protections related to age in
specific health and safety legislation. The Employment of
Women,Young Persons and Children Act 1920 prohibits the employment
of children of compulsory school leaving age in any industrial
undertaking except in certain circumstances on approved work
experience programmes. The Children and Young Persons Act 1933 (as
amended) regulates the part-time employment of children generally
and the Children and Young Persons Act 1963 covers work by
children within the entertainment industry.
Although
most existing legislation already applied to all employees or
workers whether working here permanently or temporarily, and thus
applied to posted workers, minor changes to legislation have been
made to implement the Directive. First, provisions in the
Employment Relations Act 1999 have removed territorial limits from
provisions in the Employment Rights Act 1996, so that the rights
affected apply to all employees in Britain, including those
temporarily posted here. These include protective measures for
pregnant women and those who have just given birth. Second,
legislation to counter discrimination on the grounds of sex, race
and disability was amended so that those employed mainly outside
Britain are no longer excluded from its scope. These changes were
made by the Equal Opportunities (Employment Legislation)
(Territorial Limits) Regulations 1999. Previously,
anti-discrimination provisions did not apply where employment was
wholly or mainly outside Great Britain. The changes will not
affect employees of British employers working in Britain. However,
British employers posting workers to other European Union States
may be affected and may also have to comply with measures to
implement the Directive taken by other states.
TO OBTAIN
FURTHER INFORMATION
For
information about the Directive you can contact the DTI on 020
7215 5000. For more details on the specific items of legislation
involved you can contact the relevant government body direct.
Details are listed below.
A guide to the
National Minimum Wage (NMW) legislation is available from:
NMW Enquiries
Freepost PHQ1
Newcastle Upon Tyne
NE98 1ZH
Telephone
enquiries 0845 6000 678.
Or visit the DTI
website .
A guide to the
Working Time Regulations is available from the DTI
website .
Health and
Safety publications (priced and free) are available by mail order
from:
HSE Books
PO Box 1999
Sudbury
Suffolk CO10 2WA
Or by
telephoning 01787 881165 Fax 01787 313995
For further
Health and Safety enquiries, telephone the HSE Infoline on 0845 345
0055 or write to:
HSE Information
Services
Caerphilly
Business Park
Caerphilly
CF83 3GG.
Email
hse.infoline@natbrit.com or fax 0845 408 9566. Alternatively visit
the HSE website
www.hse.gov.uk
For information on the Employment Equality Regulations 2003
visit the DTI
website or see the practical workplace guidance on the Acas
website. You can also call the Acas helpline on 08457 47 47 47.
For information on maternity leave and parental leave and on
employment rights generally, contact the
ACAS helpline or see the
regulatory guidance on this website.
For information on the Children and Young Persons Act 1933
and Children and Young Persons Act 1963, contact the Department for
Education and Skills, Public Enquiry Office on 0870 000 2288. For
information on child employment in your area, contact your local
authority Education Welfare Service.
For guidance on the Sex Discrimination Act, employees should
contact the Equal Opportunities Commission on 0845 601 5901. Or
write to:
Overseas House
Quay Street
Manchester M3 3HN
Employers should contact Equality Direct on 0845 600 3444.
For guidance on The Race Relations Act, telephone the
Commission for Racial Equality
on 020 7939 0000. Its address is:
St Dunstan's House
201 - 211 Borough High Street
London SE1 1GZ
Information, leaflets and booklets on the Disability Discrimination
Act can be obtained by contacting the Disability Rights Commission
helpline:
Tel: 0845 7622633
Textphone: 0845 7622644
Fax 0845 7622611.
Or visit the Disability Rights Commission website at
click
Or visit the Department for Work and Pensions disability
website.
To view the
Posting of Workers Directive, visit the European Union
website.
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