Conference on Posting Workers and Labour Rights

1. CONFERENCE ON POSTING WORKERS ANDLABOUR RIGHTS 17-18 MARCH 2010, OVIEDO - SPAIN Session IV – Roundtable Administrative Cooperation amongst the Member States Cross-Border cooperation: Some International Experiences Giuseppe Casale Director Labour Administration and Inspection Programme LAB/ADMINGeneva

2. POSTING WORKERS IN THE FRAMEWORK OF THE PROVISION OF SERVICES (DIRECTIVE 96/71/EC) • The directive aims to reconcile the exercise of companies fundamental freedom to provide cross border services under Art.43 EC. • Appropriate protection of the rights of workers temporally posted abroad to provide them. • Hard core of clear terms and conditions of work and employment for minimum protection of workers that must be complied with by the service provider in the host country. • Significant level of protection for workers. • Necessary proportion of affair competition between all service providers by guaranteeing a level playing field.

3. ACCESS TO INFORMATION/ADMINISTRATIVE COOPERATION Art. 4 of the Directive outlines two areas of cooperation I) Art. 4(1) and (2) of the Directive imposes clear obligations as regards cooperation between national administrations, including the creation of a monitoring authority organised and equipped in such a way as to function effectively. II) Art. 4(3) of the Directive sets out a clear obligation for member States to take appropriate measure to make the information on the terms and conditions of employment generally available, not only to foreign service providers but also to the posted workers concerned.

4. ACCESS TO INFORMATION/ADMINISTRATIVE COOPERATION • From EC sources there is considerable scope for improved access to information, administrative cooperation and compliance monitoring, including identification and dissemination of best practices. • There is improvement though a number of deficiencies, such as information provided to limited/complex situations where different CAs at regional level are applicable, more than one monitoring authority exists or other parties than labour inspection are involved. • Solid improvements in terms of access to information and more improvement needed on administrative cooperation. • The proper functioning of administrative cooperation among member States is an essential instrument for compliance control.

5. COMPLIANCE AND ENFORCEMENT • Member States have to ensure compliance with provisions of the Directive by taking appropriate measures. • Art. 6 of the Directive makes possible to institute judicial proceeding in their territory in order to allow enforcement of the right to the terms and conditions of employment guaranteed by the Directive. • Different views: social partners stress the lack of collective legal actions; member States stress the need for EU instruments for the effective cross-border sanctioning of infringements by non-national service providers.

6. COMPLIANCE AND ENFORCEMENT • Problem with the enforcement of sanctions imposed abroad (mutual recognition of financial penalties?) (Council framework decision 2005/214/JHA – FEB 2005). • The ECJ judgements of 2004 and 2006 (in light of Art. 49 EC): specific joint liability system disproportionate and unconditional and contrary to Art. 49 EC because of its automatic and unconditional nature and excessive scope. • Conclusion: Subsidiary liability could constitute an effective and proportionate way to increase the monitoring and enforcement of compliance with community law. This needs further examination.

7. EUROPEAN EXAMPLES OF CROSS-BORDER LABOUR INSPECTION • Spain-Portugal (Comunidad Autónoma de Galicia: 7800 workers in the construction). • Several agreements: Poland-Portugal; Belgium-Portugal; Poland-The Netherlands; Belgium-Bulgaria. • Network among Germany, Belgium, France, Italy, Romania (Undeclared work). • Programme of cooperation in the area of trafficking of women and minors: Italy, Albania and Greece. • Other programmes such as Freed and TRM-EU (EU Financed projects on trafficking and forcer labour). • SLIC

8. INTERNATIONAL EXPERIENCES • MERCOSUR • In 2006 two common initiatives on Labour Inspection: a) Condiciones mínimas del procedimiento de inspección; b) Requisitos mínimos de perfil del inspector de trabajo. • Regional action plan on Child Labour (2006). • Mercosur: Since 2007 several initiatives such as Argentina-Brazil (Provincia de Misiones, Estados de Parana, Rio Grande do Sul, Santa Caterina); Argentina-Uruguay (Provincia de Corrientes, Departamento de Artigas), Argentina-Paraguay (Provincia de Formosa, Departamentos de Neembucu, Central, Presidente Hayes, Boqueron).

9. INTERNATIONAL EXPERIENCES • MERCOSUR • Joint inspections on border zones, especially on Child Labour issues. • Regional plan of action on Labour Inspection (PRIT-2007): Establishment of a coordination operational commission. • Regional training programme of Labour Inspectors (Initiative of Brazil 2009).

10. INTERNATIONAL EXPERIENCES • OEA CONFERENCE OF MINISTRIES OF LABOUR • In 2009 final Declaration stresses the need of strengthening the Labour Administration and Labour Inspection services in the Americas Region. • ILO technical support creation of RIAL: Cooperation mechanism on Labour Administration and Inspection.

11. INTERNATIONAL EXPERIENCES • ASIA-PACIFIC • The health and safety authorities of Australia and New Zealand set up a joint strategy on risk prevention (2002-2012). • Joint yearly evaluation of the strategy. • Separate cooperation agreements with countries such as Indonesia, including Universities and Research Institutes. • Cross-Border agreements, including joint inspection visits among Laos, Thailand and Vietnam (Child Labour and Trafficking) (1999).

12. INTERNATIONAL EXPERIENCES • INTERNATIONAL NETWORKS • IALI • RALI (South East Europe + Azerbaijan and Ukraine). • Red Iberoamericana (Argentina, Brazil, Chile, Portugal, Spain, Uruguay) (2009). Recently Central America countries joined the Red. • RIIFT (Réseau International d’institutions de formation dans le domaine du travail). • OSHNET (OSH issues in Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand, Vietnam).

13. CONCLUSIONS • Improvement of administrative cooperation. • Better and wider information (Quality V. Quantity). • Disseminate the core values of C.81 and 129. • ILO Declaration on Social Justice for a Fair Globalization (...Building of effective labour inspection systems (2008)) and Global Jobs Pact (2009) (...strengthen of Labour Administration and Labour Inspection).