Vastus pöördumisele

ELA Teie 24.03.2023 / [email protected] Meie 14.04.2023 nr 1.4-2/1311-2 Kaaskiri Lugupeetud Mariliis Proos Edastame Sotsiaalministeeriumi koostöös Tööinspektsiooniga koostatud sisendi lähetatud töötajate direktiivi (EL) 2018/957 küsimustiku kohta. Lugupidamisega (allkirjastatud digitaalselt) Seili Suder osakonnajuhataja Lisa: Amending Posting Directive - Implementation Report Questionnaire for Member States and Social Partners Dana Kadanik 7153461 [email protected] Suur-Ameerika 1 / 10122 Tallinn / 626 9301 / [email protected] / www.sm.ee / registrikood 70001952  Amending Posting Directive - Implementation Report Questionnaire for Member States and Social Partners Please reply to as many questions if you can. In case of Yes/No replies, please check the box ☒ in front of the suitable reply or replies and, when indicated, please also reply to additional questions, requests to deliberate further and to give some examples if necessary/requested. I Questions regarding Article 1 (1) (c) (ii) – Chain posting 1.A How does your Member State regulate the obligation to inform the temporary work agency in case of a chain posting? For example, is there a specific form, is it done by specific means, can it be done only in a digital form? ☐ By e-mail ☐ By mail/letter ☐ A specific form is provided ☒ Other (please specify) Answer: Working Conditions of Employees Posted to Estonia Act sets in article 2 subsection (1) that this Act applies to an employee posted by their employer to work in Estonia also in case if the employer is a legal person or sole proprietor that intermediates temporary workforce. Article 5 subsection (62) of the same Act sets, that if a user undertaking posts an employee of an employer referred to in clause 3 of subsection 1 of § 2 (and pointed out in first sentence) of this Act from Estonia to work in a foreign state for the provision of a service, the employee is deemed to have been posted to the foreign state by the employer. The user undertaking must inform the employer of such a posting a reasonable period of time in advance. The form and means are not regulated with law, in practice it is made usually by e- mail. 1.B How have you regulated the timing of this information obligation? Does the information has to be given ☒ In due time ☐ Other timeframe (please specify): ☐ Timing is not regulated. Why? Answer: The user undertaking must inform the employer of a posting a reasonable period of time in advance. 1.C Have you introduced this information obligation ☐ as the Member State of establishment of the temporary agency ☒ as the Member State of establishment (or operation) of the user undertaking ☐ as the Member State where the activities are carried out as the result of the double or chain posting ☐ Undetermined. Answer: The user undertaking must inform the employer of a posting a reasonable period of time in advance. 1  2. Can you bring some examples; how does it work in practice when your Member State is the final Member State where the activities are carried out as the result of the double/chain posting? Are the new provisions on chain/double posting helpful to identify the employer? Answer: If Estonia is the final Member State where the activities are carried out as the result of the double/chain posting Labour Inspectorate ask the company that posts a worker to specify given data. As company that posts a worker sends new declaration, with corrected data, and points out the place of work for posted employee in Estonia Labour Inspectorate is able to see who the receiving company is and see the chain, so that it is possible to identify the employer of a posted worker. Labour Inspectorate can not confirm that new provisions on chain/double posting are helpful to identify the employer as they tend to correct the data, but Labour Inspectorate sees it as a favorable condition. II Questions regarding Article 1 (2) (a) – Remuneration 1. In your opinion, has there been an improvement in the situation of posted workers following the change from the “minimum rates of pay” to the “remuneration”? ☐ Yes. Please elaborate. ☐ No. Why? Answer: Labour Inspectorate do not have confirmation from surveillance regarding this question. Labour Inspectorate sees it as a favorable condition to the posted employee to have remuneration instead of minimum pay. Minimum pay sets employer target to pay at least the sum set in collective agreement or in law, but renumeration includes other salary components, that are part of the renumeration in total. As minimum rates of pay shall apply in any case, the renumeration means to have also other parts of wage to be added to minimum rates of pay. 2. Have you published on your single national official website the new terms and conditions of employment, including the remuneration and its constituent elements? ☒ Yes. ☐ No. Why? III Questions regarding Article 1 (2) (a) – Conditions of accommodation 1. In your opinion has the addition of the new term of employment regarding conditions of accommodation improved the situation of workers? ☐ Yes. Please elaborate. ☐ No. Why? Answer: Estonian Labour Inspectorate does not supervise the accommodation conditions. In case applicable, what are the main problems identified during inspections when monitoring the conditions of accommodation? Answer: Estonian Labour Inspectorate does not supervise the accommodation conditions. 2 IV Questions regarding Article 1 (2) (b) - Long-term posting 1. Have you published on your single national official website terms and conditions of employment applicable to long-term posting? ☒ Yes. ☐ No. Why? 2.A. How must the motivated notification be submitted? ☒ Electronically (e-mail) ☐ Electronically (specific portal or electronic procedure) ☐ Electronically (together with the posting declaration) ☐ By mail/letter ☐ Other (please specify) Answer: The developments are being done at the moment and according to planned timetable starting from summer 2023 Estonia will have new database called TEIS where notifications can be submitted and the answer to that question could be marked as “Electronically (specific portal or electronic procedure)”. 2.B. When does the motivated notification have to be submitted? Is there a specific timeframe? Answer: The motivated notification have to be submitted to Estonian Labour Inspectorate before the amendment take effect. 3. Have your Member State encountered any problems with motivated notifications? ☐ Yes. Please specify. ☒ No Answer: No problems with motivated notifications have occurred. 4. Have you encountered any abuse or circumvention related to the replacement of worker when applying the principle of the “same task at the same place”:? ☐ Yes. Please elaborate. ☒ No. Answer: Labour Inspectorate have not received any abuse or circumvention related to the replacement of worker when applying the principle of the “same task at the same place”. V Question regarding Article 1 (2) (c) - Posting Allowances Does the national law and/or practice of your Member State lay down the obligation for the employer to reimburse the posted worker of expenditure actually incurred on the account of the posting? ☒ Yes. Please elaborate. ☐ No. Why? 3 Answer: The Working Conditions of Employees Posted to Estonia Act sets in article 5 subsection 1 that employers shall ensure that the following working conditions established in Estonia are applied to a posted employee: 7) compensation for costs related to business trips. VI Questions regarding Article 1 (2) (d) - Extended application of collective agreements 1. Could you indicate whether in your Member State the terms and conditions applicable in accordance with Article 3 of the Directive are laid down: ☒ by law, regulation or administrative provision ☐ by collective agreements or arbitration awards which have been declared universally applicable ☒ by collective agreements or arbitration awards which are generally applicable to all similar undertakings in the geographical area and in the profession or industry concerned ☒ by collective agreements which have been concluded by the most representative employers’ and labour organisations at national level and which are applied throughout national territory 2. In case you have selected in the previous question the options 3 and/or 4, was it in addition to the system for declaring collective agreements or arbitration awards to be of universal application? ☐ Yes. ☒ No. VII Question regarding Article 1(2) (e) – Possibility for additional terms and conditions for temporary work agencies Have you made use of the option set up in Article 3(9) and are applying to posted workers “other terms and conditions” that apply to temporary agency workers in your Member State? ☐ Yes. Please specify which terms and conditions? ☒ No. Why? Answer: Labour Inspectorate have not seen need for additional “other terms and conditions” of the option set up in Article 3(9) and applied to posted workers. VIII Question regarding Article 1(3) – Administrative cooperation on information Has your Member State made specific arrangements for internal cooperation between national competent authorities, to obtain information that they do not possess from other authorities or bodies? ☐ Yes. Please elaborate. ☒ No. Why? 4 Answer: Labour Inspectorate have not made specific arrangements for internal cooperation between national competent authorities, to obtain information that they do not possess from other authorities or bodies. The cooperation between national competent authorities is smooth and does not need additional specific arrangements to be made. IX Questions regarding Article 1 (4) - Enforcement, penalties and worker protection 1. What are the penalties/sanctions applicable in case of infringements related to the provisions of this Directive? Are the general penalties applicable or are there specific penalties and for which provisions? Answer: In accordance with Working Conditions of Employees Posted to Estonia Act there are 2 infringements that can be sanctioned: § 91. Failure to apply working conditions (1) Failure to perform the obligations provided in clauses 1–3 of subsection 1 of § 5 of this Act by an employer or an employer’s management board member or another representative to whom the performance of these obligations was delegated is punishable by a fine of up to 300 fine units. (2) The same act, if committed by a legal person, is punishable by a fine of up to 32,000 euros. § 93. Failure to provide data (1) Failure to perform the obligations provided in subsections 1–2 of § 51 of this Act by an employer or an employer’s management board member or another representative to whom the performance of these obligations was delegated is punishable by a fine of up to 300 fine units. (2) The same act, if committed by a legal person, is punishable by a fine of up to 32,000 euros. 2. Are there specific penalties/sanctions in case of posted third country nationals? Answer: Working Conditions of Employees Posted to Estonia Act does not differentiate posted workers from third country nationals, it applies in basic principles to all posted workers, if posting is done through other EU Member State company. Separate penalties are stipulated in Aliens Act if the third country national violate the law regarding the right of residence, but this matter is under the jurisdiction of the Police Department. X Question regarding article 2(2)(a) - further measures to ensure a level playing field and protect workers in the case of subcontracting Do you consider that further measures are necessary to ensure a level playing field and to protect workers? If so, which one(s)? ☒ Yes. Please elaborate. ☐ No. Answer: Further measures are necessary to ensure a level playing field and to protect workers. One option is that receiving companies would be liable to evaluate the sending companies’ reliability. In that case the receiving company would also share responsibility of confirming that posted employees are declared. XI Question regarding further measures related to posting of third country nationals Do you consider that specific measures related to the posting of third country nationals are necessary to ensure a level playing field and to protect workers? If so, which one(s)? 5  ☒ Yes. Please elaborate. ☐ No. Answer: Specific measures related to the posting of third country nationals are necessary to ensure a level playing field and to protect workers. In many countries third country nationals are under the jurisdiction of the Police Department as Police Department shall perform supervision and confirm the legal basis for staying in country. It is not in the jurisdiction of national Labour Inspectorate. If information is divided between different authorities, the information is not available when needed. Also, third country nationals postings should have specific clauses in regulation, as they need to be working in the EU country and pay social taxes before they are posted to other country. At the moment they are sent for other EU Member State companies without never entering to that Member State. XII Other comments Do you have any other comments you wish to make regarding the application and implementation of the Amending Directive? ☐ Yes. Please elaborate. ☒ No. 6