The closer the date of publishing the European Commission’s “Social Fairness Package” on 13 March 2018 comes, the more frequently Brussels debates the possible responsibilities and competences of the European Labour Authority - ELA - proposed therein. On 27 February, the German Trade Union Confederation and the Friedrich-Ebert Foundation invited representatives of the Commission and social partners to the presentation of their study “Towards a European Labour Authority” to the Representation of the State of Hessen.
Even before the concrete proposal of the European Commission had been available, Jan Cremers used his brief study "Towards a European Labour Authority" to analyse the problem of labour mobility in the Single Market and the currently existing international regulatory framework. From his point of view, there are three key problems with regard to control and law enforcement in the Single Market: (1) "Regime Shopping", hence the targeted bypassing of higher standards, "Regulatory Arbitrage", the bypassing of existing supervisory mechanisms, as well as cross-border recruitment, with the aim to save labour costs, (2) unclear and dispersed (national) competences and (3) the lack of a Europe-wide complaints mechanism. As good reference sources for the regulatory plan, Cramers refers to the ILO Convention No. 81 on Labour Inspection, which has been ratified by all EU Member States and to the EP Resolution on Effective Labour Inspection from 2014. Cramers sees key responsibilities of a future Labour Authority in the area of dispute settlement support: here he supports the introduction of a dispute settlement procedure, clear division of labour with existing national and European authorities, the possibility to submit proposals to EU legislators and to bring claims at the ECJ.
Commission sees positive and negative sides of labour mobility
To begin with, Piet van Nuffel, member of Employment Commissioner Marianne Thyssen's cabinet, pointed towards the changed labour mobility: about 16 million employees in the European Union work in another Member State; double as many as 10 years ago. The majority has moved there permanently; however, some have been posted. In particular in connection with postings once could time and again observe cases of wage and social dumping. In order to meet these new challenges the responsible Commissioner Thyssen has presented decisive proposals: a revision of the Posting of Workers Directive, the proposal to coordinate social security systems and now the proposal on the European Labour Authority, which will be presented on 13 March. Which competences this will contain in the end, has even two weeks before its presentation remained a well-kept secret. However, Nuffel let out some information: above all, the ELA shall be responsible for settling disputes in case of the provision of cross-border services between Member States and support national authorities in their (inspection) work. However, it shall also serve as an information platform for employees and employers and cross-border employment. Apart from that, labour mobility should be understood as something positive, which means that the responsibilities of EURES, the European Network of Labour Authorities, will come under the umbrella of the ELA. This proposal was not met with enthusiasm by all present, because for the national labour market authorities not even the implementation of the current Regulation had been complete.
ETUC for the effective fight against wage and social dumping
Liina Carr, responsible Confederal Secretary at the European Trade Union Confederation (ETUC) pointed out that basically, as long as the proposal of the Commission had not yet been published, only a “wish list to Father Christmas” could be presented. However, ETUC had very specific ideas as to what and what not to expect from the ELA: from the point of view of the European labour representation, the main responsibilities of such an authority should be the promotion of effective enforcement of the European labour and social security law as well as the fight against social dumping and cross-border social fraud. The enforcement of social legislation - where it exists at all - is fragmented and patchy and the capacities national authorities are often not sufficient to control highly mobile and complex business practices. These shortcomings are exploited by some companies to bypass national and European social legislation. In particular many labour leasing agencies have made this their sole business model. Time and again, the media reports of exploitation, inhumane accommodation and clear violations against EU law.
A European Labour Authority could contribute to improving the administrative cooperation between Member States - for example in respect of administrative prosecution in cases of wage or social dumping, violations against employment protection regulations or with regard to coordinating cross-border controls. In particular the effective enforcement of labour and social security law cross-border cases often fail because the opportunity to enforce penalties often ends at national border posts. Here, a European Labour Authority could help to remedy the situation. However, a red line for the European Trade union movement is a restriction of the social partner autonomy: it must not happen that national systems are frustrated, where trade unions have been already successfully integrated in inspecting and enforcing current law.
However, the economic side would like to grant the ELA significantly fewer competences: Maxime Cerutti, Director of BusinessEurope was already not happy about the term “Agency”. Furthermore, he does not see the ELA having any dispute settlement competence.
AK, ÖGB, ETUC: Say No to social dumping
It is symptomatic that the EU already has a joint banking supervision but so far has done nothing in respect of enforcing employment rights. A European Labour Authority might be able to change this. However, to achieve this, it had to be designed in such a way that it works in the interest of employees. In order to support such forces within the European Commission and European governments, which are in favour of such a European Labour Authority, AK, ÖGB and ETUC have launched the “NO to Social dumping“ campaign, which enabled over 8,400 people to take part in the public consultation of the European Commission in an uncomplicated manner.