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Can freedom of establishment and the free provision of services in the European Union infringe workers’ rights to equal treatment? Is it possible to use a particular freedom to justify different wages for workers performing the same job in the same place? This question was at the core of the debate last Wednesday [20 April] between Ministers of Employment and Social Affairs during their informal meeting in Amsterdam. They discussed the Commission’s proposal to revise the Posting of Workers Directive which aims at ensuring the principle that workers performing the same job in the same place must earn the same wage, whether they are a national of that country or a worker posted from another EU Member State.

Jana Hainsworth, President of Social Platform contributed to the debate and supported the Commission’s proposal as a means to combat social dumping in Europe. Ministers were rather divided on the issue. Representatives from some countries who send higher numbers of posted workers than they receive on their soil considered the right to equal pay for equal work as a barrier to the freedom of establishment in another country. They claimed that it would reduce their competitive advantage and they may lose jobs, especially in companies that organise the posting of workers for other companies. One country even went as far as stating that the Commission was ready to sacrifice a fundamental element of the single market: the freedom of establishment. The right to equal pay was assessed as an infringement of the freedom of establishment.

The debate did not stop there and became quite interesting, highlighting divides in the Council. One government representative challenged, quite bluntly, defenders of the equal treatment stand; if equal pay for equal work at the same place is to be implemented, then how can we justify the EU’s agreement with the United Kingdom in February 2016 that workers employed in the UK can receive different in-work benefits depending on their nationality?

This was a very good point – if the principle of non-discrimination between workers is to be implemented in the Posting of Workers Directive, it also needs to be implemented in the coordination of social security between Member States. Consistency in the implementation of rights needs to be across the board.

It was fascinating to take part in this debate that promises long discussions in the Council working party on social questions which will need to be answered in the final text. I am all for equal treatment in wages and in in-work benefits. For me, the answer to one question is obvious – workers’ rights must not come second to the freedom of establishment.

Let’s engage!

Pierre Baussand