Building and Property

Acas: EU law not broken at Lindsey

On 16 February the arbitration and conciliation service Acas published its report into the facts surrounding the dispute at the Lindsey oil refinery, which saw workers striking in protest at the employment of Italian and Portuguese workers on a construction project.

The report, requested by the Department for Business, Enterprise and Regulatory Reform (BERR), states that there has been no breach of EU law and employers acted in accordance with collective agreements.
In the report, Acas explained the EU Posted Workers Directive, under which the foreign workers were employed, thus: “The provision of services may involve an employer established in one Member State (the ‘home state’) temporarily posting its workers to another Member State (the ‘host state’) in order to fulfil a contract. The Posted Workers Directive generally requires the host state to ensure that the workers posted to it are guaranteed the standards laid down by law, regulation or administrative provision in the host state in specified areas. The host state’s rules in these areas apply to a posted worker even if the home state’s rules provide inferior protection.”
In that the sub-contractor (or sub-sub-contractor; such was the complex nature of the awarding of the contract) stated it complied with all those provisions regarding issues such as health and safety and remuneration, ACAS concluded, no offence had been committed.
“Acas’s inquiry has found no evidence that Total, Jacobs Engineering or IREM have broken the law in relation to the use of posted workers or entered into unlawful recruitment practices. We have also received assurances from management that they will abide by NAECI agreement though there are clearly some issues of interpretation to be determined between management and the trade unions.”
However, the report highlighted possible issues associated with the Posted Workers Directive, an issue also raised by the trade union leaders in the industry and hinted at by government ministers.
The report states: “The first is the application of the Posted Workers Directive in the UK, which applies in the circumstances of this dispute because workers were posted to the UK from elsewhere in the EU, and its relationship with the UK’s industrial relations system. These issues have been highlighted by the recession.
“We understand the European Commission has agreed to establish a high-level group to look at the operation of the Directive and has asked the social partners to look at the implications of the recent ECJ rulings.”
It goes on to say: “Another issue of concern to both UK contractors and trade unions is whether UK, UK-based and European construction companies are able to operate on a level playing field given the differing income tax and social insurance regimes, statutory rights, and employment practices between UK and other EU countries.
“Attempts to check how level the playing field is can be difficult given the general principle that tendering and contractual matters are ‘commercial in confidence’.”
Acas chief executive John Taylor said: “Whilst the report shows no evidence of the law being broken, there is a source of tension around the Posted Workers Directive and its application to construction work and the UK’s industrial relations system. These issues have been highlighted by the recession.
“This report should help focus the areas that can be usefully addressed to improve employment relations in the UK.”