Posted workers
According to the European Commission, a posted worker is a ‘person who, for a limited period of time, carries out his or her work in the territory of an EU Member State other than the State in which he or she normally works’. The definition of a posted worker does not apply to individuals who decide of their own accord to seek employment in another Member State, seagoing personnel in the merchant navy or the self-employed. Council Directive 96/71/EC on the posting of workers in the framework of the provision of services addressed the problem of the growing number of workers posted by enterprises to work temporarily in another Member State.
Posted worker arrangements are common in the construction industry, but are also found in transport, telecommunications, entertainment, repairs, maintenance and servicing. While it is difficult to calculate the precise number of posted workers, data from a European Commission-funded report issued in 2011 found that, based on E101 forms, there were 1,294,669 posted workers in the EU27 countries in 2007, including postings to a specific country and applications to work in the EU. However, these posted workers represented only 0.37% of the active population of EU-15 sending countries and 0.74% of the active population of EU-12 sending countries. The main sending countries were France, Poland and Germany.
The aim of the directive was to remove the uncertainties and obstacles impeding the free provision of services by increasing legal certainty and facilitating the definition of working conditions applicable to posted workers. In this way, it hoped to avoid the risk of posted workers being misused or exploited, although the Laval case reveals that the effectiveness of the directive is dependent on the existence of suitable provisions within national laws. The Rome Convention of 19 June 1980 held that, whichever law applies, the worker should not be deprived of the protection afforded by mandatory rules of law applicable in the host country. This authorised Member States to require posting enterprises to respect local legislation and collective agreements.
The directive goes a step further by making this a requirement of EU law. Article 3(1) provides that ‘Member States shall ensure that ... undertakings ... guarantee workers posted to their territory’ minimum standards of employment conditions that prevail in the posted worker country. The terms and conditions covered by the directive include:
- maximum work periods and minimum rest periods;
- maximum paid annual leave;
- minimum rates of pay (including overtime);
- conditions of hiring workers (especially temporary agency workers);
- health and safety;
- protective measures for pregnant women or mothers who have just given birth;
- equal opportunities and discrimination.
In 2006, the Commission published a set of guidelines to help governments, enterprises and employees better understand the applicability of the directive. Concerned that the minimum standards outlined in the directive were not being fully complied with, the Commission’s 2006 Communication underlined control measures to improve the application of the directive.
The Commission, however, is conscious that such control mechanisms should not impinge on Article 56 of the Treaty on the Functioning of the European Union (TFEU) governing companies’ provision of cross-border services. Citing European Court of Justice (ECJ) rulings, the Commission notes, ‘inspections must be suitable for achieving the objectives pursued without restricting this freedom any more than necessary, in accordance with the principle of proportionality’.
In October 2006, the Commission followed up on its earlier Communication (COM (2006) 159 final) by undertaking a survey involving Member States, EU-level social partners and the European Parliament on the application of the directive in Member States. The findings, announced in a Communication of June 2007 (COM(2007) 304 final), reveal that control mechanisms continue to be quite limited. The 2007 Communication concluded: ‘Successful implementation and application of the Directive does not seem possible unless the situation is corrected.’The problem of the posted worker concerns the conditions of work applicable to these workers: are they those of the home country of the enterprise (and worker), or those of the host country where the work is performed? There is a risk that foreign enterprises could undermine local labour standards by applying lower home country conditions in countries where standards were higher. Issues around the question of social dumping emerged in disputes in a number of Member States in 2008 and 2009, where fears were raised about the undermining of existing terms and conditions by incoming workers.
In the past few years, there has been renewed focus at EU level on the issue of posted workers, due to the judgements by the European Court of Justice (ECJ) in the Viking (127Kb PDF) (EU0706029I, EU0605029I), Laval (137Kb PDF) (EU0801019I, SE0801019I, SE0706029I) and Rüffert (99Kb PDF) (EU0805029I) cases. In these cases, the ECJ essentially ruled that the EU principles governing the free movement of goods and services, the freedom of establishment and the freedom to provide cross-border services should not be impeded by industrial action aiming to ensure that posted workers receive collectively-agreed terms and conditions and the inclusion of collectively-agreed terms in procurement contracts. In the Laval case, for example, the ECJ held that the right to strike could represent a restriction on the freedom to provide services and thus could only be conducted under EU law where it was to pursue a legitimate aim and was justified by overriding reasons of public interest. The ECJ noted that while Article 3 of the posted workers’ directive gave a right to minimum terms and conditions to posted workers, these rights had to have been underpinned either by law or universally applicable collective agreements. The absence of either provision meant that posted workers had no right to be paid the rate established by the collective agreement.
In its 2010 work programme, the Commission made a commitment to issue proposals to clarify the implementation of the directive, stating that any new initiative will: ‘clarify the legal obligations for national authorities, businesses and workers on the Directive’s implementation and ensure the same rules are universally applicable … improve the provision of information for firms and workers … improve cooperation between national authorities, ensure effective enforcement through sanctions and remedial action, and prevent abuse.’
See also: accession; European labour market; free movement of workers; mobility of workers; services directive; third-country nationals.