Worker
The Green Paper ‘Modernising labour law to meet the challenges of the 21st century’ [COM/2007/0627/final] notes that outside the specific context of the freedom of movement of workers, most EU labour law legislation leaves the definition of ‘worker’ to the Member States. However, while there may not be one common, universally applicable, definition, it is clear from the application of EU directives that except in cases specifically defined as excluding such categories, the definition of a ‘worker’ includes those who are economically dependent and the self-employed. It also covers those who are engaged on temporary contracts and those who are engaged through labour agencies. It covers those posted to work in the territory of another Member State (posted workers), those defined as frontier workers, as well as migrant and third-country workers.
The case law of the European Court of Justice has refused to accept Member State definitions that would limit the definition of a ‘worker’ to those with a contract of employment and has favoured a meaning of ‘worker’ covering all persons engaged in economic activity. The Court’s case law extended the meaning of ‘worker’ beyond ‘employee’ in order to cover other persons engaged in economic activity, even without a contract of employment, and including even those without a contract at all, but who are seeking work (R. v. Immigration Appeal Tribunal, ex parte Antonissen, Case C-292/89). However, within specific directives, such as the 1989 Framework Directive on Health and Safety (Council Directive 89/391/EEC) definitions of a ‘worker’ can be found which are significantly narrower, such as ‘any person employed by an employer, including trainees and apprentices but excluding domestic servants’ (Article 3(a)).
A recurring problem thus is that the terms ‘worker’ and ‘employee’ are used in different EC directives without always being defined. Where there are different definitions they reflect specific policy objectives, for example, in order to secure the common market objective of free movement of workers, the limited definition of ‘employee’ was inadequate for the wider policy goal of creating a single market where ‘Freedom of movement for workers shall be secured within the Union’ (Article 45(1) TFEU). For this reason, the European Court of Justice, very early in the history of the European Community, decided that ‘worker’ was a Community concept: (Hoekstra (née Unger) v. Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten, Case 75/63).
See also: atypical work; contract of employment; economically dependent worker; employee; fragmentation of the labour force; employment relationship; migration; third country nationals.