EurWORK European Observatory of Working Life

UK: Posted workers

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  • Observatory: EurWORK
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  • Published on: 05 October 2010



About
Country:
United Kingdom
Author:
Mark Hall
Institution:

Disclaimer: This information is made available as a service to the public but has not been edited by the European Foundation for the Improvement of Living and Working Conditions. The content is the responsibility of the authors.

This report reviews the position of workers posted to work in the UK with respect to: the number and sectoral distribution of posted workers, the regulatory framework, the views and initiatives of the government and social partners, industrial disputes concerning posted workers and relevant case law. There are concerns that the use of posted workers in some sectors may be damaging the employment opportunities and terms and conditions of UK-based workers. There is pressure from trade unions for the government to revise the UK’s implementation of the posted workers Directive, notably to underpin collectively agreed pay rates.

QUESTIONNAIRE

1. Posted workers: basic facts

1.1 Please provide basic data on the workers posted in your country:

a) number (by gender);

b) distribution across sectors

Data provided by the UK’s Office for National Statistics relates to the second quarter of 2008 only, based on an ad hoc question for Eurostat which was asked only for this quarter. Therefore data is unavailable for any previous years. During April-June 2008, 181,209 people came to the UK from another country to work for the same company that already employed them. The sectoral and gender breakdown provided by ONS is as follows:



Distribution across sectors

Sector 

Male

Female

A: Agriculture hunting & forestry

1609

-

B: Fishing

-

-

C: Mining quarrying

3301

-

D: Manufacturing

14193

8367

E: Electricity gas & water supply

574

-

F: Construction

5796

-

G: Wholesale retail & motor trade

4199

1749

H: Hotels & restaurants

10928

1087

I: Transport storage & communication

5633

2669

J: Financial intermediation

18721

4052

K: Real estate renting & business activity

32481

5698

L: Public administration & defence

8253

982

M: Education

2826

1527

N: Health & social work

9136

10186

O: Other community social & personal

5483

479

P: Private households with employed persons

531

584

Q: Extra-territorial organisations bodies

2349

740

The Trades Union Congress (TUC) is critical of the fact there is no regular data collection mechanism for monitoring how many posted workers there are in the UK.

1.2 Are there any information on the number (by gender) and distribution across sectors of workers posted to other countries by domestic companies? If yes, please provide details.

No information is available.

1.3 Are there any information on trade union affiliation and collective bargaining coverage of workers posted to your countries, including affiliation to foreign unions and coverage by foreign collective agreements, in addition and beyond the minimum requirements set by legislation? If yes, please provide details.

No information is available.

1.4 Are there any information on trade union affiliation and collective bargaining coverage of workers posted to other countries by domestic firms? If yes, please provide details.

No information is available.

1.5 Please refer the main content and results of major studies on posted workers (either in-coming or out-going), both quantitative and qualitative, which have been carried out in your country.

A number of recent academic publications have been prompted by the Laval, Rüffert and Luxembourg ECJ cases. These include:

KD Ewing and J Hendy (eds) The new spectre haunting Europe – the ECJ, trade union rights and the British government, Institute of Employment Rights, 2009

ACL Davies ‘One step forward, two steps back? The Viking and Laval cases in the ECJ’, Industrial Law Journal 37, 2, 2008

C Barnard ‘Employment rights, free movement under the EC Treaty and the Services Directive’, Mitchell Working Paper Series 5/2008, University of Edinburgh Europa Institute

None of these deal with the issue of posted workers in quantitative terms. Rather the emphasis is on analysing the potentially far-reaching implications for national employment law of the approach taken by the ECJ in the cases noted above.

J Cremers, JE Dolvik and G Bosch ‘Posting of workers in the single market: attempts to prevent social dumping and regime competition in the EU’, Industrial Relations Journal 38, 6, 2007, analyses differing national models of implementing the posted workers Directive.

2. Regulation on posted workers

2.1 Please provide details on the current legislative framework for posted workers in your country:

a) Reference to the law adopting the posted workers directive: number, date, and link to the text, if available, in English;

There is no single piece of UK legislation implementing the posted workers Directive. UK law takes the approach that, subject to any relevant qualifying period of service, national labour law provisions apply to employees or workers irrespective of their nationality and the duration of their employment in the UK. The government made only minor changes to existing UK legislation to implement the Directive in the UK because most existing legislation relevant to the Directive already applied to all employees or workers whether working permanently or temporarily in the UK and therefore applied to posted workers. This included the Working Time Regulations, the National Minimum Wage Act 1998 and associated Regulations, the Employment Agencies Act 1973 and associated Regulations, the Health and Safety at Work Act 1974 and associated Regulations, and legislation governing the employment of children and young people.

The two main changes to UK legislation introduced in response to the requirements of the Directive were as follows:

  • the Employment Relations Act 1999 repealed section 196 of the Employment Rights Act 1996, which excluded employees ordinarily working outside Great Britain from a wide range of individual employment rights. The rights concerned include protective measures for pregnant women and those who have just given birth; and
  • the Equal Opportunities (Employment Legislation) (Territorial Limits) Regulations 1999 amended existing legislation concerning discrimination on the grounds of sex, race and disability so that those employed mainly outside Britain were no longer excluded from its scope. Previously, anti-discrimination provisions did not apply where employment was wholly or mainly outside Great Britain.

The Employment Relations Act 1999 also amended the Employment Agencies Act 1973 to specify that services provided by employment agencies and businesses in respect of persons seeking employment outside the UK, or persons normally resident outside the UK seeking employment in the UK, fall within the scope of the government’s regulation-making powers under the Act.

b) A brief account of any amendments or integrations introduced after the initial adoption;

No subsequent amendments to report.

c) A description of the current legal framework regarding posted workers, especially:

- as regards the way employment conditions are enforced, as required by art. 3.1. of the Directive (see the briefing note for the text of the article):

i. by law, regulation or administrative provision, and/or

ii. by collective agreements or arbitration awards which have been declared universally applicable;

In the UK, legislative provisions relating to the terms and conditions specified in Article 3.1 of the Directive are in most cases enforceable via a complaint by workers to an employment tribunal. In addition, in relation to the national minimum wage, compliance officers from Her Majesty’s Revenue and Customs investigate complaints, undertake inspections and can issue enforcement and penalty notices against employers, and health and safety legislation is enforced by the Health and Safety Executive.

The terms and conditions of employment specified in Article 3.1 of the Directive are guaranteed by law, regulation or administrative provision, not by means of collective agreements or arbitration awards that have been declared universally applicable. This reflects the absence of UK mechanisms for extending the terms of collective agreements to undertakings not party to them.

- whether the law requires the application to posted workers of:

i. the whole system of labour law or only minimum terms expressly identified with reference to the list in art. 3.1 (see the briefing note for the text of the article).

ii. the whole content of collective agreements or arbitration awards which have been declared universally applicable or only minimum terms expressly identified with reference to the list in art. 3.1 (see the briefing note for the text of the article).

All aspects of UK labour law, not only those listed in Article 3.1 of the Directive, apply to workers posted to the UK. The UK does not have legal mechanisms for declaring collective agreements and arbitration awards universally applicable.

- when the employment conditions are set by collective agreements or arbitration awards, please specify which is the legal instrument which make them universally applicable:

i. according to the law. Please specify the law reference number and year and whether it includes certain requirements for universal application. In this latter case, please specify such requirements.

ii. according to a ministerial decree. Please specify which minister or political authority can issue the decree and whether certain requirements are needed. In this latter case, please specify such requirements.

iii. according to rules on mandatory representation which make collective agreements (in practice) universally applicable.

As noted above, in the UK, the terms and conditions of employment specified in Article 3.1 of the Directive are guaranteed by law, regulation or administrative provision, not by means of collective agreements or arbitration awards that have been declared universally applicable.

- when the employment conditions are set by collective agreements, please specify which collective agreements are relevant:

i. intersectoral or sectoral. Please provide examples.

ii. national or territorial. Please provide examples.

See answer above.

d) whether the legal framework sets a maximum period for considering a worker a “posted worker” rather than a “resident worker”. If yes, please specify this maximum period.

No.

e) whether there are special rules for certain sectors (for instance, construction). If yes, please specify the sectors and briefly illustrate such special rules.

There are no special rules for particular sectors. As regards the terms and conditions set by collective agreements in the construction sector, these are not legally applicable to posted workers within the sector as there is no mechanism in the UK for declaring collective agreements universally applicable. Nor has the UK government taken up the alternative options of requiring that posted workers receive terms and conditions set by ‘generally applicable’ collective agreements or those concluded by the ‘most representative’ employers’ and labour organisations (Article 3.8). However, sectoral collective agreements for a range of sectors within the construction and related industries set the basic terms and conditions of employment for relevant workers. The terms of collective agreements are not formally applicable to employers that do not belong to the employers’ associations which are party to the agreement, but in areas such as engineering construction (see below), the stated aim of the relevant employers’ associations is to try to ensure that non-UK contractors who wish to use non-UK workers pay them in accordance with the terms of the sectoral agreement.

2.2 Monitoring of implementation of regulation

a) whether a monitoring system for collected data and information on the number and employment conditions of posted workers was set up. If yes, please provide details on such system (bodies involved, structure, methods of collection and dissemination of information, etc.) and its effectiveness;

No.

b) whether measures were introduced to make the information on the terms and conditions of employment generally available to foreign service providers and to the posted workers concerned.

As far as we are aware, there has been no general information initiative aimed at specifically at publicising the legal requirements on the terms and conditions of posted workers to foreign services providers and to posted workers. Information on the requirements of UK labour law (which also apply to posted workers) is available from the relevant government departments’ websites. The Department for Business, Innovation and Skills includes a Posted Workers National Liaison Office from which information can be obtained on legislation applicable to undertakings who post workers to another member state. In some sectors, trade unions (e.g. Unite, GMB) and employers’ associations (e.g. the Engineering Construction Industry Association) have produced information and guidance for members/member companies aimed at ensuring that workers posted to the UK are not employed on terms and conditions that undercut collectively-bargained terms and conditions that apply to UK-based workers under industry agreements.

c) whether the law envisages the implementation of special labour inspections devoted to verify the number and employment conditions of posted workers. If yes, please provide details on how these are organised and on their effectiveness and outcomes.

No.

2.3 Please specify if particular rules have been devised to deal with specific situations of posted workers:

a) the current rules for the posting of temporary agency workers in your country, especially whether the law requires the application to temporary agency workers of:

All UK rules concerning the hiring out of workers and terms and conditions which apply to temporary agency workers, set out in the Employment Agencies Act 1973 and in the Conduct of Employment agencies and Employment Businesses Regulations 2003, apply equally to posted workers.

Article 3.9 of the Directive is not mandatory and has not been transposed by the UK.

b) the current rules for employment conditions in public procurement, notably whether the law:

i) requires explicitly the application of specific terms and conditions of employment to be awarded public procurement contracts. If yes, please specify what kind of terms and conditions of employment must be applied (comprehensive terms or only minimum levels?).

The imposition on public authorities of ‘equality duties’ regarding race, disability and gender in recent years applies to public authorities in their role as service providers as well as employers. Where a public authority contracts out a function that is subject to an equality duty it must ensure that its obligations under the duty continue to be met and this may require passing on the obligations to private sector contractors through the public procurement process in terms of the specification of conditions relating to equality practices. The institutions covered by these duties include government departments, executive agencies, local authorities, education establishments, national health service trusts, police authorities and other bodies undertaking functions of a public nature, which can include private or voluntary sector organisations.

ii) requires explicitly the application of specific collective agreements to be awarded public procurement contracts. If yes, please specify what kind of agreements must be applied (national, sectoral, territorial) and to what extent (the whole agreement or only certain and minimum provisions?).

No. ‘Fair wages’ requirements dating from 1946 which ensured that government contractors observed collectively bargained rates of pay were rescinded in 1983. An exception is where the award of a public contract results in the transfer of employees to a new employer in which case the requirements of the transfer of undertakings legislation and related statutory guidance applicable to local authorities and other public bodies aim to ensure the continuation of the terms of previously applicable collective agreement.

iii) allows awarding authorities to require the application of specific collective agreements to be awarded public procurement contracts. If yes, please specify to what extent this possibility is used (almost always, often, rarely, almost never) and what kind of agreements are more often considered for such clauses (national, sectoral, territorial).

Existing public procurement rules provide some scope for public authorities to incorporate relevant social issues in public procurement contracts including core labour standards, equality issues and training and skills issues but it is unclear whether or how far requiring the application of specific collective agreements is possible or occurs in practice given the emphasis on competitive tendering rules and value for money criteria.

iv) envisages specific clauses in the case of posted workers. If yes, please briefly illustrate the contents of such rules.

No.

3. Positions and actions of the social partners and government on posted workers

3.1 Please indicate the positions and main initiatives that the social partners and the government have taken with reference to posted workers, either in-coming or out-going, and especially indicate:

a) the presence of a debate on the relevance and consequences for national labour law and industrial relations institutions of recourse to posted workers. If such debate is present, please refer its main contents and whether it refers to specific sectors.

Until recently, trade unions’ main focus in sectors such as construction where the use of ‘imported’ labour has been prevalent has been to ensure that the terms of national collective agreements are respected. For example, unions lobbied for the July 2004 ‘Warwick agreement’ at the Labour Party’s national policy forum to include an ‘assurance’ that the ‘posting of workers Directive will not lead to under-cutting’. However, the onset of the recession has prompted greater concern among UK-based workers about the use of posted labour per se on the grounds that this limits job opportunities for UK-based workers. This has been the primary cause of the industrial disputes referred to below in sections 4.1 and 4.2.

As outlined above, the Labour government has taken a ‘minimalist’ approach to implementation of the posted workers Directive. The Confederation of British Industry (CBI) believes the posted workers Directive is fully transposed in the UK. However, trade unions are pressing the UK government to revise its implementation of the posted workers Directive, notably to underpin collectively agreed pay rates (see section 3.2.a below). In February 2009, at the time of the first dispute centering on the use of posted workers at the Lindsey oil refinery (see below), business secretary Lord Mandelson indicated that he did not think it was reasonable to seek to change the law and was opposed to extending collectively bargained entitlements to all contractors and their employees.

b) any positions expressed or actions taken in view of the recent rulings by the European Court of Justice (cases Laval un Partneri - C-341/05, Rüffert - C-346/06, Commission v Luxembourg – C-319-06).

The TUC regards the Laval and Luxembourg rulings as ‘[raising] worrying questions over the extent to which unions through collective action and agreements or member states through legislation can force employers who post workers to work temporarily in another EU member state to pay above minimum pay rates’ (General Council report to Congress, 2008). The Rüffert case ‘raises questions of the extent to which member states and public authorities can use public procurement policies to create a level playing field on pay and other working conditions and to prevent unfair competition by cross-border service providers. It is possible that this ruling could have implications for procurement policy within the UK’ (General Council report to Congress, 2008). The TUC believes the ECJ has interpreted the posted workers Directive very narrowly, thereby reducing the level of protection provided for posted workers and restricting the ability of national governments to prevent unfair competition within domestic labour markets and the undercutting of established terms and conditions. The TUC has been closely involved in the ETUC’s development of policy proposals in response to the ECJ judgments and supports the adoption of a ‘social progress clause’ which would require that free movement principles contained in the EU treaty are interpreted in a manner which respects fundamental rights and in particular the right of unions to bargain collectively and to take industrial action. The TUC and ETUC have called for a revised posted workers Directive, and more generally have lobbied MEPs and UK ministers over the case for reforming EU law in this area.

The CBI believes that the free movement of labour and services ‘will do more to equalise income levels across the EU than protectionist policies, which have the effect of denying workers from less well-off nations access to developed markets’. In the CBI’s view, the ECJ rulings ‘provide useful clarification and strike a sensible balance. Contrary to what some suggest, they do not categorically prevent unions from using industrial action to assert their members rights. Rather, the ECJ clarified that social rights can be used to restrict economic freedoms, but only where there are overriding broad social benefits (a test not met in these cases). A test of the proportionality and reasonableness of union actions is wholly sensible and in keeping with the principles of employment law. These rulings are helpful in ensuring unions consider whether their behaviour is proportionate and justified before threatening the existence of businesses in pursuit of their demands. By implication the rulings also mean employers would have to ensure they exercise their economic freedoms in a way that is socially responsible (for there could be cases where social freedoms would restrict them). We see nothing wrong therefore with the status quo at EU level. We do, however, acknowledge that these cases could potentially throw up some issues of national transposition, but if so these should be dealt with at the national level in keeping with the subsidiarity principle’ (written CBI response to enquiry from author).

3.2. The main campaigns or initiatives undertaken by the social partners specifically aimed at posted workers or firms posting workers. If such campaigns or initiatives are present, please indicate their main features and whether they refer to specific sectors. Please cover, in particular:

a) Trade union initiatives:

Trade union campaigns, notably those by the unions in the engineering construction sector, have sought to hold the Labour government to the ‘assurance’ in the July 2004 ‘Warwick agreement’ that the ‘posting of workers Directive will not lead to under-cutting’. An October 2005 report by Unite/GMB called for national collective agreements in the UK’s construction sectors to be ‘fully recognised as the prevailing standards, laid down in legislation’. This would be based on Article 3.8 of the Directive. It also called for ‘a cohesive strategy by all social partners including trade unions, the [government], Health and Safety Executive and employers . . . to be developed to monitor and ensure the fair employment of [posted] workers. Joint investigations of abuses and monitoring are key to the overall success of any social legislation.’

Subsequent to the spate of disputes referred to below in sections 4.1 and 4.2, Unite has called on the government to insist that companies applying for contracts on public infrastructure projects sign up to corporate social responsibility agreements which commit to fair access for UK labour.

The Unite/GMB campaign has included extensive political lobbying as well as marches and demonstrations.

Unite has put forward a motion on the posted workers Directive for the annual TUC Congress in September 2009 which is likely to be adopted. It reads:

‘Congress notes with interest the massive programme of work which will need to be undertaken by the UK engineering construction industry if the Government is to meet the commitments contained in its energy policy.

Congress therefore urges the Government to take all necessary steps in order to establish a level playing field for all contractors engaged in the UK engineering construction industry. To this end, contractors who discriminate actively against workers who expect to be paid in accordance with the national agreement in favour of workers the contractor can exploit must be excluded from the procurement process.

To ensure compliance with EU regulations when applying nationally agreed terms and conditions, the Government needs to amend its interpretation of the Posted Workers Directive and to take advantage of the provisions in the Directive which allow national governments to introduce measures to extend coverage to include sectoral or national collective agreements in companies operating in any sector.

Congress therefore calls upon the General Council, as part of its wider campaign to redress the imbalance between the social and business needs of the EU, to support lobbies of the UK Government to amend the terms of the Posted Workers Directive, as it is applied in the UK, in order to maximise protection of collective agreements generally applied in UK industries.’

b) Employers initiatives:

Within the engineering construction sector, the employers’ organisation, the Engineering Construction Industry Association (ECIA), has issued a document, ‘Guiding principles for companies’ (February 2009), to ECIA members which sets out ‘principles to consider when using non-UK contractors and labour on engineering construction sites’. The guidance makes clear that the national agreement for the engineering construction industry provides that posted workers must be paid the same as UK employees, i.e. on terms specified by the agreement. It points out that it is legal for non-UK companies to supply their own non-UK employees, but where vacancies are advertised, they should make sure that UK workers are considered in the same was as anyone else. ‘It is good practice for the non-UK contractor to explore and consider the local skills availability and to consider any applications that may be forthcoming.’ It also warns against ‘[allowing] a situation to occur whereby non-UK labour has already mobilised to a site before the [UK] trade unions have been formally advised’.

c) Any kinds of joint action undertaken by the social partners with regard to the issue of posted workers

No joint action reported.

4. Collective disputes and case law on posted workers

4.1 Please indicate whether collective disputes involving posted workers are frequent or increasing in recent times.

While there have been few industrial disputes relating to posted workers, the issue is of considerable concern in certain, mostly construction-related sectors. In early 2009, a major dispute in the engineering construction sector centring on the Lindsey oil refinery in Lincolnshire owned by Total led to extensive industrial action and was given a high media profile. Details of this dispute are provided below. In addition there has been a spate of other unofficial strikes and walkouts in the sector as the recession has increased fears about job security. These have concerned two main issues: allegations that posted workers have been paid less than the rate set by the national agreement for the engineering construction industry; and allegations that foreign contractors have refused to consider job applications from qualified UK workers. The circumstances of these disputes is very sector-specific, in that engineering construction is one of the few sectors in the UK that still has a national agreement setting out industry-wide terms and conditions.

The approach to the use of posted workers in the engineering construction industry is also a key issue in current talks over trade union demands for amendments to the national agreement. As well as increased pay rates, union objectives include measures to guarantee equal opportunities for UK labour in recruitment by foreign contractors, the equalisation of travel and accommodation allowances for UK-based and posted workers to ensure there are no cost advantages in using posted workers, the incorporation of the ECIA guidance (see section 3.2.b above) into the national agreement, and a comprehensive auditing procedure to ensure compliance with the agreement. In June 2009, the unions concerned, Unite and the GMB, indicated they would be holding a strike ballot to press their claims.

4.2. Please provide information on any major collective disputes which concerned the utilisation of posted workers in your country.

On 28 January 2009, contract workers at the Lindsey oil refinery in Lincolnshire owned by Total began unofficial industrial action in protest at the use of foreign labour on a construction project at the site (UK0902019I). The dispute rapidly escalated. Sympathy protests took place at power plants around the UK and the dispute was given a high media profile. The dispute centred on the sub-contracting of elements of the work to IREM, an Italian engineering company, which planned to use its own permanent workforce, consisting of Italian and Portuguese workers, to carry out the work to the exclusion of UK-based engineering construction workers. Engineering construction industry guidance is that non-UK contractors should consider using local labour where available.

Hundreds of contract workers at the refinery staged strike action in protest at the use of foreign labour and alleged ‘discrimination’ against UK workers. Contract workers at other UK power plants also staged walk-outs. The union Unite said that the dispute reflected a wider problem of ‘UK workers being excluded from important engineering and construction projects’. For its part, Total insisted that there had been no discrimination against British contactors or British workers, and that the contract had been awarded following a fair and competitive tender process.

There was some suggestion that the terms and conditions of IREM’s staff undercut those of UK contract workers set by the national engineering construction agreement, which is intended by the parties to apply to foreign contractors on UK sites. Total said that foreign workers employed by IREM were not paid less than equivalent British workers operating under the agreement. But some less central elements e.g. tea breaks, shift patterns, dressing time and travel allowances, did appear to be at issue.

In the first week of February, talks facilitated by the Advisory, Conciliation and Arbitration Service (Acas – a government-funded public agency devoted to preventing and resolving employment disputes) generated proposals for ending the dispute. After an initial offer was rejected by the Lindsey refinery’s contract workers, an improved offer was accepted on 5 February, under which some 100 new construction jobs at the site would be open to UK workers (again suggesting that jobs not terms and conditions were the main issue).

Unite’s initial reaction was that the outcome ‘establishes the principle of fair access for UK workers on British construction projects’ and the union urged other construction companies ‘to level the playing field for UK workers’. But there were subsequent disputes over the use of foreign construction workers at two other UK power plants – at the Isle of Grain in Kent and Staythorpe in Nottinghamshire – where the main contractor, Alsthom, had brought in sub-contractors that were reportedly not using UK workers. One sub-contractor at the Isle of Grain, Remak, was accused by Unite of refusing to consider any applications for work from UK-based labour, paying non-UK workers 30% less than the rate specified by the national agreement and expecting its employees to pay for their own personal protective equipment, which is against UK health and safety legislation.

In May 2009 unofficial action was taken by workers in Unite and GMB against the Dutch-based employer Hertel over the use of 40 Polish workers at South Hook, the Milford Haven oil terminal owned by ExxonMobil and Total. Industrial action quickly spread to a number of other energy plants. The South Hook dispute was resolved when Hertel withdrew the Polish contingent. Although there was no specific allegation that the Polish workers were being paid less than local workers would have received, the unions remained concerned that there is a widespread problem of collectively-bargained rates being undercut by non-UK contractors.

In June 2009, unofficial action again flared up at the Lindsey oil refinery and more widely. This concerned redundancies by one of Total’s contractors, which the unions regard as being in breach of the agreement reached in February 2009 to settle the original dispute, and thus appears to be only indirectly linked with the issue of posted workers.

There was no legal case arising from the Lindsey oil refinery dispute, even though the original strike was clearly unlawful under UK law having been called without a proper ballot, and the sympathy action elsewhere was also unlawful secondary action. The industrial action was unofficial but the unions concerned took only token steps to distance themselves from the strikes and arguably could have been vulnerable to legal action. A February 2009 report by Acas into the facts surrounding the dispute found no evidence that Total, Jacobs Engineering (the main contractor) or IREM had broken the law with regard to the use of posted workers or entered into unlawful recruitment practices.

4.3 Please provide information of existing case law in your country involving posted workers.

Apart from a series of cases at employment tribunals and higher courts concerning whether the UK courts have extra-territorial jurisdiction to deal with employment rights disputes as a result of the repeal of section 196 of the Employment Rights Act in response to the posted workers Directive, there has been no major UK case law decisions concerning the application of the posted workers Directive.

Commentary

The use of posted workers is a sensitive topic in the UK at present, and one that is particularly resonant in the current economic downturn, reflecting concerns in some quarters that the operation of EU principles governing freedom of movement and freedom to provide services may be detrimental to the employment opportunities and terms and conditions of host-country workers. Trade unions, including Unite and the GMB, are pressing the UK government to revise its implementation of the posted workers Directive, notably to underpin collectively agreed pay rates.

There are provisions in the Directive enabling governments to require that posted construction workers, and posted workers more widely, receive collectively bargained terms and conditions, but the UK government did not take these up when they made adjustments to UK law in response to the Directive. Although unions are urging the government to do this, it seems highly unlikely that ministers will want to reintroduce measures (abolished in the 1980s) for extending collectively bargained terms and conditions to other companies/workers in the construction or any other sector. The CBI too can be expected to oppose such ‘protectionist’ measures.

In any event, the primary motivation of the disputes reported above seems to be the protection of job opportunities for UK-based workers rather than the issue of pay rates. Some strikers have echoed Gordon Brown’s rhetoric of ‘British jobs for British workers’ – a phrase he used at the TUC’s 2007 conference. But this is an objective that is simply not achievable within EU single market rules.

Mark Hall, IRRU, University of Warwick

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