Posted Workers

An estimated one million people are posted by their employers at any one time, on a temporary basis, to another business within the European Union (EU). The right of workers to move freely within the European Union is embodied in the 1957 Treaty of Rome. Concerns that the free movement of workers could result in unfair competition with companies “importing” cheap labour led to the Posted Workers Directive (Directive 96/71/EC), which set out certain minimum terms and conditions applicable to workers posted by their employer to work in another member state. 

Definition of Posted Workers 
Under the Posted Workers Directive a posted worker is someone who is sent by his or her employer to a business in another member state for the purposes of performing work on a temporary basis:

  • Where the employer has entered into a contract with a third party business in another country within EU for the purposes of providing services and in connection with this decides to send one or more employees to that third party business to assist on a temporary basis;
  • Where an employer posts one or more employees to another establishment in a different Member State within the same group of companies; 
  • Where the employer is an employment business or placement agency based in one Member State that hires out workers to businesses in another Member State on a temporary basis.

Rights of Posted Workers

The Posted Workers Directive provides that when a worker is posted abroad temporarily he will be entitled to the minimum terms and conditions of employment of the host country in respect of the following:

  •  Maximum work periods and minimum rest periods;
  • Minimum rates of pay;
  • Laws related to the hiring out of workers, especially by temporary employment undertakings;
  •  Health, safety and hygiene at work;
  •  Laws relating to the protection of pregnant women and or women who has recently given birth;
  •  Laws relating to the protection of children and young people;
  • Equal treatment – laws relating to non-discrimination.

 

Proposed changes
Following a number of recent decisions in the European Court of Justice, including the case of Laval un Partneri Ltd v Svenska Byggnadsarbetareforbundet and Others C-341/05 where a Latvian company posted workers to Sweden, discussions have emerged relating to the question of how the balance should be struck between the single market economic freedoms and workers’ rights. The questions have in particular focused on balancing the right of workers to take industrial action with the right of freedom of establishment and the freedom of companies to provide services in other member states. 

In the Laval case, the ECJ had held that the collective agreement which the Swedish workers had the benefit of did not extend to the posted workers although this created a disadvantage for local workers as they would become less attractive to the employer. The ECJ also held that the industrial action (which eventually resulted in the Swedish company being declared bankrupt) which the Swedish trade union had initiated had been unlawful and was an unjustifiable breach of Article 49 (freedom of establishment). 

In light of this recent decision the European Commission has proposed to improve the enforcement of the Posted Workers Directive by: 

  • Creating a common framework of provisions in a new Directive with the aim of preventing abuse of the rights under the Posted Workers Directive;
  •  Protect workers’ rights to take collective action within the framework of the freedom of establishment and the freedom to provide services.

 In practice this means that posted workers may in the future be able to enjoy a greater degree of protection from the laws of the country to which they are posted although this may lead to more obstacles for the free movement of services and the freedom of establishment. 

At ebl miller rosenfalck we specialise in advising on employment law and if you have any questions relating to the issues raised in this newsletter or any general employment law queries, please do not hesitate to contact us. 

The material contained in this newsletter is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

© , May 2012

Please contact:

Sara Kennedy

DD DD +44 (0)20 7553 9937

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