Posted Workers Directive
Encyclopedia
The EU Posted Workers Directive (96/71/EC) is an EU directive concerned with the free movement of workers within the European Union
. It makes an exception to the Convention on the Law Applicable to Contractual Obligations 1980, which ordinarily requires that workers are protected by the law of the member state in which they work.
After a controversial set of decisions by the European Court of Justice
, the Directive has come under criticism for reducing rights of posted workers and undermining the rights of workers in a home nation.
In order to protect workers from one EU country who are sent by their employer to carry out work in another temporarily, the Directive provides that a 'hard core' of rules of the host country (country of destination) needs to be observed.
The Directive was first adopted in 1996.
The directive applies where,
The member state hosting a posted worker must ensure he is protected by the minimum standards in article 3(1). These are,
However, these limited set of rights must also been read within the context of TFEU art 56 (ex TEC art 49) on the freedom of establishment, and also the right to freedom of association
under the European Convention on Human Rights
article 11 and the EU Race Equality Directive. In this context there is the abovementioned mechanism of 'justified restrictions for the protection of essential requirements in the general interest', that the Court of Justice of the European Union has developed on the basis of the Treaty. Where the Directive does not apply, this mechanism remains decisive.
chose to give two decisions, whose effect appears to suggest that employers are only required to pay their workers the rate they would receive in their home country, provided this matches minimum wages and working conditions in the country they are posted to.
after British workers at the Lindsey Oil Refinery
in North Killingholme
, North Lincolnshire
claimed that they were being undercut by skilled foreign labour when the Italian
construction contractor IREM
appointed several hundred European (mainly Italian and Portuguese
) contractors on the site at a time of high unemployment in the local and global economy. The action attracted considerable media interest. However, this question is not handled by the Directive. It is a question of the right to free movement for services itself, which is handled directly by the Treaty itself, since the contractor wished to use its own staff rather than hiring external subcontractors.
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
. It makes an exception to the Convention on the Law Applicable to Contractual Obligations 1980, which ordinarily requires that workers are protected by the law of the member state in which they work.
After a controversial set of decisions by the European Court of Justice
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
, the Directive has come under criticism for reducing rights of posted workers and undermining the rights of workers in a home nation.
Overview
The Directive aims to clarify competing claims of competence in the case of staff being sent abroad by their employer for a project (posting), between the rules governing labour relations in the country of origin of the employing service provider and the country where the work is actually carried out (but where the staff is not normally based). If the laws of the country where the work is actually being carried out would apply even for short stays, a company wishing to offer its services in the whole of the EU would have to be aware of 27 different sets of rules. This would be a burden in particular for SMEs which would discourage them form taking advantage of the EU's Internal Market. To counter this phenomenon, the Court of Justice of the European Union has developed a balancing mechanism on the basis of the Treaty that determines which country's rules apply in a given situation. However, this case-by-case approach generates legal uncertainty which is tackled by this Directive.In order to protect workers from one EU country who are sent by their employer to carry out work in another temporarily, the Directive provides that a 'hard core' of rules of the host country (country of destination) needs to be observed.
The Directive was first adopted in 1996.
The directive applies where,
- a company agrees to provide a service to a client in another Member State and needs to send staff there in order to carry out this work
- a worker is posted to another country through arrangements within a group of companies, with the parent and subsidiaries based in different member states
- a worker is posted through an agreement between an employer and an employment agencyEmployment agencyAn employment agency is an organization which matches employers to employees. In all developed countries there is a publicly funded employment agency and multiple private businesses which also act as employment agencies.-Public employment agencies:...
The member state hosting a posted worker must ensure he is protected by the minimum standards in article 3(1). These are,
- working time (hours, holidays, pay)
- standards applicable to agency workers
- health and safety
- pregnancy and maternity protection
- discrimination law
- in the building and construction trades, collective agreement standards that 'have been declared universally applicable' across a geographical area
However, these limited set of rights must also been read within the context of TFEU art 56 (ex TEC art 49) on the freedom of establishment, and also the right to freedom of association
Freedom of association
Freedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....
under the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
article 11 and the EU Race Equality Directive. In this context there is the abovementioned mechanism of 'justified restrictions for the protection of essential requirements in the general interest', that the Court of Justice of the European Union has developed on the basis of the Treaty. Where the Directive does not apply, this mechanism remains decisive.
Case law
In 2007, the European Court of JusticeEuropean Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
chose to give two decisions, whose effect appears to suggest that employers are only required to pay their workers the rate they would receive in their home country, provided this matches minimum wages and working conditions in the country they are posted to.
- Laval Un Partneri Ltd v Svenska ByggnadsarbetareforbundetLaval Un Partneri Ltd v Svenska ByggnadsarbetareforbundetLaval Un Partneri Ltd v Svenska Byggnadsarbetareförbundet [2008] IRLR 160 is an EU law case, relevant to all labour law within the European Union, including UK labour law, which held that there is a positive right to strike...
[2008] IRLR 160 (C-319/05, see also (C-319/06), on free movement of services - ITWF v Viking Line ABP [2008] IRLR 143 (C-438/05), on freedom of establishment
2009 Lindsey Oil Refinery strikes
The Directive came to prominence during the 2009 Lindsey Oil Refinery strikes2009 Lindsey Oil Refinery strikes
The 2009 Lindsey Oil Refinery strikes were a series of wildcat strikes that affected the energy industry in the United Kingdom in 2009. The action involved workers at around a dozen energy sites across the UK who walked out in support of other British workers at the Total's Lindsey Oil Refinery...
after British workers at the Lindsey Oil Refinery
Lindsey Oil Refinery
Lindsey Oil Refinery is a Total owned oil refinery on Eastfield Road in North Killingholme, North Lincolnshire, England. It lies immediately north of the Humber Refinery owned by rival oil company ConocoPhillips, being north of the railway line to Immingham Docks. The former RAF North Killingholme...
in North Killingholme
North Killingholme
North Killingholme is a small village and civil parish in North Lincolnshire, England. It has a population of 224. Along with its larger neighbour South Killingholme, it makes up the area of Killingholme. It is slightly closer to Grimsby than to Scunthorpe...
, North Lincolnshire
North Lincolnshire
North Lincolnshire is a unitary authority area in the region of Yorkshire and the Humber in England. For ceremonial purposes it is part of Lincolnshire....
claimed that they were being undercut by skilled foreign labour when the Italian
Italy
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
construction contractor IREM
Irem (construction company)
IREM S.p.A is an Italian construction contracting global company. It was founded in 1979 by a group of professionals with experience in the mechanical construction business.-2009 Lindsay Oil Refinery protests:...
appointed several hundred European (mainly Italian and Portuguese
Portugal
Portugal , officially the Portuguese Republic is a country situated in southwestern Europe on the Iberian Peninsula. Portugal is the westernmost country of Europe, and is bordered by the Atlantic Ocean to the West and South and by Spain to the North and East. The Atlantic archipelagos of the...
) contractors on the site at a time of high unemployment in the local and global economy. The action attracted considerable media interest. However, this question is not handled by the Directive. It is a question of the right to free movement for services itself, which is handled directly by the Treaty itself, since the contractor wished to use its own staff rather than hiring external subcontractors.