Summary
Summary Posted Workers (Public Law)
- Module
- Year 1 Public Law
- Institution
- The University Of York (UOY)
Summary notes on posted workers within public law
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Posted WorkersWho are posted workers?
When a company from one Member State - e.g. Italy - operates in another Member State - e.g.
Germany - and temporarily sends its own workers from Italy to work there, rather than recruit in
Germany, they are 'posting' their workers in Germany.
Posted workers have a different status to 'normal' EU migrant workers, because while working in the
host Member State (in our example: Germany), they are still employed by a company in the sending
Member State (Italy), and are expected to only be in the host State temporarily, and are not
expected to integrate into the host State's (Germany's) labour market.
The posting of workers has proved a problematic topic, because of the tensions between principles
of promoting competition, and of protecting workers. Posted workers are not entitled to full equal
treatment with the employees in the host State, though the Posted Workers' Directive (Directive
96/71) provides for a basic minimum of rights - for instance, posting companies cannot pay less than
the national minimum wage of the host State.
This has resulted in criticisms that the system does not merely promote competition, but promotes
unfair competition at the expense of workers' rights, and facilitates a phenomenon called 'social
dumping'.
Posted Workers Directive:
Directive 96/71, recently amended by Directive 2018/957, sets some mandatory rules regarding
terms and conditions of employment for posted workers. Their employment is with a company in a
sending state, and so is governed primarily by the laws of that sending state. However, the PWD
provides a core set of rights, below which the employer cannot drop.
These relate to:
Minimum rates of pay
Maximum working periods
Minimum rest periods
Conditions of using temping agencies
Health and safety at work
Minimum paid annual leave
Equal treatment on the ground of sex
The problem is that these establish basic rights, whereas employers, or different sectors, may adopt
terms and conditions better than the statutory minimum - in particular with regard to pay. It will
only be mandatory to apply such accepted rates to posted workers if the rates are the subject of
'universal collective agreements' - a concept in employment law that is not common in many
Member States.
This has led to concerns about posting companies undermining the employment rights in host
States, and undercutting local workers.
The main changes introduced by the revised Directive are:
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