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Abstract by the authors: The importance of the posting of workers across EU borders has grown considerably in the past decade, causing concern regarding its impact on labour standards in Europe. This article asks why posting has taken such a flight. Building on quantitative analysis and in-depth interviews set against other sources, we shed light on employer motives for deploying posted workers. We develop a typology of posting which shows that while cost minimization is a crucial motive, especially in sectors where labour cost is an important competitive concern, a much wider set of motives are at play. Skill shortages across all levels of the skills spectrum play a crucial role in every sector. In addition, companies use sub-contracting for highly specialized temporary work as well as for routine tasks. Posting is also used for career development, especially of high potentials. Based on the wide array of employer motives for the use of posting, our typology distinguishes between ‘competition posting’, ‘specialisation posting’ and ‘expert posting’. The article discusses some implications for EU policy vis-a-vis posted work.
Abstract by the author: Cet article décrit l’effet probable du retrait du Royaume-Uni de l’Union européenne sur le droit international privé du travail. Plus précisément, il traite de l’effet probable du Brexit sur le droit du travail, le droit de la compétence internationale en matière de travail et le droit du choix de la loi applicable en matière de travail tant au Royaume-Uni que dans l’Union européenne, en se concentrant principalement sur l’effet probable du Brexit sur le droit international privé en Angleterre.
Abstract by the authors: Since the comparative turn in European integration research, analyses of the legislative process of the EU have taken inspiration from research on national political systems. While the consequences of the formal monopoly of initiative of the Commission are much analysed, it is only recently that the role of the Court in EU legislation has been further appreciated. In the literature, it is disputed how far case law constrains the EU legislator. The analysis of the 2016 proposal for a revision of the 1996 Posted Workers Directive allows us to uncover the mechanisms by which the European judiciary shapes and constrains agenda‐setting based on the constitutionalization of EU law. In this highly political case, being hailed as a major breakthrough, we ask whether political majorities or case law constraints had the upper hand.
Abstract by the author: This article draws on interviews, register data and a survey with 150 Polish posted workers in the Danish construction sector to analyse the challenges of enforcing the labour rights of posted workers. It argues that while posting companies are generally more ‘unruly’ vis-a-vis host country institutions, their way of engaging with these institutions varies depending on whether the company is a main contractor, subcontractor, or a private home service provider. This implies that the enforcement challenges that union and labour inspectors face differ just as the conditions of posted workers vary depending on the employer’s position. The article concludes that while recent reforms to the rules of posting may solve some legal issues, there are still major challenges on the enforcement front.
Abstract by the authors: The posting of workers is a challenge for national regulatory and job protection frameworks in the EU. We address the specific case of road transport, analysing the discourses of the principal social and institutional stakeholders (trade unions, employers’ associations, European institutions and labour inspectors) and identify the controversies that have arisen around the definition, regulation and assessment of worker posting. We consider, more generally, the direction in which the European unification project is heading.
Abstract by the authors: The posting of workers from the European periphery has generated the longest and most tumultuous series of labor disputes in the history of European Integration. On the basis of relevant archives, this article conducts the first historical review of posting rules in the European Union, from the first negotiation in 1955 until the latest directive in 2018. This historical review enables to discard the idea of a neoliberal turn in posting rules from the 1980s onward. It also leads to reject the explanation of disputes by the movement out of the European periphery under posting rules of a Lumpenproletariat insensitive to class struggle. Instead, the article identifies the increasing regulation of the labor market at the expense of posting opportunities since thirty years. It reveals the dominant role played by governments and their invariable support for their workers. It highlights the constant asymmetry of power between core richer countries and the Southern and Eastern periphery of the European Union. Eventually, this article locates the long-term problem in the contradictions between the interests of workers and firms in richer destination countries and the enlargements of the Single Market to poorer countries.
Abstract by the authors: The 2018 Amending Directive is the most recent response to the failings of the European Union (EU) legal framework for the posting of workers. This article uses an original case study of workers posted from Serbia via Hungary to Slovakia as a basis on which to assess the practical impact of this latest Directive. We recognize the capacity for EU Member States to do more to protect posted workers than was possible previously. However, we also note significant regulatory omissions relating, in particular, to the manufactured uncertainty of employment and immigration status, limited supply chain regulation and obstacles to trade union representation. We identify the need to address in greater detail the complex operations of transnational temporary work agencies involving third country nationals which can produce legal uncertainty and foster unfree labour relations.
Abstract by the author: Conçu comme une exception au principe d’affiliation du travailleur au régime de sécurité sociale du pays d’exécution du travail, le détachement semble de plus en plus dévoyé et utilisé dans le seul but d’une optimisation au bénéfice du pays le moins disant social. Si les récents développements législatifs européens à l’instar de la directive 2018/957 sur le détachement, entrée en vigueur en juillet 2020, ont permis de pallier certaines lacunes et mieux protéger les travailleurs détachés, une analyse plus affinée du jeu réel sur le différentiel de cotisations sociales dans l’Union européenne (UE) permettrait de mieux appréhender la complexité du phénomène du détachement et d’en mesurer les tenants et aboutissants sans parti pris moralisateur.
Abstract by the authors: The development of the internal market, based on the principle of freedom to provide services, as stated in article 56 TFEU, rendered common the posting of workers to another EU Member State. The risk of leading to social dumping in the host Member State, resulting from the less favourable working conditions of the sending Member State, justified Directive 96/71/EC. Collective bargaining, which has always taken on a prominent place in the posting of workers framework provided for in Directive 96/71/EC, is clearly reinforced by Directive (EU) 2018/957 that amended Directive 96/71/EC. The caselaw of the CJEU, however, has revealed that in some cases the enforcement of the host Member State working conditions, in view of the lack of harmonization of labour law in the Member States in relation to minimum protection mandatory rules, can paradoxically constitute a restriction on the freedom to provide services. The analysis of the amendments introduced by the Directive (EU) 2018/957 will demonstrate that, despite creating a favourable legislative framework for fair competitive conditions between national undertakings and the undertakings that post workers, may compromise the delicate balance between the protection of workers and the freedom to provide services.
Abstract by the authors: Temporary labor migration (TLM) constitutes a significant trend of migration movements within the European Union, especially after the 2004 and 2007 EU enlargements. However, compared to other forms of TLM, intra-EU TLM has received scant attention from normative theorists. By drawing on Iris Marion Young's conception of structural injustice, this article analyzes the injustice of TLM within the EU. It argues that purely rights-based approaches are deficient and that a structural injustice approach is needed. The latter sheds light on the formal and informal processes that place EU temporary migrants in a condition of vulnerability and reveals the multiple individual and collective agents participating in such processes. Moreover, such an approach offers important insights into the agency of migrants by showing how they themselves reinforce structural processes that put not only (i) individual temporary migrants but also (ii) similarly positioned migrants and (iii) other members of the sending and receiving countries in a vulnerable position. A structural injustice approach does not deny that intra-EU temporary labor migrants should enjoy the rights and entitlements that they currently have in the host country as European citizens. Nor does it dispute that reducing the vulnerability of temporary migrants may require “special rights” accommodating the specific nature of their life plans. Instead, though such rights may be necessary, a structural injustice approach demonstrates how they are insufficient to tackle the injustice of intra-EU TLM and other forms of temporary labor migration more broadly.
Abstract by the authors: Cet article s’intéresse à la mobilisation du travail détaché en agriculture intensive. Il aborde le cas de la main-d’œuvre latino-américaine mise à disposition des producteurs provençaux par des agences d’intérim’ espagnoles. À travers ce cas d’étude, l’article analyse le fonctionnement du détachement au quotidien, les stratégies de contrôle de la mobilité et d’abaissement des coûts de travail basées sur la flexibilité, la disponibilité temporelle et l’externalisation des risques que rend possible la prestation de services Internationale. Nous y montrons enfin comment le détachement a engendré d’autres formes de mobilité, donnant ainsi lieu à la naissance d’une communauté latino-américaine installée, ce qui accentue encore un peu plus la segmentation ethnique et statutaire du marché du travail agricole provençal.
Abstract by the author: Since the 2018 revision of the Posting of Workers Directive, the debate on posting has once again been heated. The spark comes particularly from disputes concerning cross-border mobility of highly mobile workers employed in transnational logistics services (Dobersberger, FNV, Rapidsped, and to a different extent Gruber and Samidani and AFMB). In this set of case law, the Court of Justice of the EU had to consider whether or not, and to what extent, the workers in question should be considered posted workers. Thus, the case law came to revolve around the spatial and territorial attributes, and the cross-border nature of the work performed. By resorting to the analytical tools provided by legal geography, and in particular to the concept of ‘chronotopes of law’ elaborated by Mariana Valverde, the aim of this piece is to reflect upon assumptions and implications of the aforementioned rulings with a view of discussing both structural and contingent elements that possibly favour exploitation of posted workin the transnational logistics industry.
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