Free provision of services and cross-border labour recruitment

Abstract

This article identifies how the use of the European Union (EU) mobility rules, as formulated by the EU's Posting Directive, has been linked to the temporary provision of services in practice. It demonstrates how this linkage, legitimised by European Court rulings, undermines the Directive's original intent to provide rights-based regulation of labour mobility in the Union. In the assessment of posting practices, striking findings of two studies co-conducted by the author in 2003 and 2010 are discussed. In the first section, the origins of the Directive are described, followed by sections that contextualise the posting rules in the framework of the fundamental economic freedoms of EU Treaties, and discuss the problems related to implementation and enforcement. Based on the Directive's definition of posting, three issues of governance and practice are raised: (a) regulation of the employment relationship, (b) application of labour conditions and (c) respect for collective agreements. A final section offers policy recommendations in order to deal with the ways in which posting governance and practices currently impede any vision of rights-based mobility in the EU. It is argued that current minimalist interpretation of the posting rules can neither guarantee equal treatment nor protect the rights of temporary migrant workers.

Stepping up to strike: a union mobilization case study of Polish migrant workers in the Netherlands

“…Many workers had a family back home to support, who generally did not visit them while they were abroad. The working conditions of posted workers were characterized by long working hours and oftentimes payments below local labour standards; many also faced a lack of proper social insurance, non-payment or underpayment of overtime, or unfair deductions for administrative costs, lodging or transport (Cremers 2013). The skill level of the informants varied.…”

“…workers who have an employment relationship with the posting employer which extends beyond a specific posting. Oftentimes workers are presented by their employers as posted, although they are not in a legal sense, and employers in reality recover directly from them the extra benefits paid to satisfy collective agreements and the law (Cremers 2013). Union officials at the Eemshaven estimated that around 80 per cent of the workers' worked under conditions that were not in accordance with the collective agreements.…”

“…The difference is that posting, firstly, invokes a different set of social protections (Dølvik and Eldring 2008). Secondly, national regulators are explicitly limited by EU law in the extent they can impose national rules on posted workers, as in a series of controversial decisions, the European Court of Justice has judged interference by national regulation as a potential impediment to the freedom of movement (Cremers 2010(Cremers , 2013. 35 This enables and encourages employers to recruit migrants via transnational subcontractors and TWAs, because they can employ them under (partly) home-country terms of lower-wage countries.…”

“…Menz 2010a; Lillie and Greer 2007;Felini et al 2007;Cremers 2010Cremers , 2013. There has been less research, however, on the subjective experience of posted workers, as a distinct form of economic migrant and on how they encounter their host-country surroundings.…”

Economic freedoms and labour standards in the European Union

“…In successive cases, the ECJ judged that it is not up to EU Member States to define unilaterally the notion of public policy or to impose all mandatory provisions of pay and working conditions on suppliers of services established in another country. Rules and requirements that are not specified in the exhaustive list of the PWD have to be judged within the limits of the legislator's definition of mandatory rules (Bercusson, 2007;Cremers, 2011;Cremers, 2013b). According to this interpretation, EU Member States no longer had the unilateral right to decide on the mandatory rules applicable within their territory, even if these mandatory rules would guarantee better provisions for the workers concerned.…”