Appointing Foxes to Guard Henhouses: The European Posted Workers' Directive

Abstract:     
This note addresses certain complications inherent in governance with regards to posted workers, i.e. workers posted on a temporary basis from one Member State of the Union to another, for the provision of services in the host Member State. In particular, this note attempts to explain how the current Directive 96/71/EC (the "Posted Workers' Directive") sets out mechanisms that produce socially inefficient levels of minimum protections for such posted workers that have to be provided by their employers. This note argues that none of the methods by which host Member States may set such levels of minimum protection (namely positive legislation, universally binding collective agreements, and other qualifying collective agreements) allow for real and credible participation by, and representation of, such posted workers, so much so that this is arguably a defining characteristic of the Directive. Whatever response the competent Community institutions may take, a way will have to be found to provide for sufficient outlets for the "voice" of posted workers, in order to achieve socially efficient levels of minimum protection. Finally, this note examines how such outlets for the "voice" of posted workers can be created within the mechanisms envisaged by the draft recommendation of the Commission issued on April 3, 2008.

Keywords: Directive 96/71/EC, Posted Workers' Directive, Laval, Ruffert, Commission v Luxembourg, Social Dialogue, Right of Collective Action, European Union, Art. 11 ECHR, Art, 49 EC

JEL Classifications: K31, K39

Accepted Paper Series