UK Implementation of the Posted Workers Directive 96
University of Oslo - Working Paper No. 12/2010
Posted: 12 Jun 2012
Date Written: April 1, 2012
This paper examines UK implementation of the Posted Workers Directive 96/71/EC (PWD), in the light of the jurisprudence of the European Court of Justice (ECJ) in what has come to be known as ‘the Laval quartet’: the cases of Viking, Laval, Rüffert and Luxembourg.
The first part of this paper outlines briefly the position of the UK Government in the process leading up to adoption by the European Community (EC) of the PWD. The second part then examines the extent of initial implementation of the Directive in the UK. The third and final part of the paper highlights current issues confronting the UK following European Union (EU) enlargement and the cases recently decided by the ECJ.
Prior to 1996, Conservative Governments sought to resist attempts to adopt a PWD. They were opposed to European measures which might inhibit the ability of UK employers to post workers to other EU Member States. The Labour Government which came to power in 1997 eventually purported to implement the PWD, but did so by simply extending the application of UK legislation, that is, by removing jurisdiction clauses. There was no specific legislation introduced which sought to give particular regulatory effect to the PWD.
Due to this fairly ad hoc approach to the extension of UK employment legislation to posted workers, there is no explicit UK time limit on posting workers. Following also from the lack of specific legal implementation of the PWD, there are no registration or control measures which apply to posted workers in the UK. However, third country nationals cannot use posting to evade ordinary UK immigration law.
It is evident from parliamentary debates and from a case decided in the House of Lords (which performed the function of what is now the UK Supreme Court) that it was understood that the UK was in full compliance with the terms of the PWD, on the basis that the Directive was understood to specify a ‘floor of rights’ for posted workers as opposed to a ‘ceiling’. UK legislation operates to protect posted workers to the extent that such workers can enforce their statutory rights by recourse to the UK employment tribunals system and the domestic courts. In this way, it could be said that UK law prevents the undercutting of UK statutory labour standards (going beyond mere minimum levels of pay), thereby preventing social dumping and unfair competition. However, it is also arguable that the heavy reliance on private enforcement of legislation by posted workers may diminish the efficacy of what appears to be fairly generous legal protection. It should also be noted that UK trade unions have not been satisfied with the form that implementation of the PWD had taken and have, in particular, expressed frustration at the failure of the UK to make any provision under Article 3(8) of the PWD for extension of collective agreements in the construction sector.
In the period following EU enlargement and the Laval quartet of ECJ judgments, it is possible to identify key legal issues, which will have to be addressed by the new Conservative and Liberal Democrat Coalition Government, which entered office in May 2010. First, the legality of the transposition of the PWD into UK domestic law has been cast in doubt, now that we know that the entitlements set out in the Directive are to be regarded as a ‘ceiling’ and not a ‘floor’. In particular, the judgment in Luxembourg makes it clear that the UK’s extension of employment legislation to posted workers regarding matters which go beyond the list in Article 3(1) is to be regarded as violating the terms of the PWD. Second, the arguments made by unions that service contracts should only be awarded to contractors prepared to honour the terms of established collective agreements, for example in relation to preparations for the Olympic Games, would seem to be undermined by the ECJ judgment in Rüffert. Third, the ability of trade unions to call industrial action in relation to matters concerning posted workers is significantly limited due to the Laval judgment. The consequence would seem to be extreme frustration on the part of workers that has led to wild-cat action, some of which has had extreme nationalistic undertones.
The motto ‘British jobs for British workers’ used by the ex-Prime Minister Gordon Brown in 2008 to describe the creation of opportunities in terms of training (or so it is claimed) has been converted into more xenophobic sentiment focused on competition for work. Unions assert that workers are only seeking fair competition for access to work and prevention of ‘under-cutting’ by service providers which will be to the detriment of posted workers and UK workers alike. However, this belies the popular appeal of the far-right British National Party (BNP) which has sought to be actively involved in recent wild-cat industrial action. The opportunity for mainstream UK unions, which have long been opposed to a BNP presence in unions, to represent their membership and quell their fears is hampered by the legal principles established in Laval.
Trade union calls for reform and pleas from various backbench Members of Parliament (MPs) seem to have fallen on deaf ears. That is to say, they have been largely ignored by the past Labour and current Coalition Governments. Indeed, there seems to be an underlying determination across the political spectrum not to address (or at least not explicitly) any of the current outstanding legal issues associated with posted workers.
Keywords: posted workers, UK, collective action, collective agreements
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