Guest lecture at King’s College
London 20 November 2013
How to improve posted
and migrant workers’
ability to claim their
rights?
Prof. Mijke Houwerzijl
Tilburg University/University of Groningen
NL
EU Enlargement: from six to 27
(now 28) countries
1952
1973
1981
1986
1990
1995
2004
2007
GDP per inhabitant: the spread
of wealth across the ‘new’ EU
271
2008 GDP per inhabitant
Index where the average of the 27 EU-countries is 100
137
135 123 122
118 117 116
115 114 107
103
101 100
95 94
91
80
76 76
72 68 63
61 58
56
Bulgaria
Romania
Latvia
Poland
Lithuania
Hungary
Estonia
Slovakia
Portugal
Malta
Czech Republic
Slovenia
Greece
Cyprus
EU-27
Italy
Spain
France
Belgium
Finland
Germany
United Kingdom
Denmark
Sweden
Austria
Netherlands
Ireland
Luxembourg
46 40
How should free movement of
labour be qualified under EU law?
45 Free movement
workers
49 Freedom of
establishment
56 Free
movement
of services
Enlargement and free movement:
•  Multiple channels for import of ”labour services”
•  Labour cost gap -> shift in manpower strategies and host country
demand for ’labour services’
•  Hire labour migrants – equal treatment, host country
rules
•  Hire service subcontractors with posted workers–
country of origin standards, except for nucleus of
workers rights (PWD)
•  Hire workers via Temp Work Agencies (TWA), either or
not covered by PWD
•  Hire self-employed - market price…
•  Uneven playing field -> scope for regime shopping and
shifts in demand for labour and services
Postponing right of access for workers
from new MS to labour markets of old
MS…
•  transitional period
of max 7 years for
free movement of
workers enshrined
in Art. 45 TFEU.
•  for EU-8: max. 1.5.2011
•  for EU-2: max. 1.1. 2014
•  for Croatia as new MS?
6
… made posting one of the easiest
«ports of entry»
–  No reliable figures for posted workers but
significant volume in certain sectors
Commission estimates (E101-certificates)
suggest 1,1 million in 2008 = 0,4% of labour
force
–  Countries with notification or registry data
suggest considerably more :
– 
Construction appr. 10-20% of workforce, shipyards appr.
40-50% (e.g. in Finland & Norway)
Growth in the temporary-agency sector, food industries,
transport
Undisputed is the significant impact on patterns of hiring,
contracts, and competition in the labour market
8
Eemshaven case
800 Polish workers posted in
Eemshaven by subcontractor
22-01-2013
Conference Public Procurement
10
What happens ‘on the
ground’?
• 
• 
• 
Dutch pipe fitter Jan earns 13 euro’s per hour
Portuguese pipe fitter Jose earns 10 euro’s per
hour
Polish pipe fitter Janek only 9 euro’s.
•  Semi-legal constructions:
1  on the pay roll for the statutory minimum wage
per month, based on a 40-hour working week.
In reality the worker makes > 60 hours per
week.
2  pay on a regular/min. wage level, but
(excessive) deduction of costs for tools,
working clothes, accomodation etc.
The EH campaign: active engagement with the posted workforce
“There were unions, quite active ones, but it seems that nothing •  absence of Dutch-­‐member base on site came out of it. I don’t know what the factors were. Perhaps too few • 
active involvement people enrolled in the union.” of posted workers to [research “Aha.” about employment share assistant:] information “They are here quite often, I think every Monday, once a week.” conditions [research assistant:] “We saw the announcement.” “Exactly, there is often some info around and so on. They spread • 
lea?letting ?lyers, but in general it doens’t create any changes for us.” 39-­‐year-­‐old Polish electrician, employed via a Portuguese agency •  housing visits •  on-­‐site of?ice hours ‘Hard core’ rights of posted
workers
•  Art. 3 PWD: Certain minimum terms and working
conditions in the host Member State, must be
applied to the posted worker
•  Max work periods and min rest periods
•  Min paid annual holidays
•  Min rates of pay
•  Conditions of hiring-out of workers
•  Health, safety and hygiene at work
•  Protective measures for pregnant women, women haven
given birth, children and young people
•  Equality of treatment between men and women and
other provisions on non-discrimination
•  must be laid down in law or extended collective
agreement
13
FNV
Eemshaven case
Remak Court
Eemshaven case and ‘social return’
Wage
CAO
€ 11
+
€ 2.95 in
kind
CAO, AVV > PWD
8% holiday allowance
= wage
≠ wage
= wage
Timesheet leave
= core
PWD
≠ core
PWD
≠ core PWD
Irregular working time
allowance
= core of ≠ core of
PWD
PWD
22-01-2013
Conference Public Procurement
= core of
PWD
14
Why do host state trade unions
step in?
Two sides of the same coin:
• Exploitation of migrant/
posted workers
• The issue of ‘social
dumping’
(Legitimate) underpayment of
posted workers
•  Leads to disputes and tension –
sometimes with xenofobic undertones
8/2/2012- 'Do you have problems with people from
central and eastern Europe? Have you lost your job to a
Pole, Bulgarian, Romanian or other eastern European?
We want to know,'
•  The PVV website was illustrated by
fictitious newspaper headlines such as
'Wouldn't it be better if you went back?'
and 'Eastern Europeans, increasingly
criminal'.
Rationale Art 45(2) TFEU
•  The absolute nature of the prohibition on discrimination
on grounds of nationality, has the effect of not only
allowing in each state equal access to employment to
the nationals of other Member States, but also of
guaranteeing to the state’s own nationals that they
shall not suffer the unfavourable consequences which
could result from the offer or acceptance by nationals of
other member states of conditions of employment or
remuneration less advantageous than those obtained
under the national law.
•  Case 167/73 (French Seamen para 45)
Barriers to mobilizing
(posted)
workers
•  high worker mobility [go to] the union? But how would help o
mut e? O
that tw
hey will “ So every time you have to that ?igure enly xactly hat is me the next day. w
ith local labour rights and • ?ire unfamiliarity the l43-­‐year-­‐old aw that aPpplies to this person. olish scaffolder, employed via a Dutch agency ?irm institutional structures know, dboes he have a Dutch contract? Does he • You language arriers have a Polish contract or a Romanian contract? Is he • even fear uonder f employer EU law? r etaliation (losing the job) •  complexity employment conditions And that makes it almost impossible for us to really organise these people.” FNV of?icial 1 Rights which
cannot be enforced
are worthless
An issue of concern at EU-level?
See Art. 47 EU Charter
Monitoring & enforcement in PWD
•  Article 5 PWD states that Member States
shall take appropriate measures in the
event of failure to comply with the
Directive.
•  The national government has to ensure in
particular that adequate procedures are
available to workers and/or their
representatives for the enforcement of
obligations under the PWD.
EU rules on monitoring, cooperation &
enforcement in the field of workers’ rights
Migrant workers: Reg. (EU) No. 492/2011 and
COM(2013) 124
•  Posted workers: proposed Enforcement Directive
(COM(2012) 131)
•  Migrant and posted workers rights re Social security: Reg.
(EC) No. 883/2004 and Reg. (EC) No. 987/2009
•  Health & safety: Dir. 89/391/EEC, Community strategy
2007-2012 on health and safety at work, SLIC
23
Monitoring the presence of (posted)
workers
•  In NL, UK no general systems of notification in
place for posting of workers. But IT, NL, UK do
run permit or visa requirements re (some groups
of) posted workers
•  BE, DK, FR, DE, LUX do run general
notification or ‘pre-declaration’ schemes re
posted workers regardless of their nationality or
specific Art. 1(3) situation
Dissemination of information Art. 4(3) PWD
In most MS some information to the general public
on statutory rights, in particular by websites, but
inadequate amount of information on
applicable rights at CLA-level, apart from some
sectoral initiatives in DK, SE, NL
Role of sending state
•  Currently, not much dissemination of info in
sending state, although Art. 4 Dir. 91/533
obliges service provider to do so. Apart from ES
no supervising authorities involved
Inspection/enforcement activities
•  Despite considerable progress still serious
shortcomings in internal and cross-border
cooperation
•  Persistent problems:
shortage of staff with adverse effects on the
frequency of controls
•  assessment of the worker’s status: selfemployed
or posted worker?
•  despite Council Framework Decision re mutual
recognition to financial penalties, enforcement of
rights still seems to stop at national border
Personal scope of PWD
In many MS a clear and enforceable definition
of the concept of posting / posted worker lacks
(Art. 1 and 2). To ensure the genuine nature of
the posting and to combat misabuse, focus on:
–  ‘Limited period of time’ (Art. 2 PWD)
–  Link with habitual place of work and with
sending state
–  Distinction between passive and active
mobility
Specific attention necessary for position of:
–  Trainee
–  Temp Agency worker (Art. 3(9) and Art. 3(1)(d))
–  Transport worker
Duties on service providers
•  BE, DK, FR, DE, LUX impose notification
requirements
•  Great variety in existence of additional
information requirements
•  Luxembourg seems to have best balanced
penalties: compliance orders instead of
administrative fines or criminal penalties
•  In DK, IT, UK some CLAs contain information
duties
Duties on service recipient
• 
• 
• 
• 
Information duties
BE, DK have duties to provide information on
non-notifying foreign subcontractors
in construction sector Dir. 92/57 on minimum
safety at building sites imposes some duties
of information
Joint & several liability
BE, FR, DE, IT, NL legal and sometimes also selfregulatory liability arrangements re payment of
wages, soc security premiums and/or fiscal
charges
‘Functional equivalents’ exist in SE, LUX, and
in a way UK
Supportive tools/remedies for
(posted) workers (Art. 6)
•  In some MS social partners may start legal
proceedings in host state and state of habitual
place of work (Brussels I Reg.) independent of
(consent of) individual worker
•  The almost total absence of legal cases initiated
by posted workers is a clear signal that the
jurisdiction clause in the PWD is not enough as
effective remedy
•  Not all MS provide access to legal aid for posted
workers
So how to
improve posted
and migrant
workers’ ability to
claim their
rights?
We should look for tools that work
for migrant/posted workers
•  Access to the workplace for trade unions /
ngo’s (in cooperation with inspectorates)
•  Tailor-made membership of trade unions
for transnational workers
•  Collective redress mechanisms
• Thank you!
•  Questions?
•  [email protected]