Revision of the Posted Workers' Directive : Equality at Last?

Recent evidence published by the European Commission suggests that the number of workers who are sent from one Member State to work in another for a limited period of time – ‘posted’ workers – has increased sharply. 1 However, posted workers often earn substantially less than local workers for the same work and there have been concerns about posted workers being vulnerable to fraudulent activities such as undeclared work practices. 2 The main relevant regulatory framework has hitherto been the Posted Workers’ Directive (PWD) 3 which came into force in 1996. The PWD has mixed objectives – the promotion of the transnational provision of services within a climate of fair competition while also guaranteeing respect for the rights of workers 4 – the balancing of which has led to tensions in its interpretation; culminating in the much -debated decision of the Court of Justice of the European Union (CJEU) in Laval 5 which created a difficult interface between the free movement provisions contained in the Treaty on the Functioning of the European Union (TFEU) and national labour law. In particular, the decision had the effect of raising questions over the PWD’s ability, in its current form, to fulfil its objectives of ‘guaranteeing respect for the rights of workers’ and maintaining ‘a climate of fair competition’ between local and posted workers while also promoting ‘the transnational provision of services’. As part of its Work Programme 2016 and in recognition of ongoing tensions in the area of posted work, the European Commission published a proposal for a Directive amending the PWD on 8 March 2016. 6 This paper first contextualises the phenomenon of posted work in the EU and then briefly outlines the current legal framework governing posted work. A subsequent section discusses the extent to which the PWD fulfils its objective of guaranteeing ‘respect for the rights of workers ’ and identifies remaining gaps in protection. A final section assesses the Commission’s most recent proposal

Recent developments in blacklisting

Discusses the limited impact of the Employment Act 1999 (Blacklists) Regulations 2010. Notes recent developments, including the Employment Appeal Tribunal ruling in Miller v Interserve Industrial Services Ltd that a "mental list" of individuals a company did not wish to employ was sufficient for the Regulations to apply

Revision of the posted workers' directive : a europeanisation perspective

This article places the current legal framework governing posted work within the debate on ‘europeanisation’ in order to assess to what extent the Posted Worker’s Directive may be seen as a successful tool to ‘europeanise’ national labour law systems as assessed against its dual objectives of promoting the transnational provision of services while also guaranteeing respect for the rights of workers. In doing so, the article contextualises and analyses the Posted Workers’ Directive which allows for the identification of remaining gaps in protection. The article concludes with an assessment of the European Commission’s most recent proposal to amend the Directive

European enlargement and the economic crisis : impact and lasting effects

This working paper by Rebecca Zahn looks at the effects of the economic crisis on the enlarged European Union and the European Social Model. Starting from an analysis of the well-known Viking and Laval decisions of the European Court of Justice from 2007 and 2008, the author of the report sees increasing tensions between EU member states over “social dumping”, austerity packages and growing inequality between workers. This development results in citizens questioning the benefits of further European integration and threatens the very existence of the European social model

German codetermination without nationalization, and British nationalization without codetermination : retelling the story

Codetermination – worker participation in management – forms part of the industrial relations traditions of a number of European countries. Among these, the German system of parity codetermination (paritätische Mitbestimmung) – the focus of this article – provides the greatest level of involvement for workers by allowing for equal representation of employees and management on the supervisory boards of companies in certain industries and above specific size thresholds. This model of codetermination was first introduced in the iron and steel industries by the British military command after the Second World War and is widely regarded in the German literature as a successful trade-union achievement and a vital element, even the most important ‘socio-political innovation’ of German post-war industrial democracy

The ‘Europeanisation’ of labour law – can comparative law solve the problem?

The debate surrounding the nature of “Europeanisation” has been raging in the EU for a number of years. It raises a variety of issues regarding the impact of the EU and its effects on the domestic politics and institutions of member states. In terms of labour law, the EU has, over the years, attempted to Europeanise national labour law systems directly and indirectly by introducing measures under the banner of “European labour law”. However, there has always been a debate on the success of such measures as well as on the existence of a category of European labour law. This paper examines the debate surrounding the Europeanisation of the German and UK labour law systems. Germany and the UK have been chosen as focal points as their different labour law systems illustrate the wide spectrum of national systems of regulation that European labour law must take into account in order to achieve some measure of harmonisation. The paper therefore suggests criteria for testing the success which measures of European labour law have attained in attempting to Europeanise the national labour law systems. These criteria are borrowed from the sphere of comparative labour law. In doing so, firstly, the debate on the Europeanisation of national legal systems is expounded, with specific attention being paid to the sphere of labour law. Secondly, in order to illustrate the problems surrounding Europeanisation, a number of examples are set out. These examples demonstrate circumstances in which the Europeanisation of labour law has been successful or, as the case may be, unsuccessful. Finally, a framework is set out within which to test the success of a measure of European labour law and criteria are also suggested which measures of European labour law need to fulfil in order to successfully Europeanise national systems of labour law

'Common sense' or a threat to EU integration? The court, economically inactive EU citizens and social benefits

In Elisabeta Dano, Florian Dano v Jobcenter Leipzig, the Court of Justice of the European Union (CJEU) ruled that an economically inactive European Union (EU) citizen who does not have sufficient resources to support herself and therefore does not fulfil the requirements set out in article 7(1)(b) of Directive 2004/38 for legal residence, was not entitled to equal treatment with nationals of the host Member State. As a result, such citizens could be denied access to non-contributory social benefits. In determining whether individuals have sufficient resources to support themselves, national authorities must take individual circumstances into account. The CJEU justified its decision by recognising that Member States must be allowed to prevent Union citizens from becoming ‘a burden on the social assistance system’ of the host State

The regulation of healthcare in the European Union : member states' discretion or a widening of EU law? Femarbel and Ottica New Line

In the context of healthcare, the ECJ's jurisprudence has recently been clarified and codified in Directive 2011/24/EU on patients' rights in cross-border healthcare ("Patients' Mobility Directive"). Two judgments recently issued by the ECJ make interesting reading in this regard. While the facts of Femarbel and Ottica do not bear much resemblance to each other, the judgments illustrate that the definition of what falls under the umbrella of healthcare services is not always obvious. Moreover, the cases provide a timely example of attempts by commercial interest groups to use EU law to open up domestic healthcare markets to private, commercial service providers. As such, the judgments have the potential to provide more clarity on the scope of the Directive 2006/123 on services in the internal market ("the Services Directive") and Member States' discretion in regulating healthcare provision in their territory. Finally, the judgments provide further examples of the ECJ's willingness to adjudicate in cases concerning wholly internal situations

Trade unions and the challenges of EU enlargement : the kind of laws the unions ought to want

The recent EU enlargements in 2004 and 2007 have thrown up changed regulatory and opportunity structures for European trade unions, primarily as a consequence of an increase in the free movement of workers, services and establishment. In addition, the European enlargements came at a time when Member State governments were attempting to 'modernise' their labour and social security systems in order to combat the effects of an enlarged Europe within a globalised world economy. As a result, trade unions find themselves in a vulnerable position within their domestic legal systems and are required to reassess the type of functions that they can adopt at a national and European level in order to effectively respond to European enlargement. Against this background, this article considers the kind of laws the unions ought to want in order to effectively respond to the challenges facing them following the enlargements

Trade unions, the gig economy and the feminisation of work : lessons from the past?

The world of work is changing rapidly, and concerns abound that ‘non-standard’ forms of work are challenging the social and collective dimension of work. In particular, the rapid growth of the ‘gig economy’ has brought these concerns to the forefront of the debate. For trade unions, the growth in non-standard work has long been considered problematic. However, the high degree of individualisation and lack of human contact characterising the gig economy raise profound questions about how trade unions should both organise, and represent, workers in this ‘sector’ at a time when trade union membership is in decline and there is a continuing lack of legislative support for collective bargaining. Much of the debate in the existing literature takes as its point of departure, the ‘standard’ (male) worker, and sees the rise in ‘non-standard’ work and work in the gig economy as a threat to this model. This is despite the fact that trade unions have been challenged by ‘non-standard’ work since their inception: the non-standard arrangements, which have now entered the mainstream, have long been the norm for many women workers. Yet historically, within the labour law and industrial relations literature, women and gender have rarely been the subject of discussion, although this has changed since the 1980s. In addition, much of the British literature examining the novelty of the gig economy has focussed on the scope and ability of labour law to respond to these work arrangements, and there has been less engagement with trade union responses to these ‘new’ forms of work, even though the growth in such work also creates pressure for changes in the institutions that regulate labour markets. Against this background, and in light of this book’s overarching theme, this chapter calls for a new research agenda that considers the challenges of non-standard work, and of work in the gig economy, for trade unions within the context of the ‘feminisation of work’. The geographical focus of this chapter, in this regard, is the UK. The chapter argues that trade unions are struggling to shake off their image as the representatives of white, working-class, and blue-collar men. As a result, many of the successful efforts at organising non-standard workers, including workers in the gig economy, have been undertaken by ‘non-traditional’ trade unions (and other forms of grassroots organisations). This raises the question as to whether ‘traditional’ trade unions are able to effectively respond to the rise of non-standard forms of work, and to the gig economy in particular. It is suggested that part of the difficulty for these trade unions lies in the way in which they prioritise the functions that they adopt within the labour market, and the labour law system; functions which are based on a gendered understanding of the labour market, and which in turn hamper trade union efforts to reach out to an increasingly feminised labour force. The chapter therefore suggests that a conscious conceptual shift should take place, when thinking about the purpose of trade unions, if these organisations are to respond effectively to the feminisation of work