Workers without Footprints? The legal fiction of migrant workers as ‘posted workers’

1. Workers without Footprints?The legal fiction of migrant workers as ‘posted workers’ Lydia Hayes (Cardiff) Tonia Novitz (Bristol)

2. I. Who are ‘posted workers’? Our migrants without footprints… And why are we concerned? The ‘posted worker’… is temporary and ‘does not gain access to the labour market of the host State’… therefore receives only minimal protection (in terms of wages, hours etc.) in the host State What is the problem? Three concerns: • Access to jobs for host State workers affected by undercutting of terms and conditions … and xenophobic/nationalistic responses follow… • The invisibility of the ‘posted worker’ is leading to cases of exploitation in the current ‘hard times’. • We might expect this model to be reconsidered, but instead it is being exported – used in respect of 3rd country nationals and in GATS

3. 2. Rush Portuguesa Capacity of French Office national d’immigration to control immigration of Portuguese workers ‘posted’ to assist sub-contracted service provider, Rush: • for a short time and intention to return to home State • ‘without at any time gaining access to the labour market of the host state’ • essential for free movement of services when no free movement of workers (transitional expansion of EEC) • promise to member States and trade unions that they could continue to regulate labour standards

4. 3. Posted Workers Directive A misnomer – for service providers…. Note Treaty base: Article 57(2) EEC (relating to the enabling of freedom of establishment of independent contractors, i.e. service providers) Construction of a ‘posted worker’ as (Article 2) ‘a worker who, for a limited period, carries out his work in the territory of a Member State other than the State in which he normally works’. How limited? Acknowledgement of rights of posted workers and effects on host State labour markets… BUT Significance of Art. 3(1): a nucleus of mandatory rules for minimum protection Note core must ‘not prevent the application of terms and conditions of employment which are more favourable to workers’ (Recital 17, Article 3(7) and 3(10)), but such provisions have been narrowly construed since 2007…

5. 4. Laval and ‘social dumping’… Acknowledgement of potential for social dumping – does this amount to recognition of effects of ‘access’ of ‘posted’ work on labour markets?

6. 5. Effects of ‘posting’ in hard times on host State workers: access to work and ‘social dumping’? • Mounting evidence of business closures because of inability to compete on labour costs • Growing concern about unemployment in ‘host’ states and political pressures (EU elections 2014) • Downward pressure on wages in UK? evidential difficulties in proving undercutting, but GMB has found some evidence e.g. Staythorpe • Discrimination in recruitment e.g. East Lindsey Oil Refinery issues • Access to work: Art. 1 ESC 1961 • Freedom of association: Art. 11 ECHR

7. 6. Effects on posted workers: a problem of invisibility? • health and safety issues e.g. Flamanville (France) • wages (rates and deductions) – discriminatory? • transparency? Who is the employer and which jurisdiction? E.g. Olkiluoto (Finland) • access to justice: Art. 6 ECHR • freedom of association: Art. 11 ECHR What is unseen – Women in the services sector? Seasonal agricultural workers? Note significance of changes to the Gangmaster’s Licensing Act – removal of the agricultural sector!

8. 7. EU responses and proposals draft Monti II Regulation: (Very) problematic in other ways but acknowledgement of ‘social dumping’ as a possibility – also possible case for an ‘alert mechanism’ as a response to ‘disruptions’ and ‘distortions’ of the labour market caused by posting…BUT shown the ‘yellow card’ (or rather 19 cards…) draft ‘Enforcement Directive’: establishes a general common framework of appropriate provisions, measures and control mechanisms necessary for better and more uniform implementation, application and enforcement in practice of Directive 96/71/EC, including measures to prevent and sanction any abuse and circumvention of the applicable rules (Art. 1) Includes scope for inspections (Art. 10) Art. 11 offers role to trade unions and other organisations a potential role in enforcement. Note also Art. 12 on joint and several liability. BUT BusinessEurope says: ‘Imposing an EU system of joint and several liability is not the right way to enforce the Posting of Workers Directive. Such a system will hamper development of the single market and undermine the competitiveness of European companies at a time when all EU policies should support economic growth.’ Also: ‘BUSINESSEUROPE strongly supports proper enforcement of the Posting of Workers Directive. But measures to improve enforcement should not impose disproportionate burdens on companies, and should not create additional barriers in the single market.’ See http://www.businesseurope.eu/content/default.asp?PageID=568&DocID=30086

9. 8. More case law: social and economic re-balancing… Alemo-Herron v Parkwood Leisure [2013] ICR 1116: • A ‘balance’ of economic and social rights in context of widening market in services (via privatisation) • Also employer’s rights under Art. 16 of the EU Charter of Fundamental Rights: ‘the freedom to conduct a business’… • Interesting prioritisation of human rights. • Casts Laval in new light? • Suggests scope for Court of Justice to further influence/competence in respect of labour regulation at a national level

10. 9. New workers ‘without footprints’… Use of ‘posted workers’ as a model: Mode 4 of the GATS… a recognised mode for the supply of services is ‘posting’ Annex on Movement of Natural Persons Supplying Services under the Agreement: does not apply to ‘persons seeking access to the employment market of a Member… The same artificial distinction… But potentially subject to greater acknowledgement of market impact and restrictions Incremental acceptance of liberalisation through specific commitments Similarities: focus is on the entitlements of the service provider (or the Member State of the service provider) Extension of the ‘posted workers’ logic in EU: Draft Directives concerning third country nationals on seasonal work and intra-corporate transfers… NOTE opposition from European Parliament/ILO Seasonal workers acknowledged to be vulnerable and have equal rights to freedom of association, but provision is made for only a core nucleus of bare minimum standards… Treatment of intra-corporate transferees explicitly tied to posted workers regime… After all should have no more favourable treatment under PWD, Art. 1(4) – see also Recital 22. Dangerous routes to follow?