As a specific form of temporary labour mobility,
posting of workers has been a prominent topic of public and
political debate during previous decades. Several factors have
contributed to the debate.
Firstly, there has been an increase in the number of
postings, as well as more evidence of unfair competition and
the substitution of domestic workers in labour-intensive sectors.
This has occurred mainly in North-Western European countries as a
result of employers' strategic use of posted workers from lower
wage countries. Additionally, there has been a growth in
'creative', abusive and fraudulent practices, such as
"letter-box" companies, bogus self-employment and
numerous other forms of unacceptable practice, which involve the
posted workers. Furthermore, questions have been raised as to
whether the EU Directive 96/71/EC (the "ED96") concerning
posting of workers in the framework of the provision of
services provides a sufficient legal instrument for ensuring a
level playing field in the free cross-border provision of services
within the EU, whilst also delivering a sufficient foundation for
the social protection of
In this context, European trade unions, employers organisations
in the construction sector and the European Parliament have
strongly advocated the need for significant improvements. While the
Enforcement Directive 2014/67/EC (the "ED") has focused
mainly on improving processes and rules in order to better apply
and enforce the provisions of the existing ED96, it has not focused
on further matters relating to the framework of
posting, namely with regards to a better definition of the
"hard core" of working and employment conditions, as well
as inconsistencies between the ED96 and regulations in the field of
social security coordination.
In view of this, in March 2016 the EU Commission has published a
proposal to revise the ED96. The revision introduces amendments in
three main areas, ie remuneration of posted workers, rules on
temporary agency workers, and long-term posting.
In particular, the proposal of EU Commission foresees that
posted workers are subject to equal pay and working conditions
as local workers. In fact, currently posted workers are subject to
the same rules as host Member State employees in certain fields
only, such as health and safety. However, the employer is not
obliged to pay a posted worker more than the minimum rate of pay
set by the "host" country. This can create wage
differences between posted and local workers and potentially lead
to unfair competition between companies. This means that posted
workers are often remunerated less than other workers for the same
job. According to the proposal of EU Commission, all rules on
remuneration that are applied to local workers shall be also
applied to posted workers, where "remuneration" means not
only the minimum rates of pay, but also other elements such as
bonuses or allowances, where applicable. Member States will be
required to specify in a transparent way the different elements of
how remuneration is composed in their own country. On the other
hand, rules set by national law or any applicable collective
agreements shall be mandatory for posted workers in all economic
Moreover, the above proposal provides that regulations on
temporary agency shall apply when agencies established abroad post
Finally, pursuant to the proposal of EU Commission, if the
posting will exceed twenty-four months, the host country terms
and conditions of
employment shall be applied to the posted worker, if said terms
and conditions of
employment are more favourable than those applied by the
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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