Full text - European Trade Union Institute (ETUI)

Isabelle Schömann and Coralie Guedes
Does the minimum protection for posted workers
correspond to that provided to temporary agency
workers on cross-border assignments
Following the CJEU’s jurisprudence, the Posting of Workers Directive deals
essentially with the free provision of services and much less with the protection
of workers. Consequently, protective standards of the domestic labour
law of the host country are applicable only when they pass a strict proportionality
test to ensure that such protection does not go beyond what is necessary
for attaining the minimum standards that the Directive allows (Ejvu 2011).
Therefore, as mentioned by the European Commission (COM (2003) 458 final)
‘Member States are not free to impose all their mandatory labour law
provisions [whether domestic legislation or collective agreements] on service
providers established in another Member State’. Terms and conditions that
the host country should provide, as laid down in Article 3 (1) are (a) maximum
work periods and minimum rest periods, (b) minimum paid annual holidays,
(c) minimum rates of pay, including overtime rates – this point does not apply
to supplementary occupational retirement pension schemes, (d) the conditions
of hiring-out of workers, in particular the supply of workers by temporary
employment undertakings, (e) health, safety and hygiene at work, (f)
protective measures with regard to the terms and conditions of employment
of pregnant women or women who have recently given birth, of children and
of young people and (g) equality of treatment between men and women and
other provisions on non-discrimination, when available in law, regulation,
administrative acts and/or collective agreements and arbitration awards.
However, Article 3 (1) (d) and (9) of the Posting of Workers Directive incorporates
the conditions applicable to temporary agency work into the scope
of those minimum standards the host country is entitled to impose on foreign
service providers. As a consequence, the work contract between temporary
work agencies and their temporary agency workers will be ruled by the
home country’s regulations. As far as minimum rates of pay are concerned,
the member state to whose territory the worker is posted can stipulate that
temporary work agencies must guarantee workers the terms and conditions
of employment applicable to their domestic agency workers: on one hand, this
can lead to aligning the working conditions of cross-border temporary agency
workers with those of domestic agency workers in the host country. On the
other hand, however, implementation of this provision would certainly conflict
with the freedom to provide services (Laulom 2012). Here again the different
aim and legal basis of the Temporary Agency Work Directive (worker
protection – former Article 137(2) TEC) and the Posting of Workers Directive
(free movement of persons and services – former Articles 57 (2) and 66 TEC)
are conflicting, creating discriminatory measures for cross-border workers.
Indeed, cross-border temporary agency workers will be better off than other
posted (but non-temporary agency) workers who will be guaranteed only
minimum standards. According to Schlachter (2012), ‘for an internal market
it would be logical that the rules for [cross-border temporary] agency workers
do not differ in content depending on the category of either national or transnational
posting’ and to wish that ‘terms and conditions of work for posted
58 WP 2012.13