The Posting of Workers Directive 96/71/EC came into effect on 16 December 1999. Employers who post workers temporarily to work in other EU Member States must observe certain terms and conditions of employment.
Workers affected
The Directive defines a "posted worker" as "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" (Article 2(1)). The key word is "posted". The Directive does not cover migrant workers working abroad in the EU on a temporary basis. Only workers who are "posted" are covered.
Employers affected
The Directive applies to "undertakings [employers] established in a Member State which... post workers... to the territory of a Member State" (Article 1(1)). An undertaking is covered which (a) posts workers "under a contract concluded between the undertaking making the posting and the party for whom the services [of the posted worker] are intended"; (b) posts workers to work in its own establishment in another Member State (intra-company postings); or (c) is "a temporary employment, undertaking or placement agency" hiring out workers to user undertakings (Article 1(3)). In each case. there must be an employment relationship between the sending employer (posting undertaking) and the posted worker.
For example, under (a), workers sent by their employer to another Member State to perform work on a contract will be covered only if the workers are employees of the posting employer, and their employer has a contract for the provision of services, including those of the worker, with another party in the host State.
A worker will not be covered by the Directive if hired directly by the party in the other Member State. The Directive does not cover "temporary migrant workers" in the EU, unless they have been "posted".
Workers excluded
The Directive may not apply to skilled or specialist workers doing initial assembly or first installation in the case of contracts for the supply of goods, but even there the Directive applies if the period of posting is more than 8 days (Article 3(2)). When adopting the Directive, the Commission and the Council of Ministers attached a statement which purported to exclude transport services and travelling staff of press, radio-television or the entertainment business from the scope of the Directive. This statement is not part of the text of the Directive and has no legal effect.
The Directive does allow Member States (or collective agreements) not to apply minimum pay provisions in some cases where the duration of the posting is less than one month (Article 3(3,4)). Member States may also exclude minimum pay and holiday entitlements "on the grounds that the amount of work to be done is not significant" (Article 3(5)). However, neither of these exemptions applies to workers posted by a temporary employment undertaking or placement agency.
Which terms apply and where are they to be found
The Directive does not lay down EU terms and conditions of employment. It requires each Member State to ensure that employers observe national terms and conditions (including minimum pay and holidays, maximum hours, health and safety, maternity, young workers' protection, etc.) for posted workers.
However, since each Member State can make exemptions, the terms and conditions applied depend on whether, and, if so, how much the exemptions have been used.
These exemptions cut both ways. A Member State may extend the list of terms and
conditions applicable to posted workers beyond those specified in the Directive (Article 3(10)).
The mandatory terms and conditions are those laid down "by law, regulation or administrative provision". Terms laid down "by collective agreements or arbitration awards which have been declared universally applicable" only apply to building works, which are widely defined. However, Member States may apply collective agreements also to other activities (Article 3(10)). Posted workers need to know whether the Member State to which they are posted has used this option to apply collective agreements also to other activities.
Minimum terms or comparability?
The Directive guarantees posted workers only terms and conditions laid down "by law, regulation or administrative provisions". These are usually minimum standards. Article 3(7) provides that this "shall not prevent application of terms and conditions which are more favourable to workers" - in other words, posted workers are not entitled as a general principle to equal treatment to other workers in the country where they have been posted. But rights can be derived from other Directives. For example, the Fixed-Term Work Directive provides that "fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers" (Clause 4(1): Principle of non-discrimination) which will protect posted workers when it comes into force in July 2001. Similarly, the non-discrimination principle already applies to sex equality and part-time posted workers under the Part-Time Workers' Directive.
The Posting Directive requires Member States to guarantee "provisions on non-discrimination" (Article 3(1)(g)). This means that posted workers who qualify as fixed-term or part-time workers are guaranteed terms and conditions not less favourable than comparable workers in the host State and that posted workers have the full benefit of European protection from sex discrimination.
Better terms at home than on the host Member State?
The Directive prescribes standards of terms and conditions applicable in the host Member State which override any less favourable conditions in the posted worker's contract (Clause 3(1)). Any more favourable conditions in the posted worker's contract will continue to apply, for example when the contractual rate of pay is higher than the national minimum rate in the host country. So the workers can have the benefit of the minimum standards set out in areas set out in the Directive where the specific provision is better than their contract, but where their contract is better than, for example the paid annual leave provisions of the country to which they have been sent, they can rely on the contractual term.
Terms of employment of workers posted to the UK
The British Government's view is that most UK legislation on employment conditions (minimum wage, working time, health and safety, etc.) applies to posted workers working in the UK any way. Only minor changes were made to implement the Directive.
First, the Employment Relations Act removed territorial limits from the Employment Rights Act 1996 so they apply to all employees in Britain, including temporarily posted workers. Second, the Equal Opportunities (Employment Legislation) (Territorial Limits) Regulations 1999 amended the law prohibiting discrimination on grounds of sex, race and disability so that it now applies to those employed mainly outside Britain.
Although the Directive offered Member States some options to restrict the scope of the Directive, the Government did not use them. On the other hand, the Government did not exercise the option to extend the scope of the Directive.
Mandatory collective agreements in the UK?
Although the Directive requires Member States to apply collective agreements in the building work sector, the Government rejected using collective agreements to set mandatory standards. If in future litigation the European Court was to interpret the Directive to make collective agreements mandatory labour standards, this could have a major impact on the UK law on collective bargaining (see Issue 7 of LELR).
Enforcement
Legal enforcement is done in the country where the worker has been posted. So, EU workers posted in the UK can now bring a claim before the Employment Tribunal for, for example, unfair dismissal, non-payment of the minimum wage or disability discrimination as they have the same protection as non-posted workers in the UK. All member states have had to ensure that workers posted to their country, covered by the Directive, can bring judicial proceedings for enforcement in the territory where they have been posted.