This book examines the role of law in regulating and influencing the lived experiences of posted workers in Europe.
The ‘posting’ of workers is an unusual type of labour mobility, where workers are hired out to provide a specific service in another country. Although it involves a specialised area of law, it is one that serves as a magnifying glass for the long-standing tension between the economic and social dimensions of law’s regulatory role. As an atypical form of labour migration, posting also touches upon broader themes concerning the role and purpose of labour law in a changing world of work. Taking up these themes through interviews with posted workers, lawyers and employers, the book adopts a sociolegal approach to consider how the law shapes the precarious lived experiences of posted workers in Europe. Giving voice to those with first-hand experience, the book goes on to propose solutions that might address the precarity of posted work.
This book will be of interest to scholars, researchers and practitioners working in the areas of labour law, sociolegal studies, EU law, and migration.
Author(s): Marta Lasek-Markey
Publisher: Routledge/GlassHouse
Year: 2023
Language: English
Pages: 183
City: London
Cover
Endorsements
Half Title
Title
Copyright
Contents
Dedication
Disclaimer
Foreword
Acknowledgements
1 Introduction: Posted Work in the EU Legal Order
I Introduction
II Posted Workers in Numbers – Key Figures and Trends
III Methodology
IV Structure of the Book
2 Precarious Work: History, Theory, and the Law
I Introduction
II Precarious Work, Precariousness, and Precarity
A Etymology
B Precariousness and Precarity
C Bauman, Castel, and Bourdieu
D Exploitation
III Precarious Work in the Law
A The Formal Approach
B Limitations of the Formal Approach
IV The Multi-Layered Approach
A Rodgers and Rodgers: Four Criteria of Precarious Work
B Countouris: Legal Determinants of Precarious Work
C Kalleberg: The Subjective Element
D Definition of Precarious Work
V Limitations and Related Concepts
A The ‘Precariat’ and Return of the Social Class
B The ‘Vulnerable Subject’ Theory
VI Precarious Work and Migration
A Strangers, Denizens, and Vagabonds
B The Polish Peasant in Europe and America
C Temporary Labour Migration Outside Europe
VII Conclusion
3 Workers as a Service: Unveiling the Twisted Logic of the 1996 Posted Workers Directive
I Introduction
II Historical Background of the EU Rules on the Posting of Workers
A Rush Portuguesa
B Long Road to the PWD
III Posted Workers and ‘Social Dumping’
IV Legal Basis of the PWD: Challenging the Link to the Free Movement of Services
A Relationship with Article 56 TFEU
B Challenging the Link to the Free Movement of Services
C Relationship with Rome I Regulation
D Relationship With the Services Directive
V Who Is a Posted Worker?
A Duration of Posting
B Sufficient Connection to the ‘Host’ Member State’s Territory
C Transport Workers
D Three Posting Scenarios
E Link to Service Provision
F Posting of Third-Country Nationals: Seasonal Workers Directive
VI The Core of the Posted Workers Directive: Rights of Posted Workers
A Laval
B Rüffert
C Commission vs. Luxembourg
VII Conclusion
4 Small Steps Towards Less Precarity: The Reform of the Posted Workers Directive
I Introduction
II The Enforcement Directive
A Background
B Contents
C Reception
III Directive 2018/957
A European Pillar of Social Rights
B The 2016 Proposal
C Rocky Road to Directive 2018/957
D Evaluation of Directive 2018/957
IV Conclusion
5 Blue-Collar Posted Workers in the Vicious Cycle of Precarity
Sławek
I Introduction
II Positive Impact of the Enforcement Directive on ‘Blue-Collar’ Posted Workers
A ‘Letterbox Companies’
B Inspections, Penalties, and the Right to Remedy
III Work in Progress: The Evolving Regulation of Subcontracting Liability in the PWD
IV Directive 957/2018’s Implications on Safeguarding the Rights of Posted Workers
V Long-Term Consequences of the Reform: Decreasing Popularity of Postings?
VI Tackling Undeclared Postings and Semi-Legal Posting of Third-Country Nationals
VII COVID-19 and ‘Blue-Collar’ Posted Workers
VIII Long-Term Consequences of Posted Work for the Workers’ Social Security Situation
IX Attitudes Towards ‘Blue-Collar’ Posted Workers in the Receiving Countries
X Broken Relationships, Isolation, Depression. Posted Workers and Work–Life Balance
XI Conclusion
6 Outside the Vicious Cycle of Precarity: White-Collar Posted Workers
Paulina
I Introduction
II Typology of ‘White-Collar’ Postings
III Remuneration. Compliance With Article 3(1) PWD in Multinational Companies
IV ‘Millennials’ on the Move: Motivations of ‘White-Collar’ Posted Workers
V Impact on Private and Family Life
VI COVID-19 and ‘White-Collar’ Postings
VII Conclusion
7 Conclusion: Minimising the Inevitable Precarity of Posted Workers – A Case for Reform
I Introduction
II Distinct Category of ‘White-Collar’ Postings Within the PWD Framework
III Risk Factors Which May Predispose Posted Workers to (Greater) Precarity
A Gender
B Age
C Nationality
D Social Background
IV Definition of Precarious Work Revisited
V PWD Reform Through the Lens of the Qualitative Data
A Positive Impact of the Enforcement Directive
B Shortcomings of the Enforcement Directive: Subcontracting Liability and the Right to Redress
C Potential Practical Problems With Directive 2018/957
VI. The Way Forward
A A Rights-Based Argument Against Repealing the PWD
B A Case for Reform. Benefits of Introducing the Principle of Equal Treatment for Posted Workers
C Mandatory Extensive Subcontracting Liability Regime and Guaranteeing Rights for Subcontracted Workers
VII Need for Effective Enforcement: The Role of National Authorities, Trade Unions, and Employers
A National Competent Authorities
B Trade Unions
C Employers
VIII Conclusion: Posted Work and the Goals of Labour Law
Index
