UK Implementation of the Posting of Workers Directive 96/71/EC

This analysis of UK labour law examines UK implementation of the Posted Workers Directive 96/71/EC (PWD), in the light of the jurisprudence of the European Court of Justice (ECJ) in what has come to be known as ‘the Laval quartet’: the cases of Viking, Laval, Rüffert and Luxembourg.

The first part of this chapter outlines briefly the position of the UK Government in the process leading up to adoption by the European Community (EC) of the PWD. The second part then examines the extent of initial implementation of the Directive in the UK. The third and final part of the paper highlights current issues confronting the UK following the cases recently decided by the ECJ.

Initially, the Conservative UK Government, prior to 1996, sought to resist attempts to adopt the PWD. Concern was expressed that such a measure would restrict the operation of a ‘free’ European labour market. Moreover, the Government opposed measures which might inhibit the ability of UK employers to post workers to other EC Member States.

The UK New Labour Government which eventually purported to implement the PWD did so by straightforwardly extending the application of UK legislation granting employment rights to employees working temporarily in the UK. There was no specific legislation which specifically sought to give regulatory effect to the PWD.

Due to this fairly ad hoc approach to the extension of UK employment legislation to posted workers, there is no specific time limit on posting workers. Following also from the lack of specific legal implementation of the PWD, there are no registration or control measures which apply to posted workers in the UK. However, third country nationals cannot use posting to evade ordinary UK immigration law. It is evident from parliamentary debates and from a case decided in the House of Lords that it was understood that the UK was in full compliance with the terms of the PWD, on the basis that the Directive was understood to specify a ‘floor of rights’ for posted workers as opposed to a ‘ceiling’. However, trade unions were not satisfied with the form that implementation of the PWD had taken and, in particular, expressed frustration at the failure of the UK to make any specific provision under Article 3(8) of the PWD for application of collective agreements in the construction sector.

In the period following the Laval quartet of ECJ judgments, it is possible to identify key legal issues, which will have to be addressed by the next UK Government (be it Labour or Conservative). Firstly, the legality of the transposition of the PWD into UK domestic law has been cast in doubt, now that we know that the entitlements set out in the Directive are to be regarded as a ‘ceiling’ and not a ‘floor’. In particular, the judgment in Luxembourg makes it clear that the UK’s extension of employment legislation to posted workers regarding matters which go beyond the list in Article 3(1) is to be regarded as violating the terms of the PWD. Secondly, the terms of public procurement, for which trade unions are arguing, in particular as regards service contracts for the Olympic Games would seem to be highly problematic, given the ECJ judgment in Rüffert. Moreover, the ability of trade unions to call industrial action in relation to matters concerning posted workers is significantly limited due to the Laval judgment. The consequence would seem to be extreme frustration on the part of workers, which has led to wild-cat action some of which has had extreme nationalistic undertones.

The motto ‘British jobs for British workers’, used by Gordon Brown to describe the creation of opportunities in terms of training (or so it is claimed) has been converted into more xenophobic sentiment focused on competition for work. Unions assert that workers are only seeking fair competition for access to work and prevention of ‘under-cutting’ by service providers which will be to the detriment of posted workers and UK workers alike. However, this belies the popular appeal of the far-right British National Party (BNP) which has sought to be actively involved in recent action. The opportunity for mainstream UK unions, which have long been opposed to a BNP presence in unions, to represent their membership and quell their fears is hampered by Laval.

Union calls for reform and indeed those of various backbench MPs in the UK parliament seem to be ignored by both the Conservative and Labour parties at present. Indeed, there seems to be a grim determination on both sides of the political spectrum not to address any of the current outstanding legal issues, including the potential utilisation of opportunities under Article 3(8).