Workers without footprints: the legal fiction of migrant workers as posted workers

A posted worker is a European Union (EU) worker who is sent from one EU Member State, to another, by an employer entity known as a ‘service provider’. The chapter argues that posted workers are legally constructed as workers ‘without footprints’; workers who, are said to return to ‘ their country of origin after the completion of their work without at any time gaining access to the labour market of the host Member State’. We argue that the notion that posted workers do not ‘gain access’ to the labour market is problematic; and that this is highlighted in ‘hard times’, namely those of financial crisis or recession. Our concerns are threefold.

First, the terms on which posted workers are hired are more lightly regulated than host State workers, being subject to only certain minimum standards which a host State is entitled to set under EU law. This allows their employers to undercut existing established terms and conditions for host State workers, which in times of fierce competition for work, has led to both legitimate concerns relating to access to work for host State workers and forms of xenophobia.

Second, the conditions in which posted workers are hired and housed create difficulties. A lack of visibility allows scope for poor treatment. As migrants from another State, posted workers are often isolated in terms of language, but we have seen instances where this can be compounded by forms of segregated housing and exposure to dangerous working conditions. The circumstances in which posted workers work lead to de facto deprivation of access to a home State union representative and to that of relevant host State unions. We argue that this capacity for breach of rights to freedom of association and access to justice can be seen as compounded by Court of Justice judgments since 2007. It is also complicated by an absence of norms at EU level which would assist in determining when a posting is truly temporary or should be regarded as a sham merely designed to evade full entitlements to non-discriminatory terms and conditions.

Our contention is that there is, accordingly, a strong case for legal reform at the EU level. What is curious, however, is the perpetuation of this fiction and the attempt to replicate it in other spheres. We are now witnessing international legal recognition of posting as a practice in the context of the General Agreement on Trade in Services (GATS) and again such workers are not considered to have ‘access to the labour market’. Further, rights of third country nationals in respect of intra-corporate transfers and seasonal work are being constructed in accordance with a ‘posted workers’ model. This extension of an already problematic regime merits further attention in the light of the various human rights concerns highlighted here.