Revision of the Posted Workers' Directive : Equality at Last?

Recent evidence published by the European Commission suggests that the number of workers who are sent from one Member State to work in another for a limited period of time – ‘posted’ workers – has increased sharply. 1 However, posted workers often earn substantially less than local workers for the same work and there have been concerns about posted workers being vulnerable to fraudulent activities such as undeclared work practices. 2 The main relevant regulatory framework has hitherto been the Posted Workers’ Directive (PWD) 3 which came into force in 1996. The PWD has mixed objectives – the promotion of the transnational provision of services within a climate of fair competition while also guaranteeing respect for the rights of workers 4 – the balancing of which has led to tensions in its interpretation; culminating in the much -debated decision of the Court of Justice of the European Union (CJEU) in Laval 5 which created a difficult interface between the free movement provisions contained in the Treaty on the Functioning of the European Union (TFEU) and national labour law. In particular, the decision had the effect of raising questions over the PWD’s ability, in its current form, to fulfil its objectives of ‘guaranteeing respect for the rights of workers’ and maintaining ‘a climate of fair competition’ between local and posted workers while also promoting ‘the transnational provision of services’. As part of its Work Programme 2016 and in recognition of ongoing tensions in the area of posted work, the European Commission published a proposal for a Directive amending the PWD on 8 March 2016. 6 This paper first contextualises the phenomenon of posted work in the EU and then briefly outlines the current legal framework governing posted work. A subsequent section discusses the extent to which the PWD fulfils its objective of guaranteeing ‘respect for the rights of workers ’ and identifies remaining gaps in protection. A final section assesses the Commission’s most recent proposal.