J. Cremers

Posting of Workers in the Single Market: Attempts to Prevent Social Dumping and Regime Competition in the EU

The so-called ‘Posting of Workers Directive’ was an integral part of the European Commission (EC) Action programme linked to the Community Charter of Fundamental Rights of Workers and was meant to establish a legal frame for labour conditions of workers posted for a temporary period to another Member State. Its content is about equal treatment, a guarantee of minimum protection, fair competition and respect for the regulatory frame in the host country. In the cases included in this article, increased divergence can be observed with respect to the role of the state versus the social partners with regards to regulation and control. The over-riding challenge nowadays is to develop effective mechanisms of enforcement compatible with the constraints of European Union principles and regulations. In the EC documents, any reference to the Community Charter of Basic Rights of Workers has disappeared and the weight of power has shifted in favour of the free market hardliners, who seem to regard the Directive as an oddity in breach with the logic of the four freedoms.

Free provision of services and cross-border labour recruitment

This article identifies how the use of the European Union (EU) mobility rules, as formulated by the EUs Posting Directive, has been linked to the temporary provision of services in practice. It demonstrates how this linkage, legitimised by European Court rulings, undermines the Directives original intent to provide rights-based regulation of labour mobility in the Union. In the assessment of posting practices, striking findings of two studies co-conducted by the author in 2003 and 2010 are discussed. In the first section, the origins of the Directive are described, followed by sections that contextualise the posting rules in the framework of the fundamental economic freedoms of EU Treaties, and discuss the problems related to implementation and enforcement. Based on the Directives definition of posting, three issues of governance and practice are raised: (a) regulation of the employment relationship, (b) application of labour conditions and (c) respect for collective agreements. A final section offers policy recommendations in order to deal with the ways in which posting governance and practices currently impede any vision of rights-based mobility in the EU. It is argued that current minimalist interpretation of the posting rules can neither guarantee equal treatment nor protect the rights of temporary migrant workers.

Rules on working conditions in Europe: Subordinated to freedom of services?

Industrial relations in most European countries are based on a national regulatory framework consisting of both labour legislation and provisions laid down in collective agreements. This institutional framework provides rules and procedures for working conditions and social security. These rules and procedures are important contributions to a general feeling of justice and fair treatment, and are perceived as powerful instruments to defend workers’ rights. The introduction of free market principles has brought new challenges for the functioning of this framework, as liberalization and deregulation became the leading principles for the modelling of labour markets. Recent ECJ rulings and European Commission infringement procedures assert the primacy of the supranational principle of free movement in the business environment. The author discusses the inconsistencies in the EU approach.

Economic freedoms and labour standards in the European Union

The European Union internal market seeks to ensure the free movement of goods, services, capital and citizens. The primacy given to these economic freedoms has culminated in a socio-economic reasoning dominated by competition, bringing about side effects that may pose a threat to working conditions and labour standards. This article examines the problematic relationship between economic freedoms and labour standards in the context of cross-border labour recruitment. It starts with a summary of the relevant EU acquis, in particular rules concerning social security coordination and the pay and working conditions of posted workers. It reviews key issues of the ‘hard core’ of the internal market legislation (free choice of contracts, freedom of establishment for firms, deregulation of the ‘business environment’ and free provision of services). The next part identifies experiences of rule-enforcing institutions: regime shopping, non-compliance with social standards, lack of cross-border enforcement, the difficulty of tracing circumvention in a transnational context and weak sanctioning mechanisms. The possibility of verifying, legally and in practice, whether a worker is correctly posted within the framework of the provision of services has become an Achilles heel of the enforcement of the use of cross-border recruited labour. The article also assesses whether the 2014 Enforcement Directive can be seen as an effective remedy for the identified problems.

Social dialogue in the European construction industry

Compared to other industries it is relatively easy to define the social partners in the construction industry at European level. In general there is a relatively homogenous definition of what belongs to the sector all over Europe. The production-chain, based on site production combined with a triangle of subcontracting and supply, leads to certain problems of demarcation with for instance the chemical industry or with the wood industries, but this has not lead to great competition with other industry federations either on the employers’ side or on the unions’ side. Industrial relations in construction can be characterised by certain mutually shared worries or concerns that serve as fields for cooperation as well as items for potential conflict. Compliance with agreements, liability in the social field in the production chain, coordination of health and safety on site, competition, quality and craftsmanship are all features in this sector. This has lead to an environment for industrial relations where discontinuity, the loss of skilled labour and of craftsmanship and a poor image of the industry are central worries to be dealt with strategically as well as in day-to-day business and discussions between the social partners. Among the more peaceful items we can list health and safety, vocational training, the image of the industry, social provisions and social funds that guarantee allowances (such as holiday or bad weather payments) for workers and contribute to the necessary continuity on the labour market. More controversial items are job security, the organisation of work, working time, social liability, subcontracting practices, wages and other primary labour conditions. Relatively new on the scene are the introduction and use of new technologies, life long learning, environmental issues and the globalisation of the market. However, most construction companies are still working in regional domestic markets.

Are you being served? The consultation procedure on the functioning of the European Company Statute

After a decision-making process lasting 30 years, the EU Council finally adopted the general principles for a Regulation on the Statute for a European Company (Societas Europaea, hereafter SE) and the Directive with regard to the involvement of employees in European Companies (SE Directive) in December 2000. The main purpose was to enable companies to operate their businesses on a cross-border basis in Europe under the same corporate regime. The SE legislation entered into force on 8 October 2004 and, by mid-2007, all EU countries had transposed it into national law.The SE Regulation required the European Commission to present a report on its application, including proposals for amendments where appropriate, five years after its entry into force. DG Internal Market and Services commissioned Ernst & Young to carry out this study. The study report was finalized in December 2009 and published on the Commission’s website in March 2010. In spring 2010, the Commission launched an online consultation via its website to test the results of this study (European Commission, 2010a), while at the same time organizing a conference on the SE statute. The aim of these activities was to examine the findings of the Ernst & Young study and to provide the Commission with input on issues relevant for the assessment (European Commission, 2010b). Consultation participation was modest: the Commission received 57 different responses, with two groups dominating: business consultants and academia. This article is a follow-up to an earlier critical assessment of the procedure used.

The learning works council

The new rules on collective bargaining which set the seal on the principle of majority agreements (a principle albeit damaged by the fact that the majority here is set at 30%) appear less innovative because this principle was already implicit since the Fillon law of 2004 (majority organisations could contest the validity of a minority agreement) and indeed since the 1990s when the validity of numerous minority agreements was put to the test by means of referendum. The principle of mandating in the absence of a trade union representation had, meanwhile, become widespread during implementation of the Aubry laws introducing the 35-hour week (1998-2002).

Undeclared labour: don’t blame the migrants

In their notes to contributors to this issue of Transfer, the coordinators, Ambrosini, Cella, and Artiles, assert that ‘Today we know that irregular immigration contributes to the expansion of the underground (black) economy and informal work’. Looking back at our research on ‘undeclared labour’ carried out in 2006, we must contest their assertion. Had the coordinators included emigration, no matter whether regular or irregular, in their perspective, they might have discovered the same coincidence with ‘irregular’ work. Based on our evidence, we cannot detect any causal relationship between migration and the decline in traditional employment relationships, giving rise to various forms of what they refer to as ‘irregular work’. If a causal relationship is at work, we would rather suggest a reverse one, in that undeclared labour (‘informal work’) provides the preconditions for increased labour migration - including ‘irregular immigration’. This assessment is equally based on our research on the free movement of workers four years ago (Cremers and Donders 2004), on industrial relations in the construction industry of six former accession central and eastern European (CEE) States (Clarke et al. 2003) six years ago, and on our project on ‘Undeclared labour in construction’ in the Czech Republic, Belgium, Denmark, Finland, France, Germany, The Netherlands, Poland, Spain and the United Kingdom. Given the need for brevity in this note, we shall focus here on the results of the latter project and in particular on those findings which relate to the subject of this issue of Transfer and which pertain to our argument that ‘the underground (black) economy and informal work’ do not stem from ‘irregular immigration’. The title of the book publication stemming from this research, ‘Shifting Employment’ (Cremers and Janssen 2006), indicates our interpretation of the dynamic underlying the rise in ‘undeclared labour’.

The posting directive : Origins and assessment

continuing today to achieve the necessary economic and political integration. After the publication of the White Paper of 1985, the EC Commission, at the urging of the European trade unions, made a diffident start on adding the social dimension which had until then been lacking from the exclusively financial and economic concept of European integration. The Community Charter of Fundamental Social Rights of Workers in Europe was drawn up to ensure that workers would not ultimately be the main losers in this endeavour to achieve a united Europe. This Charter led to some initiatives which could have important consequences for industrial relations in our countries. I shall be looking at some of these consequences in this article.

Regulating Corporate Governance in the EU - Towards a Marketization of Corporate Control

Who controls the modern corporation, how and why, are topical questions in contemporary capitalism. After the introduction of the internal market, with the European social model subordinated to it, the answers to these questions have certainly changed, also in countries hitherto characterized by a Rhineland model of industrial relations and corresponding corporate forms. In her book Regulating Corporate Governance in the EU Laura Horn provides a well-thought-out historical overview of the ‘career’ of EU corporate governance regulation.