Posted workers remuneration
| DOI | 10.1177/1023263X17693197 |
| Published date | 01 February 2017 |
| Author | Barbara Palli,Jean-Philippe Lhernould |
| Date | 01 February 2017 |
| Subject Matter | Articles |
Article
Posted workers remuneration:
Comparative study in nine EU
countries and four sectors
Jean-Philippe Lhernould* and Barbara Palli**
Abstract
Few national laws or collective agreements provide specific rules determining the elements of the
minimum rates of pay due to posted workers. As a consequence, there is confusion between the
neighbouring expressions of ‘minimum wage’ (national concept) and ‘minimum rates of pay’ (EU
concept) which countries have a tendency to consider as being equivalent. Furthermore, the
distinction between two key questions – on the one side, the establishment of the components of
the minimum rates of pay of the host country and, on the other side, the sums paid by the sending
employer that can be compared to the minimum rates of pay of the host country – is not always
made by countries. The aim of this article is to analyse how the targeted countries and sectors
concretely define the components of the minimum rates of pay and then to focus, as a useful
example for other countries, on the rules applicable in French law.
Keywords
Posting Directive, salary
1. Introduction
Directive 96/71/EC (the Posting Directive)
1
concerning the posting of workers in the framework of
the provision of services aims to promote the cross-border provision of services in the framework
* Professor of Law, University of Poitiers, Poitiers, France
** Associate Professor of Law University of Lorraine, Nancy, France
Corresponding author:
Jean Phillippe Lhernould, University of Poitiers, Poitiers, France.
Email: jean-phillipe.lhernould@univ-poitiers.fr
1. Directive 96/71/EC of the European Parliament and of the Council concerning the posting of workers in the framework
of the provision of service, [1997] OJ L 18/1.
Maastricht Journal of European and
Comparative Law
2017, Vol. 24(1) 108–126
ªThe Author(s) 2017
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DOI: 10.1177/1023263X17693197
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of the Single Market, while providing protection to posted workers and ensuring a level playing
field between foreign and local competitors.
The adoption of the ‘Posting Directive’, however, has not removed the controversy surrounding
the topic of posted workers. The Posting Directive and the posting of workers in general consis-
tently has been the subject of an intense debate between EU and national policy makers, social
partners and scholars. Some of these players have even contended that the legal framework in
relation to posting is conducive to ‘social dumping’,
2
resulting in displacement effects on local
businesses and workers and limiting trade unions’ rights to take collective action.
A couple of years ago, the European Commission came forward with a proposal for a separate
directive aimed at improving the supervision and enforcement of employment and working con-
ditions for posted workers. The Enforcement Directive (Directive 2014/67/EU)
3
was adopted on
15 May 2014 and was due for transposition into national legislation by 18 June 2016. It is aimed
particularly at remedying problems related to the implementation, monitoring and enforcement of
the Posting Directive, as well as to circumvention, fraud and abuse in this context. From a strictly
legal point of view, this Directive does not add substantially to the concept of remuneration for
posted workers.
In particular, the adoption of the Enforcement Directive ignores a number of persisting prob-
lems, related to the controversial or unclear interpretation of the terms and conditions of employ-
ment referred to in Article 3(1)(c) of the Directive.
Let us recall that pursuant to the Posting Directive, Member States must ensure that, whatever
the law applicable to the employment relationship, the undertakings guarantee workers posted to
their territory the terms and conditions of employment covering the following matters: (a) max-
imum work periods and minimum rest periods; (b) minimum paid annual holidays; (c) the min-
imum rates of pay, including overtime rates (this point does not apply to supplementary
occupational retirement pension schemes); (d) the conditions of hiring-out of workers, in particular
the supply of workers by temporary employment undertakings; (e) health, safety and hygiene at
work; (f) protective measures with regard to the terms and conditions of employment of pregnant
women or women who have recently given birth, of children and of young people; and (g) equality
of treatment between men and women and other provisions on non-discrimination.
The central point of this so-called ‘hard core’ is the minimum rates of pay. The application of
the Posting Directive poses a number of legal and practical challenges, which can be illustrated by
the following example. A company lawfully established in one Member State (‘the sending state’)
posts a worker in another Member State (‘the host state’). In the host state, a collective agreement
provides for a minimum hourly wage. A bonus for hard labour is also provided for by the collective
agreement. What remuneration is the posted worker entitled to receive? Are the minimum rates of
pay limited to the minimum hourly wage? Should the bonus be included in the minimum rates of
pay? And how should the sending employer concretely meet the requirements? Notwithstanding
the risks of fraud and abuse, several legal problems arise. Two of them concern the host state:
2. See among other developments on the subject, European Parliament Resolution of 14 September 2016 on social
dumping in the European Union (2015/2255(INI), http://www.europarl.europa.eu/sides/getDoc.do? pubRef¼-//EP//
TEXTþTAþP8-TA-2016-0346þ0þDOCþXMLþV0//EN.
3. Directive 2014/67/EU of the European Parliament and of the Council of 15 May on the enforcement of Directive 96/71/
EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU)
No. 1024/2012 on administrative cooperation through the Internal Market Information System (the ‘IMI’ Regulation),
[2014] OJ L 159/11. (the Posting Directive).
Lhernould and Palli 109
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