Safeguarding the posted worker. A private international law perspective

Abstract

This article examines the protection measures and the law applicable to posted workers. As a general rule, the Rome I Regulation designates the law to be applied to transnational individual employment contracts. In the context of postings, however, this is supplemented by certain safeguards foreseen in the Posting of Workers Directive. This paper analyses the interrelationship between the core set of employment terms as regulated in the Directive and the conflict-of-law rules for employment contracts in the Rome I Regulation. The article takes a critical look at the key problems in the legal regime applicable to posted workers under the Directive and its 2018 amendment. Special attention is first given to the question of determining the habitual workplace of a posted worker, then to the temporary nature of postings, and subsequently to the question of remuneration guaranteed to posted workers. The legal nature of national transposing measures of the Directive and national provisions entailing the core set of employment terms will also be analysed in order to explicate the interface of the two instruments. The paper will subsequently examine the application of the preferential approach.