Effective enforcement of the EU framework on the posting of workers: Empirical evidence

Abstract

This article addresses the issue of effective enforcement of EU labour law by looking at the case study of the enforcement of the EU framework on the posting of workers. While recent years have seen a revival of Social Europe in the form of the European Pillar of Social Rights, scholars have also expressed concern over the effectiveness in practice of transnational labour law, and EU labour law in particular. Rasnača (2022) argues that ineffective enforcement creates a ‘justice gap’ between formal rights on paper and access to these rights in practice. One example of an area of EU labour law plagued by enforcement issues is the posting of workers. It is a peculiar type of intra-EU labour mobility, where posted workers, despite often being EU citizens, cannot benefit from the protection afforded by the EU's fundamental principle of the free movement of workers. As the original Directive 96/71/EC on the posting of workers proved manifestly inadequate to safeguard the rights of posted workers, the EU enacted Directive 2014/67 to improve the framework's enforcement. This article offers an evaluation of the Enforcement Directive based on data collected from 29 qualitative interviews. The effectiveness of the Enforcement Directive will be assessed based on the theoretical framework of precarious work. It will be argued that while the Enforcement Directive has contributed to narrowing the justice gap, posted workers continue to be exposed to precarity.

1. Introduction

Recent years have seen a revival of Social Europe in the form of the European Pillar of Social Rights ¹ that has brought about developments such as the Work-Life Balance Directive, ² the Minimum Wage Directive ³ and the proposed Platform Workers Directive. ⁴ At the same time, scholars have expressed concern over the effectiveness in practice of transnational labour law, ⁵ and EU labour law in particular. ⁶ Rasnača argues that ineffective enforcement creates a ‘justice gap’ between formal rights on paper and access to these rights in practice. ⁷

This article addresses the issue of effective enforcement of EU labour law by looking at the case study of the enforcement of the EU framework on the posting of workers. Posting is an example of intra-EU mobility, where workers, for a limited period, carry out their work in the territory of a Member State other than the state in which they normally work. ⁸ They are sent abroad by their employer, which may be a temporary work agency, to provide a service, be it a specialised and highly paid service in a multinational company or a low-skilled and low-paid service, such as meatpacking in a factory. While temporary labour migration cannot be considered a phenomenon uniquely present in the EU, ⁹ the posting of workers within the EU is a peculiar arrangement. On the one hand, high-income countries outside the EU, when confronted with practices resembling postings, can impose any extent of restrictions. These include the mandatory application of all provisions of their national law, or even the prohibition of posting to their territory to protect their own workers and undertakings (so long as they do not violate the GATS or a bilateral agreement). In the EU, by contrast, all limitations to the free movement of services laid down in Article 56 TFEU, including on the cross-border posting of workers, need to be justified so as not to create a disincentive or extra administrative burden for the companies involved. On the other hand, because posted workers fall under the remit of Article 56 TFEU, despite being EU citizens, they cannot rely on the principle of equal treatment in the host country, which is otherwise guaranteed under the free movement of workers principle enshrined in Article 45 TFEU and given effect to by Regulation 492/2011. ¹⁰

As the original Posted Workers Directive 96/71/EC (hereafter: PWD) proved manifestly inadequate for safeguarding the rights of posted workers, the EU enacted Directive 2014/67 on the enforcement of the PWD. ¹¹ This article offers an evaluation of the Enforcement Directive based on data collected from 29 qualitative interviews. It will be argued that while the Enforcement Directive has contributed to narrowing the ‘justice gap’, posted workers continue to be exposed to exploitation.

This article is structured as follows. Section I points to the ineffectiveness of the PWD framework prior to the Enforcement Directive, as established both by the European Commission and in empirical literature. It is argued that this has created a ‘justice gap’ between the formal rights and the possibility of their enforcement by posted workers. Section I analyses the contents of Directive (EU) 2014/67, which was enacted as the EU's response to the ineffectiveness of the 1996 framework. Section IV, following a brief overview of the research methodology, offers an assessment of the Enforcement Directive based on the data collected from interviews with the posted workers. Having concluded that the Enforcement Directive has been a partial success in narrowing the ‘justice gap’ for posted workers, in Section V of this article reflects on further pathways for improving the enforcement of the PWD framework.

II. Ineffective enforcement of the PWD and the ‘justice gap’

In her recent contribution on the enforcement of EU labour law, Rasnača reflects on the so-called justice gap between the rights of migrant and mobile workers in the EU, including posted workers, and those of the local workers of the host country. This gap may be conceptualised in several ways. One of them is a normative gap resulting from granting fewer rights and less protection to migrant and mobile workers. This occurs on the legislative level and is done on purpose to reflect a legal duty stemming from EU primary law as interpreted by the CJEU. Therefore, if this normative gap were to be closed – or even narrowed – at the EU level, legislative measures would be required.

Another way of conceptualising the justice gap between migrant/mobile workers and domestic workers is through an enforcement gap, which can be defined as a ‘justice gap between the formal rights and the possibility of their enforcement’. ¹² Thus, this concept suggests that the rights are already in place, whether guaranteed by legislation or stemming from collective agreements etc., but that there are barriers for the workers to access them. In general, such justice gaps seem to occur where there are neither statutory mechanisms, nor enough interest or good will on the part of trade unions to represent such workers, as in the case of the PWD pre-reforms. ¹³ Enforcement-related issues that constitute barriers to adequate protection of posted workers have been reported by the European Commission at least since 2003, ¹⁴ and concerns were expressed, firstly, in a 2008 Commission Recommendation, ¹⁵ and subsequently in the 2012 proposal for the Enforcement Directive. ¹⁶

Further evidence of inadequate enforcement of the PWD may be found in empirical studies on posted workers. Wagner offers an interesting insight into some of the management malpractices in the German meat industry prior to the 2014 Enforcement Directive, based on interviews conducted with trade union representatives. Several unionists noted that, nowadays, ‘on paper, all the employment standards are correct’, but there is ‘a difference between the rights on one hand and the reality on the other. Workers operate in what can be described as a lawless space’. ¹⁷ It is worth pointing out that many of the issues identified by Wagner did not stem from the pre-revision PWD regime itself, but rather from the circumvention of the rules and from an incorrect enforcement of the PWD. According to Wagner, employers frequently did not comply with the maximum work and minimum rest periods guaranteed in Article 3(1) PWD, making posted workers work longer hours than permitted and, at the same time, not accounting for overtime. Similar findings were also reported in relation to posted workers in Sweden interviewed by Thörnqvist and Bernhardsson. ¹⁸ Furthermore, Wagner's interviewees signalled the issue of employers withholding the annual leave pay received in Germany. Even though the accumulated annual leave sum was regularly transferred from the local collective social fund, the employers did not pass it on to the workers. ¹⁹

III. The Enforcement Directive as a response to the ‘justice gap’

Like the original PWD, the 2014 Enforcement Directive was adopted on the basis of Articles 53(1) and 62 TFEU, and its objective, specified in Article 1(1), is to ensure a ‘more uniform implementation, application and enforcement in practice’, as well as ‘prevent and sanction any abuse and circumvention’ of the EU framework. Article 3 of the Enforcement Directive imposes on the Member States an obligation to establish one or more competent authorities responsible for the enforcement of the posted workers’ framework. While the concept of competent authorities, alongside liaison offices, had already been introduced by Article 4 of the original PWD, the Enforcement Directive has reinforced their role by granting them additional powers, as will be demonstrated in the empirical data.

Article 4 of the Enforcement Directive contains a list of elements to be considered by the competent authorities in order to establish whether a given posting is genuine. ²⁰ Such evaluation is to take place during routine checks and controls, and where the national authorities suspect that a worker may not qualify as a posted worker within the meaning of the PWD. The list of criteria is indicative and non-exhaustive.

Article 5 of the Enforcement Directive establishes obligations for the Member States concerning access to information and the creation of single official national websites. The websites’ role is to inform posting companies about the domestic legislation and collective agreements applicable to posted workers.

Article 9 of the Enforcement Directive draws up a list of possible actions that the host country may take to ensure effective monitoring and compliance. While control and monitoring mechanisms have always been allowed, this provision offers an important clarification and an overview of measures which the EU considers to be permitted in the enforcement of the posting of workers regime. On this note, Member States may choose to require undertakings that post workers to ‘make a simple declaration’, no later than on the day the service provision begins, containing information such as the number and identity of posted workers, the anticipated duration of posting and the address of the company's premises. Member States may further impose an obligation on the posting companies to keep and make available, at the competent authority's request, copies of all the employment contracts, timesheets and payslips relating to the posted workers, including translations into the official language of the host country.

Crucially, Article 10 of the Enforcement Directive ensures that ‘appropriate and effective checks and monitoring mechanisms’ are put in place by the Member States in accordance with the domestic legislation and practice. While inspections may be carried out randomly, the Enforcement Directive stipulates that they shall be based ‘primarily on a risk assessment’, taking into account relevant sectors of employment, long subcontracting chains or past record of non-compliance.

Another important provision of the Enforcement Directive is Article 11, which obliges the Member States to create effective mechanisms enabling posted workers to lodge a complaint directly against the employer or initiate either judicial, or administrative proceedings. Disputes against the employer may concern matters such as outstanding remuneration, unduly withheld taxes or social security contributions etc. In addition, Member States shall also ensure that trade unions or NGOs with a legitimate interest may take part in the proceedings, either on behalf of or in support of posted workers.

Article 12 of the Enforcement Directive has addressed the issue of liability in subcontracting chains. It imposes on the Member States an obligation to ensure that posted workers in the construction sector can hold the contractor, of which their employer is a direct subcontractor, liable for recovering outstanding wages in addition to or in place of the employer. Member States may choose to extend this basic subcontracting liability regime on a non-discriminatory and proportionate basis. In that vein, the Staff Working Document accompanying the 2019 report on the application and implementation of the Enforcement Directive outlines how this has been carried out in some Member States. ²¹

Another worker protection measure brought about by the Enforcement Directive is Article 20, which imposes on the Member States a duty to lay down effective, proportionate and dissuasive penalties for infringements of the EU framework. Interestingly, a report on the application and implementation of the Enforcement Directive published in 2019 (COM/2019/426 final) showed that the range of those penalties varied across the EU. ²² In countries that have introduced a system of fines irrespective of the number of workers concerned, the maximum amounts of penalties ranged from EUR 300 in Lithuania to EUR 500,000 in Germany. ²³

The Enforcement Directive was followed by a more substantive revision of the EU framework on the posting of workers which took place in the form of Directive 2018/957/EU. ²⁴ The latter received far more attention than its predecessor, including in the mainstream media. Yet, while slightly ‘forgotten’, the Enforcement Directive remains an important measure and its significance can be explored through evaluating the extent to which the situation of posted workers has improved thanks to factual checks and controls at workplaces, penalties etc. On this note, Italian labour inspectors interviewed by Iannuzzi and Sacchetto stress the benefits of the 2014 revision, praising particularly the prior notification system which allows them to track the presence of posted workers and facilitate control. ²⁵ While the Enforcement Directive is a rather technical tool, it equipped the PWD with the teeth that its 1996 version had lacked. Qualitative data that will be presented below shows evidence of a positive difference that has occurred in some Member States in the enforcement of the posted workers’ working conditions following the Enforcement Directive's entry into force in 2016.

IV. Empirical evidence on the enforcement of the PWD framework

a) Methodology

The empirical component of this study was designed as a narrative inquiry. ²⁶ Any workers who had carried out postings of varying duration depending on the type of posting – either a single posting lasting a minimum of three months, or a number or short-term postings spread across a reference period of a minimum of 12 months – were considered eligible for this study. Following an initial batch of interviews facilitated by gatekeepers such as experts in the field of posting, participants were recruited using the so-called snowball sampling technique. ²⁷ The resulting sample consisted of 29 participants belonging to two categories: 1) posted workers who met the eligibility criteria in terms of the length of posting; 2) experts (employers, enforcement authorities, lawyers practising in the field of posting). Typically for qualitative studies, the sample was not statistically representative, and the resulting findings presented below are not generalisable.

Data was collected through semi-structured interviews which were carried out using an interview guide. ²⁸ Ethical approval had been obtained from Trinity College Dublin prior to data collection and all interviewees signed informed consent forms. The majority of interviews were conducted either in-person or online via Microsoft Forms/Zoom, and audio was recorded with the participants’ consent. A small number of interviews with experts were conducted by telephone and transcribed using handwritten notes. Interview transcripts were then anonymised and, where applicable, translated into English. Audio recordings and transcripts were stored in password-protected files on the university's cloud storage drive. The names assigned to the participants, e.g., Szymon, Maciej etc., are not their real names and were chosen randomly. Transcripts were analysed using the thematic analysis framework by dividing them thematically into shorter excerpts. ²⁹ Recurring themes were then linked to the specific aspects of the PWD framework and its enforcement. The findings discussed below are derived from a theme titled ‘Enforcement’.

b) Experiences on the ground

One example of a ‘justice gap’ between the formal rights available to posted workers under the PWD and the real possibility of their enforcement prior to the Enforcement Directive is described in the following interview excerpt:

When I was new to the job, I did get scammed a few times by these posting companies that still operate to this day. These Polish intermediaries are always scammy, I don’t even send my CV to them anymore, I don’t go near them anymore. I try to find work in Austria directly with Austrian temp agencies. Now I speak the language and I know my rights. Once I posted online that I was looking for a job and I got a phone call from a Polish guy. I mean, he was speaking German, but I could tell straight away by his accent that he was Polish. He was offering work. When I asked about the hourly rate, he said 11 euro before tax for an electrician. Like I didn’t know that the hourly rate for an electrician in Austria was 13.20 euro before tax. (Szymon, posted worker)

This interviewee experienced posting through a temporary work agency established in Poland that was sending posted workers to work on building sites in Austria. Some companies often seemed to take advantage of those who were keen to find any work abroad despite not being familiar with the host country's legal framework or having any language skills, like in the example below:

At the beginning, I didn’t have any German at all. But I did need the work badly, so I just kept my head down and slaved away. I was happy when they paid me 800 euro or even 600 euro a month and I was clinging to the one job because I didn’t know that there were dozens of similar companies, so I could pick and choose. (Marek, posted worker)

While the 2019 report carried out by the European Commission following the implementation of the Enforcement Directive showed varying success rates across the board, ³⁰ the majority of participants in this study viewed it as a positive development. Albeit not all of them were aware of the legal changes at the EU level, for example for the interviewed workers carrying out their work in Austria the year 2016 in which the Enforcement Directive was implemented marked a fresh start and a move away from ‘semi-legal’ employment. ³¹ Among the most beneficial changes – from the workers’ point of view – have been the introduction of a mechanism tackling the ‘letterbox companies’ and a new system of inspections and penalties for infringement of the PWD. The following quote describes the workings of the Austrian labour inspectorate post-2016:

When it comes to the inspections, there is a big difference between the PIP [Polish Labour Inspectorate] and the Austrian labour inspectorate. In Austria, if there is any outstanding remuneration, they will chase every penny and they can even close the whole company. In their Vienna branch, they have one person who speaks Polish, and he receives the complaints from Polish workers. I personally have never lodged a complaint, but I have threatened various bosses to do so. One time I had an appointment made and I said at work that I would go if they didn’t pay me. I got my money back on the same day. (Kamil, posted worker)

On this note, other interviewees mentioned that one unsatisfactory aspect of the redress mechanism introduced by the Enforcement Directive was the lack of effective protection from retaliation of those posted workers who may decide to lodge a complaint against their employer. While Article 11(5) of the Enforcement Directive guarantees protection against ‘any unfavourable treatment’ for those posted workers who initiate such proceedings, research participants pointed to a practical difficulty in the lack of effective protection against retaliation by the employer. This was generally perceived as a deterrent and interviewees admitted to being reluctant to file a complaint for fear of retaliation, not only on the part of their employer, but also any potential future employers. ³²

Overall, the interviewed posted workers reported a better level of compliance with the PWD following the implementation of the Enforcement Directive. This improvement concerned, primarily, observance of the host country's rules laid down in Article 3(1) PWD. These cover areas such as working time, health and safety or wages. The latter aspect was amended by Directive 2018/957 which has granted posted workers the right to equal remuneration. ³³ However, at the time most interviews were conducted the previous version of Article 3(1) PWD, which guaranteed merely the minimum wage of the receiving country, was still in force. Improved enforcement of Article 3(1) PWD following the Enforcement Directive is reflected in the below interview excerpt:

The money issue has changed for the better. I’ve been with the current company for five weeks now [in 2019] and I’m pleasantly surprised. Our last gig was in Berlin, and we got very good daily allowance rates. The hourly rate is also good, it's 13.20 euro an hour after tax compared to 11 euros an hour previously. This work abroad is easy money for me. I only work 38.5 h per week Monday to Thursday, and I know that this money is coming in, it's guaranteed. But the work is hard, I mean the conditions are hard, although I have got used to it. (Marek, posted worker)

However, not all the aspects of the Enforcement Directive were equally satisfying, as reported by the interviewees. Regarding pay, while observance of the statutory minimum wage was generally complied with, the same was not true for compliance with the minimum wage – or indeed, following Directive 2018/957 reform, remuneration – when laid down not in the law or administrative provisions, but in collective agreements. ³⁴ This issue was confirmed both by the interviewed posted workers and by the enforcement authority in one of the Member States (the Irish Workplace Relations Commission). One way of not complying with the collective agreements was illustrated in the following example:

What these intermediary agencies do is they have two versions of the same job contract – one for the [user] employer, and another one for the worker. The Austrian employer thinks they’re hiring an electrician and they pay accordingly, while the worker thinks that they are being hired as an electrical assistant for a lower rate. The intermediary keeps the balance. I fell for this once, four years ago. I had signed a contract with an agency that recruits people in Poland. I was supposed to work as an electrical assistant, so the money was so-so, but I agreed because it was the dead of winter, and I had no other work. And then, once on the building site, the foreman asks me to do jobs that I know are reserved for electricians, not assistants. He shows me the paperwork which says that I have been hired as an electrician. But you know, once you report these issues, you’ll never get a job in the same [user] company again. (Maciej, posted worker)

The above quotation chimes with pre-existing studies on posted workers that emphasised their vulnerability when expected to deal with a foreign legal system. Lillie argues that ‘it is absurd to believe that individual workers are navigating the intricacies of international labor law themselves, or that there is some kind of negotiation or agreement occurring around it.’ ³⁵ In the same vein, recounting the experiences of Polish posted workers, Matyska states: ‘Many workers I met did not seem to question openly much of their circumstances or inquire into the entitlements of their posting status abroad, thus tacitly giving the employers the power to define their situation.’ ³⁶ Yet, the burden of ensuring that the PWD is complied with often falls on individual posted workers and their awareness of the rights to which they are entitled, as shown in the excerpt below:

You got to be shrewd in this business. For example, there is one company out there that will give you the 1600 euros, it will pay for your accommodation, petrol and so on, but you will be missing out on the extra 3000 euros a year for the electrician rate. This is something that you need to take care of yourself or else you’ll get scammed. I’m 38 years old, but those 24-year-olds that are hungry for money get their 1800 euros a month and they couldn’t care less about anything else. They’re not interested in anything and they’ve no clue about what other money they’re entitled to. (Robert, posted worker)

The above quote reflects potential issues that may arise if posting companies do not comply with the EU framework by taking advantage of the posted workers’ unawareness of their rights in the receiving country. This may have further been complicated by the fact that the criteria for collective agreements potentially applicable to posted workers were relaxed in Directive 2018/957. While this was a positive development that has broadened the scope of the ‘nucleus’, in many Member States that rely heavily on collective agreements it has created a regulatory maze that posted workers will find difficult to navigate. It seems that even those posted workers who have appropriate language skills and a good understanding of the host country's regulatory framework may not always be able to work out their entitlements. This could create a potential for the intermediary posting companies to lie to posted workers about the applicable rates pay and keep the balance of their wages, as illustrated in the above two quotations.

Importantly, this regulatory maze created both by the Enforcement Directive and Directive 2018/957 may also negatively affect undertakings which avail of posted workers and, in many cases, would like to comply with the legal requirements but are finding them confusing and difficult to access. The Enforcement Directive did attempt to remedy the issue of the lack of awareness of the rights guaranteed by the PWD by reinforcing the role of the national authorities, as well as through the requirement to include all the information on the legislation and administrative duties relevant to the posting of workers on the single national websites. However, the data collected in this project shows that this information is not always satisfactory, as was confirmed in the following excerpt from an interview with a lawyer advising Polish posting companies:

I have come across situations where the national websites haven’t been updated for a few years and, therefore, the information included on them seems unreliable. This is when we ask the client to double check everything and to make further inquiries to lawyers based in the receiving country. And actually our clients usually follow this advice as they want to be sure themselves about the terms and conditions required for their workers. In practice, the Scandinavian countries are usually the best at this, and their websites have comprehensive information available in multiple languages, not only about posting, but also about some related matters, such as personal income tax. (Weronika, employment lawyer in Poland)

Another enforcement problem that appeared in the interviews and has not been addressed to date concerns certain irregularities surrounding the posting of third-country nationals. In recent years, various authors have shed light on the practice of posting third-country nationals via EU Member states such as Poland, Slovakia and Slovenia. ³⁷ According to the so-called Vander Est rule, once a third-country national is allowed to work legally in the sending Member State, they are no longer required to apply for a work permit in the receiving country. ³⁸ Interviewees in this project were also aware of posting companies taking advantage of differences between immigration laws in different Member States to facilitate access to the EU labour market for third-country nationals, such as in the example below:

The Ukrainians actually have it tough in Austria too. They are really being taken advantage of and working for no money. But they accept it, and they are happy to take the work, because otherwise they would have made 500 złoty a month [approx. 100 euro] back home. For example, between 2012-2014 I worked as a posted worker on a building site of a skyscraper. The work was hard, I was laying down the floor. I was there with some other 150 posted workers from Poland and our hourly rate was 11 euro. But there were workers from Ukraine too earning 5 euro an hour, imagine? Plus, they had to pay for transport and accommodation. They were working illegally, and the Arbeiterkammer [Austrian labour inspection] every so often sent police to the building site. One time so many police cars arrived that they were blocking the motorway. But when the inspectors looked at the scaffoldings, it was like the drills were still drilling, but everyone had left. They just hid. My dodgy Slovakian contract passed the inspection. It used to be the norm that out of 400 people on a building site some 50-100 were illegal. But now, since the laws changed, it is more difficult to hire people illegally.(Darek, posted worker)

In this instance, the situation concerned Ukrainian nationals seeking work in Austria through Poland as the transit country. Poland, at the time, had preferential immigration requirements with a simplified work permit procedure for nationals from certain non-EU countries, including Ukraine. ³⁹ This had occurred prior to Russia's invasion of Ukraine when the Temporary Protection Directive 2001/55/EC ⁴⁰ was triggered to allow Ukrainians to work legally anywhere in the EU.

V. The way forward: need to Narrow the ‘justice gap’

Data stemming from the interviews conducted in this project highlights the important role of the Enforcement Directive in attempting to narrow the ‘justice gap’ between posted workers and domestic workers of the receiving country. However, the data suggests that the adoption of Directive 2014/67 did not put an end to enforcement challenges experienced by posted workers across the EU. What is more, the new rights, added to the PWD by the 2018 reform, will likely lead to further enforcement problems and add to the complex regulatory maze created around the posting regime. As for other ways in which EU-wide mechanisms could contribute to better enforcement of the PWD framework apart from the Enforcement Directive, it is anticipated that the European Labour Authority ⁴¹ could play a role in the enforcement of the PWD framework. ⁴² Specifically in relation to posted workers, it is expected that, in accordance with Article 5 of the ELA Regulation, it shall support the Member States in facilitating access and disseminating information as required by Article 5 of the Enforcement Directive. The ELA could also play a role in addressing undeclared postings through the so-called European Platform to enhance cooperation in tackling undeclared work which has been incorporated by the ELA as a permanent working group. ⁴³

With regard to the EU legal framework on the posting of workers, it could be argued that the Enforcement Directive has to a large extent shifted the burden onto the competent national authorities. In this context, some of the interviewees have spoken enthusiastically and praised the effectiveness of those authorities in Member States such as Austria and Poland. On this note, evidence confirming a high degree of diligence from the competent authorities in certain EU countries stems also from some of the CJEU's case law in the field of posted work and social security, ⁴⁴ as well from the data gathered by the Commission in the aforementioned report on the implementation of the Enforcement Directive.

Another group of actors whose engagement is crucial to improving the enforcement of the PWD framework and reducing the precarity of many posted workers are the trade unions. However, as became apparent in the Laval judgment, the nature of the posting arrangement underpinned by the two-fold aim of the 1996 Directive has placed the unions in the host state in a rather ambiguous and delicate situation towards posted workers. ⁴⁵ On this note, it is important to underline that the collective action against Laval backfired equally against the Latvian posted workers who, following the strike, lost their jobs and had to return to Latvia. Laval has been very divisive for the Member States, with the conflict line running between the ‘old’ then EU-15, and the ‘new’ Eastern European countries where service providers benefited greatly from the posting of workers in those early days following their accession. More precisely, however, the response to Laval depended on whether a pro-internal market approach was adopted whereby the notion of the social state was viewed as a barrier to integration, or a pro-social dialogue stance was taken, where Laval was seen as a threat to the national industrial relations systems. ⁴⁶

It appears that the ambiguous position of trade unions in relation to posted workers often meets with distrust from the latter group. Consequently, existing research confirms that posted workers rarely take action in order to recover outstanding remuneration or claim other entitlements, ⁴⁷ although more recent evidence from the CJEU provides more reasons to be hopeful. One example is case C-428/19 Rapidsped, which came about after drivers posted to France by a Hungarian company had taken action against the employer before a French court. ⁴⁸ Another reason behind the posted workers’ unwillingness to reach out to trade unions in the host state might be the fact that they often originate from Eastern Europe, where the unions have been in deep crisis in the post-communist era, and whose role as the cradle of the Solidarity movement is being continuously undermined. ⁴⁹ As union membership and trust in collective bargaining is drastically declining in their ‘home’ countries, posted workers might not believe that they can get any help from the trade union in the host state, and a certain level of mistrust towards them is understandable. This was generally confirmed by the interview participants in this research project who viewed trade unions in the host countries as reserved exclusively for workers hired directly by the employer on a more permanent basis, and not for any temporary workers.

Despite some diverging interests, the existing case law and empirical literature prove that there is some potential for mutually beneficial cooperation between posted workers and trade unions in the host Member States. Case C-396/13 Sähköalojen is one example in which Finnish trade unions reached out to posted workers and, as a result, achieved not only more favourable conditions for the Polish workers at issue, but also a generous interpretation of the term ‘minimum rates of pay’ at EU level. ⁵⁰ However, the story of workers involved in the Sähköalojen case was in reality more complex and, as proven by Matyska who interviewed some of them, bittersweet. All of the posted workers involved in the conflict with their Polish employer in Sähköalojen were either dismissed shortly after the dispute arose or their contracts were not renewed, and eight years after seeking redress they still had not received the outstanding remuneration due to an ongoing court battle. ⁵¹ A more recent example of positive involvement of a trade union operating in the host state occurred in case C-815/18 FNV v Van den Bosch. ⁵² In that case, FNV (Federation of Dutch Trade Unions) argued that a collective agreement concluded with a Dutch transport company should also be extended to drivers hired from their sister companies based in Germany and Hungary. However, the CJEU disagreed and, therefore, the union's action ultimately proved unsuccessful.

With regard to the union responses to posted workers, Lillie et al have carried out a comparative analysis of approaches adopted by trade unions in Finland, the Netherlands, Germany and the UK. ⁵³ The authors have categorised union responses based on their level of involvement with posted workers, ranging from providing information to the workers about their entitlements, through political lobbying and enforcing collective agreements, to monitoring the enforcement of collective agreements on-site. These positive examples of union responses prove that fruitful collaboration between trade unions in the receiving countries and posted workers is indeed possible, albeit with the requirement of some readjustments on the part of the unions. Accommodating posted workers appears to be one of the many challenges for collective bargaining and chimes with the ongoing debate on the role of unions in the evolving world of work and the union response to the rise in non-standard forms of employment. ⁵⁴

Another group of actors whose level of observance of the rules on the posting of workers is crucial to diminishing the risk of precarity among workers is the employers, meaning both posting companies and undertakings that hire them to provide services in the host states. On this note, the interviews carried out in this research show that employers often tend to seek loopholes in the PWD framework or create alternative working arrangements to make their businesses more profitable. As the EU legal framework is evolving towards more comprehensive worker protection, and the enforcement authorities are intensifying their efforts to address fraud and irregularities, it appears that every legal improvement meets with an immediate reaction from some of the employers, who invent new ways of circumventing the law. ⁵⁵ Conversely, this research project has shown that even those employers who are willing to comply with the posting framework are finding it increasingly difficult to navigate the regulatory maze surrounding the PWD.

VI. Conclusion

The interviews conducted with posted workers, employers, legal practitioners and representatives of national competent authorities shed light on the enforcement of the EU framework on the posting of workers. Data demonstrates the paramount importance of the Enforcement Directive with regard to ensuring better protection of posted workers’ rights. The Directive's provisions tackling the so-called ‘letterbox companies’, introducing factual checks and documentation obligations, as well as facilitating the workers’ access to justice, have been reflected in real-life experiences of posted workers, such as the story mentioned above by Darek. This might be considered a positive example of ‘law in action’ on improving people's lives and working conditions. Yet, interview findings equally suggest that the EU framework remains insufficient to safeguard adequate protection of posted workers. The persisting problems highlight the deficiencies of not solely the PWD, but also its enforcement. These findings echo the need for effective enforcement in general, as postulated by Rasnača et al, who describe it as ‘a forgotten aspect of EU labour law.’ ⁵⁶

How to further narrow the ‘justice gap’ for posted workers? In terms of the normative content of the revised PWD, the situation of posted workers continues to be unequal to that of the domestic workers performing comparable jobs. On this note, the potential for further reform of the EU framework and possible legislative pathways have been explored elsewhere in the literature (Rocca, 2020; Lasek-Markey, 2023), and are outside the scope of this article. ⁵⁷

In terms of effective enforcement, this article has argued that given the precarity of posted workers, success in securing adequate enforcement of the PWD framework depends heavily on the engagement of three groups of actors: national enforcement authorities, which in the future will hopefully be aided by the European Labour Authority; the trade unions in the receiving countries; and employers. Cooperation in this area is crucial also given the regulatory maze surrounding the PWD which posted workers simply cannot be expected to navigate on their own, without the engagement of these three groups of actors.

Evidence stemming from the interviews conducted in this project shows that while the Enforcement Directive has been beneficial to ensuring better compliance with the PWD, the new rights granted to posted workers by Directive 2018/957 also require enforcement protection. It appears that the mechanisms which are currently available in the Enforcement Directive will likely be insufficient to ensure effective enforcement of the newly added rights.