The Definition of a posted worker is someone who for a limited period, carries out his work in the territory of a member state other than the State in which he normally works. Posted workers are common in the Construction industry.
The ‘Van der Elst’ case was a 1994 ruling of the European Court of Justice relating to the right of an EU company to provide services across the EU without the need for obtaining additional work permits. Although there is not as of yet a consistent approach throughout the EU on the requirements to be met by Employers on the Employment of non- EU Posted workers.
Generally, Posted EU workers have freedom of movement throughout the EU. Posted non- EU workers of an EU company must be lawfully resident in a member state. Presently, UK law additionally requires foreign national posted workers to be habitually employed by the EU company that is temporarily providing services in the UK.
The Posted Workers Directive 1999 (PWD) ensures that local terms and conditions are not undermined by the use of cheaper foreign workers. PWD has not been transposed in to UK law, but UK legislation has been amended to incorporate certain provisions. (The Employment Relations Act 1999 amends Employment Rights Act 1996, Equal Opportunities Regulation 1999 and Employment Agencies Act 1973).
In the case of intra Company Transfer or the hiring out of staff to another part of the EU the Employer must ensure that the basic local terms and conditions of employment apply. This will usually involve changing the contract of employment of an employee. In addition, any universally accepted collective agreements must be abided by.
Trade Union campaigning has resulted in all the provisions of the PWD, being adopted by the Engineering Construction Industry Association (ECIA) – a national agreement on the principles to consider when using non UK contract and Labour. One important provision is that non UK companies can use non UK employees with the proviso that UK employees are considered for the vacancies in the same way.
It is good practice to ensure that contracts with non UK companies include terms on the employment of local skills. This can avoid costly Trade Union disputes. A recent high profile industrial dispute arose at the Lindsay Oil Refinery (Lincolnshire), as a result of redundancies. There was an allegation that foreign posted workers had been paid less and had been posted to vacancies for which UK workers had not been considered. This resulted in unofficial Union action.
The increase in the use of Posted Workers throughout the EU has resulted in the European Commission proposing to improve the application and endorsement of the PWD across the EU. Also, there are current proposals from the Immigration Law Practitioners Association to improve UK law regarding the entry of non EU foreign national workers.
Nabila Mallick‘s editorial, “A Brief Note on the Hiring of Posted Workers” appeared in the August edition of Construction Magazine.