Law, Precarious Labour and Posted Workers: A Sociolegal Study on Posted Work in the EU

185 Pages·2023·1.833 MB·English

by  Marta Lasek-Markey

‘Law, Precarious Labour and Posted Workers is a wonderful study of the law,
and lived experience, of posted workers in Europe. It is highly recommended
for anyone researching or teaching in the area of precarious work in the EU
and beyond’.
—Michael Doherty, Maynooth University, Ireland
‘This book makes an outstanding contribution to labour law scholarship.
Combining empirical, doctrinal and comparative methodologies most
effectively, this monograph is characterised by its insight and rigour. It will be
an invaluable resource for scholars, policy-makers and lawyers alike’.
—Des Ryan, Trinity College Dublin, Ireland

Law, Precarious Labour,
and Posted Workers
This book examines the role of law in regulating and influencing the lived
experiences of posted workers in Europe.
The ‘posting’ of workers is an unusual type of labour mobility, where workers
are hired out to provide a specific service in another country. Although it
involves a specialised area of law, it is one that serves as a magnifying glass
for the long-standing tension between the economic and social dimensions
of law’s regulatory role. As an atypical form of labour migration, posting also
touches upon broader themes concerning the role and purpose of labour law
in a changing world of work. Taking up these themes through interviews with
posted workers, lawyers, and employers, the book adopts a sociolegal approach
to consider how the law shapes the precarious lived experiences of posted
workers in Europe. Giving voice to those with first-hand experience, the book
goes on to propose solutions that might address the precarity of posted work.
This book will be of interest to scholars, researchers, and practitioners
working in the areas of labour law, sociolegal studies, EU law, and migration.
Marta Lasek-Markey is Postdoctoral Research Fellow in the School of Law
at Trinity College Dublin, Ireland.

Law, Precarious Labour,
and Posted Workers
A Sociolegal Study on Posted
Work in the EU
Marta Lasek-Markey
First published 2023
by Routledge
4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
605 Third Avenue, New York, NY 10158
Routledge is an imprint of the Taylor & Francis Group, an informa
business
A Glasshouse book
© 2023 Marta Lasek-Markey
The right of Marta Lasek-Markey to be identified as author of this
work has been asserted in accordance with sections 77 and 78 of
the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted
or reproduced or utilised in any form or by any electronic,
mechanical, or other means, now known or hereafter invented,
including photocopying and recording, or in any information
storage or retrieval system, without permission in writing from
the publishers.
Trademark notice: Product or corporate names may be trademarks
or registered trademarks, and are used only for identification and
explanation without intent to infringe.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British
Library
ISBN: 978-1-032-39598-2 (hbk)
ISBN: 978-1-032-39601-9 (pbk)
ISBN: 978-1-003-35050-7 (ebk)
DOI: 10.4324/9781003350507
Typeset in Bembo
by Apex CoVantage, LLC
Contents
Disclaimer xii
Foreword xiii
Acknowledgements xvi
1 Introduction: Posted Work in the EU Legal Order 1
I. Introduction 1
 II. Posted Workers in Numbers – Key Figures and Trends 2
III. Methodology 3
IV. Structure of the Book 5
2 Precarious Work: History, Theory, and the Law 9
I. Introduction 9
 II. Precarious Work, Precariousness, and Precarity 10
A. Etymology 10
B. Precariousness and Precarity 11
C. Bauman, Castel, and Bourdieu 11
D. Exploitation 12
III. Precarious Work in the Law 13
A. The Formal Approach 13
B. Limitations of the Formal Approach 15
IV. The Multi-Layered Approach 17
A. Rodgers and Rodgers: Four Criteria of Precarious Work 17
B. Countouris: Legal Determinants of Precarious Work 17
C. Kalleberg: The Subjective Element 18
D. Definition of Precarious Work 19
V. Limitations and Related Concepts 19
A. The ‘Precariat’ and Return of the Social Class 19
B. The ‘Vulnerable Subject’ Theory 20
viii Contents
VI. Precarious Work and Migration 22
A. Strangers, Denizens, and Vagabonds 22
B. The Polish Peasant in Europe and America 23
C. Temporary Labour Migration Outside Europe 25
VII. Conclusion 25
3 Workers as a Service: Unveiling the Twisted Logic
of the 1996 Posted Workers Directive 33
I. Introduction 33
II. Historical Background of the EU Rules on the Posting
of Workers 34
A. Rush Portuguesa 34
B. Long Road to the PWD 35
III. Posted Workers and ‘Social Dumping’ 36
IV. Legal Basis of the PWD: Challenging the Link to the Free
Movement of Services 39
A. Relationship with Article 56 TFEU 39
B. Challenging the Link to the Free Movement
of Services 40
C. Relationship with Rome I Regulation 41
D. Relationship With the Services Directive 42
V. Who Is a Posted Worker? 43
A. Duration of Posting 44
B. Sufficient Connection to the ‘Host’ Member State’s
Territory 44
C. Transport Workers 45
D. Three Posting Scenarios 46
E. Link to Service Provision 47
F. Posting of Third-Country Nationals: Seasonal Workers
Directive 47
VI. The Core of the Posted Workers Directive: Rights of Posted
Workers 48
A. Laval 49
B. Rüffert 51
C. Commission vs. Luxembourg 51
VII. Conclusion 52
4 Small Steps Towards Less Precarity: The Reform
of the Posted Workers Directive 59
I. Introduction 59
II. The Enforcement Directive 60
A. Background 60
B. Contents 61
C. Reception 66
Contents ix
III. Directive 2018/957 68
A. European Pillar of Social Rights 68
B. The 2016 Proposal 69
C. Rocky Road to Directive 2018/957 71
D. Evaluation of Directive 2018/957 74
IV. Conclusion 79
5 Blue-Collar Posted Workers in the Vicious Cycle
of Precarity 87
Sławek 87
I. Introduction 90
II. Positive Impact of the Enforcement Directive on ‘Blue-Collar’
Posted Workers 92
A. ‘Letterbox Companies’ 92
B. Inspections, Penalties, and the Right to Remedy 93
III. Work in Progress: The Evolving Regulation of Subcontracting
Liability in the PWD 94
IV. Directive 957/2018’s Implications on Safeguarding the
Rights of Posted Workers 96
V. Long-Term Consequences of the Reform: Decreasing
Popularity of Postings? 98
VI. Tackling Undeclared Postings and Semi-Legal Posting of
Third-Country Nationals 100
VII. COVID-19 and ‘Blue-Collar’ Posted Workers 102
VIII. Long-Term Consequences of Posted Work for the Workers’
Social Security Situation 103
IX. Attitudes Towards ‘Blue-Collar’ Posted Workers in the
Receiving Countries 105
X. Broken Relationships, Isolation, Depression. Posted Workers
and Work–Life Balance 107
XI. Conclusion 109
6 Outside the Vicious Cycle of Precarity: White-Collar
Posted Workers 116
Paulina 116
I. Introduction 119
II. Typology of ‘White-Collar’ Postings 120
III. Remuneration. Compliance With Article 3(1) PWD in
Multinational Companies 122
IV. ‘Millennials’ on the Move: Motivations of ‘White-Collar’
Posted Workers 126
V. Impact on Private and Family Life 128
VI. COVID-19 and ‘White-Collar’ Postings 130
VII. Conclusion 132