Centre of Migration Research

Sonila Danaj, Eszter Zólyomi, Rahel Kahlert, Nicolas Prinz, Veronica Sandu. 2022.

The gap between legal procedures and practices in posting rule enactment: a comparative working paper

 

Abstract

In this working paper we investigate how the Posting of Workers Directive interplays with and is influenced by other EU and national rules and regulations on labour law, migration law, social security, health insurance, temporary agency work, and company law and how this might lead to potential inequalities, unfair competition, and exploitation of posted workers, and identify gaps between national policy and implementation practice. We do that through the insights collected from 92 interviews with employers, public authorities, social partners, and non-governmental organisations. The research takes a comparative cross-national approach that includes six EU Member States (Austria, Hungary, Italy, Poland, Slovakia, Slovenia) and two candidate countries (Serbia and North Macedonia). Our findings indicate that while posting regulation is designed at the EU level, the understandings of what the rules mean and how they are embedded in national legal frameworks vary. This has resulted in significant differences in the transposed national regulatory frameworks for posting and the other related rules we analysed. Some of these differences have led to ambiguities and enactment challenges in terms of interpretation of rules, their implementation and enforcement, as well as the validation of national enforcement and protection mechanisms and strategies. The differences in the legal frameworks across countries are faced by enforcing public authorities and employers. Our research indicates that while there are different categories of employers based on whether they abide by the posting rules or break them, the latter category is not a clear-cut category of law offenders but is comprised of abusive companies as well as those entangled in the complex transnational regulatory framework and the regulatory differences across countries. The complexity of the regulatory framework, enforcement structures and protection mechanisms are also transferred to workers, which combined with personal factors results in underreporting, lack of detection, and hence insufficient preventative or reparatory interventions on the side of the authorities and the social partners. Measures could be taken to simplify and converge rules and procedures on posting and other related areas, increase the capacities of enforcement agencies and social partners in monitoring and providing support to posting companies and posted workers, reduce social dumping practices, as well as strengthen collaboration across institutions and borders.

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