Description
Book SynopsisThis book explores the complicated relationship between the EU legal framework for posting of workers and collective labour law. It examines this topic from the perspective of EU law and of international labour law. In doing so, it builds upon a solid interdisciplinary foundation, which looks at sociological and economic aspects of the posting phenomenon, taking also into account issues related to industrial relations. However, the immediate focus of the present book is on the creation and evolution of the said EU legal framework. Hence, it provides an in-depth analysis of the drafting process of the Posting of Workers Directive (96/71) as well as an exhaustive examination of the case law of the Court of Justice of the EU dealing with posting of workers.This evolving legal framework is subsequently considered in its broader context. Two tensions are thus identified. On the one hand, the book investigates the growing conflict between the EU framework for posting of workers and the international protection of social rights. It argues that, as regards the relationship here at stake, the EU is presently violating the standards set by the Council of Europe and by the International Labour Organisation. On the other hand, the book critically considers the impact of the trend towards decentralisation of collective bargaining on the application of collective agreements to posted workers. In particular, it analyses the so-called "New Economic Governance" of the EU, and its role in fostering such a trend. The author outlines the far-reaching implications of the lack of coherence between the action of the EU institutions involved in the "New Economic Governance" and the case law of the Court of Justice dealing with posting of workers.
Table of ContentsCONTENTSForeword Acknowledgements Introduction Posted Workers: What's in a Name? The Core A fistful of cases Rush Portuguesa Laval Ruffert Commission v. Luxembourg (2008) Setting Sail The Context Chapter 1: The Loneliness of the Long Distance Runner: Defining the Posting Phenomenon from "Black Letter Law" to Empirical Data 1.1 A Thorny Phenomenon 1.1.1 A Diagonal Issue? 1.1.2 Stretching the System Outside its Borders. Until it Breaks 1.1.3 The Sound of Silence 1.2 The Black Box 1.2.1 Renewed Interest and Further Analysis 1.2.2 An Interim Word of Warning 1.3 At the Crossroad of Difficulties 1.3.1 "New" Groups of Workers and Trade Unions 1.3.2 It's Hard to Find a Way, Whatever... 1.3.3 A Little Bit Harder Chapter 2: Industrial Relations and the Law - An Overview: Industrial Relations. Theories and Their Encounters with the Legal Phenomenon 2.1 Industrial Relations 2.1.1 Modern Industrial Relations 2.1.2 An Industrial Relations System 2.2 Industrial Relations and the Law 2.2.1 What Hump? 2.2.2 Questions of Power 2.3 A Further Look to an Anecdote 2.3.1 An Autonomous Collective Bargaining Model 2.3.2 Hardest Law Chapter 3: Collective Labour Law: Defining the Scope of "Collective Labour Law" as well as its Main Elements 3.1 Freedom of Association (and the ILO) 3.1.1 Freedom of Association under the ECHR 3.2 Collective Action 3.2.1 Concerted and Collective 3.2.2 Withholding of Labour 3.2.3 Specific Occupational Demands 3.2.4 Peaceful Exercise 3.2.5 Other Forms of Collective Action 3.3 Collective Bargaining 3.3.1 Free and Voluntary Negotiation 3.3.2 Parties 3.3.3 Contents 3.4 Representation 3.4.1 Information and Consultation Chapter 4: The Age of Innocence: The Drafting Process of the Posting of Workers Directive 4.1 A Complicated Birth 4.1.1 Impulse(s) 4.1.2 Rush and the First Phase of Negotiations 4.1.3 Deadlocked 4.1.4 Fortune Smiling? 4.2 Not-so-close Encounters of the Collective Type 4.2.1 The Forgotten "Droits Syndicaux" 4.2.2 Not a Commodity 4.2.3 Interim Conclusions Chapter 5: Childhood's End: Thirty Years of Posting Case Law before the Court of Justice 5.1 Prologue(s) 5.2.1 The Story before the Story 5.2.2 Rush Portuguesa 5.2 During the Adoption Saga and Beyond 5.2.1 Vander Elst 5.2.2 Arblade 5.2.3 Mazzoleni 5.2.4 Finalarte 5.2.5 Portugaia Costrucoes 5.2.6 The Pre-Directive Case Law and the PWD 5.3 Post-Directive Case Law 5.3.1 Laval 5.3.2 Ruffert 5.3.3 Commission v. Luxembourg 5.3.4 Vicoplus 5.3.5 PWD Unleashed Chapter 6: A Clash of Kings: Fundamental Freedoms versus Fundamental Rights, again 6.1 The Clash 6.1.1 Collective and Fundamental Social Rights 6.1.2 Schmidberger and Omega 6.2 The New Wave 6.2.1 Trade Unions and the CJEU 6.2.2 Collective Action and the CJEU 6.2.3 The Role of Collective Bargaining and Collective Agreements 6.3 Three Kings 6.3.1 The ILO 6.3.2 The Council of Europe 6.4 You Are Here 6.4.1 The "Monti II" Proposal 6.4.2 The Ice Age Chapter 7: "Real PWD" and National Industrial Relations: Stuck with Negative Integration 7.1 Negative Integration 7.1.1 A Desert Called Integration? 7.2 The Role of the PWD 7.2.1 Living under the "Real PWD" 7.3 Change or Desist? 7.3.1 Posted Workers in the Bubble? 7.3.2 Impacts Chapter 8: The Future in Context: De-centralisation during the Great Recession and Three Future Scenarios 8.1 The Context, Selected Chapters 8.1.1 Decentralisation for Everyone 8.1.2 The Enforcement Directive 8.2 Scenarios 8.2.1 Scenario 1: Muddling Through 8.2.2 Scenario 2: Legislative Corrections at Primary and Secondary Level 8.2.3 Scenario 3: A Game of Courts Chapter 9: The Legacy 9.1 The EU and the International Protection of Social Rights: Fair-Weather Commitment? 9.1.1 Good Time for a Change (of Approach) 9.2 A Room that has no Floor: the PWD and the De-centralisation of Collective Bargaining 9.3 Finale Bibliography
