Advanced

Who benefits from clarification? A discussion of the new Enforcement Directive and its proposed implementation in Sweden

Nessvi, Matilda LU (2015) LAGM01 20152
Department of Law
Abstract
The accession to the European Union was based on the financial gains that could be made on the single market. When acceding the Union the Member States gave up parts of their state sovereignty. This statement is not unproblematic.
My thesis touches on the posting of workers. Since the adoption of the new Enforcement Directive on the Posting of Workers Directive, two reports on the Swedish implementation have been published, SOU 2015:13 and 2015:38. In addition, the Posting of Workers Committee has published its report on compliance of Lex Laval with the Swedish Labour Market Model.
The posting of workers phenomenon is not a frequent issue within the Union. In spite of this, it has become somewhat of a hot potato, in Sweden not the... (More)
The accession to the European Union was based on the financial gains that could be made on the single market. When acceding the Union the Member States gave up parts of their state sovereignty. This statement is not unproblematic.
My thesis touches on the posting of workers. Since the adoption of the new Enforcement Directive on the Posting of Workers Directive, two reports on the Swedish implementation have been published, SOU 2015:13 and 2015:38. In addition, the Posting of Workers Committee has published its report on compliance of Lex Laval with the Swedish Labour Market Model.
The posting of workers phenomenon is not a frequent issue within the Union. In spite of this, it has become somewhat of a hot potato, in Sweden not the least. After the implementation of the Posting of Workers Directive, the complexity of the issue was demonstrated by a number of interesting cases, among them the Laval case. This lead to changes in the area were discussed and initiatives for the Enforcement Directive were taken.
It is in this difficult position my thesis takes place. The purpose of the thesis is to enlighten the new Enforcement Directive in Swedish law. What lead to the adoption of a new Enforcement Directive? What is the purpose of it? What are the proposed changes in Swedish law to implement it? And who is it protecting, the service provider, the posted worker or the national worker?
The thesis gives presents and discusses the proposed changes in Swedish law on implementation of the Enforcement Directive, in light of the balancing between the economic rights of the service provider, the protection of the posted worker’s rights and the prevention of social dumping. In order to do so, an historical background to the legislation on posting of workers, in EU and Sweden, is given.
The interim report, SOU 2015:13, proposes changes in the Posting of Workers Act, and a whole new law, to facilitate the cross-border enforcement of administrative fees or penalties, give a stronger possibility of recovery, a greater protection against reprisal from the employer, provide better access to information and a clearer definition of posting.
The final report, SOU 2015:83, suggest changes to agree on the terms and conditions in the nucleus and that they are to be reported to the Swedish Work Environment Authority. It also proposes a new liability for subcontractors.
Finally, a number of changes is suggested in the Review over Lex Laval report, to make the Posting of Workers Act compliant to the Swedish Labour Market Model and EU law. Among others, a new sort of collective agreement is proposed, only applicable in cases of posting of workers.
2
In conclusion there were shortcomings in the Posting of Workers Directive when it comes to clarity and sufficient control measures, illustrated in case law. The Enforcement Directive aims to correct them. All of the Swedish investigations are in compliance with the Swedish and EU Labour Law. If they are to clarify the posting of workers rules sufficiently, remains to be seen. Finally, it could be said that the new rules seem to benefit the protection of workers and the prevention on social dumping, rather than make it easier for the service provider. (Less)
Please use this url to cite or link to this publication:
author
Nessvi, Matilda LU
supervisor
organization
course
LAGM01 20152
year
type
H3 - Professional qualifications (4 Years - )
subject
language
English
id
8515530
date added to LUP
2016-01-29 13:03:38
date last changed
2017-01-27 15:54:23
@misc{8515530,
  abstract     = {The accession to the European Union was based on the financial gains that could be made on the single market. When acceding the Union the Member States gave up parts of their state sovereignty. This statement is not unproblematic. 
My thesis touches on the posting of workers. Since the adoption of the new Enforcement Directive on the Posting of Workers Directive, two reports on the Swedish implementation have been published, SOU 2015:13 and 2015:38. In addition, the Posting of Workers Committee has published its report on compliance of Lex Laval with the Swedish Labour Market Model. 
The posting of workers phenomenon is not a frequent issue within the Union. In spite of this, it has become somewhat of a hot potato, in Sweden not the least. After the implementation of the Posting of Workers Directive, the complexity of the issue was demonstrated by a number of interesting cases, among them the Laval case. This lead to changes in the area were discussed and initiatives for the Enforcement Directive were taken. 
It is in this difficult position my thesis takes place. The purpose of the thesis is to enlighten the new Enforcement Directive in Swedish law. What lead to the adoption of a new Enforcement Directive? What is the purpose of it? What are the proposed changes in Swedish law to implement it? And who is it protecting, the service provider, the posted worker or the national worker? 
The thesis gives presents and discusses the proposed changes in Swedish law on implementation of the Enforcement Directive, in light of the balancing between the economic rights of the service provider, the protection of the posted worker’s rights and the prevention of social dumping. In order to do so, an historical background to the legislation on posting of workers, in EU and Sweden, is given. 
The interim report, SOU 2015:13, proposes changes in the Posting of Workers Act, and a whole new law, to facilitate the cross-border enforcement of administrative fees or penalties, give a stronger possibility of recovery, a greater protection against reprisal from the employer, provide better access to information and a clearer definition of posting. 
The final report, SOU 2015:83, suggest changes to agree on the terms and conditions in the nucleus and that they are to be reported to the Swedish Work Environment Authority. It also proposes a new liability for subcontractors. 
Finally, a number of changes is suggested in the Review over Lex Laval report, to make the Posting of Workers Act compliant to the Swedish Labour Market Model and EU law. Among others, a new sort of collective agreement is proposed, only applicable in cases of posting of workers. 
 2 
In conclusion there were shortcomings in the Posting of Workers Directive when it comes to clarity and sufficient control measures, illustrated in case law. The Enforcement Directive aims to correct them. All of the Swedish investigations are in compliance with the Swedish and EU Labour Law. If they are to clarify the posting of workers rules sufficiently, remains to be seen. Finally, it could be said that the new rules seem to benefit the protection of workers and the prevention on social dumping, rather than make it easier for the service provider.},
  author       = {Nessvi, Matilda},
  language     = {eng},
  note         = {Student Paper},
  title        = {Who benefits from clarification? A discussion of the new Enforcement Directive and its proposed implementation in Sweden},
  year         = {2015},
}