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Rationales for Regulation of ‘Posted Work’: Options for a Post-Brexit Model




Seminar Series: Institute for the Study of European Laws (ISEL)

Guest Speaker: Professor Tonia Novitz, University of Bristol

Temporary movement of natural persons has become an increasing feature of trade in services within the European Union (EU) by virtue of the Posting of Workers Directive (PWD) and internationally under Mode 4 of the World Trade Organisation (WTO) General Agreement on Trade in Services (GATS) and preferential trade agreements (PTAs). This is the scenario where services are traded between countries, involving the temporary movement of natural persons across borders from a ‘home state’ to a so-called ‘host state’. The consequences of this form of temporary migration in the context of trade in services has been demonstrated to be problematic, in terms of the ways in which the migrant workers conce rned are housed, paid and treated.

The treatment of temporarily ‘posted workers’ is a particular issue in the context of British exit of the European Union (Brexit), as the UK may no longer be bound by the PWD, the related Enforcement Directive, or the newly agreed Amended PWD. If this occurs, the UK would be faced with new policy choices regarding treatment of temporary migration as an aspect of trade in services. Those choices are not unconstrained, since what has been understood in the UK to be ‘posted work’ is akin to ‘temporary movement of natural persons supplying services’, already potentially regulated under GATS mode 4. Further, GATS provisions will determine the legitimacy of PTAs that the UK concludes, whether with the EU or third countries. Moreover, international investment agreements, whether standing alone as bilateral investment treaties (BITs) or appended to PTAs can enable corporate actors, namely service provi ders as investors, to challenge the protection of labour standards in the UK.

With these limitations in mind, this paper examines various rationales for regulation of temporary migrant work connected to trade in services, understood previously as ‘posted work’ in an EU context. The first such regulatory rationale is the protection of ‘human rights’, which should apply to ‘posted workers’ (or those ‘natural persons’ supplying temporary services abroad) as human beings. A second regulatory possibility is to make provision for minimum labour standards imposed by the host state, in order to establish the basic terms of ‘fair competition’. A third option is to consider posted workers as entitled to ‘equality of treatment’ in the labour market of a host state. Finally, there is potentially a broader social sustainability rationale. Indeed, sustainability may be useful as a supplement to the human rights, competition based and equality rationales for regulation.

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4.00pm - 6.00pmWednesday 17th October 2018

CLG55 Tait Building City, University of London Northampton Square London EC1V 0HB United Kingdom

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City, University of London
Northampton Square
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0207 040 3410

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