Inland water transport workers and the Posting of Workers Directive

Abstract

Inland Water Transport (IWT) workers within the EU represent a workforce of about 50,000, most of whom work across borders on a regular basis. The national labour law applicable to them is hard to determine under the current EU legal framework. In particular, the question of whether, and if so, when, IWT workers should be viewed as posted workers, within the meaning of the Posting of Workers Directive (PWD), remains unclear. This article aims to shed some light on the matter. It suggests that determining the national labour law applicable to them under the Rome I Regulation should be the priority. This would suppose that the meaning of the ‘habitual place of work’ be clarified for IWT workers. In order to do so, we claim that the usual pattern of operation in IWT should be taken into account. IWT is a river-based, rather than a country-based, activity. For this reason, we suggest a two-step process in determining the habitual place of work: first designate the river where IWT workers carry out their activity, then determine the law of the riparian State that is objectively applicable to their contract of employment. In our view, such an approach would suffice to fix most social dumping practices presently ongoing in IWT. It would also bring clarity and security to both workers and transport undertakings, without generating disproportionate additional administrative burdens for Member States or transport undertakings. The PWD would then marginally apply to IWT workers, covering cases that depart from the usual IWT patterns of operation, when it brings real benefits to IWT workers.