Posting, Zones of Exception and Institutional Change

This paper argues that posting as a regime of intra-EU labour mobility is driving a process of institutional change by undermining the coherence of national industrial relations systems. Because the employment conditions of posted workers are governed by a multifaceted assemblage of international law, EU law and national laws, which is fraught with inconsistencies and legal tensions, posting creates what Ong (2007) calls ‘zones of exception’. In such zones, the ordinary functioning of institutions (including citizenship rights and employment relations) are renegotiated by actors such as posting companies and their clients, labour inspectors, trade unions and posted workers themselves. Previous studies have shown that this renegotiation often results in inferior working conditions for posted workers. Drawing on Streeck and Thelen (2005), this paper argue that the existence of such zones of exceptions drives a process of incremental institutional change. Because posting companies introduce radically different employment standards and novel practices vis-à-vis employees, trade unions and state authorities, their presence causes drift – understood as a process of change where formal rules stay the same while the conditions they govern change. Furthermore, when this process of drift is opposed by trade unions and state authorities, the contested nature of the rules governing posting may lead to conversion of employment relations – understood as a process were formal rules are reinterpreted both at the domestic and EU level. The chapter elaborates this argument and gives a number of empirical illustrations.