Retslig forskelsbehandling: En undersøgelse af udstationeringslovens § 5, nr. 4 samt funktionærlovens økonomiske rationale

Christopher Ø. Mortensen & Camilla Frost

Studenteropgave: Kandidatafhandlinger


In Denmark, differential treatment within the regulatory framework segregates the labour market in two groups. The workers and the white-collar workers. Due to the differential treatment, the white-collar workers have improved conditions. This also relates to the posted workers in Denmark. Hence, these are entitled to improved condition when being pregnant or during maternity leave in Denmark.
Differential treatment within the regulatory framework is challenged with difficulties, when it relates to posted workers from Germany. Differential treatment is illegal in Germany due to their constitu-tion, which states that everyone is equal before the law. This principle is also codified in the Charter of Fundamental Rights of the European Union and the principle also applies in Denmark.
Germany accepted the precedence of EU, prerequisite that EU promised to protect German funda-mental rights on the same terms as German law does. Therefore, a posted worker from Germany, who does not meet the terms of a Danish white-collar worker, is able to demand the same rights regarding the content of the Danish Posting of Workers Act section 5, No. 4.
Differential treatment can reasonable due to an economic rationale. When the economic rationale regarding this, is analysed, it is concluded that white-collar workers work more efficiently. Further-more, the white-collar workers are entitled to improved benefits regarding elements of salary to assure that they are kept in job. All transactions costs are kept to a minimum, the state is in a lower risk of paying government benefits, and conversely, white-collar workers contribute the state through taxes.
The Danish labour market is regulated by the Danish labour market model and its manner of agreeing on working conditions. Thus, social dumping can be difficult to prevent. On this basis, the possibility of a political determined minimum wage is analysed. However, the findings demonstrate that a min-imum wage will have a negative effect on the employment rate.
Finally, it is suggested that all posted workers should be able to keep the conditions of their country of residence regarding maternity leave or when being pregnant, provided that their country of resi-dence’s conditions is better than the Danish.

UddannelserCand.merc.jur Erhvervsøkonomi og Jura, (Kandidatuddannelse) Afsluttende afhandling
Antal sider111