ETUC concerns about upcoming Immigration Directives on Seasonal Work (SW), Intra Corporate Transferees (ICT) and Remunerated Trainees (RT)

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1 Brussels, 7 August 2009 CP/em/lw To: Mr Jacques Barrot Vice-president European Commission Responsible for Justice Freedom and Security and Mr Vladimír Špidla Commissioner for Employment, Social Affairs and Equal Opportunities For information to: Mr José Manuel Barroso President of the European Commission Sent by jacques.barrot@ec.europa.eu; vladimir.spidla@ec.europa.eu; jose-manuel.barroso@ec.europa.eu Re: ETUC concerns about upcoming Immigration Directives on Seasonal Work (SW), Intra Corporate Transferees (ICT) and Remunerated Trainees (RT) Dear Vice President, dear Commissioner, The ETUC has taken note of recent information that the Commission intends to present mid-september of this year several proposals in the framework of the EU s migration policy, focusing on seasonal workers and intra corporate transferees (and possibly also remunerated trainees). ETUC has strong concerns about these proposals and wants to share them with you to enable you to take them into account in the further process of decision making. Our concerns are the following: Executive Summary A. The announced proposals on seasonal work and ICT have potentially an enormous impact on labour markets and industrial relations in the EU and Member States. The Commission must ensure that these dimensions are properly assessed and taken into account, and in our view can no longer avoid to properly consult the European social partners before further developing these legislative proposals. John Monks, General Secretary Boulevard du Roi Albert II, 5 B 1210 Bruxelles Tel: Fax: / 55 etuc@etuc.org

2 B. For ETUC, it is essential that any initiative taken in the area of migration is coherent with the wider policy areas of employment and development, and the need to ensure social inclusion and sustainability both in the sending as well as receiving countries. When it comes to new proposals in the area of economic migration, it is necessary to assess if there is a real need to promote a further increase of migrant (third country) labour in the professions and sectors concerned, if now is the right moment to introduce measures to increase the inflow of such groups of migrants, and if sufficient measures have been taken at EU level and in Member States to provide for the proper social conditions to accompany such inflows and to prevent negative side-effects. At the moment, and in the context of the economic crisis and predictions of further rising unemployment levels, the ETUC and its member organizations have strong doubts if the outcome of such assessment would be positive. C. Therefore, the ETUC calls on you to reconsider the political wisdom of coming up with an immigration-initiative on seasonal work NOW, and strongly recommends to consider FIRST the introduction of the necessary accompanying measures in the social field, such as: a. Strengthening the legal framework, both at national and at EU level, for the social and employment protection of seasonal workers in general, for instance by an EU social policy Directive on Seasonal work, dealing with minimum employment and social standards applying to seasonal work within the EU, ensuring equal treatment between local and migrant seasonal workers, and promoting upward convergence of living and working conditions of all seasonal workers; b. An EU instrument dealing with the respective responsibilities of main contractors and subcontractors and intermediaries, introducing chain responsibility and/or joint and several liability on wages, working conditions (and social security and taxes); c. EU activities and initiatives to improve enforcement of wages and working conditions, strengthen labour inspection at national level and ensure better coordination at EU level; d. Implementation and enforcement of the new Temporary Agency Directive. D. The ETUC has question marks about the need for a specific instrument on Intra Corporate Transferees, and wonders why the issue of providing access to managerial and high skilled staff of multi-national companies could not be dealt with in the framework of the so called Blue card Directive, which would also provide for the necessary equal treatment provisions. In addition, we find the possible inclusion of Remunerated Trainees in the ICT Directive problematic. ETUC is also very concerned about the possible confusion that may be the consequence of a separate instrument on ICT when its relationship to GATS mode 4 (supply of services by natural persons) and the Posting Directive are not properly clarified. In any case, the Commission should as a matter of urgency develop proposals to revise and strengthen the Posting Directive instead of relying on it as a basis for the cross border provision of services from third (non-eu) countries. In the attached explanatory note you will find the above mentioned issues explained. 2

3 Conclusion The announced initiatives in the area of economic migration come at a difficult moment in time. The Commission will have to make up its mind, if this is the right moment for such initiatives, and if the proposals that are currently developed are sufficiently adequate and sustainable. In ETUC s view, as explained above, this may not be the case. What is more, we believe that it is necessary to invest first, and as a matter of the highest priority, in the legal and social framework within the EU that must make it possible to deal with increased mobility and migration. ETUC is very willing to contribute to the further development and putting into place of such a framework. We hope that you will take our concerns into serious account when further discussing this matter. For any further question on this letter or ETUC s migration and mobility policies, you can contact Mrs. Catelene Passchier, confederal secretary of the ETUC (cpasschier@etuc.org). Yours sincerely, John Monks General Secretary ETUC CC: Jonathan Faull, Director DG Freedom, Security and Justice (jonathan.faull@ec.europa.eu) Robert Verrue, Director DG Employment, Social Affairs and Equal Opportunities (robert.verrue@ec.europa.eu) 3

4 EXPLANATORY NOTE General remarks 1. On many occasions the ETUC has stressed the need for strong social partner consultation and involvement on any EU initiatives taken in the area of economic migration, i.e. migration for employment. Social partners at all relevant levels (local, sectoral, national and European) are often best placed to assess and address labour market needs and to promote consensus between public authorities and labour market actors on the policies and instruments to be adopted. Until today, your DG s take the position that the Treaty s legal base for migration legislation does not specifically provide for consultation of the social partners, and therefore only consult them in an informal manner and with often not very transparent procedures. The ETUC can no longer accept this as appropriate. The announced proposals on seasonal work and ICT have potentially an enormous impact on labour markets and industrial relations in the EU and Member States, in particular in some sectors such as agriculture, tourism and construction. The Commission must ensure that these dimensions are properly assessed and taken into account, and in our view can no longer avoid to properly consult the European social partners before further developing these legislative proposals. 2. ETUC supports the Commission s attempts to move forward in the direction of a European migration policy focusing on managing rather than preventing migration and creating more legal channels for migration. As expressed on many occasions, we would favour a horizontal approach, covering all third country nationals without general preferences or privileges. However, we understand that the Commission with regard to creating more legal channels for migration is forced by reality to take a step-by-step approach. Nevertheless, a two-tier migration policy, with different sets of rights for different groups of workers, must be prevented. In the absence of any progress on the so-called Rights Directive (from which these categories of workers may be even excluded) the proposed sectoral Directives (such as the draft Seasonal work directive) seem to create a kind of second class migrant worker-status, which is in ETUC s view not acceptable. 3. Since 2005, the ETUC has emphasized, both in the framework of the enlargement of the EU as in the context of managing migration from third countries, the importance and urgency of accompanying the increased mobility on the emerging European labour market(s) with appropriate social policies and conditions. However, the European Commission and the Council have remained deaf and blind to this demand. In our view, the Europeanising labour market(s) urgently require the elaboration of European rules of the game, combining open borders with adequate protection. These conditions should equally apply to intra-eu mobility as well as to migration from third countries. These conditions are: i. equal wages and working conditions for work of the same value on the same territory; ii. respect for national collective bargaining and industrial relations systems 4

5 iii. iv. equal access of all workers to social benefits; proper and effective instruments and tools for monitoring, enforcement and application of wages and working conditions. Without social policies providing for guarantees in these areas, many citizens and workers around the EU will have difficulty to accept any legislative proposal promoting more legal channels for migration. 4. For ETUC, it is essential that any initiative taken in the area of migration is coherent with the wider policy areas of employment and development, and the need to ensure social inclusion and sustainability both in the sending as well as receiving countries. When it comes to new proposals in the area of economic migration, it is essential to assess: a. is there a real need in the current situation to promote a further increase of migrant (third country) labour in the professions and sectors concerned? b. is it now the right moment to introduce measures to increase the inflow of such groups of migrants? c. have sufficient measures been taken at EU level and in Member States to provide for the proper social conditions to accompany such inflows and to prevent negative sideeffects? At the moment, and in the context of the economic crisis and predictions of further rising unemployment levels, the ETUC and its member organizations have strong doubts if the outcome of such assessment would be positive. On the draft Seasonal Work Directive (SW) 5. General concerns with regard to the draft Seasonal Workers Directive are: a. In the absence of any other legal channels for temporary migration or for migration for low skilled work, a specific instrument for seasonal workers runs the risk of being abused to cover all kinds of (temporary or not so temporary) needs for low skilled labour. The pressure on this instrument will be enormous. It is not clear at all, how this can be prevented. (A similar risk exists that a lot of remunerated trainees will be in fact disguised temporary workers, see below.) b. The most important guarantee against manipulation and abuse is equal treatment and protection for workers on the one hand, and a level playing field for companies on the other hand. This means that it should not be possible to treat seasonal worker as second class workers, which are paid below local standards including collective agreements, and are not properly protected in terms of health and safety and social security. c. Seasonal work can easily become a kind of ghetto for specific groups of migrants. It is important to include in any seasonal worker policy also the options for workers to improve their situation, in terms of mobility rights to move to another employer, perspectives for continuity of employment as well as in terms of immigration status. 5

6 d. Public and private recruitment agencies, intermediaries and subcontractors often play a crucial role in the hiring and manipulating of especially low skilled migrant workers. This is the area where most abuses and exploitation take place. This should be a major point of concern leading to specific measures and a high investment in monitoring and enforcement of wages and working conditions by labour inspectorates. 6. Looking at the draft texts that have been circulating recently, we have some specific concerns: a. The concept of what constitutes a season is very fluid and open to wide interpretation. This will have the effect of extending the scope of the Directive to any form of temporary employment. b. This effect will be exacerbated by the proposal to allow the maximum duration for a seasonal work permit to be set at 6 months, or even in exceptional cases 9 months, which in terms of natural seasons would mean three seasons out of the annual four. c. Seasonal work is traditionally understood as being linked to a recurring natural phenomenon, with a clear incidence in agriculture, tourism etc. However, the draft Directive also refers to the construction sector. According to the European sectoral social partners EFBWW and FIEC 1 construction is not a seasonal activity and should therefore be excluded from the Directive. d. Trade unions in agriculture and tourism, organised in the European trade union federation EFFAT, have worked very hard in recent times to improve the attractiveness of jobs in their sectors. They have expressed strong concerns about the negative impact the Directive may have, in the current context of the economic crisis and taking into account the lack of a proper legal framework dealing with seasonal work in general in Member States, on the wages and working conditions of EU workers currently working in these sectors on seasonal contracts. e. Other affiliates of ETUC have expressed doubts about the benefits of dealing with seasonal work in a EU migration instrument, as the needs for seasonal work highly depend on national and regional characteristics and the situation on regional labour markets, and taking into account also that in many EU countries most seasonal workers are coming from the countries which have acceded the EU since f. ETUC and its member organisations have especially strong concerns about the possible impact of the Directive on collective bargaining and industrial relations in parts of the EU labour markets that are already under enormous pressure of deregulation and deterioration of working conditions. The Lisbon agenda and its successor should continue to prioritise not only the number but also the quality of jobs. In the current situation, allowing employers to just open another box of third country seasonal workers to solve their perceived need for (cheap) labour will practically make it impossible to pursue an agenda in which quality and equality figure centre stage. 1 As explained in their recent letter to Commissioner Barrot with copy to Commissioner Spidla 6

7 7. Therefore, the ETUC calls on you to reconsider the political wisdom of coming up with this initiative NOW, and strongly recommends to consider FIRST the introduction of the necessary accompanying measures in the social field, such as: e. Strengthening the legal framework, both at national and at EU level, for the social and employment protection of seasonal workers in general, for instance by an EU social policy Directive on Seasonal work, dealing with minimum employment and social standards applying to seasonal work within the EU, ensuring equal treatment between local and migrant seasonal workers, and promoting upward convergence of living and working conditions of all seasonal workers; f. An EU instrument dealing with the respective responsibilities of main contractors and subcontractors and intermediaries, introducing chain responsibility and/or joint and several liability on wages, working conditions (and social security and taxes); g. EU activities and initiatives to improve enforcement of wages and working conditions, strengthen labour inspection at national level and ensure better coordination at EU level; h. Implementation and enforcement of the new Temporary Agency Directive. On the draft Directive(s) on Intra Corporate Transferees (ICT) and Remunerated Trainees (RT) 8. With regard to the draft Directive on ICT, ETUC wants to draw your attention to the social stress that the progressive liberalisation of the supply of services on the EU internal market already is generating. The Commission should therefore well consider the possible impact that a Directive on ICT could have on the EU labour markets and social systems if no clear concepts and definitions are used and no proper safeguards are foreseen. 9. ETUC has emphasized in its response to the questionnaires, that the scope of any instrument on ICT should be clearly limited to executive officers, managers and workers with high and special skills whose personal capacities are strictly necessary for the correct performance of specific activities in the company in the host country. This means that rather than salary the criteria for admission must be qualification and position in the company. To prevent unfair competition ICT s must have the same wages and working conditions as a local worker performing the same or a similar job. However, we have question marks about the need for a specific instrument on ICT, and wonder why the issue of providing access to managerial and high skilled staff of multi-national companies could not be dealt with in the framework of the so called Blue card Directive, which would also provide for the necessary equal treatment provisions. 10. ETUC is also very concerned about the possible confusion that may be the consequence of a separate instrument on ICT when its relationship to GATS mode 4 (supply of services by natural persons) and the Posting Directive are not properly clarified. 7

8 Although transferring workers within a company, even when taking place cross border, is not a provision of a service, it is mentioned in the Posting Directive as a form of posting. ETUC finds the possible relationship to the Posting Directive very problematic and insists that everything must be done to prevent a further burdening of this already explosive dossier. We want to emphasize that the legal framework applicable to the internal market for services within the EU is not applicable to service providers from outside the EU, and only relevant in so far as EU rules prescribe that they may not be treated more favourably than local companies (as is laid down for instance in the Posting Directive). In our view, this means that they should not have advantages vis-à-vis local companies for instance by allowing them to have lower labour costs. This indirectly means that the Posting Directive acts as the minimum level of protection to be provided to third country ICT workers, but it should be very clear that this minimum can never be interpreted as a maximum. In any case, the Commission should as a matter of urgency develop proposals to revise and strengthen the Posting Directive instead of relying on it as a basis for the cross border provision of services from third (non-eu) countries. 11. As regards Remunerated Trainees, we understand that they may be included in a Directive on ICT. ETUC finds this very problematic. Although we do recognize the importance of ensuring mobility of knowledge and skills, we want to emphasize that trainees are potentially very vulnerable to exploitation and abusive practices, which may also lead to unfair competition. The key to a successful international trainee programme is therefore to ensure that remunerated trainees are genuinely trained and are not in fact disguised temporary workers, and that there is a close monitoring if they are not paid and treated below the standards that are usual for similar workers in the host country. In ETUC s view, it would be first and foremost necessary to reinforce cooperation between Member States in order to create a common understanding and convergence of policy measures about: a. how to ensure the objective of training and how to allow them to consolidate acquired skills; b. which possibilities and limitations are appropriate for the employment of remunerated trainees, in order to prevent that they are used as an easily exploitable temporary workforce; c. how to prevent unfair competition with local workers and protect them against potential abuse and exploitation. 8