IRISH CONGRESS OF TRADE UNIONS

Transcription

1 IRISH CONGRESS OF TRADE UNIONS Observatins and Recmmendatins n the Applicatin f Transitinal Measures n the Accessin f Bulgaria and Rmania t the EU n 1 st January 2007 OCTOBER 2006

2 Overview Drafting an apprpriate labur migratin plicy fr Ireland in the cntext f the enlargement f Eurpe t include Rmania and Bulgaria n 1 st January 2007 needs t take int accunt f a number f underlying develpments. Unfrtunately we are essentially caught up in an unflding prcess and decisins made by Member States acrss the EU ver the cming perid will be crucial fr Ireland. Their decisins t intrduce, r nt intrduce, restrictins n free access t their labur markets fr wrkers frm Rmania and Bulgaria will have the ptential t create different labur migratin dynamics fr Ireland 1. This is particularly true in the case f the United Kingdm and careful cnsideratin must be given t the cnsequences fr Ireland, given ur cmmn travel area, if we were t adpt a different apprach t the United Kingdm. Predicting the scale f migratin frm Rmania and Bulgaria is nt pssible. Hwever we d knw that there are strng push-pull factrs at wrk, Rmanian and Bulgarian living standards are lwer than any f the EU 10 cuntries that entered in A simple cmparisn f minimum wages fr April 2005 shws that the mnthly minimum wage in Ireland was 1,064 while in Rmania it was 219 a mnth and 232 a mnth in Bulgaria. We als knw that there is a strng relatinship between the number f wrkers with established cntact in Ireland and the number we can expect t migrate. The increases recrded fr Plish and Lithuanian natinals after May 2004 suggests that Rmanians and Bulgarians can als be expected t migrate t Ireland. There is n template that can guarantee a risk free path, there psitives and negatives that flw bth frm decisins t intrduce restrictins and frm decisins t allw free access t Irelands labur market. Cngress cre cncern is t ensure that the mvement f wrkers frm prer t richer regins is beneficial fr all cncerned, that it des nt give rise t the explitatin f vulnerable migrant wrkers nr undermine Ireland s labur market standards. It is clear that migratin will nt cntribute t ur ecnmic and scial strategy if it is driven by demand fr labur at lw levels f wages and cnditins. We shuld nt create the cnditins that facilitate emplyers t bring wrkers frm Rmania and Bulgaria int Ireland n the basis f wages r wrking cnditins that are belw thse acceptable t Irish r ther wrkers frm within the EEA area. 1 The EU Accessin Treaty permits Member States t cntinue t restrict the free mvement f wrkers frm Rmania and Bulgaria. The experience f the mst recent enlargement in 2004 was that the majrity f Member States decided t intrduce rules t limit access t their labur markets. Ireland, the United Kingdm and Sweden were the nly cuntries nt t intrduce restrictins n access t labur markets.. In mid 2006, Spain, Prtugal, Greece and Finland lifted their restrictins. France, Belgium Luxemburg and Italy lifted their restrictins fr specific sectrs, where there were labur shrtages, and Germany Austria and Denmark decided t cntinue their restrictins. At the time f writing nly Slvakia had cmmunicated their decisin t the Cmmissin, which is t allw free access t their labur market. 1

3 Cngress believes that there is a case fr Gvernment t intrduce a plicy respnse which delays the free access f wrkers frm Rmania and Bulgaria, n the basis that we need sme time t put the measures in place t manage any adverse impact n emplyment standards. Cngress wuld therefre supprt a decisin by Gvernment t intrduce temprary transitinal measures but nly in the cntext f allwing sufficient time fr the package f emplyment rights, cmpliance and enfrcement measures, agreed as part f Twards 2016, t be put in place. Supprt is als dependant n the measures being made t apply t (i) emplyees (ii) self emplyed (iii) wrking hliday makers and (iv) wrking students cming frm Rmania and Bulgaria. Establish the imprved Emplyment Rights Cmpliance Framewrk agreed as part f Twards Cngress supprts the applicatin f temprary transitinal measures t allw Ireland sufficient time t establish the majr package f emplyment rights, cmpliance and enfrcement measures that were agreed as part f Twards It is imprt t state here that Cngress believes that Ireland has largely benefited frm immigratin in recent years and that fr the majrity f migrant wrkers living and wrking in Ireland has been a psitive experience. Hwever this has nt been the case fr all migrant wrkers and Cngress has cnsistently highlighted a grwing pattern f discriminatin, explitatin and under-paying f newly arrived migrant wrkers. In 2005, Cngress affiliates brught frward evidence f hw migrant wrkers were being frced t accept lwer wages and wrse wrking cnditins, pay at levels belw minimum wage and belw REA\JLC rates, the nn payment f vertime rates, excessive hurs, n hliday pay, unfair dismissals, unlawful deductins, bullying, the nn-issuing f pay-slips and frced self emplyment. A number f high prfile cases demnstrated and gave expressin t the cncerns f wrkers abut displacement, the emerging race t the bttm n wages and emplyment standards and a culture f law breaking amng certain emplyers. Addressing wrkers cncerns abut the emerging negative impacts f migratin was central t the negtiatins n a new natinal agreement. Twards 2016 recgnised that there were changed circumstances in the Irish labur market and that these had arisen, in part, frm the decisin t permit direct access by citizens f the new member states withut an adequate system supprting legally binding labur standards. The utcme f the Agreement was a cmmitment t develp an imprved emplyment rights cmpliance and enfrcement framewrk. The aim f the cmpliance framewrk is t secure the effective bservance f Irish labur standards, including emplyment rights, heath and safety, nn-discriminatin and equality rights. The measures cmmitted t in Twards 2016, when implemented, will ensure against adverse labur market impacts which have the ptential t arise frm labur migratin. Wrk n building the cmpliance framewrk has just begun and we are anxius that the plicies, systems, structures and that institutinal capacity wuld be fully develped and shwn t be wrking effectively. 2

4 Cngress acknwledges that sme time is required t establish the majr package f measures, including the passing f legislatin and the establishment f the new statutry ffice (ODERC) dedicated t emplyment rights cmpliance and increasing the number f Labur Inspectrs t Hwever the Transitinal Measures shuld remain in place nly until the cmpliance regime set ut in Twards 2016 has been created and shwn t be functining. There shuld then be a gradual remval f the transitinal arrangements n a sectr-specific basis. Transitinal Measures Must Apply T Emplyed and Self Emplyed Cngress supprt fr temprary transitinal measures t be put in place in respect f labur migratin frm Rmania and Bulgaria depends n the restrictins applying t emplyees and t thse prpsing t enter the labur market as self emplyed persns. Recent experience, acrss the EU, shws that placing restrictins n the free mvement f emplyees withut any crrespnding restrictins n the free mvement f self emplyed persns can distrt the labur market and perate t undermine emplyment standards. As wrkers eager t escape their situatin, denied the pprtunity t wrk in Ireland as an emplyee, will simply switch and take up wrk as a self emplyed cntractr instead. These self-emplyed cntractrs are generally left utside the scpe f statutry prtectins including the entitlement t be paid the minimum hurly wage 3. The grwth f bgus self emplyment already exists as a prblem in certain sectrs, in particular the cnstructin sectr. Requirement fr Emplyment Permits fr Emplyees Transitinal measures that require emplyees frm Rmania and Bulgaria t cntinue t require an emplyment permit shuld als prvide fr preference t be given t applicatins fr emplyment permits fr wrkers cming frm Bulgaria and Rmania. Legislatin already sets ut the rules relating t the applicatin f Transitinal Measures, this is prvided mainly in the Emplyment Permits Act The Emplyment Permits Act 2006 prvides fr a labur market test befre an emplyment permit can be prvided. Cngress is cncerned t imprve the effectiveness f the labur market test. At the mment, the test simply requires an emplyer t demnstrate that sme effrt has been made t recruit an EEA natinal. All that this requires an emplyer t d is advertise a jb vacancy with FAS. FAS then advertise the jb vacancy lcally and natinally and circulate the jb advertisement nt EURES, an EU wide jb vacancy prtal. If after fur weeks, n suitable persn has been recruited, FAS then issues a letter certifying 2 The measures are set ut in Twards 2016, chiefly in Part VII, Sectins 11 t Where an REA/JLC is in place fr an industry the Labur Curt have fund that it is capable f cving self emplyed wrkers in its scpe. 4 The Act was signed by the President in June 2006 hwever the Minister has yet t prvide fr the cmmencement f any part f the Act. 3

5 the unavailability f wrkers, thus enabling the applicatin fr an emplyment permit t prceed. The emplyer is then in a psitin t recruit as many wrkers at they wish, and t emply them in any jb, regardless f the skill level generally required. This apprach t identifying labur r skills gaps is inapprpriate, it is ut f place with a transparent and managed system f migratin and insufficient t prtect wrkers frm explitatin. At a minimum the labur market test needs t require that the jb t be advertised at the ging rate fr the jb and with established cnditins and skill levels. Otherwise the reasn the jb may nt be filled is because it is under-cutting wages and the emplyment cnditins are lwer than are acceptable t Irish and ther EEA wrkers. Cngress believes that all wrkers n emplyment permits, including fr a limited perid f time wrkers frm Rmania and Bulgaria, shuld be recruited nly int sectrs that have a genuine labur shrtage. This requirement needs t be supprted with better assessment f which sectrs are actually suffering frm labur market shrtages. This requires much mre than a single jb vacancy related labur market test. What s needed are sectr-specific strategies t manage migratin that invlve trade unins, emplyers and Gvernment. This is in line with Twards 2016 which prvides that there will be cnsultatin with the scial partners t determine included and excluded categries f jbs and staff eligible fr wrk permits. We are calling therefre calling fr the establishment f an apprpriate nging cnsultatin mechanism with Cngress which will identify sectrs where it is apprpriate t fill vacancies with emplyment permits. In additin fulfilling the labur market test shuld nt nly require a letter frm FAS but als frm EURES stating clearly why n suitable emplyee was, r is likely t be, available frm acrss the EU t fill the psitin. Further the safeguards set ut in the Emplyment Permits Act 2006 which guarantee certain rates f pay and prtect the emplyee frm particular abuses that can arise frm the emplyment permit situatin need t be put in place immediately, including the right t change t anther emplyer. Requirement fr Self Emplyed Permit Cngress is recmmending that transitinal measures be put in place t guard against a grwth f frced r bgus self emplyment. Withut effective measures, disguised emplyment r bgus self emplyment is likely t be used as a mechanism t avid the restrictins n entering the labur frce as an emplyee. The intrductin f measures restricting the free mvement f wrkers n ne hand withut any measures restricting the free mvement f self emplyed wuld be a very undesirable situatin. Transitinal Measures need t guard against the inapprpriate and disprprtinate grwth f self emplyment which can distrt and interfere with the prper functining f the labur market. Irelands laws and regulatins, and their interpretatin, shuld be cmpatible with the bjectives f maintaining labur standards and with public plicy cnsideratins such as the prper functining f the labur market. Emplyment relatinships that are disguised as self emplyment shuld nt be facilitated, likewise the admissin f a disprprtinate 4

6 number f self emplyed wrkers int particular sectrs may have a detrimental impact n emplyment and standards in that sectr. Currently, Rmanian and Bulgarian natinals wh wish t set up r carry n a business in Ireland need t apply fr a Business Permissin. The Business Permissin guards against false self emplyment by requiring a minimum capital transfer t Ireland f 300,000 and the creatin f at least tw new jbs, fr EEA natinals. Ideally these requirements wuld cntinue during the transitinal perid. Hwever Cngress understands that the EU Treaty prvisins may nt clearly supprt this exact mechanism t cntinue fr all businesses. Hwever measures that are substantially equivalent t these can be put in place fr self emplyed wrkers. Cngress is recmmending that the transitinal measures applied will firstly establish that the wrker is crrectly categrized as either a self emplyed wrker r an emplyee in advance f their entering the labur frce in Ireland. Secndly that due regard is given t the labur market impact f increasing the number f self emplyed persns in the sectr r industry befre the Self Emplyed Permit is issued t the self emplyed wrker. Establishing if a wrker is emplyed r self emplyed can be assisted by develping a legal presumptin that an emplyment relatinship exists, this is cnsistent with the ILO R198 Emplyment Relatinship Recmmendatin, Twards 2016 cmmits t a mre effective implementatin f the Cde f Practice n the Crrect Determinatin f the Status f Emplyed and Self Emplyed. This Cde applies t all emplyees and self emplyed wrking in Ireland, it sets ut tests t crrectly categrise a wrker as an emplyee r self emplyed. Rmania and Bulgaria have different definitins and standards fr determining emplyee and self emplyed status. Where it has been verified that the wrker is crrectly categrized as a self emplyed wrker then certain qualifying criteria shuld apply befre a Self Emplyed Permit is issued. The criteria can include retaining the requirement fr a capital transfer, prf f prir business/self emplyed experience fr at least tw years befre the applicatin fr a business permit and the existence f cntracts fr a twelve mnth perid. Cngress believes that these requirements are cnsistent with the Cmmissin s Guidance which allws fr measures t be put in place fr natural persns, that is self emplyed persns in accrdance with the Treaty. Article 44 f the Treaty expressly prvides that Member States can set ut cnditins that self emplyed wrkers wuld be required t satisfy when entering a Member State. Likewise the prpsed Services Directive allws the member state f destinatin t supervise service prviders in its cuntry. Cngress believes that greater mnitring and jined-up-decisin making wuld be mre likely t ccur if granting permissin t enter the labur market as a self emplyed persn was a decisin taken by Enterprise Trade and Emplyment in cnjunctin with Scial Welfare and Revenue rather than by the Department f Justice as is currently the case. The requirement fr a capital transfer and the demnstratin f sustainable cntracts fr the first 5 Rmania, Bulgaria and Ireland all vted in favur f adpting this Recmmendatin at the 2006 ILO Cnference. 5

7 12 mnths will ensure an incme t supprt a standard f living abve the pverty line shuld can als be cnsidered as public plicy measures. Finally as previusly stated Cngress is f the view that a large and disprprtinate increase in the number f wrkers wh are self emplyed can have a negative effect n the prper functining f the labur market. And restrictins, similar t thse that apply in the case f emplyment permits, which require that a labur shrtage is shwn t exist befre a permit is issued shuld als be put in place fr be put in place fr self emplyed wrkers. This is necessary t ensure that there is n adverse effect n the prper functining f the labur market by a large increase in self emplyed r false self emplyed. Imprve Enfrcement fr Rights under the Psting f Wrkers Directive The 2004 enlargement significantly increased the number f emplyers in the new member states interested in psting their wrkers t the EU. Imprecisin, lp hles, and grey areas have emerged while the absence f an accessible enfrcement mechanism in circumstances where there is n emplyment relatinship in the hst state have been expsed as a real weakness. Wrkers psted t wrk in Ireland frm ther EU Member States have the prtectin f Irish emplyment legislatin in the same way as emplyees wh have an Irish cntract f emplyment 6. Hwever experience shws that the rights f psted wrkers are difficult t mnitr and enfrce. We urgently require the intrductin f the legislatin prmised in Twards 2016 t prvide that every emplyee must have an identifiable emplyer within the State wh has legal respnsibility fr cmpliance with all aspects f the applicable emplyment rights. Effective enfrcement urgently requires the develpment f this legislatin which shuld be treated as a pririty and brught frward immediately. Anther key area fr cncern fr Cngress is the extent t which an emplyee can rely n cllective agreements established in Ireland. These issues are raised and awaiting decisin in VIKING and Laval. Wrking Students and Wrking-Hliday Makers shuld have Emplyment Permit Cngress has previusly highlighted examples f hw the wrking student visa prgram can leave students vulnerable t abuse and explitatin. Twards 2016 prvides that all wrkingstudents will be required t have an emplyment permit if they wish t wrk during their curse f study. Cngress recmmends that if transitin arrangements are put in place fr emplyees then this requirement shuld similarly apply t wrking- students frm Rmania and Bulgaria. T avid any lphles, the requirement fr an emplyment permit shuld als apply fr Wrking Hliday Makers including thse frm Rmania and Bulgaria. 6 The Prtectin f Emplyees (Part-Time Wrk) Act 2001, Sectin 20, gives certainly that all emplyment legislatin which cnfers rights r entitlements n an emplyee applies t a psted wrker in the same way that it applies t any ther emplyee and that, a persn, irrespective f natinality r place f residence, wh wrks in the State under a cntract f emplyment, has the same rights under Irish emplyment prtectin legislatin as Irish emplyees. 6

8 Measures t Cmbat Irregular Wrking The fight against irregular emplyment may require sme mnitring f the verall numbers f peple frm Rmania and Bulgaria wh are exercising their right as EU Citizens t travel t Ireland. Recgnitin needs t be given t the fact that sme peple wh enter as turists may nt leave and may chse instead t take up unauthrised emplyment r unauthrised self emplyment. T meet such challenges, the measures negtiated by Cngress as part f Twards 2016 need t be put in place as a matter f urgency. The main fcus f actins is t cmbat irregular emplyment by reducing the number f emplyers willing t take a chance n emplying wrkers wh d nt have permissin t wrk in Ireland. The measures require better recrd keeping, regular inspectin, increased penalties and the rigrus prsecutin f emplyers wh illegally emply migrant wrkers. Internatinal research shws that these types f actins, which fcus n minimising demand amng emplyers fr irregular wrkers, are much mre effective than actins aimed at minimising the supply f irregular wrkers thrugh brder cntrls. Thrugh enfrcement shuld be supprted by a humane apprach t repatriatin and Cngress recmmends that Ireland shuld cnclude a return agreement with Rmania and Bulgaria which treats irregular wrkers with dignity and respect fr their rights and fr their family s rights. Unauthrised migrant wrkers are at the margins f prtectin. The enfrcement regime must recgnise that emplyment rights and standards are being undermined by the emplyer wh seeks t prfit by expliting the unauthrised migrant wrker. It is therefre imperative that emplyment, health, safety and welfare and equality rights apply fr all wrkers regardless f their status. The Hidden Ecnmy Wrking Grup shuld keep this situatin under review. Intrduce Measures t Prmte Integratin Finally, Cngress wuld like t take this pprtunity t highlight again the nging need fr supprted integratin f migrant wrkers. Integratin utcmes shuld recgnise that immigratin is fundamentally a human activity and the decisin t admit migrant wrkers is clsely assciated t admitting family migrants. Access t infrmatin abut emplyment rights, English classes, educatin and higher learning, health and husing are all relevant in ensuring that migrant wrkers and their families have the pprtunity t live t their full ptential. Prgrammes must be put int place t give infrmatin, including infrmatin abut the right t jin a unin in Ireland, t prmte integratin, cmbat discriminatin and xenphbia. 7

9 Summary f Recmmendatins There is a case fr Ireland t intrduce temprary Transitinal Measures t restrict labur migratin frm Rmania and Bulgaria in the cntext f allwing sufficient time fr the package f emplyment rights, cmpliance and enfrcement measures agreed as part f Twards 2016 t be put in place. Cngress supprt fr restrictins n the free mvement f emplyees is dependant n similar restrictins being made t apply t thse prpsing t enter the labur market as self emplyed persns. The labur market test fr emplyment permits shuld be imprved and preference shuld be given t applicatins fr emplyment permits fr wrkers cming frm Bulgaria and Rmania. A wrker shuld be crrectly categrised as self emplyed r as an emplyee in advance f their entering the labur frce in Ireland. Self emplyed wrkers shuld be required t have a Self Emplyed Permit and due regard must be given t the labur market impact f increasing the number f self emplyed persns in the sectr r industry befre the Permit is issued fr the self emplyed wrker. An apprpriate nging cnsultatin mechanism must be established which invlves the scial partners in identifying sectrs where it is apprpriate t fill vacancies with emplyment permits r self emplyed permits. Every emplyee must have an identifiable emplyer within the State wh has legal respnsibility fr cmpliance with all aspects f the applicable emplyment rights. Wrking Students and Wrking-Hliday Makers shuld als be required t have an Emplyment Permit Guard against irregular emplyment by reducing the number f emplyers willing t take a chance n emplying wrkers wh d nt have permissin t wrk in Ireland by increased inspectin and the rigrus prsecutin f emplyers wh illegally emply migrant wrkers. Put prgrammes in place t prmte integratin, cmbat discriminatin and xenphbia. Fr mre infrmatin cntact Esther Lynch Legislatin and Scial Affairs fficer Irish Cngress Trade Unins esther.lynch@ictu.ie Ends Octber