No 4/2013. CLR News. Inclusion of migrant workers. European Institute for CLR Construction Labour Research.

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1 No 4/2013 CLR News Inclusion of migrant workers European Institute for CLR Construction Labour Research

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3 Contents Note from the Editor 4 Subject articles 7 EFBWW study - Temporary migrant workers in the construction industry in the EU 7 Reports 50 Labour migration in hard times, Conference in London 20 November After the 1:12 the Minimum Wage Initiative Is Coming Up. The Swiss referendum of 24 November Reviews 54 Colin C. Williams and Piet Renooy, Tackling undeclared work in 27 European Union Member States and Norway. (Ernst-Ludwig Laux) 54 Colin Crouch, Making Capitalism Fit for Society. (Ernst-Ludwig Laux) 56 Niklas Bruun, Klaus Lörcher, Isabelle Schömann (eds.), The Lisbon Treaty and Social Europe. (Jan Cremers) 58 Rebecca Gumbrell-McCormick & Richard Hyman, Trade Unions in Western Europe: Hard Times, Hard Choices. (Jörn Janssen) 60 CLR News 4/2013 3

4 Note from the editor Jan Cremers, The ideal of European cooperation was from the very beginning underpinned with the notion that citizens should gain from the creation of the economic and financial community. The 1957 Rome Treaty establishing the European Economic Community contained for instance several provisions to ensure free movement of workers (Treaty of Rome, 1957, Articles 48-51). Free movement of workers meant in particular that workers who were nationals of one Member State had the right to go to another Member State to seek employment and to work there. The Treaty of Rome underpinned the extension of residence, labour and equal treatment rights. In the field of working conditions and labour law the basic idea was that the mobility of workers from one country to another would bring the worker under the application of the so-called lex loci laboris principle, which means that for pay and conditions of employment in the case of free movement for work purposes the country of employment principle applies; according to that principle discrimination on grounds of nationality is prohibited. An exception to this principle was the so-called posting of workers, where workers temporarily stayed in another member state in order to provide services (under the subordination of their posting company in the home country). As these posted workers were not supposed to seek permanent access to the labour market their position with regard to the applicable working conditions and labour rights was at least ambiguous. The Posting of Workers Directive concluded in 1996 aimed to bridge this gap. Although the European Commission has on a number of occasions reported that the expectations of the mideighties about mobility in Europe have not been realised, the Commission at the same time has acknowledged that the opening up of the markets in Europe brought with it some unexpected side effects. Recruitment of a foreign workforce brought with it the risks of unequal treatment 4 CLR News 4/2013

5 Note from the editor and social dumping, while the relocation of production and competition waged in the sphere of taxation and social security created new tensions between regions. The partial application of the lex loci laboris principle within the framework of free movement of persons led to a series of debates with the legislator about the home versus the host country. The debate is related to applicable social rules of persons moving within the EU that pursue activities in other Member States than the country of origin. In several research projects evidence of bypassing the applicable rules through the establishment of post box companies has been recorded that leads to question marks related to the role of agencies in a deregulated market and the possibility to keep the lex loci laboris principle upright in the field of labour law, pay and working conditions. In recent months we have seen new cases of serious breaches, for instance on a construction site of the A2 highway in Maastricht in the Netherlands, where posted Portuguese workers were exploited as modern slaves by Atlanco Rimec, a company that is known by the EFBWW for exploiting workers in several European countries and continuously breaching workers rights. In the eyes of many scholars and business scientists that glorify economic freedoms, even at the cost of fundamental workers rights, labour is only seen as a commodity. In that philosophy the strengthening of fundamental social rights becomes a barrier for the development of our market. In the work of CLR we have found a lot of evidence to refute this vision. The results of the one-dimensional belief in the functioning of the market, sometimes with almost religious characteristics, are poor quality and growing societal inequality. The risks for business are reputational damage and low productivity, combined with recruitment difficulties and high supervision costs. It is neither good for our society, nor for the company and the stakeholders that keep it upright. So far it has looked as if the European Court of Justice backed up this one-dimensional belief. The judgments of the ECJ in the socalled Laval-quartet (named after a case in which construction workers' trade union Byggnads set up a blockade on a site with a construction team from Latvian company Laval) seemed to have just one objective. With the prevalence of the free provision of services in mind, every piece of CLR News 4/2013 5

6 Note from the editor regulation, even if it is meant to establish a level playing field and decent pay and working conditions, becomes a barrier. And this was exactly what the ECJ said in a number of cases. But there is hope. The Council of Europe's European Committee on Social Rights (ECSR) recently came up with a position related to the 2004 Laval case (C-341/05). The European Court of Justice had judged in 2007 that the trade union actions restricted the freedom to provide services within the EU. In the slipstream of the ECJ judgment the Swedish government revised the national transposition of the Posting Directive (the Lex Laval ). This revision was never accepted by the trade union movement and the decision was taken to go to the ECSR, the committee that has to judge that countries act in conformity in law and in practice with the provisions of the European Social Charter. The complainant trade unions alleged that, following the ECJ judgment in the Laval case, subsequent amendments to Swedish legislation have restricted the freedom of association (Article 5 of the Charter) and the right to bargain collectively including the right to take collective action (Article 6 of the Charter). The ECSR supported the union's position, finding that foreign workers in Sweden should have the same rights as other workers. The ECSR rejected the disproportionate restrictions of the right to organise and collective bargaining entailed by the Lex Laval. Trade unions' right to demand and pursue collective negotiations cannot be restricted by the legislator. The conclusion was that several articles of the Charter were violated. The contributions in this issue of CLR- News are all dealing with the social dimension of the EU internal market project. The main article is a summary of a research project led by the EFBWW. It synthesises material that is partly well-known, partly collected for the first time, notably the list of national trade union activities to support migrant workers. The reports and reviews all deal either with social legislation or with migration items, cross border recruitment and the challenges for trade unions in today s Europe. I hope you enjoy reading and wish you all a good start in the New Year. 6 CLR News 4/2013

7 Subject articles EFBWW-study TEMPORARY MIGRANT WORKERS IN THE CONSTRUCTION SECTOR IN THE EU 1. Different categories of temporary workers in the EU - An overview. The issue of migration in Europe has gained increasing relevance in the last decades, up to becoming one of the most important and controversial subjects in the political and social debate. Migration flows follow different routes, from outside Europe but also within the EU. Especially the 2004 and 2007 enlargements to Eastern European countries produced deep modifications in the geography of the European labour market, with significant flows of workers migrating from Eastern to Western Europe, in search for better living and working conditions. In the framework of the single market, the free movement of workers and freedom of providing services created new challenges for employers and workers. Nonetheless legal, social and cultural differences have often hindered the integration of migrant workers, and the recent economic crisis, with unemployment rates increasing all over Europe, have sometimes generated harsh, xenophobic reactions against migrant workers. In the construction sector, migrant workers constitute a relevant part of the total labour force. In our industries the free movement of workers, in particular from inside the EU, in recent years has often constituted an answer to labour demands and labour shortages. The construction and wood industries have a highly flexible and fragmented labour market, with a strong demand of shortterm work and mobility of workers. Unfortunately, these features lead to a high tendency of undeclared and irregular work, which in combination with a fragmented and controversial European and national legal framework has created the conditions for frequent cases of exploitation and social dumping. CLR News 4/2013 7

8 In the framework of the free circulation of workers and free provision of services, we observe new typologies of migration flows. Within the EU, workers do not migrate only to follow long-term offers of employment, with a subsequent migratory project which includes the aim of integrating in the receiving country s labour market and society. Temporary migration linked with short-term employment opportunities is an emerging reality in the European labour market. It s important to underline that temporary migration has its typical features and differences with long-term migration. First of all, because of the precarious nature of the migration, there is almost no incentive for the worker to pursue any kind of linguistic and cultural integration in the host country, except for the strictly functional issues. This can create conditions of objective weakness for the workers, linguistically and legally incapable of understanding their rights. Secondly, this bubble effect is enhanced by the fact that the migratory experience is often bound to a particular work offer and subsequently to the employer, who is also the provider of the accommodation for the employees. We therefore observe extremely isolated realities, with almost no contacts with the outside world. Thirdly, this kind of employment often presupposes the presence of a third actor who has the role of putting into contact the labour demand in one country with the offer in the other. This function is often conducted by recruitment agencies or employment agencies, which finally share with the main employer a co-ownership of the role of employer. This renewed labour market poses unprecedented challenges also to the trade unions. Trade unions all over Europe have been very active in developing strategies to identify, contact, organise and recruit new categories of workers, despite the above-mentioned peculiarities: cultural barriers, isolation, recruiting and/or employment by means of agencies. Before addressing the issue of the role of the trade unions we will 8 CLR News 4/2013

9 provide a short overview on the legal and factual features of the different categories of temporary migrant workers: posted workers, false and genuine self-employed workers. We will also describe the role of temporary work agencies. Posting of workers in the construction industry in the EU According to the European Commission definition, a posted worker is a worker who, for a limited period, carries out his or her work in the territory of an EU Member State other than the State in which he or she normally works 1. In principle posting of workers should be one pattern of the free circulation of services within the EU. The most competitive and skilled service providers should be enabled, via the instrument of posting, to perform their tasks in all member states without discrimination, with beneficial effects on the internal market in terms of internationalisation, mobility, competitiveness and productivity of companies 2. In reality, in recent years posting is often used by companies as a tool for reducing labour costs, in particular within sectors with a lowly skilled, flexible and mobile labour force. Construction is the sector which holds the plurality of posted workers: over a total amount of more than 1 million of posted workers in Europe, approximately corresponding to 0.4% of the EU workforce, 25% are employed in our industries 3. Poland is the main sending country, with more than 200,000 workers sent abroad, followed by Germany and France, while the main receiving countries are Germany, France, Belgium and the Netherlands. Data on the net balance between posted workers sent and posted workers 1. uri=celex:31996l0071:en:html 2. Study on the protection of workers' rights in subcontracting processes in the European Union, European Commission, These are the official figures, which can be traced. Field experts are of the opinion that the annual number of 1 million posted workers is a strong underestimation of the reality. CLR News 4/2013 9

10 received show that Poland is also the main sending country proportionally to the received workers, followed by Portugal, Luxembourg, Hungary and Slovakia 4. At European level posting is regulated by Directive 96/71/EC concerning the posting of workers in the framework of the provision of services, which provides posted workers with minimum standard working conditions of the host country regarding maximum work periods and minimum rest periods; minimum paid annual holidays; minimum rates of pay, including overtime rates; conditions of hiring out workers, in particular the supply of workers by temporary employment undertakings; health, safety and hygiene at work; protective measures in the terms and conditions of employment of pregnant women or those who have recently given birth, of children and of young people; equal treatment between men and women and other provisions on non-discrimination. With regard to social security, the EU coordination rules state the principle of one body of legislation in case of work executed in two or more Member states, and they provide the host country rule with the aim of pursuing nondiscrimination. According to Regulation 883/2004 5, posting is one of the possible exceptions, and social security can be regulated by the country of origin legislation if the working period abroad does not exceed 24 months. Therefore we have two pieces of EU legislation applying to posted workers: Directive 96/71/EC establishes that the host country law should apply to the posted workers, and Regulation 885/2004 allows an exception for social security if the posting does not exceed 24 months. 4. Posting of workers in the European Union and EFTA countries: Report on A1 portable documents issued in 2010 and 2011, European Commission DG Employment, Social Affairs and Inclusion 5. uri=celex:32004r0883:en:not 10 CLR News 4/2013

11 The issue of posting is a highly controversial one in the EU political and legal debate, which focuses on the key issue of the legislation to be applied to the posted workers: are they subject to the legislation of their country of origin or to the legislation of the county in which they are carrying out their working activities? Before 1996 EU member states were allowed to apply their national legislation and labour standards to the workers posted on their territory. This was considered as a justified exception to the free provision of services with the so-called Gebhard formula 6. The real added value of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services, when it was issued, was the identification of a nucleus of fundamental standards of the host country legislation (the above-mentioned, from art. 3.1 of the Directive) whose application to the posted workers became mandatory. Therefore Directive 96/71/EC was at the time generally considered by decision makers and stakeholders an acceptable instrument to regulate posting of workers and prevent abuses, even if in the following years the structural modifications which occurred in the EU labour market (increased flexibility, role of temporary work agencies) called into question its effectiveness in tackling exploitation and social dumping. The situation changed completely in 2005, when the interpretation of the standard provided by the Directive to the workers was completely overturned by the European Court of Justice (hereafter ECJ) with the four sentences of the so-called Laval quartet and in particular with the Laval sentence itself (C-341/05) which called into question the balance between the freedom of providing services and the rights of the workers. The Court declared unlawful the collective action launched by the Swedish trade union Byggnads in order to push the Latvian construction company Laval to apply to workers posted in Sweden the standards on minimum salary provided by a 6. ECJ 55/94, Reinhard Gebhard v Consiglio dell'ordine degli Avvocati e Procuratori di Milano, 1995 CLR News 4/

12 sectorial collective agreement. The interpretation of the Court was based on the fact that Article 3 of the Posting of Workers Directive makes reference only to standards underpinned either by law or universally applicable collective agreements. The imposition of the concerned not erga omnes - collective agreement to a foreign undertaking was therefore seen as discriminatory and as an illicit obstacle to the free provision of services within the internal market. This interpretation, which was strongly questioned by European trade unions and other stakeholders, has the result of turning the minimum standards of the 1996 Directive into maximum standards, forbidding member states to apply more favourable conditions to the workers. Therefore the issue of posting of workers within the EU is problematic at least from two points of view, the legal and the factual ones: From the legal point of view the above-mentioned judgments prevent Member States from applying to posted workers equal treatment to the national ones, leading to a legalised discrimination EU framework. From the factual point of view we still have, within the EU, a huge number of cases of false posting and false selfemployment, created in order to circumvent labour law and obligations. After an intense debate among the European institutions and stakeholders, who were requesting new rules and legal instruments to deal with the issue and protect the European social model from the increasing phenomena of social dumping and exploitation, the European Commission issued a proposal for an Enforcement Directive (COM(2012)131) which is currently being discussed by the European Parliament and the Council. It has to be underlined, anyway, that the proposal of the Commission addresses only the factual problems, specifying the 1996 Directive terms and providing new definitions, but does not interfere at all with the legal problems linked to the Laval quartet. 12 CLR News 4/2013

13 Our research addresses also the practical living and working conditions of posted workers in the EU in the current legal framework, without taking a position on the European political and juridical debate. Nevertheless it has to be reported that it emerged repeatedly during our interviews and in the debate that the legal uncertainty caused by the Laval quartet seems to make the protection of the rights of the posted workers more difficult, facilitating on the other hand dishonest and dim practices. The 96/71/EC Directive on the posting of workers applies to three typologies of regular posting: The definition of traditional posting applies when an undertaking posts a worker to the territory of another country on its account and under its direction, under a contract concluded between the undertaking making the posting and the party for whom the services are intended. We speak of intra-corporate posting when an undertaking posts workers to an establishment or to an undertaking owned by the group in the territory of another country. Finally, we have temporary work agency posting when a temporary work agency settled in one country post workers to a user undertaking established or operating in another member state. All three kinds of posting are used for circumvention practices. Intra-corporate posting, which until a few years ago was considered relatively safe as it involved mainly highly-skilled workers, is now often used for abuses by the creation of letterbox companies and branches. Temporary agency posting, which was still unusual when the Directive was issued and has become widespread in recent years, is of course extremely dangerous in terms of exploitation of the workers. For the employers the first competitive advantage of using posted workers instead of locals is linked to social security expenses. Posting workers from countries with low social protection expenses leads obviously to a reduction of the costs CLR News 4/

14 for the employers. The objective difficulty of monitoring if social security is actually paid or not in the country of origin often leads to illegal circumstances where the corresponding amount is deducted from the salary of the worker and never paid, or calculated on the basis of the minimum wage in the country of origin. Moreover, the recent proliferation of forms of atypical work contracts (part-time, apprenticeship, replacement, zero-hour contracts) has made it extremely difficult to monitor the effective working conditions in a foreign country. This goes in two directions: for the authorities in the country of origin it is almost impossible to monitor the amount of hours actually worked, and for the labour inspectors in the host country it is very difficult to verify the type of working relationship which was declared in order to obtain the issuing of the A1 certificates. Moreover, while in several countries the issuing of the A1 form by the national authorities requires payments in advance, others do not do it, facilitating circumvention. From the salaries point of view, in most of the cases the minimum wage rules of the host countries are formally respected, but exploitation takes place by other means, e.g. by violating the rules on working time, paid holidays and overtime. It often happens that a worker is paid the minimum salary, calculated on 40 hours and 5 days of work per week, while he is actually been working 50 hours and 6 days per week. Posted workers are also almost never placed in the correct level of skill/qualification. On-field researchers have distinguished four different categories of posting-related forms of employment in Europe Cremers J. In Search of Cheap Labour in Europe. Working and living conditions of posted workers, CLR/EFBWW/International Books, CLR News 4/2013

15 There is normal posting when a specialised contractor provides services in a foreign member state with highlyskilled and highly-paid workers. In these cases the respect of workers rights is often guaranteed, as its reason is not the recruitment of cheap labour but the quality of the services offered. There is also perfectly legal posting driven by the convenience of engaging posted workers from abroad rather than local workforce. As we have mentioned before posting companies and agencies can be competitive on the ground of labour cost, by means of low salaries and social protection. Minimum salary, which has to be respected, is often significantly lower than the average salary of the workers, but can be attractive for workers posted by countries where the living standards are even lower. Moreover, some payments are neither subject to the country of origin nor to the tax income of the host country. A third category is legal posting which presents, at the same time, serious irregularities like lack of social insurance, non-payment of overtime, illicit and forced deductions for administrative costs, lodging and transport or other expenses. In these cases the legal competitive advantage for the employer is enhanced by semi-legal or illegal advantages. Salaries and social security are the most frequent objects of circumvention. Finally, we have many cases of false posting when, for example, the migrant worker was already on the territory of the receiving country when he was recruited or when he was hired by the employer only for the duration of the posting. This happens by means of letter box companies established in the country of origin or also by falsification of the E101/A1 forms. Other dishonest employers post workers from countries where the worker has never been or lived, but where an A1 form can be released with no payment in advance and social protection fees are particularly low (e.g.: Polish workers CLR News 4/

16 posted from Cyprus). Within the EU there are significant differences between countries regarding the amount of the payments for insurance and social security, with several countries playing the role of flags of convenience in this respect 8. Genuine and false self-employment in the construction industry in Europe Self-employment constitutes a growing part of the labour market in Europe: around 15% of the total European workforce is self-employed 9, 13.5% of which is in the construction industry. 1 out of 5 of the 13 million construction workers in Europe is self-employed 10. Self-employed workers are set in a particular legal framework, which differs significantly from employment relationships: Self-employed workers work under their own professional responsibility and therefore do not work under the authority of the main contractor; The method of payment of taxes and social security contributions differs between self-employed workers and employees; Some working conditions (wages, working time, rest periods...) governed by collective agreements or by specific legislative, administrative and regulatory provisions are not applicable to self-employed workers; As a consequence, relatively extended social protection (e.g. in case of temporary employment, occupational accidents, early retirement...) is more restricted for self-employed workers. 8. The MISSOC database, developed by the European Commission, is a complete and simple source of information about the social security in all EU member states: catid=815&langid=en. 9. European Employment Observatory Review: Self-employment in Europe, EFBWW/FIEC Self-employment and bogus self-employment in the European construction industry, CLR News 4/2013

17 In recent years we have been observing increasing fragmentation and flexibility of the labour market in the EU and the growing number of self-employed workers registered in the same period can be considered as a symptom and a part of this change. The traditional centralised undertaking, where one main subject controls all the elements involved in the process, is being replaced by complex structures, where the main contractor tends to subcontract or outsource tasks to specialised undertakings or self-employed workers. Undertakings are then providing services by means of workers who are not employed by them but from other companies. This fragmentation involves also the hiring of staff or the ownership of the equipment, provided by specialised companies. In addition to the usual tripartite structure, composed by the service provider, the employees and the user, we observe an increasing number of new and different actors, making it difficult to clearly distinguish the relationship between them. When a worker is employed by means of an employment agency, for example, both the agency and the main contractor are exercising, to some extent, a control on his working activity, making it difficult to identify the real employer. At EU level it is extremely important to clearly distinguish selfemployment and subordination, as in cross-border situations the first one falls within the scope of freedom of establishment and freedom of providing services, while the second one falls within the scope of free movement of workers. According to the ECJ a worker is a person who, (1) for a certain period of time, (2) performs services (3) under the direction of another person (4) in return for which he receives remuneration 11. The ECJ provides also guidelines for the national authorities to assess that an activity, carried out by a self-employed person, falls under the scope of the right of establishment if it CLR News 4/

18 is carried out by the person providing the service (1) outside any relationship of subordination concerning the choice of that activity, working conditions and conditions of remuneration (2) under that person s own responsibility (3) in return for remuneration paid to that person directly and in full 12. This process of fragmentation and outsourcing of the labour market, stimulated by cost reduction strategies, has also caused a multiplication of new typologies of employment relationships, with original contractual forms difficult to collocate in the distinction between subordinated work and self-employment. It is now possible to identify at least three categories of workers: the employees, the self-employed workers and a third category of workers which lies in the middle of the previous two. The category of the so-called economically dependent self-employed is composed by those workers who do not have a regular subordinated employment relationship but are carrying out the majority or the entirety of their work, at least for a period, just for one contractor. 11. ECJ 53/81, Levin v. Staatsecretaris van Justitie, 1982; ECJ 133/85, Kempf v. Staatsecretaris van Justitie, 1986; ECJ 66/85, Lawrie-Blum v. Land Baden- Württemberg, 1986; ECJ 197/86, Brown v. the Secretary of State for Scotland, 1988; ECJ 344/87, Bettray v. Staatsecretaris van Justitie, 1989; ECJ 357/89, Raulin v. Minister van Onderwijs en Wetenschappen, 1992; ECJ 3/90, Bernini v. Minister van Onderwijs en Wetenschappen, 1992; ECJ 85/96, Martínez Sala v. Freistat Bayern, 1998; ECJ C-188/00, Kurz v. Land Baden-Württemberg, 2002; ECJ 337/97, Meeusen v. Hoofddirectie van de Informatie Beheer Groep, 1999; ECJ C-138/02, Collins v. Secretary of State for Work and Pensions, 2004; ECJ C-456/02, Trojani v. Centre public d aide sociale de Bruxelles, 2004; ECJ C-109/04, Kranemann v. Land Nordrhein- Westfalen, 2005; ECJ C-228/07, Petersen v. Arbeitsmarktservice Niederösterreich, ECJ C-268/99, Aldona Malgorzata Jany and others v. Staatssecretaris voor Justitie, This case concerns a preliminary ruling related to the interpretation of the Europe Agreement establishing an association between the European Communities and their Member States, on the one part, and the Republic of Poland and the Czech Republic, on the other part. This does not however affect the relevance of the judgement for the purposes of interpreting art.43 EC. 18 CLR News 4/2013

19 In all the European countries legal systems there is a traditional distinction between the concepts of an employed person and a self-employed person. However, while the legal systems within the EU provide a definition of these two concepts, the issue of economically dependent selfemployment is differently approached in each country, and in several cases not addressed at all. Different criteria are used in different countries to assess the conditions for subordination and the economic dependence of the worker: the percentage of the revenue of the worker which comes from one single contractor, the number of working days in the year, the presence of a working station for the person in the office of the contractor. In some countries economically dependent self-employed are recognised and entitled to additional protection in the field of social security and pensions. The issue of false/genuine self-employment has a strong impact on cross-border migration and provision of services. For an employer, resorting to using self-employed workers instead of own employees can lead to considerable savings in terms of labour cost, tax and social security payment and other labour obligations. In addition, the process of deregulation which has taken place in the last years in Europe has in many countries simplified the procedures for individuals to register as self-employed, which is now often possible in a couple of hours with very few, and sometimes uncertain, supporting documents. Therefore, in addition to the ambiguous cases of dependent self-employment we have an increasing number of cases of disguised workers, who appear and behave to the external world as employed, but who are registered as self-employed. These workers enjoy a lower level of protection and undermine, being at lower levels of contributions paid, the stability of the social security system. CLR News 4/

20 Within the EU this problem has probably been worsened by the so-called transitional measures. The Accession Treaties allowed Member States to temporarily restrict the free movement of workers from countries that joined in 2004 (with the exception of Malta and Cyprus) and These restrictions could be maintained for a maximum of seven years, which means that in several countries restrictions to Bulgarian and Romanian workers will apply until On the other hand these restrictions can be applied only to workers and not to any other category of citizens. Self-employed workers, who freely provide services in another Member state, are not covered by the transitional measures. This has led and still leads to a huge number of registrations as selfemployed in the countries of origin of the migrants immediately before the transfer to another country, in order to circumvent these measures and other obligations. As we noted before, there are cases of abuse in which it is the employer, undertaking or temporary work agency, who register the worker as self-employed before posting him, often without even communicating this fact to him. Temporary migrant workers falsely registered as selfemployed lose their protection regarding minimum salary, social security and working time. Member states of course put in place control measures in order to identify and prevent bogus self-employment, but unfortunately they are often not effective. Moreover, at transnational level and especially in the EU the question arises whether the national authorities of the country where the work is carried out have the right to challenge the qualification employee/self-employed attributed to a worker by the authorities of her/his country of origin. In other words, what happens if a posted worker is classified as self-employed on the A1 form issued by his country of origin, but the authorities of the host country consider that he performs on their national territory activities which could 20 CLR News 4/2013

21 make him subject to insurance and social security schemes for employees? The ECJ in the Fitzwilliam, Banks and Herbosch-Kiere cases 13 clarified that the labour judge of a member state is not allowed to assess the validity of a certificate issued by the authorities of another member state. Critics have said that this decision makes the A1 certificates virtually inviolable and prevents national authorities from carrying out effective controls in order to tackle false self-employment. A1 certificates (formerly E101) are moreover often incomplete or incorrect. For the authorities of the receiving countries it has become impossible to obtain further information or to clarify a dubious position without completely relying on the collaboration with the national inspectors in the sending countries. Given these premises, it is not difficult to understand why false self-employment is often used by dishonest employers to circumvent labour law within the EU. The role of temporary work agencies in the framework of temporary migration within the EU Different kinds of mediators play an important role in putting in contact labour demand and supply at international level. In the last years this role has increased spectacularly, with an impressive proliferation of primary and secondary actors, like international recruitment and employment agencies and gang-masters. When the Posting of Workers Directive was issued temporary work agencies were still playing a negligible role within the European labour market. Posting by means of TA was anyway indicated as the third typology in the Directive (article 1.3). The Directive applies to those undertaking which: 13. Case C-202/97 Fitzwilliam Executive Search v Bestuur van het Landelijk Instituut Sociale Verzekeringen [2000] ECR I-883;Case C-178/97 Banks v. Théatre royal de la Monnaie [2000] ECR I-205; see also case C-3/98 Schacht and others;case C-2/05 (Herbosch Kiere). CLR News 4/

22 being a temporary employment undertaking or placement agency, hire out a worker to a user undertaking established or operating in the territory of a Member State, provided there is an employment relationship between the temporary employment undertaking or placement agency and the worker during the period of posting. The main particularity of this employment form is that it implies three subjects: the worker, the temporary agency which is the employer, and the user undertaking, for which the worker carries out the work. In recent years temporary agency work has been the most rapidly growing form of atypical work. It is estimated that over three million workers in the EU are currently on a temporary agency contract. The same estimations show that they are mainly low-skilled workers, in particular in the construction and agriculture sectors. They are often associated with forms of casual and occasional work. In general, temporary agency work is often used by undertakings to reduce costs of salaries, social security and insurance. From the point of view of workers there are also concerns linked with the fact that there are less opportunities for training and development, less representation and a general tendency to low salaries and benefits. There has been an intense debate at European level about the need to regulate these agencies, which were indeed banned until recently in several EU countries, until the Temporary and Work Agency Directive, issued in 2008, forced all European countries to remove the ban. The TAW Directive was issued in , and provided the principle of the equal treatment for temporary agency work. In practice, temporary workers are entitled to receive the same treatment as the long-term employees of the user undertaking for performing the same tasks uri=celex:32008l0104:en:not 22 CLR News 4/2013

23 Nonetheless at trans-border level within the EU there is a discussion on the articulation between Temporary Work Agency Directive and the Posted of Workers Directive 15. In case of an individual being hired by a temporary agency and posted abroad to work with a foreign user, which Directive should be applied? As we mentioned before, the POW Directive explicitly includes temporary work agencies within its scope (Article 1.3). In fact, the Temporary and Work Agency Directive does not directly address the issue. It is clear that, as they are posted, these workers are entitled at least to the minimum standards of the host country in the fields indicated by the Posting of Workers Directive, which on the other hand is not equal treatment as the long-term employees they are working with. This articulation has not been definitely clarified at legal and factual level in the EU and in the end contributes to a situation of uncertainty that damages the European labour market and in particular the workers. Temporary work agencies then often become part of crossborder chains of subcontracting, up to 15 levels, often used by main contractors to reduce costs and to elude their accountability in case of workers rights violation, in particular in those countries where the legislation does not provide a system of joint liability for subcontracting. 2. Role and policies of the trade unions towards temporary migrant workers in the construction industry General trends and summary of the main results from 10 national reports Identifying and contacting temporary migrant workers The construction industry in Europe is composed to a large extent of medium, small and very small enterprises. A 14. Temporary agency work in the European Union, ETUI, Brussels, Schömann I. and C. Guedes, 2012 CLR News 4/

24 significant rate of the construction activities are carried out in private houses or buildings, or anyway on small building sites. Independent and self-employed workers play a massive role in the sector. All these factors make construction a difficult sector for monitoring workers conditions and fiscal obligations, both from the point of view of the trade unions and the authorities. Therefore the issue of information is crucial for trade unions in respect of temporary migrant workers: migrant workers need to be informed on the working conditions in the host country and trade unions need to be informed of the presence of temporary migrant workers to contact and organise them and to provide them with the necessary information. Moreover, the workers need to be informed on the existence, role and tasks of the trade unions. In the framework of the European free market no mandatory notification of presence can be imposed on the employers or on the workers and obtaining information by the employers is difficult when chains of subcontracting and use of employment agencies confuse responsibilities. The majority of the experts involved in our research estimate that the trade unions are informed only about a small minority of the presence of temporary migrant workers, generally below 10%, with exceptions in Spain and Norway, where the trade unions estimate they are informed on the 60/80% of the presence. The experience of the trade union officers in the building sector shows that very often temporary migrant workers are not even informed on the basic rules provided by labour law and collective agreements on minimum wage, working time and conditions, health and safety and other fundamental issues. The aim of identifying and contacting these workers in an early phase of their activity in the host country has constantly 24 CLR News 4/2013

25 been pursued by the trade unions, but nonetheless they manage to reach only a minority of cases. Different difficulties can arise depending on the circumstances: we have already mentioned the fragmentation and tendency to black and semilegal work in the construction sector in the EU, e.g. in countries like Italy or Spain the percentage of small and very small firms and workplaces is even higher than in other EU countries, making it extremely difficult to identify the workers and to monitor their conditions. On the other hand cases of abuse in Europe have often been registered in huge building sites of power plants and other big infrastructure projects. These sites are often in isolated places, kilometres away from the nearest city. The workers come from many different countries and are employed by different contractors, organised in long and complex chains of subcontracting. The well-known case of the Eemshaven power plant in the Netherlands clearly shows how on big building sites it can be difficult to monitor and protect migrant workers rights. In Eemshaven, after several cases of abuse, the Dutch trade unions managed to create an effective system for continuous monitoring and representation, but such mechanisms do not exist at systemic level on big sites across the EU. Trade union officers contact workers and get information on their presence and working conditions by means of visits to the workplaces. These visits are carried out mostly by local trade union officers. Several trade unions directly employ officers speaking the language of the migrants, others use translators. Of course the effectiveness and the frequency of these visits depend on the financial and human capital of the trade unions. Very often these visits constitute the main function of the local trade union officers, in particular of those officers of the nationality of the migrants who are employed by the trade unions in order to deal with linguistic and cultural barriers. CLR News 4/

26 Anyway, in the construction industry, it is difficult to cover effectively all the small and big worksites, which are often running for a limited amount of time and in different places. Moreover, to be effective these visits often need to be repeated in time, in order to build trust and confidence in the workers, who usually are very cautious in talking with the trade unions. Trade unions also use formal and informal networks to contact temporary migrant workers and to distribute information. The Finnish trade unions have informal exchanges of information with the labour inspectorates and the employers organisations. In Sweden trade unions obtain information by the fact that employment promises (anställningslöfte) have to be issued by the employers and registered by the authorities. In case of posting, Swiss regulations stipulate that the authorities inform the concerned cantonal committee composed by representatives of the workers and of the employers in equal parts. Trade union officers visit immigrants associations, temporary work agencies, consulates, churches, but also shops and bars frequented by the migrants after work or in the weekend to talk with them and to distribute leaflets and brochures. The Swedish Byggnads takes part in a cooperation with other trade unions in the so-called Papperslösas förening (the association of the nondocumented workers) which has its premises in Stockholm. These are premises where migrant workers can get support and help with their incomplete documents, or with expulsion orders. Once they get information on the presence of temporary migrant workers, trade unions face the problem of contacting them. As we explained above, temporary migrant workers often live in circumstances of cultural and logistic isolation, and the short-term nature of their permanence in the host country does not motivate them to make efforts to integrate, for example by learning the language. Therefore it is very important for the trade unions to cultivate relationships with 26 CLR News 4/2013

27 the communities of the nationals of the migrants in their country. Churches, consulates and cultural associations play an important role in this respect. In 2007 the Belgian trade union ACV-CSC created a taskforce Poland, with the aim of connecting with the Polish community in Antwerp by creating a group of volunteers within the community, teaching them about labour rights, collective agreements and the role of the trade unions and reaching in this way Polish temporary workers in the construction industry. Another important tool is the distribution of brochures and leaflets in the mother tongue of the migrant workers (Polish, Romanian, Arab). Brochures and leaflets can be distributed in order to provide basic information (information on labour law and collective agreements) or with the aim of the involvement of the migrant workers, providing them information on the trade unions and their role and functioning. The Norwegian union Fellesforbundet produced several years ago a first generation of material with information on labour conditions, and recently has developed a second generation, aimed to spread awareness on the role of the trade unions and the advantages of becoming members. There are also good practices of material addressed to specific targets, with information on their particular legal and working conditions. The Swiss and German unions distribute leaflets to the sans-papiers, the irregular workers, with the information on their rights. The opening time and the accessibility of the trade unions offices are also decisive to facilitate the access of migrant workers. Evening or night openings can allow them to visit the trade unions after their working hours. CLR News 4/

28 Bilateral agreements with mutual recognition of the membership, on which we will focus later, can create a virtuous circle in which workers who are not members of the trade unions in their home country can see the practical advantages of being organised for their colleagues in the workplace. In the majority of the cases temporary migrant workers get into contact with the trade unions only in case of necessity when a heavy violation of their rights is taking place. Because of the short-term dimension of their working experience they tend to be grateful to their employer, who is in most of the cases allowing them to earn, for a limited amount of time, much more than they could earn in their home country. They are suspicious of the trade unions, perceived as part of the authorities. Moreover they present their cases to the trade unions only after the end of the working period, being afraid of retaliation or simply because they find out irregularities only at the end of the working period (e.g. when they get their final payments they find out that unexpected deductions have been applied to their salaries). Anyway, several experts involved in our campaign agree that the attitude of migrant workers towards the trade union has improved in the last years, by virtue of the trust-building work carried out by the trade unions. Organising and recruiting temporary migrant workers The recruitment of migrant workers, especially if temporary, is not always easy. In the majority of the main sending countries, especially the new EU member states in Eastern Europe, the trade union movement is very weak or has a bad reputation amongst workers. Also in a country like Poland, where the trade union movement is quite strong but developed on a company-based structure, it has very few members among the workers who decide to migrate. Therefore, the huge majority of workers who migrate are not members of any trade union in their 28 CLR News 4/2013