POSITION ON PUBLIC CONSULTATION ON THE EU S LABOUR MIGRATION POLICIES OF UNION WORKERS AND THE EU BLUE CARD (Commentary on the survey of Employer Organisations ) It must be noted, first of all, that the (further: the Association ) is aware of the changes that have occurred in recent years in connection with social developments and the influx of immigrants who, similarly to national workers, expect to be provided with a sense of employment stability. At the same time, however, in view of the emergence of new demographic patterns, the growth of enterprises, the creation of new jobs and the development of new sectors of economic activity that are affected by shortages of skilled labour, on the one hand, and an increase in migration on the other hand, any changes in labour policy regulations should be aimed at simplifying national procedures for legalising residence and obtaining the documents necessary to take up employment in a given Member State. It would, at the same time, be desirable that the employment of immigrants continues to be seen as complementary in relation to the employment of national workers. The existence and directions of the common immigration policy are one of the most important issues being discussed in the context of the EU s future, particularly because the migration policy and the legal and institutional arrangements adopted in a given country have a key influence on the direction of migration processes. PART I LABOUR MARKETS There is no doubt that the migration policy of EU countries is becoming a key factor affecting the freedom of movement and residence of persons in the European Union, as well as being a fundamental feature of the EU citizenship established by the Treaty of Maastricht in 1992. The principle of free movement of persons is currently governed by Directive 2004/38/EC on the right of EU citizens and their family members to move and reside freely within the territory of the Member States. Its implementation is hindered by many problems. Enterprises operating in the Republic of Poland, including those providing job placement services, are increasingly often faced with the problem of employment of migrant workers from outside the EU. Entrepreneurs see it is as a natural phenomenon associated with the migration process. For example, the first six months of
2015 saw a continued increase in the number of applications for legalisation of residence in the Republic of Poland. In that period of time, the Polish authorities received 47 395 applications (temporary residence, permanent residence, resident status), a 77 % increase on those received in the same period in the previous year (26 776) 1. Gainful employment of migrants in the country to which they migrate is a natural consequence of an increase in migration. The vast majority of foreigners coming to Poland applied for a work permit 2. The consequences of increased migration from non-eu countries are twofold: an increasingly frequent participation of nationals of those countries in the recruitment process and an increase in the number of persons who, at the time of recruitment, already reside in a given EU country and have complied with the administrative procedures required to undertake gainful employment. This is also due to the fact that it is only since 2014 that a foreigner employed by a Polish employer has been able to apply independently for a work permit under the combined procedure for obtaining a temporary residence permit and a work permit (this does not apply to posted workers). Nevertheless, there is still a large group of candidates from among nationals of Member States who initiate the relevant administrative procedures only when they are assured of the possibility of obtaining a job. It must be noted that this applies not only to highly skilled workers but also to skilled and non-skilled workers. *** It should be noted that migrant workers may not, and are not, treated as cheap labour. Both Community and national legislation effectively prevents a situation in which it would be possible to differentiate wages of migrant and national workers. The Association takes a view that the current regulations are sufficient in that regard and, therefore, no changes are necessary. For example, the Polish law contains provisions that prevent a situation in which migrants could be paid less than national workers. All the provisions included in Chapter IIa of the Labour Code were incorporated into the Polish law as a result of the implementation of Community legislation relating to the prohibition of discrimination, including Directive 2000/78/EC. According to its Article 1, the purpose of the Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment. Article 2(1) provides that the principle of equal treatment means that there must be no direct or indirect 1 Office for Foreigners Report Główne trendy migracyjne - I połowa 2015 roku [Main trends in migration 1st half of 2015], http://udsc.gov.pl/wp-content/uploads/2014/12/komentarz-do-danych-dotyczących-zestawienia-za- pierwszep0trocze-2015-roku.pdf) 2 Ibid.
discrimination whatsoever on any of the grounds referred to in Article 1. These rules together constitute a framework for the application of Directive 2000/78/EC. It follows from them that rather than mandating equal treatment of all workers (also in terms of remuneration for work), Community law specifies criteria which must not serve as a justification for the differentiation in treatment of workers. Polish legal solutions are modelled after these rules 3. Compliance with these rules is amply evidenced by case law. An example is provided by the judgment of the Supreme Court, in which it is stated that: The criterion of nationality may not lead to unequal treatment of Polish workers in relation to workers of Korean nationality, just as reverse unequal treatment of Korean workers in relation to Polish workers would be unacceptable. The differentiation in salaries of workers of nationalities other than Polish nationality, if they perform the same or comparable work, would be possible only on an exceptional basis 4. For these reasons, migrant workers are offered the conditions of pay and employment that are similar to those of national workers. As regards the conditions of work and pay, it seems that bigger problems stem from regulations on the pay of workers moving within the EU and the requirement that posted workers be offered the minimum pay applicable in the country of posting whereas these workers generally do not incur costs similar to those incurred by national workers, as accommodation and board are usually provided by the employer. *** As regards the solution of the problem of workforce shortages in certain sectors/professions in the EU, the Association takes a view that simplified procedures should be established for legalising stay and obtaining a work permit. There is also no doubt that positive outcomes would arise from the introduction of instruments which support short-term migration (a permit to stay and work for a specified period of time) while paving a way for permanent settlement through a gradual increase in rights of a migrant worker that leads to a relatively quick process of obtaining the settlement status and citizenship. Due to the fact that labour shortages can occur not only in highly skilled sectors/professions, the regulations being introduced should not require that the possession of specific skills or professional experience be a criterion for obtaining a permit 3 Cf. the judgment of the Supreme Court of 2 July 2012, I PK 48/12, Legalis 4 The judgment of the Supreme Court of 22 November 2012, Ref. I PK 100/12.
to stay and work. The need and willingness of the employer to employ a foreigner should instead be adopted as a key criterion. When it comes to matching skills of migrant workers, the main problem is the lack of recognition of qualifications acquired by them in their country of origin and the lengthy procedures associated with the recognition of diplomas and professional qualifications. This system needs to be simplified and harmonised. Labour shortages should encourage the adoption of simplified systems for issuing residence permits to foreigners planning to start their own business (such regulations are already in force in some countries), including self-employment, on the assumption that the establishment and operation of a business is verified after a certain period of time. It must, however, be noted that the problem of labour shortages in specific sectors/industries in the EU should be addressed first of all by facilitating movement of workers within the EU itself. The emphasis in this regard should be placed on the enforcement of current regulations that allow third-country workers to move within the EU. Regulation (EU) No 1231/2010 of the European Parliament and of the Council of 24 November 2010 extending Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of third countries who are not already covered by these Regulations solely on the ground of their nationality (OJ L 344, 29.12.2010, p. I) has applied to third-country nationals moving and working within the EU since 1 January 2011 5. Despite the existence of these regulations, posting a worker to, or carrying out work in, an EU country other than that in which a foreigner has legalised his or her stay continues to be significantly impeded. This makes these regulations largely illusory. According to the provisions in force in Poland, foreigners who do not have citizenship of a Member State of the European Union, a non-eu Member State of the European Economic Area or the Swiss Confederation are not required to possess a work permit if they are entitled to stay and work in a given country and have been temporarily posted to Poland by their employer in order to perform a given service. This regulation is intended to incorporate into Polish law the above-mentioned provisions and the following judgments of the European Court of Justice relating to the application of Directive 96/71 in the case of the posting of third-country workers: Rush Portuguesa (C-113/89) and Vander Elst (C-43/93). In many countries, however, even though such persons are not required to obtain a work permit, 5 The provisions of the Regulation do not apply to EEA countries (Norway, Iceland and Liechtenstein), Switzerland, Denmark and the United Kingdom.
there are entry procedures in place relating to the legalisation of residence that lead to the situation where foreigners residing in the territory of one of the Member States are refused the possibility of gainful employment in another state (this happens indirectly through refusal to issue entry documents) and it is a lengthy and difficult process to obtain entry documents. Such barriers should be removed. Moreover, given the positive role played by private employment agencies, steps should be taken to facilitate their operation by eliminating a situation where, if they wish to set up an employment agency in the territory of another EU state after obtaining a permit to operate a similar business in one of the EU Member States, they are required to obtain a business permit in accordance with the rules of the Member State in which they wish to set up their business. For example, an employment agency operating in Poland must obtain an appropriate certificate and be entered in an appropriate register of employment agencies. In addition to general requirements applicable to the setting up of business (natural persons are required to obtain entry in the business register and file submissions to the Social Security Institution, the tax office and the provincial statistical office), it is also necessary to obtain a certificate of entry in the register of employment agency operators from the provincial marshal having competence over the registered address of the agency. In the event of business expansion into other EU Member States, the agency is required to obtain separate permits in many of these countries, a fact that significantly restricts the freedom of private employment agencies to provide services. Reduction in restrictions on employment of temporary workers could be another way to address the problem of short-term labour shortages. Two basic systems of temporary employment have evolved in practice: the liberal model and the restrictive model in which the freedom of employment of temporary workers and the freedom of parties to agree conditions for the provision of work in this form are to a larger extent restricted by national legislation. The removal of such restrictions at the Community level and the introduction of increased opportunities for use of temporary work could bring positive outcomes. Positive effects may result from the regulations contained in Directive 2014/36/EU of the European Parliament and of the Council of 26 February 2014 on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers. Member States, including Poland, are obliged to adopt implementing regulations for the Directive in question by 30 September 2016.
PART II AVAILABILITY OF INFORMATION As regards the availability of information on migration procedures, it must be indicated that, due to the complexity of those procedures in the particular Member States, both migrants and employers rely on the assistance of professionals engaged in the operation of such procedures. On the one hand, this is dictated by the complexity of the very procedure of legalising residence and obtaining a work permit (these are typically multiphase processes) although matters have certainly been simplified by the introduction of a single application procedure for a temporary permit to reside and work. This simplification was introduced into the Polish legal system following the implementation of Directive 2011/98/EU of the European Parliament and of the Council on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State. It must, however, be noted that since only foreigners already legally residing in Poland can apply for a single permit to reside and work, the procedure in question is of no use to newly arrived immigrants. On the other hand, reliance on the assistance of professionals engaged in the operation of immigration procedures is associated with severe sanctions (introduced into the Polish legal system as a result of the implementation of Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals) for non-compliance with regulations on the employment of foreigners which, while designed to apply to companies illegally employing foreigners, may as well apply to employment agencies or employers who act legally but, through inadvertence or ignorance of the immigration law, fail to comply with all the required procedures. PART III ATTRACTIVENESS OF THE EU AND EU BLUE CARD EU Member States are certainly attractive to immigrants from non-eu countries, as evidenced primarily by statistics on the number of immigrants. However, EU countries should give priority to those immigrants who are not only interested in settling in the EU but also in starting a business or getting a job. In such a situation, it is necessary to simplify formalities for obtaining residence permits and, at the same time, take measures to prevent the use of those procedures exclusively
for the purpose of taking advantage of welfare benefits. It is also necessary to abolish the requirement to legalise residence and obtain a visa with regard to foreigners who reside legally in the territory of a Member State of the EU, to further facilitate taking up employment by highly qualified persons and, most importantly, to adopt uniform procedures for issuing permits and legalising residence and work. It should also be noted that employers rarely make use of the Polish regulations introduced as a result of the implementation of Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment. The EU Blue Card scheme, although favourable for foreigners, is rarely used due to the low awareness of its existence and benefits among entrepreneurs and workers. Therefore, it is rightly pointed out that information on the EU Blue Card should be better disseminated among highly qualified migrants and employers. Jarosław Adamkiewicz President of the Management Board Attachment: Survey of Employer Organisations