16.5.2008   

EN

Official Journal of the European Union

C 120/19

1.1

Labour migration is of an economic nature and is the consequence of free movement of labour in a Europe in which great differences in living standards exist between the various Member States. High unemployment rates in a number of the new Member States and the demand for cheap, semi-skilled labour in the 15 old Member States ensure a steady stream of job-seekers.

1.2

In 2004 and 2007 transitional arrangements were agreed upon to enable the old Member States to regulate migration from the new Member States. One of the motives for this was that the old Member States wanted to avoid tensions caused by too great an influx of migrant workers arising on the labour market, possibly resulting in illegal employment.

1.3

The result of the transitional arrangements was precisely what the old Member States were trying to prevent. In its Report on the Functioning of the Transitional Arrangements, the European Commission states that restrictions on legal work for migrants from the new Member States actually lead to a proliferation of undocumented work, bogus ‘self-employed’ work, and fictitious service provision and sub-contracting.

1.4

The paradoxical situation has arisen that in the EU-15 countries there is a great deal of seasonal work available in agriculture, for which not enough legally resident workers can be found on the labour market. There are enough migrant workers from the new Member States who are willing to do that work, but many of them are not allowed to do it because of the restrictive transitional measures. Agricultural labour flows vary according to countries of origin and host countries. These differences are mainly connected with whether or not transitional measures, either total or partial, are in place.

1.5

In this situation the work often ends up in the black economy. It is difficult to obtain accurate information on this matter since it involves three parties who each have their own reasons for not making this information public. There are employers who want to pay rates below those prescribed by law or the collective wage agreements which are in force. There are workers who are ready to work for lower rates than those which they are entitled to receive by law or under collective wage agreements. And there are employment brokers of dubious repute who are only too willing to organise such deals since they may be very lucrative for them.

1.6

Many of the middlemen make sensational offers; ultimately, however, the price war is paid for by the migrant workers who have to make do with incomes that are below the social minimum. There are also cases where employers who take on seasonal workers pay employment brokers the market rate but these brokers do not make tax and social security deductions. On top of this, the middlemen who do this also frequently pocket part of the migrant workers' salaries. There are also websites with telephone numbers in both Eastern and Western Europe which offer self-employed workers for whom no payment of tax or employers' social security contributions are required.

1.7

This situation is undesirable in a number of respects. The basic principle must be that migrant workers must be treated in every respect in the same way as the legally resident workers alongside whom they are working. There must be equal pay for equal work and better conditions with regard to access to social security. This is not just a social issue for workers. It is also economically important to employers (a level playing field for fair competition) and financially important for the Member States (tax authorities).

1.8

There is a proposal for a Directive of the European Parliament and of the Council providing for sanctions against employers of illegally staying third-country nationals. The proposal provides for harmonised sanctions for employers and preventive measures, as well as the identification and exchange of good practices between Member States on the implementation of employer sanctions.

1.9

As long as the restrictions on migrants from the new Member States remain in place, the EESC argues that the proposed directive should also apply to employers who illegally employ workers from EU countries which are still subject to restrictions. Moreover, the EESC considers it essential that the EU should ensure that the directive is not just enacted in legislation in all Member States but is also enforced in practice.

1.10

The combating of the black economy would benefit from an unambiguous European definition which makes a clear distinction between the taking on of work (the supply of services) and the carrying out of duties in an employer-employee relationship (the employment contract). The ILO has issued a clear recommendation on this subject. This gives bonafide self-employed workers whose specialism goes beyond the supply of cheap, unskilled labour a clearer position in the world of work, and employers the protection they are entitled to. The EESC is pleased to note that the European Commission has approved a proposal for a study to be carried out by the European social partners in the construction industry on the subject of (bogus) self-employment. The EESC welcomes the fact that the Commission will also fund this study.

1.11

In view of the consequences of the restrictions on legal employment, it would perhaps be better to drop this kind of transitional measure in any future EU enlargements. The EESC also calls on the European Commission to explore the possibility of lifting all restrictions on workers from the 12 Member States that joined the EU in 2004 and 2007. A large proportion of the European social partners also hold this view, provided that real action is taken at EU and national levels, as well as at social partner level, to monitor equal treatment for migrant workers.

2.1

According to the Lisbon strategy, the EU must in future become a very competitive knowledge-based economy, founded on sustainable production and consumption and with a considerable degree of social cohesion.

2.2

The EU is at present a reasonably competitive knowledge-based economy with production and consumption patterns that are at present insufficiently sustainable and with a level of social cohesion that leaves much to be desired.

2.3

This opinion focuses in particular on this last aspect, social cohesion. The EU is paying a great deal of attention to economic development and sustainability, especially of production. The lack of attention to policy on the third pillar of the Lisbon strategy is leading not to an increase but rather a decrease in social cohesion.

2.4

The consequences of this are clearly apparent on the labour market. The proportion of informal labour is increasing and a type of employee has returned who until recently was thought to be long since extinct: the day labourer.

2.5

The new day labourers offer their services on the street, at places that are well-known as ‘pick-up points’ for illegal gangmasters. They are hired on a daily basis, with no deductions either for income tax or social security contributions. They have to work excessively long hours each day, are paid too little per hour and are not covered in any way by employment legislation — insofar as it exists.

2.6

Until a few years ago the labour market, especially for semi- and unskilled work, was nationally oriented. After the EU enlargement in 2004, a European labour market emerged for that segment of the market. Since the 2007 enlargement there has been a sharp increase in the supply of labour now that Bulgarian and Romanian workers are entering the market.

2.7

The sector where this trend is developing strongly is agriculture. Moreover, many people who are looking for work in another country almost always find their first job in this sector, in particular.

2.8

The aim of this EESC opinion is to place this problem on the EU agenda so that the relevant European institutions, together with the Member States and the social partners are in a position to look for solutions to this major and difficult problem — which is unfortunately growing.

3.1

Agriculture is the totality of economic activities by which the natural environment is adapted for the benefit of the production of plants and animals (1). Depending on the product, the production method and the level of prosperity, use is made of a large number of diverse methods, ranging from working with simple tools to the use of large machines which are increasingly replacing human labour.

3.2

The agricultural sector in the EU is a major sector. A total of more than 160 million hectares of land in the EU is used as farmland. There are 11 million agricultural enterprises, which provide employment for a total of 15 million people. The majority of these are the farmers themselves and members of their families, but about one million farms have a total of 6,5 million employees on the payroll. 4,5 million of these are working as seasonal workers, an unknown number of them in a country other than their country of origin (2). Many of the seasonal workers come from Poland, Bulgaria and Romania.

3.3

Agriculture can be sub-divided into different activities: livestock farming (animal production) and aquaculture (fish production) and horticulture (small-scale production of short-cycle crops, such as vegetables, ornamental plants, fruit, and mushrooms), and arable farming (which differs from horticulture in that the crop cultivation is on a larger scale and is less labour-intensive). Commercial forestry is not regarded everywhere in the EU as forming part of the agricultural sector; in some countries it is considered to be an independent sector.

3.4

Agriculture produces not just food, but increasingly also other goods such as flowers, furs, leather, biofuels (biodiesel, ethanol, gas, fast-growing wood), enzymes, fibres, etc. Genetically modified crops also produce specialised medicines.

3.5

According to figures from both the ILO (3) and Eurofound (4), agriculture is one of the most hazardous industrial sectors for workers. In total, there are around 335 000 fatal accidents in the workplace each year. More than half of these, 170 000 fatal accidents, occur in the agricultural sector.

4.1

Because of numerous legal complications it is not possible to draw up an unambiguous definition of informal work in the EU. Practices which in one country are quite usual (if there are no rules in a certain field, there is nothing to comply with) are considered in another country to be unusual or even illegal.

4.2

The national definitions of informal work differ from Member State to Member State. It concerns activities that are not included in the official statistics of the formal economy. There are figures but they can often be traced back to one source only, and are not always verifiable and therefore not always reliable. However, it is undeniable that large-scale informal work exists.

4.3

Nearly all national definitions of informal work emphasise non-compliance with tax obligations. Non-compliance with obligations with regard to social security is cited in nearly all definitions. Oddly enough, non-compliance with other obligations in the field of employment law (working conditions, working time, binding collective agreements) hardly ever forms part of national definitions of informal work.

4.4

Informal work is done by non-registered employees who are not necessarily migrant workers without a work and/or residence permit. People who do have the documents are also working informally — or else they do not need them because they are nationals of the country in which the offence takes place. People without valid documents are more vulnerable though and therefore easier to exploit than people with valid documents. After all, the latter group has access to formal work anyway; the former group does not.

4.5

Apart from classic paid employment, there is also the ‘self-employed person with no employees’. These ‘self-employed persons’ are seen as entrepreneurs, and no tax or social security contributions need to be paid for them. They themselves are responsible for making these contributions.

4.6

Nor are they covered by employment law applicable to employees. For them there are no minimum wage rates, no maximum weekly hours of work, no health and safety regulations and no minimum wage. In view of the high risk of serious industrial accidents in this sector (see point 3.5 above), this situation is unacceptable. These self-employed persons are free to work for whatever rates of pay and under whatever conditions they agree on with their clients.

4.7

These self-employed persons were originally experienced specialists with specific vocational skills. As a rule, they had spent years qualifying as skilled specialists in order to be self-employed.

4.8

As a result of increased outsourcing after the hiving-off of non-core functions, much more than just specialised work is at present being outsourced. A small nucleus of permanent and well-established staff is sufficient, as the frequently simple work is done to an increasing extent by subcontracting and outsourcing. The demand for that sort of work is met by a large group of new self-employed persons seeking work on the labour market. The most important specialism of many of these new self-employed is the supply of cheap, unskilled labour.

4.9

This form of pseudo self-employment was used in the late 1980s to export unemployment from Ireland and the United Kingdom. Until then British law contained numerous safeguards to test whether the self-employed actually fulfilled a number of conditions. One of the conditions was that they should be experienced specialists in a particular vocation. The British government of the day dropped the assessment criteria, as a result of which many more people suddenly became able to register as self-employed persons and get jobs on the continent without the need to take account of labour law in the other Member State (5).

4.10

Moreover, this phenomenon is no longer exclusive to the English-speaking countries: a Polish government spokesman, for example, said at a conference on the free movement of workers that his government urged Polish job-seekers to register as self-employed (6). By doing so they can get round all remaining restrictions on workers in the other Member States and can work anywhere. In this way, self-employed status is regularly and deliberately used as a scheme arrangement for evading labour law or regulations by a chain of subcontracting and outsourcing. Responsibility for compliance with obligations with regard to income tax and social security payments, too, is passed on downwards by means of unfair contracts for bogus self-employed workers, which are often offered by recruitment agencies.

4.11

This phenomenon is also present on a large scale in the construction industry. Furthermore, much more research has already been carried out into this phenomenon in the latter sector than in the agricultural sector. There are considerable similarities between these two sectors. What they have in common, in particular, are the three largest risk factors for informal work, namely labour-intensive work of a temporary nature which is carried out, above all, by non-resident workers. The European social partners in the construction industry have now recognised this danger and have asked the European Commission to provide funding for a study into the phenomenon of (bogus) self-employment in 18 EU Member States. The Commission has agreed to this request and the proposed study will be put out to tender in the EU before the end of 2007.

4.12

The fact that there is still no European legal framework for the employment relationship creates room for dubious trade in cheap labour. This causes serious damaging side effects at European level. The European Commission itself comes to this conclusion in its Report on the Functioning of the Transitional Arrangements set out in the 2003 Accession Treaty which notes that ‘the restrictions may have encouraged EU-8 nationals to look for other ways to perform economic activity in EU-15 Member States, reflected in an exceptionally high influx of posted workers or workers claiming to be self-employed’ (7).

4.13

In that same report the Commission states: ‘Recognising that migration flows from EU-8 to EU-15 Member States had been modest, social partners strongly emphasised that erosion of labour standards and “social dumping” should be avoided. They also pointed out that restrictions on legal work actually lead to a proliferation of undocumented work, bogus “self-employed work”, and fictitious service provision and sub-contracting’. The Commission later on corrects the view that migration flows have not been so great by commenting that ‘the true migration flows across the enlarged EU may be larger than would appear from the data presented in this report as the phenomenon of undeclared work is not fully captured by official statistics’. The Commission notes that, in general, restrictions on labour market access may exacerbate resort to undeclared work.

4.14

In the Netherlands, for example, in 1992 in the Netherlands there was a total of 54 200 FTEs (full time equivalents) engaged in horticulture, the agricultural sector with the most employees. Nearly 87 % of the workers were in permanent employment, more than 13 % were connected to the business in some other way (employment agency staff, temporary employment, (bogus) self-employed). In 2005 the sector numbered 59 000 FTEs, with more than 61 % of the workers then in permanent employment and nearly 39 % connected to the business in another way. Please note that these are figures for the formal economy. It is estimated that in spring 2007 a further 40 000 FTEs were working informally in the sector (8) but there are strong indications that the proportion of informal work in horticulture has been steadily decreasing since the lifting of the restrictions imposed on residents of those Member States which joined the EU in 2004.

5.1

The last few years have shown that imposing restrictions on access to the labour market is often counterproductive. It can result in the evasion of labour law and regulations. Until 31 December 2008 there are no restrictions for job-seekers from Romania and Bulgaria in Estonia, Latvia, Lithuania, Poland, Slovakia, the Czech Republic, Sweden, Finland, Cyprus and Slovenia, although in the latter three countries Romanian and Bulgarian nationals must register. The remaining 15 EU Member States do impose restrictions on job-seekers from Romania and Bulgaria (9). For job-seekers from the ten Member States that joined the EU in 2004, some restrictions also still apply but in a smaller number of countries and less stringent than for nationals of Bulgaria and Romania (10).

5.2

Labour migration in the EU is of an economic nature and is the consequence of free movement of labour in a Union in which great differences in living standards exist between the various Member States. High unemployment rates in a number of the new Member States and the demand for cheap, semi-skilled labour in the 15 old Member States ensure a steady stream of job-seekers.

5.3

Many job-seekers find work in the agricultural sector because there is a great demand for additional temporary workers in this sector at harvest time. It is also a sector where the chance of social dumping is greater than in other sectors. This is because, among other reasons, in a number of Member States there are no collective wage agreements in force for the sector or because in a number of cases those agreements that do exist have been declared not universally binding.

5.4

Seasonal work is a structural feature of European agriculture. Sustainable and efficient agricultural production is not possible without the deployment of a flexible workforce. Seasonal work in the agricultural sector is largely done by migrant workers. In some cases, problems arise which jeopardise social cohesion.

5.5

Migrants who work in the formal sector are often cheaper than legally resident workers because the employer does not have to pay a number of contributions for them. This applies, for example, to sectoral training funds and pension funds. Migrants from the 10 EU countries that joined the EU in 2004, and for whom there are still restrictions on the labour market in a number of old EU countries, often do informal work part of the time so that not all hours worked are reported to the tax authorities. Migrants from Bulgaria and Romania, for whom even more restrictions still apply, are in general entirely dependent on the informal sector, in which they are not paid for all hours worked, hourly rates are much too low or they are forced by unfair contracts to be (bogus) self-employed workers.

5.6

The ILO has devoted a number of conventions to the issues that are discussed in this opinion. These are Conventions C97 (Migration for Employment, 1949) C143 (Migrant Workers Supplementary Provisions, 1975), C181 (Private Employment Agencies, 1997) and C184 (Safety and Health in Agriculture, 2001). Conventions C97 and C181 have not been ratified by 17 of the 27 EU Member States. Convention C143 has not been ratified by 22 of the EU Member States, nor has Convention C184 by 24 Member States. Not one of the 27 current EU Member States has ratified all four conventions (11). Furthermore, in 2006 the ILO issued a Recommendation on the employment relationship (12). The core of the Recommendation was to improve legislation in all countries at national level in order to make a clear and common distinction between self-employed and employed workers. This is necessary in order to be able to put an end to the growing number of fraudulent practices aimed at disguising the fact that the people are employees and to make it appear that they are self-employed (13).

6.1

The basic principle must be that migrant workers must be treated in every respect in the same way as legally resident workers alongside whom they are working. There must be equal pay for equal work and better conditions with regard to access to social security. This is not just a social issue. It is also economically important to employers (a level playing field for fair competition) and financially important for the Member States (tax authorities). This basic principle has by no means been implemented everywhere. In the Netherlands, following the lifting of the transitional measures applying to residents of the Member States which joined the EU in 2004, the social partners expressed their intention to work together, as from 1 May 2007, in monitoring compliance with social laws and regulations and labour law and regulations. The government promised to introduce back-up measures. No tangible results have so far been achieved.

6.2

There is a proposal for a Directive of the European Parliament and of the Council providing for sanctions against employers of illegally staying third-country nationals (14). The proposal provides for harmonised sanctions for employers and preventive measures, as well as the identification and exchange of good practices between Member States on the implementation of employer sanctions.

6.3

The reason for this proposal is the substantial number of third-country nationals who are illegally staying in the EU (an estimated 4,5 to 8 million). This results in illegal employment, agriculture being, together with construction, hotels/catering and cleaning, one of the four main sectors in which this practice occurs. The European Parliament and the Council state in the proposal that illegal employment, ‘like undeclared work by EU citizens, leads to losses to public finances, can depress wages and working conditions, may distort competition between businesses and means that the undeclared workers will not benefit from health insurance and pension rights’.

6.4

In their report on the functioning of the transitional arrangements set out in the 2003 Accession Treaty (period 1 May 2004-30 April 2006), the European social partners reported ‘that restrictions on legal work actually lead to a proliferation of undocumented work, bogus “self-employed” work, and fictitious service provision and sub-contracting’. In the light of experience, it would be better to lift all restrictions on workers from the 12 Member States that joined the EU in 2004 and 2007 in order to create a level playing field. The overwhelming majority of the European social partners also hold this view, provided that real action is taken at EU and national levels as well as at social partner level to monitor equal treatment for migrant workers.

6.5

As long as restrictions are not yet lifted, the EESC argues that the proposed directive on sanctions against employers who illegally employ citizens of third countries who are staying in the EU should also apply to employers who illegally employ people from EU countries which are still subject to restrictions. Moreover, the EESC considers it essential that the EU should ensure that the directive is not just enacted in legislation in all Member States but also enforced in practice.

6.6

Moreover, the Directive does away with the great differences that exist in the quality and intensity of checks and the severity of penalties between the Member States. An employer in the Netherlands who is found to be illegally employing workers can receive a maximum fine of EUR 6 700 per worker. In Belgium it is EUR 20 000, in Luxembourg 50 000. However, there are some Member States which do not yet have any penalties for employers who are guilty of illegally employing workers.

6.7

The exchange of good practices is an indispensable part of the process that must result in an increase in social cohesion. At the hearing in Plovdiv (15), a number of examples of good practice were mentioned, such as:

6.8

The situations described in a number of these examples of good practice are not all entirely comparable to that of workers from Bulgaria and Romania who are looking for work in the old EU-15. For example, Hungarian workers who are employed in Burgenland simply go home every evening, whereas workers from Romania and Bulgaria are away from home for months. Malpractice can still occur in these situations, but on a much smaller scale, and with effective enforcement it can be easily detected and penalised. The general impression is therefore that here people's working conditions are socially acceptable.