Precarious migrant workers in the construction industry ITC ILO - ETUC seminar Gdansk, 13-14 September 2011 Tel : +31 (0)2 2271040 Email : wbuelen@efbh.be

Introduction What is the EFBWW? Some key figures: 73 TU’s de 31 countries 2,3 mio. direct members Created in 1958 Member of the ETUC European Soc. Partner: construction Wood, furniture Forestry Key activities: EU-labour market Health and safety EWC Voc training Internal coordination CB

Precarious work in general: The numbers of forms of employment that are regarded a precarious has grown due to: Liberal form of current global economic system; Deregulation (simplication), casualisation/flexibility; Subcontracting and outsourcing; Individualisation; Mass privitisation and restructuring programmes; Migration (regular and irregular); The impact of the current financial/economic crisis; Increased competition (based on price); Trade unions have lost their grip on the labour market; …

Precarious work in construction: Precarious work occurs often in construction due to: Fragmentazation of the sector; (Relatively high) labour cost; Migration; Need for low skilled jobs; High level of illicit employment/ undeclared work; Worsening of industrial relations; … Combatting precarious work in construction has ALWAYS been the top priority of trade unions;

Have we reached a momentum were precarious work, has become standard work?

Dealing with the problem of precarious migrant workers requires complex measures: An overall policy of prevention, inspection and sanction; Normative (equal rights/pay) and operational instruments; Strong and committed involvement of direct stakeholders; Organizing migrant workers

Organizing migrant workers Every trade union aims to organize migrant workers, but … with few success. Main obstacles are: Migrant workers are not interested; Legal vs illegal employed workers Short term vs long term employed workers; Isolated communities (language, culture, …); Cost (for trade union and worker); Trade union resources; … Successes are to be found in Italy, Spain and Norway.

Defining precarious employment: Precarious work has no standard definition: A-typical employment; Flexible work; Casual work Vulnerable work; … But the characteristics are often identical: Little or no job security; Unclear and low working conditions; No or very limited access to social protection; Failing to meet min. health and safety standards; No CB coverage; Discrimination, racism, exclusion; Limited or low prospects for advancement/progress; No choice; Isolation.

Precarious migrant workers: Migration (intra-EU and third countries) is growing rapidly: Migration policy is based on an economic and political policy; Is considered as a necessity (aging/shortage workforce) ; In the construction industry most migrant workers usually: Are employed in low paid jobs; Are very vulnerable for exploitation; Have limited social protection (home country) or none at all; Cope very long working hours; Have no access to complaint; Are employed in occupations with higher occupational risks; Face discrimination, racism, exclusion; …

Existing standards and regulations at International level: International Labour Organisation: Recommendation R 198 on the Employment relationship (2006); ILO Declaration on fundamental Principles and Rights at Work (1998) ILO Convention 98 on the Right to Organise and Collective Bargaining Convention 1949; ILO Conventions and Recommendations on gender equality and decent work; The ILO Declaration on Social Justice for a Fair Globalization (the Social Justice Declaration), 2008; …

Existing standards and regulations at EU-level: Charter of fundamental rights: Art. 7 Respect for private and family life; Art. 12 Freedom of association; Art. 15 Freedom to choose an occupation and right to engage into work; Art. 31 Right to fair and just working conditions, to max. working hours, to breaks and holidays; … EU instruments transposed directly into national laws:: Directive 2000/43/EC (Race Directive); Directive 2000/78/EC (Equal treatment Directive); Directive 91/533/EC (Information Directive); Directive 96/71/EC (Posting of Workers Directive); Directive 89/555/EEC (Min safety and health requirements);

We all know what the law stipulates, but we simply can’t apply it !

EFBWW actions on “precarious work”: In 2008 the EFBWW examined the liability schemes in the construction industry; From 2007 till 2010 various EP reports have endorsed by the EP (liability, undeclared work, posting, false self-employment, …); Various discussions with employers (FIEC) on topic related issues, e.g. false self-employment; In 2009 the EFBWW lauched it’s campaign for a revision of the PWD; In 2009 the employers sanctions Directive for third country nationals has been adopted; In 2010 the EFBWW launched it’s campaign on “illicit employment in the construction industry” by putting forward several concrete legislative proposals; In 2011 the EFBWW conducted a practical study on the PWD; In 2011 the EFBWW addressed the problem of the exploited third national workers

EFBWW campaign (2010) Precise elements to be included in future EU-legislation Scope of the measures. EU-Definitions Specific rules to tackle illicit labour providers (gang masters) and labour users Specific rules to tackle “letter box” companies Introducing a European Social Identity Card for the construction industry (SIC) Joint and several liability of the main contractor Specific Preventive measures Strengthened checks, investigation and control Facilitation of complaints Obligation to improve domestic administrative co-operation Specific enforcement and compliance Creating a new EU Social Intelligence and Investigation Agency (EU-SIIA) body to prevent and detect illicit employment The practice of false self-employed was discussed with success with the European Employers Federation of the Construction Industry (FIEC). Which has resulted in joint concrete legislative proposals.

EFBWW action on compliance and enforcement

EFBWW action on defining universal principles

Employers sanction Directive for third country nationals (directive 2009/52): Financial sanctions; Obligations on employers; Back payments to be made by employers ; Other measures: exclusion from entitlement to some or all public benefits, aid or subsidies, including EU funding managed by Member States, for up to five years; exclusion from participation in a public contract; recovery of some or all public benefits, aid, or subsidies, including EU funding; temporary or permanent closure of the establishments; Subcontracting; Criminal penalties; Criminal offence; Liability of legal persons

On 13 April 2010 the European Commission published the single market Act (COM(2011) 206 final). In the concrete actions is mentioned: Legislation aimed at improving and reinforcing the transposition, implementation and enforcement in practice of the Posting of Workers Directive, which will include measures to prevent and sanction any abuse and circumvention of the applicable rules, together with legislation aimed at clarifying the exercise of freedom of establishment and the freedom to provide services alongside fundamental social rights. To create a Single Market in services, the immediate priority is the full and complete implementation of the Services Directive in all Member States, including the establishment of Points of Single Contact. Beyond the implementation of the Directive, and in accordance with the European Council Conclusions of 24/25 March 2011, the Commission – together with the Member States – will carry out "performance checks" aimed at closer scrutiny of the practical functioning of the EU regulatory framework applicable to certain growth sectors such as business services, construction and tourism.

ENFORCEMENT DIRECTIVE: Will come out in 2011; Basis: better enforcement (sanctions included), cooperation and information, mainly based on art. 4, 5 and 6 of the PWD. Will not deal false SE and Social Security issues; With support Council and SP’s Content (informal info): Electronic exchange of information; European (cooperation and information) platform - pilot; Administrative cross-border cooperation; Financial sanctions and damage payments; Letter box companies Clarification elements of the PWD Subcontracting

Thank you questions and/or remarks Werner Buelen Wbuelen@efbh.be