Free Movement of Workers in the European Union in the Context of the Amended Directive on the Posting of Workers

The free movement of persons, services and capital is one of the fundamental rights and major achievements of the European Union.  Nonetheless, a number of political measures have been taken and opinions voiced in an effort to constrain free movement of workers and also of other citizens of, mainly, poorer EU countries to wealthier EU states. The free movement of EU citizens was also turned into a powerful theme prior to Germany’s federal elections in September 2013, when especially the Bavarian CSU chose as its central election theme the protection of the welfare system against unemployed EU citizens (Armutszuwanderung – “poverty migration”), which subsequently met with a favourable response also from Chancellor Merkel.[1] The German government is actually considering the introduction of an entry ban for EU citizens who abuse social security benefits.[2] In the same vein, the French government is reacting agitatedly to Roma migration and has even resorted to deportations of EU citizens (!) of Roma descent. There have been recent cases of French primary schools refusing to enrol Roma pupils.[3] And in 2011 Spain introduced protection of its labour market against Romanian citizens.[4] The mapping and debate on labour migration of EU citizens in the Czech Republic has been quite meagre, although the potential (rather than actual) scope of this migration is considerable. In 2011, only 3.4 per cent of EU labour force was workers from another EU country[5], which is considered to be a “weak” phenomenon and more likely to evoke disappointment over unfulfilled expectations.[6]

Impact on the countries of origin of the workers – EU Citizens

The rareness of the phenomenon of migration from other member states to the Czech Republic is matched by the relative rareness of Czech migration to other member states. In a number of EU countries, especially Poland, Romania, Bulgaria and Spain, migration plays a significant role. Especially Poland is an important source country of immigrants to the United Kingdom and also to Germany and other countries. In the UK, moreover, large numbers of Poles are active members of trade unions - a fact much appreciated by the British unions. More than 570,000 Poles live and work in Britain alone. Unemployment in Poland is 13.2 % and for approximately 50 % of Poles under 30 it is difficult to find any kind of job on the Polish labour market. Labour migration from Poland to Germany has a long tradition and has been rising rapidly during the last twenty years. The problem is that educated Poles and craftsmen, especially, leave for the West (allegedly one in five doctors comes from Poland) while relatively liberal Polish migration policy provides for the inflow of workers from the East, especially Ukraine – mainly, however, into the construction and agricultural sectors. A specific feature of Polish emigration is the high mobility of women – it has been estimated that in Germany alone 160,000 Polish women work as domestic helpers; 25 % of domestic helpers in Brussels are also from Poland. The problem of the earlier mentioned Romania is largely demographic – rapidly ageing population. More than 3 million Romanians work abroad – of this number 1 million in Italy. In Romania itself there are roughly 4 million economically active people for 6 million pensioners. Unemployment in Romania is 7.2 %. The brain-drain from Romania is seen as a great problem, but emigration of low qualified workers from Romania is also significant. A large theme in Romania and Poland as source countries as well as in Germany as a destination country is the recently amended Posting of Workers Enforcement Directive[7] since it is the posting of workers that is considered to be both an important channel of emigration from Poland, and a manner of circumventing labour-law regulations and employee security in the Federal Republic of Germany.

Bulgaria is contending with similar issues (population ageing, emigration of its citizens and high unemployment). Of the total population of 7.6 million Bulgarians, more than 2 million are currently abroad. Young educated people leave Bulgaria soon after graduation, or even during their courses, and do not return. Nevertheless, this cannot be called massive emigration of Bulgarians to Germany or some other specific EU country like in the case of Romanian emigration to Italy. The last significant source country of EU migrants - as far as numbers are concerned - is Spain, which is grappling with a protracted economic crisis that first hits a whole generation of young people. Even university graduates have very little hope of finding jobs. The official figure of 5 million unemployed does not include a number of other categories of, in fact, unemployed individuals, who do not register as job-seekers or perform various short-term casual jobs. That is why especially workers with higher qualifications leave Spain. In Spain, the Directive on Posting of Workers is perceived rather critically, as an instrument supporting wage dumping, which serves the employers as a way of obtaining very cheap labour force from abroad.

Amended Posting of Workers Directive and its expected impact

The Posting of Workers Enforcement Directive[8] was adopted in response to the problems encountered due to the shortcomings and abuse of the former Directive on the Posting of Workers  96/71/EC, and also in response to the verdict of the Court of Justice of the European Union in Viking, Laval and Rüffert[9], which in their consequences limited the level of protection of workers, the options available to national governments to adopt different national regulations and also the possibilities trade unions had in collective bargaining.

• Posting of workers on the basis of an agreement between the sending organisation and the party for which the services are being performed by these workers (contracting/subcontracting);
• Posting of workers abroad to work in the operations or company belonging to the same corporation/group (intra-corporate transfers);
• Hiring-out of workers (for payment) abroad by a temporary employment undertaking or employment agency to the user of the services.

A common feature of posting of workers according to the Directive is the fact that the worker continues to be formally in an employment relationship with the sending organisation and the posting must be time-limited. The objective of the recently adopted Enforcement Directive is to specify the definition of “posting” to prevent, for instance, the use of “letter-box companies” established in source countries solely for the purpose of posting workers, to enhance protection of workers, prevent wage dumping, ensure that posted workers and the companies are well-informed, improve cooperation of national bodies in exchanging information, provide for enforcement of the rights of workers, introduce a complaints procedure allowing participation of third parties, define the obligations of the sending organisations and, last but not least, provide for the enforcement of administrative penalties also in the country where the sending organisation is established. An important provision is the implementation of the responsibility of the direct user in sub-contractor relations (but only of the contracting employer, not of the main one and only in the building industry), which is seen as an achievement because, especially in the construction sector, there have been a number of cases of exploitation of posted workers, unpaid wages etc.   

The final wording of the Enforcement Directive has been, however, the object of criticism from all sides. The cost for Poland may be, allegedly, the jobs of up to 250,000 workers of the temporary employment undertakings. The European Federation of Cleaning Industries, on the other hand, is warning against an exhaustive list of inspection competencies, pointing to the allegedly “boundless” ingenuity of cleaning companies in circumventing regulations[10]. The German Trade Union Federation (DGB) believes that the Directive should have stipulated the right of posted workers to legal counselling – the duty to inform is not, in their view, an adequate provision. German MEP Jutta Steinruck (SPD) is critical of the inadequate scope of responsibility within the subcontractor chain and its limitation to the construction sector only[11].  The British TUC criticises both the possible restriction of control mechanisms in the member states, and the still inadequate definition of posting of workers, which does not respond to the issue of feigned self-employment[12].

Conclusion

The amended EU Posting of Workers Directive covers but a very small sector of work and an even smaller sector of economically motivated migration from poorer to richer EU countries. The rule of equal pay for equal work in the same workplace should apply in the field of work migration too - and that without exception. The inspection activity of the state must be primarily targeted at controlling feigned self-employment, not at “newsworthy” raids, which end with the penalisation of the last foreign worker on a building site whom they had forgotten to tell that a raid was underway. The structure of quasi-entrepreneurial relations where every dependent worker is officially a self-employed person can result  - and in German reality also does result – in whole villages moving from Bulgaria and Romania to the Federal Republic of Germany[13], where, through agents, men as “self-employed subjects” find irregular work in specific industries (e.g. ship-building) and women either stay at home with children, and become a burden on the school and health care systems, or descend into criminal activities.[14]

In my view, there is a pressing need for a campaign to inform both the public[15] and foreign workers on the employment of workers from EU countries. The European Social Fund is a suitable instrument for removing the differences in the employment of foreign workers in individual EU countries and should therefore be applied especially in the countries and places where poverty migration (Armutszuwanderung) originates. Here, in Central and Eastern Europe, we must consider applying migration strategies which would lead to a much better utilisation of the potential of migrants descending from both EU member states and third countries, and abandon the policy of repression and fear. In other words, not be afraid, as a state, of migration and migrants, but to avail ourselves, in a better manner than others do, of their qualifications, skills, contacts, investments and ideas.

The text was written under the project called "Foreign workers in the labour market," which was carried out by the Association for Integration and Migration, in cooperation with the Organization for Aid to Refugees and the Multicultural Center Prague. International project partners are Caritasverband für die Diezöse Osnabrück from Germany and the Anti-Slavery International from Great Britain.