Brussels, 13-14/10/2010
Two legislative proposals have been put forward by the European Commission in July this year concerning the conditions of entry and residence of third-country nationals for the purpose of seasonal work and in the framework of an intra-corporate transfer (ICT).
Those two proposals have to been put in their context of a package of five directives on labour immigration as presented in December 2005 by the Commission (A policy plan on Legal Migration[[COM (2005)669]]). Those Directives as proposed find their basis in the European immigration policy and not in the social field.
First a framework Directive on a single permit for third-country nationals to reside and work in the EU (currently in the legislative process) and the “EU Blue Card”, both texts exclude seasonal work and ICT.
The proposal for a Directive on ICT aims at simplifying measures governing the entry, residence, employment and mobility of workers from third-country nationals, including their family members when being transferred inside an undertaking from a third country into the EU.
The proposed Directive on seasonal work determines the conditions of entry and residence of third-country nationals for the purposes of employment as seasonal workers and defines the rights of those.
The two proposals have potentially an enormous impact on labour markets and industrial relations in the EU and MS. For ETUC it is essential that any initiative taken in the area of migration is coherent with the wider policy areas of employment and development, and the need to ensure high social inclusion and sustainability both in the sending as well as receiving countries.
Workers from third countries are extremely vulnerable to exploitation; it must be ensured that it is not to their detriment and to the detriment of the local workers, as well as the migrant workers inside the EU, that companies can take advantage of the single market. A race to the bottom concerning wages, working conditions and employment and social security by importing cheap labour into the EU and putting strain on the local workforce and the industrial relations systems is unacceptable and only legislative proposals ensuring the contrary can be supported by ETUC.
ETUC always insisted that a two-tier migration policy, with different sets of rights for different groups of workers, must be prevented. It is not understandable why the question of ICT was not dealt with under the “EU Blue Card” initiative and that the intra-corporate transferees are excluded from the framework Directive.
ETUC questions the political wisdom of coming up with those two proposals at the current time, being marked by the crisis and where more and more xenophobia resentment inside the MS can be observed. What is needed is a strengthened legal framework for the social and employment protection of seasonal workers in general, dealing with minimum employment and social standards applying to seasonal work within the EU, ensuring equal treatment between local and migrant seasonal workers and promoting upward convergence of living and working conditions of all seasonal workers. On Intra-corporate transferees ETUC questions the need for a specific instrument.
ETUC cannot see any convincing arguments for the necessity of the two proposed directives. These topics are mainly taken up by national laws and bilateral agreement. European legislation is only of added value if they ensure high standards on working conditions.
It must be made waterproof that those directives do not help companies to recruit cheap labour at the expense of the third country national and national workforce. The most important guarantee against manipulation and abuse is equal treatment and the protection of workers on the one hand, and a level playing field for companies on the other hand. It is therefore of utmost importance that third-country nationals are employed in accordance with the principle of equal treatment.
It is unacceptable that after the (un)famous four ECJ decisions, the Commission continues to legislate with the will to liberalise the single market, favoring unfair competition, undermining the equal treatment principle of different groups of workers and trying to erode the host country principle. And this even under the new legal framework of the Lisbon Treaty, ensuring a social market economy, demanding the European legislator to work for social progress and the European Charter of Fundamental Rights ensuring equality (Art. 20), non-discrimination (Art. 21 par.2) and collective bargaining and the right to strike (Art. 28).
Instead the Commission continues the trend in EU policy in cutting on the bargaining autonomy of the social partners and again only recognizing universally or generally applicable collective agreements and not at regional, sectoral or plant level.
Those two Directives only ensure a minimum of terms and conditions of employment and open the door to large-scale organised social dumping and fraud.
Seasonal work
The equal treatment and non discrimination in the EU is guaranteed by the application of the “lex loci laboris” principle. This means, as a general rule, that the legislation and rules of working conditions of the Member State in which the person pursues his/her activity as an employed or self-employed person fully apply.
In this principle no difference is made between seasonal and non-seasonal workers.
a) In the proposed Directive a difference is introduced between seasonal and non-seasonal workers in the field of working conditions.
Article 16 says about their rights that seasonal workers are entitled to: working conditions, including pay and dismissal as well as health and safety requirements at the workplace, applicable to seasonal work as laid down by law, regulation or administrative provision and/or universally applicable collective agreements in the Member State to which they have been admitted according to this Directive. There is no argument to introduce a new category at EU level related to working conditions; the consequences could be that Members States where this difference has disappeared as the result of the fight for equal treatment will reintroduce this separate notion via the European angle.
b) Article 16 completely ignores another important aspect.
In the second part of the article reference is made to the Posting of Workers Directive definition of collective agreements to be applied (de facto or de jure generally binding). The experience with the ECJ is that collective agreements that are locally negotiated are neglected by the legislator. But in the sectors envisaged the experience is just that the working conditions are negotiated locally or regionally.
c) With regard to the rules applicable the proposal provides a minimum list.
This list suggests as if it is possible to derogate from the general principle enshrined in the “lex loci laboris” principle.
- risk of being abused to cover all kinds of needs for low skilled labour
- no sufficient improvement for seasonal workers of third-countries as concerns social protection, accommodation and working conditions
- Equal treatment needs to be ensured
- Work- and residence permit should not be granted if the employment contract of the applicant worker provides wages and working conditions that are inferior to those of national workers
- Definition of activity dependent on the passing of the seasons is far too broad and opens the door to abuse
- Duration of stay problematic
- Link with temporary agency work problematic
- Missing guarantees of trade union rights
- Accommodation / rent definition problematic, no regulation concerning transport costs and visa costs
- What about the rights of family members? – shows again failed concept of circular migration
ICT
- Risk of confusion if the relation to GATS mode IV and the Posting Directive are not properly clarified
Scope and definition of the groups of workers concerned much too broad
- No restriction to certain sectors – link to temporary agency work
- Aligned to the Posting of workers Directive not acceptable – ICT’s must have the same wages and working conditions as a local worker performing the same or similar job
- No restriction on type or size of the firms, which may use this Directive
- Host country principle needs to be ensured
- No proper control mechanisms and no specific sanctions foreseen this opens the door to abuse and fraud
- Mobility between the Member States, “forum-shopping” is possible
- Very problematic to include trainees in this Directive, as they are potentially very vulnerable to exploitation and abusive practices, which may also lead to unfair competition