A little essay going round and round and ending with Tönnies by GreensEFA EMPL advisor team / Philine Scholze
The 6 most effective ways to circumvent labour law and local standards
How to circumvent Labour law and worker protection in Europe?
1. Cross a border
To circumvent labour standards, start by crossing the border. That way, the labour inspector can’t simply come to your headquarters and request the documents. It’s harder to deliver official documents and drag you in front of a court.
What has the EU done: The European Labour Authority is about to launch, it’s EU regulation was adoopted with our support in 2019.
ELA mandate is to “ensure that EU rules on labour mobility and social security coordination are enforced in a fair and effective way and makes it easier for citizens and businesses to reap the benefits of the internal market”
As GreensEFA we fought for Labour Inspectors from different Member States to be able to inspect together crossborder. However MSs were highly reluctant to let labour inspectors from another country in onto their territory, so ELA’s role is mainly coordination of national systems.
We also fought for better judicial cooperation and enforcement. EMPL is jealous of TRAN when it comes to judicial cooperation and enforcement: If you get a speeding ticket in Latvia, it’s delivered to your mailbox in Brussels. If you exploit 150 Polish workers in Gütersloh, you don’t end up in front of a Polish court. A good example can be found in the enforcement chapter of the Posting Enforcement Directive 2014/67/EC
GreensEFA demand that labour rights can be enforced across borders, that there is reversed burden of proof and group claims on behalf of workers
2. Hire a subcontractor / Joint and Several liability/ Don’t get your own hands dirty
Don’t employ workers yourself. Hire a company. Sign a service contract with them to slaughter 2000 cows or build a Commission building. They will subcontract to 10 more companies. There will be less cost for you and you can’t be held responsible in most cases.
Example: Tönnies has no lists of all the people working on their territory because “they are not our workers, it’s the subcontractors who have the list”
What we need to combat this: European Joint and Several Liability for workers rights. Also known as “supply chain compliance” Means: the main contractor can be held liable if subcontractors violate the law (and then disappear)
We have JSL in many EU countries at national level and are still fighting for it at EU level. DE has strong Joint and Several Liability in the construction sector. In the first year, German Trade Unions on behalf of the concerned workers sued the main contractors for an amount of almost a million euro.
GreensEFA have in all legislation aiming to protect workers introduced EU-wide Joint and Several Liability (supply chain compliance). Unfortunately in EP so far we have only won “direct chain compliance” in two labour law instruments; there is a solid rightwing majority against us.
The ILO might back our fight with a recommendation or even a convention in the next 5 years.
COM is slowly getting better and stronger on Joint and Several Liability.
GreensEFA demand full supply chain compliance for workers rights.
3. Use temporary agency work/ rent a worker, it’s cheaper and easier to get rid of
Don’t employ the worker, rent it. That way, they disappear when you have less work without creating cost for you.
Temporary Agency work across borders was a key circumvention strategy of criminal or rogue employers until 2004. Then a European beauty of Labour Law was adopted. The Directive lays down the principle of non-discrimination, regarding the essential conditions of work and of employment, between temporary workers and workers who are recruited by the user company.
In the industry Temporary Agency work has an essential buffer function, e.g. in the car industry. Workers still face slightly worse conditions, but since the directive is in force, the big abuse via use of Agencies is over.
Agency work remains problematic in the care sector – as work tends to be highly individualized, workers are often not aware of their rights and easily exploited. Nurses for elderly care at home are often hired via Agencies. Here, we need to fight to improve.
GreensEFA demand that workers in the care sector are better protected and informed of their rights. That there are regular inspections and enforcement of rights is easy. That workers are entitled to decent working hours, training and language classes.
4. Post a worker / service provision across EU borders/ hard to trace
Posting workers, means sending workers from your company to provide a service in another Member State. Posting used to be a core circumvention strategy and is in some countries considered to be evil in itself. We have now solid EU legislation to protect posted workers.
A worker posted to another Member State, e.g. to build a house, has to receive at least minimum wage in the host country. There is solid EU level legislation to protect workers in this field – uptodate and/or recently revised.
Posting is still used by rogue or criminal companies for circumvention in some cases, as it is harder to catch the employer/perpetrator if they are across the border.
To improve the situation of Posted Workers we need:
# more labour inspections at national level
# better tracability of social security contributions (trace the money)
# on the ground work so that workers know their rights
GreensEFA have successfully fought in the EP for the revision of the Posting Directive 2019 and for the “enforcement Directive” that allows better crossborder enforcement of rights. Now it is up to MSs to implement
5. 20 self-employed at a conveyor belt / false self employment/ Werkverträge
To escape labour standards, make sure the person working for you is not a worker. But a self-employed. Because a self-employed entrepreneur decides himself what income he generates from his business. And has zero workers protection. Give someone a Werkvertrag (DE term, best translated as service contract) to slaughter 50 cows and 100 pigs in 1 month. Pay himher 1500EUR for that. Rent them their work equipment (clothes, knives) as well as a place at your conveyor belt. Rent them a bed in a 50sqm flat with 8 people. Tell the person when to show up, when to stop and what to do. But don’t ever call them a worker.
Effectively Werkvertrag- people are workers.
Who is a worker and who is self-employed in Europe?
Currently, it’s up to each MS to define who is a worker. This is one of the biggest holes in European Labour Law. If EU-wide we agree who is a worker, we can get rid of thousands of falsely self-employed. Including slaughterhouse workers.
Last term, COM proposed legislation including an EU-wide definition of a worker- and we lost it. Germany itself heavily opposed this in Council. We lost it also in EP. In April 2019 we as GreensEFA voted against the new Directive on “Transparent and predictable working conditions” because it has no EU-wide workers definition.
In the EP we push Commissioner Schmit to make a second attempt to get a European-wide definition of who is a worker.
As GreensEFA we demand an EU-wide definition of who is a worker. The ECJ has ruled that worker is (paraphrased) someone who performs a task for money under supervision. That’s the best definition of a worker that exists.
ECJ: “worker” means a natural person who for a certain period of time performs services for and under the direction of another person in return for remuneration
6. Undeclared work/ I pay you 20h and you work 40h/ here’s the cash
It’s illegal. It continues to be a core strategy. EU has set up first the Undeclared Work Platform (exchange body) and now the European Labour Authority to combat this. Up to MSs to clean this up and to cooperate crossborders in combatting.
Tönnies – and other slaughterhouses in DE: have employed most of these strategies. The German meat industry is infamous for combining Werkverträge and subcontracting. It’s up to DE to clean up there, both as regards “who is a worker” and “holding the main contractor liable”.
Top exploitation strategies per sector
Meat and food sector: service contracts and subcontracting
Agriculture: undeclared work, seasonal work, lack of enforcement
Construction sector: false self-employment, undeclared work and posting
Care sector: agency work and posting, lack of enforcement
transport sector: subcontracting, false self-employment
Violators of Labour Law
We usually differentiate two types of perpetrators: Those who stretch the rules (Ryan Air, Tönnies) and those who intentionally break the rules (Atlanco). Both usually employ a mix of all these strategies above
Key instruments of European Labour Law
Posting of Workers Directive – 1996/71/EC recently revised by 2018/957/EC https://eur-lex.europa.eu/eli/dir/1996/71/oj
Posting Enforcement Directive 2014/67/EC – recent https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32014L0067&from=DE
Seasonal Workers Directive for 3rd country nationals, up for revision Temporary Agency work directive 2008/104/EC
Transparent and predictable WOrking Conditions Directive 2019/1152/EC https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32019L1152
Free movement of workers Regulation 492/2011/EC