Project CIBELES Experts’ Conference, Palma de Mallorca 28 October 2010

1. Project CIBELES Experts’ Conference, Palma de Mallorca 28 October 2010 Posting in practice: experiences and perspectives from the construction industry Dr. Justin Byrne (European Institute for Construction Labour Research CEACS, Juan March Institute, Madrid)

2. Construction Labour Research and Posting • 2003-2004. EC funded research for the construction social partners (EFBWW and FIEC) on transposition and implementation of EC Directive 96/71/EC - Cremers, Jan and Donders, Peter (eds.), The free movement of workers in the European Union (CLR Studies 4, 2004): http://www.clr-news.org/ • 2010 EC-funded project for EFBWW on “Improving best practices on the working and living conditions of posted workers” Research in 11 countries: Belgium, France, Germany, Holland, Ireland, Italy, Romania, Spain, United Kingdom plus Switzerland, Norway http://www.clr-news.org/

3. Today’s presentation • Posting – off the radar • E101 certificates - the best available data • Posting in construction • The “3 logics” of posting • False posting • Most frequent abuses • Insights into enforcement • The politics of posting

4. Posting: off the radar • Few countries (even those with mandatory notification) produce official statistics • Definition of posting is not clear, universally understood, or consistently applied. • Competences with respect to posted workers are fragmented, and the division of labour varies from one country to another (tax, labour inspectorate, social security authorities, social partners,…) • Cooperation between sending and receiving countries has improved since 2003- but is still insufficient

5. E101 data on posting, 2005-2007 Postings by sending country, 2005-2007 (in thousands) EC, ADMINISTRATIVE COMMISSION ON SOCIAL SECURITY FOR MIGRANT WORKERS (October 2009)

6. Postings by destination country, 2005 - 2007 (in thousands) EC, ADMINISTRATIVE COMMISSION ON SOCIAL SECURITY FOR MIGRANT WORKERS (October 2009)

7. E101 certificates by economic activity, 2007 For missing countries no sectoral breakdown of E101 certificates available EC, ADMINISTRATIVE COMMISSION ON SOCIAL SECURITY FOR MIGRANT WORKERS (October 2009)

8. Some conclusions from the E101 data • The data is incomplete and inadequate but shows: • Posting relatively small but growing phenomenon • Majority of postings originate in “old” EU 15 Member States • The pattern of posting largely shaped by geographical proximity • Construction accounts for a significant proportion (+/- 25%, at least) of all postings in Europe

9. The construction industry • Production at the point of consumption- labour not product for export • Labour intensive • Long tradition of “productive decentralization” in form of subcontracting, • often in line with traditional division of labour • to meet carry out tasks outside core activity • to meet need for flexibility (labour and production) • Opaque - large undeclared, underground economy

10. The “3 logics” of posting in construction • High end - “provision of services” • Specialist subcontractors for expertise and labour shortages, taking advantage of division of labour efficiencies • Well-paid workers from the posting companies core workforce • Low end - “provision of labour ” • “Legal”, labour-only subcontracting • Cheap, flexible labour, recruited via labour agents, agencies, or gang masters • Bottom end – “abusive posting” • Labour-only subcontracting • abuses in the “shadow of transnationality”

11. The “3 logics” of posting • “High end” posting – not a problem • “Legal” posting –social dumping and labour market segmentation • lower social security costs in the country of origin • workers’ acceptance of lower standards (wages, hours, working and living conditions) than locally-employed workers • Abusive posting – multiplicity of illict and illegal pratices • Workers’ acceptance of lower standards (wages, hours, working and living conditions) than locally-employed workers • Wage, tax and social security fraud

12. Widepsread “False” posting • companies only operating in host country/countries. • workers who only employed by company in the host country • Labour-only supply, with no supervision by posting company • bogus self-employment • employment of foreign workers already in the host country

13. Most frequent abusive practices • Wages: • Not correspond with working hours or skill levels • Unlawful deductions- retentions at source • Social security payments not made or too low • Working hours: • Longer working hours – 60 hours • Not respect rests between shifts or working week • Housing and transport: • Overcharged for substandard accommodation and transport • Deductions for housing, and food in breach of the posting directive • Kept in isolation from the local population • Poor transport by tired drivers. ………

14. Most frequent abusive practices • Health and safety - Higher risks of fatigue • No training provided • Absence of mandatory protective equipment • Sub-standard housing • Dangerous transport

15. Improving enforcement • Obligatory notification / registration of all postings • Mandatory registration and accreditation of recruitment agencies and temporary work agencies • Inclusion of posted workers in the classical labour market institutions • Institutionalized joint action of all national actors (tax, social security, labour inspectorate, unions, employers) • Intensified bilateral (national and regional) cooperation of responsible bodies – e.g. labour inspectorates • Standardization of rules, documentation, procedures at European level • Measures to improve control and enforcement of compliance- e.g. CIBELES

16. The politics of posting I • Enforcement essential for integration in a real single market to eliminate unfair competition for both companies and workers • The existence of unfair competition and social dumping undermines the European public(s) support for integration

17. The politics of posting II • OHS – puts the spotlight on posting • OHS - the politically “acceptable face” of regulation • for the European and national polities and institutions • for “free marketeers” (??)