15/04/2014
The European Federation of Food, Agriculture and Tourism Trade Unions (EFFAT) represents 120 national trade unions from 38 European countries, and defends the interests of more than 2.6 million members towards the European Institutions, European industrial associations and enterprise management.
In response to the adoption of the directive on the conditions of entry and stay of third-country nationals for the purpose of seasonal work by the Council and the EP (PE-CO S 113/13), EFFAT adopts the following position:
- EFFAT takes note of the potential improvements that the directive can bring to the deplorable housing and working conditions that third country national seasonal workers face and considers the text as an important first step forward. However, EFFAT notes that the legislation could potentially lead to an increase of illegality, precariousness and exploitation if the provisions are not be strictly observed and sanctions applied.
- EFFAT acknowledges that different standards of working and employment conditions and the general lack of equal treatment is the primary cause of social dumping among national and third country workers in the EU. Thus, EFFAT welcomes the recognition of equal treatment in Art. 16 with regard to, among others, working conditions, terms of employment, the minimum working age, working hours, the freedom of association and the right to strike as well as the right to benefit from some branches of social security. Nevertheless EFFAT regrets that member states can decide to restrict equal treatment with respect to unemployment and family benefits, tax benefits and education and vocational training. EFFAT calls on national governments to recognise full equal treatment among national and third-country workers, in order to guarantee a full set of rights for migrant workers and avoid unfair competition and social dumping.
- EFFAT welcomes the definition of new rules that guarantee access to appropriate accommodation for seasonal workers. This provision is extremely important in consideration of the unsanitary and inhumane living conditions that seasonal workers often face.
- The scope of the directive does not apply to those third-country nationals who already reside in an EU member state and who do not have access to the labour market. EFFAT considers that the directive partially overlooks the current situation in its sectors, specifically, in which there is a strong presence of third-country seasonal workers with irregular migration status already employed under very precarious conditions. EFFAT considers the non-extension of the scope of the directive to third country nationals already residing in EU member states as a lack of commitment and ambition by the EU Institutions.
- EFFAT also regrets the lack of provisions that allow for family unity and/or reunification and for a possibility to change status into a more permanent one. By creating such a migration scheme without any option for a change of status, the directive may risk increasing the number of migrants who go into hiding and become exposed to exploitation and destitution.
- EFFAT denounces the lack of clarity with respect to the role of intermediaries. Agencies established both in the EU or in third countries will play a crucial role in information dissemination and in recruitment procedures for seasonal workers. Consequently, they have considerable power over the procedure from the very beginning. Without properly specifying the role of intermediaries, the directive could risk opening channels for the exploitative use of such an intermediary role, including the facilitation of human trafficking.
- EFFAT welcomes the provision of sanctions for employers (Art 12a) who have not fulfilled their obligations arising from the directive and agrees that those sanctions shall be “effective, proportionate and dissuasive”. Nevertheless, EFFAT considers that too much flexibility in this respect has been left to member states during the transposition phase. EFFAT calls on national authorities to implement robust sanctions for employers that do not respect the provisions included in the directive and to ensure that there are effective mechanisms through which seasonal workers may lodge complaints against their employers.
- EFFAT strongly regrets the lack of a binding system of joint and several liability in the subcontracting chain. Leaving this issue as an option for member states represents a shortcoming that makes the directive weaker. EFFAT calls on member states to establish in the implementation laws a joint and several liability system that deters exploitation of those migrant workers employed in the subcontracting chain.
Conclusions
A breakdown of social conditions can be prevented if EFFAT Member Organisations properly campaign national governments during the transposition phase, in order to avoid that the text is weakened and possibly improve it in the clauses where more flexibility has been given to member states. In particular, EFFAT underlines the need to:
- avoid a situation in which member states could make use of the possibility to restrict equal treatment to third country seasonal workers in respect to unemployment and family benefits, tax benefits and education and vocational training
- establish an effective complaints mechanism that would avoid victimisation and would support workers in enforcing their rights and seeking redress. Member States shall concretely set up relevant control methods and effective proportionate and dissuasive sanctions to employers
- set up a system of joint and several liability that guarantees proper protection to seasonal workers in the subcontracting chain that are often those more exposed to exploitation.
