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Construction labour, mobility and non-standard employment
Cremers, J.
Publication date
2016
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Final published version
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HesaMag
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Citation for published version (APA):
Cremers, J. (2016). Construction labour, mobility and non-standard employment. HesaMag,
13, 17-22. http://www.etui.org/content/download/23755/197704/file/Hesamag_13_EN_1722.pdf
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Download date:14 Dec 2021
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spring-summer 2016/HesaMag #13
Special report 8/33
Construction labour, mobility and
non-standard employment
Construction industry workers were long regarded as enjoying not unfavourable
working conditions. While their work was hard, the rewards included a high level of
job security, decent pay, and various bonuses. This state of affairs was knocked off
balance by the free movement of labour in an eastwards enlarged Europe where
job competition among European building workers triggered a downward wage
spiral as well as deteriorating working and safety conditions.
Jan Cremers
Amsterdam Institute for Advanced Labour Studies (AIAS)
European legislation
put an end to the
idea that accidents
are inevitable in
the construction
sector. However, job
competition between
European workers has
undone much of the
progress made with
regard to prevention
measures.
Image: © Belga
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spring-summer 2016/HesaMag #13
The Treaty of Rome which, in 1957, stipulated the building blocks for the foundation of
the European Economic Community stresses, in its Article 117, the member states’ aim
of working towards an upward harmonisation of the living and working conditions of
citizens and workers throughout the Community. The goals are clearly stated; the free
movement of its citizens, and the labour mobility to which this is expected to lead, calls
for Europe-wide, streamlined, and common
social standards.
Although, from the outset, the EEC
experienced collisions between its financial rationale and economic targets and the
requisite social policies, progress was able
to be achieved in, for instance, the field of
Europe-wide occupational safety and health
legislation (hereafter OSH). This progress
was possible on the basis of strong consensus among the experts involved within, and
outside, the European institutions. Moreover, for a long period, during successive
Treaty revisions and the related European
Council ceremonials, lip-service was paid to
the need for continuing regulation to ensure
the ongoing improvement of working conditions and OSH policy.
By the end of the 1990s, however, the
political tide had turned as EU policy was increasingly dominated by the primacy of the
economic freedoms, with absolute priority
now being accorded to competitiveness and
free trade. The UK, with its policy of blocking
common initiatives, bore part of the blame
for the watering down of law-making insofar as the search for consensus remained a
diplomatic goal of the other member states.
The eastern enlargement led to the entry
of countries whose social policy tradition
existed on paper only (in former times, the
Eastern Bloc countries were always among
the first to ratify ILO conventions), while
the globalisation and free trade lobby groups
had started to push for a deregulation of social standards. From that moment on, barely
a single piece of social legislation was tabled
and finalised in either the social policy area
at large or the OSH field in particular. This
change of paradigm has led, in recent years,
to the dogma of deregulation being imported
also into existing legislation.
Special report 9/33
Nowadays, the Internal Market legislation that underpins the economic freedoms
in the EU represents a direct interference
with national regulatory frames in the fields
of social security, working conditions and
labour legislation. Freedom to provide services, and transnational operations of the
world of finance, have become of paramount
importance, and EU social policy has failed
to keep pace with these developments. In labour-intensive industries like construction
this has led to side-effects that currently
threaten national labour and employment
standards.
Drawing on evidence from the construction sector, it is possible to document the
occurrence of rule circumvention through the
establishment of letter-box companies, and to
point to the risks of social dumping that arise
as soon as a cross-border dimension enters
the market strategy of businesses. Practices
that are typical and accepted in one country
(because there is no rule and hence nothing
to comply with) may be atypical in another
country where labour markets are, to some
extent or in some respects, more regulated.
Market liberalisation has paved the way for
new types of ‘social engineering’ and, in the
search for cheap labour, decent labour regulation is nowadays regarded as an ‘administrative burden’. This label has, in recent years,
come to be applied even to elementary prescriptions and provisions in the occupational
safety and health field.
contributed to a general feeling of justice and
fair treatment, simultaneously providing
effective mechanisms for social peace. For
the construction sector the golden decades
brought a range of collectively funded joint
arrangements, negotiated and governed by
the social partners and designed to guarantee continuity and stability for the construction workforce. In a sector characterised by
temporary and mobile worksites the need
was felt for industry-wide provisions (on
vocational training, health and safety, pensions, and bad weather).
Later, after the Berlin Wall had come
down, neo-liberal thinking gained momentum and the digital revolution, world-wide
delocalisation of production, and intensified global competition between high-wage
and low-wage countries, altered the perspective and induced significant changes in
the world of work. The resulting corporate
restructuring has had adverse effects on
workers, with corporate managers treating
labour increasingly as a commodity, thereby shifting risks away from firms and on to
the workers themselves. The ‘reform’ policy,
in recent years advocated by international
organisations such as the IMF, World Bank
The rise of non-standard
employment relations
The post-World War II period, with its unprecedented growth, development and close
to full employment, created for quite some
time, especially in the OECD countries, a
climate favourable to the establishment of a
‘standard’ or ‘typical’ employment relationship. During this period – to which historians refer as ‘the golden decades’1 – labour
legislation and collective bargaining developed around and on the basis of this employment relationship, remaining stable and
taken-for-granted. Collective agreements
and direct employment relationships thus
1. Hobsbawm E. (1994)
The Age of Extremes: the
short twentieth century,
1914-1991.
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spring-summer 2016/HesaMag #13
Special report 10/33
Arrival of labour
inspectors to monitor
the presence of illegal
workers on a hospital
building site. Arras
(northern France), 2007.
Image: © Belga
and OECD and which has, in the meantime,
also entered the ‘mainstream’ of EU policy,
has been pursued in ways that are selective,
resulting in increasingly precarious labour
practices. The new agenda – placing sole
emphasis on ‘flexible’ work patterns – was
initially inspired by the strong growth of
the low-paid services sectors on the US market. The consequence in some new forms of
services (health care, domestic care and the
like) is a serious downgrading of occupational profiles combined with a deterioration of
workers’ status.
In labour-intensive traditional industries like construction the standard model
is no longer the undertaking with its skilled
and unskilled workers contributing their
labour under the supervision and disciplinary control of an employer. The possibility
to outsource parts of the process, and the
intensification of sub-contracting, driven
by a strategy to reduce costs and/or by the
aim to avoid direct employment of workers,
have created a new playground for numerous
forms of (commercial) service-supply contract that do not fit into the classical model.
Early in 2006 a group of researchers published a study2 on undeclared labour commissioned by the European social partners
in the construction sector. The outcome of
that research represents exemplary documentation of the developments of different
forms of labour in labour-intensive industries that depend or rely on cheap unskilled
labour. The conclusion was that, right across
Europe, similar patterns had emerged. After introduction of the internal market and
when freedom to provide services became
the guiding principle in the business environment, two fundamental developments
significantly altered the landscape:
— the introduction of management contracting and externalisation of labour, leading to
intensified cross-border subcontracting, for
the sole purpose of recruiting cheap labour;
— freedom of establishment and, in the slipstream, the introduction of easier access to
the status of self-employment.
2. Cremers J. and Janssen
J. (ed.) (2006) Shifting
employment: undeclared
labour in construction,
Brussels, CLR/Reed
Business Information,
CLR Studies 5.
3. Cremers J. (2011) In
search of cheap labour
in Europe. Working and
living conditions of posted
workers, Brussels/Utrecht,
International Books,
CLR-Studies 6.
utilities, and new housing developments) the
trend has been for less direct employment
on the part of the main contractor. Relatively small numbers of specialised staff became
responsible for procurement and management on site and, for the execution of work,
a chain of specialised contractors was engaged. In this way, the supply of cheap, unskilled labour has become an integral part
of lower-level subcontracting, such that exploitative and fraudulent labour-only subcontracting is nowadays seen as a permanent feature of the industry.3
Free movement and OSH –
construction as a pilot
As from the beginning of the 1990s the volume of direct labour began to shrink. On larg- Several studies offer evidence that special
er sites (in civil engineering, infrastructure, measures are needed for newcomers and for
Labour is not like an apple or a
television set, an inanimate product that
can be negotiated for the highest profit
or the lowest price.
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spring-summer 2016/HesaMag #13
Special report 11/33
temporary and mobile workers, often with
a migrant background. The reasons for this
need vary from language problems to a lack
of education and OSH training; yet the most
important reason of all is that these insecure
workers are frequently employed in sectors
and workplaces with higher safety risks and
work pressures. Inadequate language skills,
combined with insufficient or no induction, increase the probability of exposure to
work-related accidents. Moreover, there is
evidence that elementary instructions are
frequently missing for newcomers and workers hired on a temporary contract (with an
increased accident risk of up to 50%). 4
The literature and statistics indicate
a negative relationship between temporary
employment and occupational health and
safety. Temporary migrant labour works at
sites and in jobs where there is no time to be
lost, either for safety instructions, or for preventive introduction (‘let’s get the job done’),
of migrant workers and, on the other, the
with sometimes severe consequences.
appearance of temporary and mobile workAccording to the European agency for safety sites with flexible, short-term contracts. In
and health at work (EU-OSHA), three major the sector as a whole, a broad range of labour
contracts can be found including a unstable
problems give cause for concern:
— work that has to be pursued in high-risk and flexible layer of (bogus) self-employed,
temporary workers and day labourers resectors and functions;
— communication problems attributable to cruited via gang masters, agencies and other
middlemen.
language and culture;
Mandatory OSH coordination between
— too much overtime, often combined with
all relevant actors on a construction site, as
poor physical living conditions.
prescribed by the European Directive on
Given that access to local health care is not temporary and mobile worksites (92/57/
straightforward and in some cases not even EEC), is of great significance precisely because of the high incidence of subcontractallowed, the consequences are predictable.
A British case study5 concluded that ing and employment through intermediar‘calling in sick’ is not an option for the low- ies. This Directive was intended to regulate
er echelon of agency workers and migrants. enhanced cooperation in the OSH field,
It would mean an end to their current job; starting from the concept phase. A crucial
it would diminish the chance of being re- condition is the mandatory duty of mutucruited again; and it would signify a loss al exchange of information6, from which it
of income, often without any guarantee of can be deduced that full registration of all
sick pay. The result is ‘gritting the teeth and necessary information related to OSH asgoing to work’ accompanied by an attitude pects during the entire construction process
whereby less attention is paid to safety or should be considered part of normal procehealth. The authors of the study observed a dure (‘business-as-usual’, in REFIT-terms).
However, we must conclude that the
lack of the necessary induction and instruction, with all the resulting risks for workers. view taken by the business consultants enConstruction remains the sector char- gaged by the European Commission to asacterised by, on the one hand, a large segment sess the implementation of the directive is
The supply of cheap, unskilled labour
has become an integral part of lower-level
subcontracting.
4. Arbeitsschutz-portal:
www.arbeitsschutz-portal.
de/beitrag/asp_
news/3530/strukturierteeinarbeitung-so-klapptsauch-mit-dem-neuen.html
5. Maroukis T. (2015)
Stretching the flexible
labour: Temporary agency
work and ‘bank’ labour in
the lower skill echelons
of the healthcare labour
market in UK and Greece,
Journal of European Social
Policy.
6. Article 5.c Directive
92/57/EEC states that
the coordinator has to
prepare a file appropriate
to the characteristics of
the project containing
relevant safety and health
information to be taken
into account during any
subsequent works.
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spring-summer 2016/HesaMag #13
7. Capgemini, Deloitte,
Ramboll Management
(2009) Final report of
Modules 3&4 for Working
Environment Priority Area
and (2010) EU Project on
Baseline Measurement
and Reduction of
Administrative Costs: Final
Report, incorporating
report on Module 5.2 –
Development of Reduction
Recommendations.
8. Communication from
the Commission on an EU
strategic framework on
health and safety at work
2014-2020, COM(2014)
332 final.
9. Cremers J. (2015) Health
and safety standards under
deregulation threat,
CLR-News, 2015(2), 6-20.
Special report 12/33
somewhat different since the conclusion
reached on the basis of their interviews is
that this mandatory coordination is, from
the employer standpoint, one of the most irritating OSH topics. Moreover, the outcome
of the consultants’ calculations (based, N.B.,
on attitude measurement) is that 73.38%
(an unexpectedly precise figure, considering
the methodological doubts to which their
so-called research gives rise) of existing
administrative work falls into the category
of ‘administrative burden’. Finally, in their
treatment of this item, the consultants come
up with remarkable differences between
countries, ranging from those where employers are not required to ‘waste time’ with
the burden in question and others where at
least 40 hours of work are invested in dealing with it.7
As indicated by several statistics, it
highly doubtful whether the flexible layer
of the workforce (newcomers, temporary
workers and labour migrants) has sufficient
knowledge of occupational risks and the
necessary prevention procedures. It is therefore of the utmost importance that all links
in the chain should comply with the basics of
OSH policy and that liability should be able
to be established along the whole chain. This
notion is completely absent from the reasoning of the EU proponents of deregulation
and burden reduction. In the former strategic plan (2007-2012) the European Commission listed four priorities (demographic development and ageing of the workforce; new
forms of labour relations including self-employment and outsourcing; the development
of SMEs; and migrant work). In the current
plan, demographic change is regarded as
crucial, as if labour mobility were a thing of
the past.8 The change is all the more remarkable in that the promotion of cross-border
labour mobility is still accorded primacy in
the general Europe 2020 Strategy.9
Convergence or taken for granted
Specific OSH risks in different sectors display great similarity irrespective of borders; it was for this reason that the 1989
OSH framework directive and its associated
directives referred to the need to assist the
member states in further developing and
improving their OSH policy. The term harmonisation was initially used cautiously;
most experts at the time saw it as their task
to create uniform or similar conditions as
far as possible across the EU. This approach
has indeed led to a substantial degree of convergence – a positive result, undoubtedly,
against the background of growing mobility and externalisation of the workforce. For
instance, it emerged during a project of the
joint labour inspectorates that the existence
of an OSH coordinator, as prescribed by the
temporary and mobile worksites directive,
was relatively well known (though not always
ascribed to EU law). British research, meanwhile, has revealed that migrants (from EU
countries) had basic OSH knowledge as a result of the provisions of EU legislation, because the legislation had been implemented
in their home countries.
However, an analysis of the content
of the existing national websites for posted
workers made it clear that the provision and
distribution of OSH information among migrants is at best in its infancy and at worst
completely absent. Labour inspectors noted
that, during inspections, compliance with
the OSH rules is poor and migrants are excluded from their application. Especially
lacking is the necessary cooperation between the many (sub)contractors on site. The
inspectors therefore argue for training from
a European perspective and for strengthening the chain of liability, with the customer
or the main contractor being responsible for
the necessary and timely disclosure of OSH
information in the required languages.
The EU posting of workers Directive
states that the OSH legislation of the country where the work is being performed has
to be respected. A first evaluation of compliance in this respect showed that little or no
information was provided to posted workers. National enforcement services, generally operating with too few people, had their
hands full with the control of construction
sites with foreign posted labour. There was
frustration that the appropriate legal means
were missing. Besides, for the sanctioning
of different breaches inspectors could not
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spring-summer 2016/HesaMag #13
act immediately and had to rely on the judiciary in the country of origin. It is not easy
for the negative consequences of economic
freedoms to be taken to court by workers, as
the eligibility of posted workers to take such
steps in the host country is highly restricted. Even more complicated is the situation of
third-country workers who are recruited via
letterbox companies or other bogus middlemen. Excessive overtime and non-respect of
rest periods cause additional risks; fatigue,
ignorance of the dangers, failure to understand regulations, inadequate or no protection, and an unhealthy work environment do
the rest.
Finally – fundamental right or
production factor
The EU encourages flexible work patterns
and labour mobility and the European Commission expects net immigration in the
coming years. In the presence of an ageing
population, labour migration could become
a key factor for the functioning of large parts
of our labour markets. So far, a majority of
migrant workers are employed in labour-intensive, poorly paid and dangerous 3-D
(‘dirty-dangerous-difficult’) jobs. Recruitment takes place in the shady segment of the
market, with no commitment to OSH issues.
The EU internal market, based on economic freedoms (notably the freedom to provide
services and the freedom to establish firms),
endangers the health of the people who actually embody the ideals behind this internal
market.10
Special report 13/33
This is in itself a strong argument for
the further improvement of the OSH framework. Safety and health should not be sacrificed to the holy cow of competition (between
member states), let alone to plain commercial
or business interests. Since WWII the International Labour Organization (ILO) has advocated a progressive OSH policy, with special attention paid to migrant workers and
vulnerable groups. The labour prospects for
workers in vulnerable jobs have to be more
than a future of functioning as a commodity,
as a willing, readily available, international,
mobile, second labour reserve. In the ILO’s
Philadelphia Declaration of 1944, the international community recognised that ‘labour
is not a commodity’; labour is not like an apple or a television set, an inanimate product
that can be negotiated for the highest profit
or the lowest price.
The EU must prevent labour from becoming a simple factor of production to be deployed at will wherever profit is greatest. Permanent action in the OSH field is accordingly
both necessary and wise. Restraint in this area
is a poor counsellor. The improvement of occupational safety and health must not become
a paper tiger; it has to remain a fundamental
right, as the 1989 Community Charter of the
Fundamental Social Rights of Workers states:
‘Every worker must enjoy satisfactory health
and safety conditions in his working environment. Appropriate measures must be taken
in order to achieve further harmonisation of
conditions in this area while maintaining the
improvements made. (…) The provisions regarding implementation of the internal market
shall help to ensure such protection.’
•
10. Cremers J. (2010) Rules
on working conditions
in Europe: subordinated
to freedom of services.
European Journal of
Industrial Relations, 16 (3),
293-306.