ACTORS' viewpoint
EXPERT'S viewpoint
For better regulation of posting:
the role of the social partners
the role of the social partners
Theoretically, social partners are not meant to be participants in regulating posting situations. The existing community legal and institutional framework concerning posting does not include a role for them. However, they act because of existing needs. On the employer organisation side, the idea is to obtain secure service supply for companies. First of all, contracting companies must be able to ascertain the social and fiscal reliability of service providers in order to prevent possible legal and operational risks. The idea is also for employer organisations at the national and European levels to unite against the unfair competition which may result from posting fraud. For the trade unions, the goal is to ensure employee rights and avoid the consequences of social dumping on working and employment conditions for workers in the different Member States.
The social partners have many different roles at various levels and use different means to obtain results.
The social partners have many different roles at various levels and use different means to obtain results.
The intervention of social partners in worker posting: various types of action
Inform posting participants of the applicable legal framework
In the sectors studied for the project (construction, agriculture), the social partners take charge of informing companies and employees. Typically, information concerns the applicable regulations in the host country in a posting situation. It can also concern the rights and obligations of posted employees in the host country.
However, this information can also aim more broadly at employees, companies which provide services and contracting companies. The GATEWAY Guide for foreign employees in Finland , which was published in Finnish and English, is a good example of this type of initiative.
The way in which this information is supplied to participants in posting situations varies.
Thus, in a context like the Flamanville construction site, a website with specific information exists, along with a guide to employee rights in five languages which is distributed by the client to all new employees entering the site. Flamanville (France) Experience
In addition to delivering information, the social partners adopt targeted strategies, in partnership with public authorities if necessary. This is the case, for instance, of the Hainaut Province multipartite convention, which provides for the organisation of sensitisation days. France-Bulgaria Trade Union Information Strategy
However, this information can also aim more broadly at employees, companies which provide services and contracting companies. The GATEWAY Guide for foreign employees in Finland , which was published in Finnish and English, is a good example of this type of initiative.
The way in which this information is supplied to participants in posting situations varies.
Thus, in a context like the Flamanville construction site, a website with specific information exists, along with a guide to employee rights in five languages which is distributed by the client to all new employees entering the site. Flamanville (France) Experience
In addition to delivering information, the social partners adopt targeted strategies, in partnership with public authorities if necessary. This is the case, for instance, of the Hainaut Province multipartite convention, which provides for the organisation of sensitisation days. France-Bulgaria Trade Union Information Strategy
Sensitise posting participants and train employees
In addition to delivering information, the social partners adopt targeted strategies, in partnership with public authorities if necessary. This is the case, for instance, of the Hainaut Province multipartite convention, which provides for the organisation of sensitisation days.
Convention Hainaut Belgium
Along with sensitisation, occupational health and safety can give rise to specific actions because of risks present in the sectors analysed; this type of intervention is more related to training. The social partners of the construction industry in Denmark have created a website in several languages (Danish, English, German and Polish) offering attractive learning material for a set of sector-specific trades.
Along with sensitisation, occupational health and safety can give rise to specific actions because of risks present in the sectors analysed; this type of intervention is more related to training. The social partners of the construction industry in Denmark have created a website in several languages (Danish, English, German and Polish) offering attractive learning material for a set of sector-specific trades.
Support posted workers in the host country
The limits associated to informing posted workers can lead to defining initiatives whose purpose is not always to offer information to be directly used by posted workers. From a different perspective, this is especially the case of trade unions which are positioned as resources which posted workers can call on. In other words, the idea here is to support foreign workers. Initiatives of this type require an appropriate strategy of approach and mobilisation, since posted workers are often barely visible and difficult to reach.
We find an echo of this orientation, which rests on the concrete support of employees, in the idea of more broadly developing information at the points of contact accessible to posted workers or to companies within the host countries, a perspective which has been extensively covered in our workshops. Actions like those initiated by FGA CFDT /NFZGS-Podkrepa are partly based on this way of thinking, which considers the social partners as resources to be mobilised at the side of public authorities, in particular the liaison offices. In some countries (Belgium, Luxembourg), they act to inform and support the participants.
We find an echo of this orientation, which rests on the concrete support of employees, in the idea of more broadly developing information at the points of contact accessible to posted workers or to companies within the host countries, a perspective which has been extensively covered in our workshops. Actions like those initiated by FGA CFDT /NFZGS-Podkrepa are partly based on this way of thinking, which considers the social partners as resources to be mobilised at the side of public authorities, in particular the liaison offices. In some countries (Belgium, Luxembourg), they act to inform and support the participants.
Alert public authorities to potentially fraudulent practices
This function is essential, especially in host countries, since it is unrealistic to think that public authorities can have more than a partial knowledge of operations involved in worker posting. The structuring of collaboration between social partners and public authorities can be formalised through agreements, charters or partnership conventions. We have noted traces of this type of formalisation in certain countries involved in the project. In France, this role, which is assigned to social partners, is included within the more general framework of combating undeclared work through the National Partnership Convention to combat illegal employment in temporary work, which was signed on May 10, 2006.
In Belgium, it has been established through partnership conventions in different sectors of activity. Belgium liaison office
In Belgium, it has been established through partnership conventions in different sectors of activity. Belgium liaison office
Supervise the application of current regulations
The social partners’ role in alerting authorities to potential social fraud is proof of their involvement in supervisory actions. In addition to being associated to repressive actions, this involvement can also help prevent illegal behaviour. In this respect, we note that the Hainaut Province Convention provides for an analysis of company contracts. The Convention stipulates that company contracts drawn up between contracting owners and entrepreneurs or between main companies and subcontractors may be examined with regard to rates set, which may reveal a dependence on undeclared work (the “feasibility” of a contract is analysed from the viewpoint of rates as compared to expected delivery dates, taking into account the number of workers employed and the amount of benefits to be provided for these workers).
Convention Hainaut Belgium
Logically, the social partners are naturally involved in this work, although the convention states that company contracts must be communicated to the social partners in an anonymous form only.
However, we find elsewhere in Europe that the involvement of social partners in supervisory activities in much more developed. We can site significant sectorial initiatives in countries where the level of social dialogue is very high.
In the Netherlands, the SNCU (StichtingNaleving CAO voorUitzendkrachten Dutch compliance office
Logically, the social partners are naturally involved in this work, although the convention states that company contracts must be communicated to the social partners in an anonymous form only.
However, we find elsewhere in Europe that the involvement of social partners in supervisory activities in much more developed. We can site significant sectorial initiatives in countries where the level of social dialogue is very high.
In the Netherlands, the SNCU (StichtingNaleving CAO voorUitzendkrachten Dutch compliance office
the office which supervises the application of collective bargaining rules in the temporary work agency sector) was established in February 2004 by the trade unions (FNV Dienstenbond, CNV Dienstenbond and De Unie) and employer organisations in the sector (ABU and NBBU). It was created in accordance with negotiations on the renewal of the collective bargaining agreement applicable to the temporary work agency sector. This office was founded essentially on the impetus of a shared wish to combat unfair competition and wage dumping in the sector.
It aims at several goals: supply information and advice to user companies, temporary workers and temporary work agencies; cooperate with other authorities; encourage compliance with the conditions established by the collective bargaining agreement and with social fund provisions; ensure that these conditions and provisions are complied with; and ensure compliance with the exemptions to the conditions established by collective bargaining.
The office has implemented an assistance centre and phone number,
a website and a specific site for alerts.
It aims at several goals: supply information and advice to user companies, temporary workers and temporary work agencies; cooperate with other authorities; encourage compliance with the conditions established by the collective bargaining agreement and with social fund provisions; ensure that these conditions and provisions are complied with; and ensure compliance with the exemptions to the conditions established by collective bargaining.
The office has implemented an assistance centre and phone number,
a website and a specific site for alerts.
Some Member States have implemented an even stronger level of supervisory actions.
Here, we touch on some of the profound differences characterising the industrial relations systems within the EU. Participants vary, and more or less importance is given to the social partners in the enactment and application of social rules. It should be pointed out that in some countries, in particular Sweden and Denmark, it is the social partners, and not the State, who use collective bargaining agreements to define the rules applicable to work relations. In these situations, the role of the social partners is very important: in Denmark, they are in charge of supervising the application of collective bargaining agreements, which are essential sources for regulating labour relations.
In Finland, the social partners also play an important role. In collaboration with the Finnish labour inspectorate, they draw up collective bargaining agreements, which are generally mandatory, and ensure that they are properly applied.
In this context, the involvement of social partners in posting situations is consequently stronger than in countries where the government plays a central role in social matters. Thus, in Denmark, if a main company affiliated to an employer organisation has signed a contract for supply of services by a foreign company posting workers, and the supplier does not comply with the applicable collective bargaining agreement, the trade union can, within 48 hours, convoke a meeting on the site to begin the process of negotiating the application of the collective bargaining agreement with the supplier company. The supplier must also prove that the collective bargaining agreement has been properly applied.
In Finland, the social partners also play an important role. In collaboration with the Finnish labour inspectorate, they draw up collective bargaining agreements, which are generally mandatory, and ensure that they are properly applied.
In this context, the involvement of social partners in posting situations is consequently stronger than in countries where the government plays a central role in social matters. Thus, in Denmark, if a main company affiliated to an employer organisation has signed a contract for supply of services by a foreign company posting workers, and the supplier does not comply with the applicable collective bargaining agreement, the trade union can, within 48 hours, convoke a meeting on the site to begin the process of negotiating the application of the collective bargaining agreement with the supplier company. The supplier must also prove that the collective bargaining agreement has been properly applied.
Act on the labour market
Along with the “traditional” means of regulating posting situations, the project has enabled revealing and discussing other ways to act. These ways assign a leading role to the social partners. This is the case of sectorial arrangements implemented in some EU countries, in particular those which are preferentially worker-supplying countries. We can mention here the actions which may be deployed by joint sectorial funds to develop the attractiveness of the sector and ensure worker qualification.
Tools like these provide potential ways to regulate posting.
SASeC, a construction sector initiative (Romania)
Tools like these provide potential ways to regulate posting.
First, developing the attractiveness of a sector through training offered to workers is a way to guarantee higher skills and thus increased competitiveness for companies in the worker-supplying countries, particularly as concerns subcontracting markets initiated by major ordering parties. This gives rise to the installation of what we could call a counter-incentive to relying on subcontracting through unscrupulous intermediaries, whether they propose services directly or act as mere labour suppliers.
Second, we can expect training actions to encourage a certain “empowerment” of workers who will be posted by reinforcing their ability to avoid certain “professional risks,” whatever the legal support for posting, as well as to resist unscrupulous propositions, thus promoting the conditions for a transparent call for subcontracting by companies.
We find the same type of orientation when we consider the development of transnational training projects on occupational health and safety initiated by the social partners in certain sectors; this type of training aims to better arm workers who are candidates for posting in Europe.
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Second, we can expect training actions to encourage a certain “empowerment” of workers who will be posted by reinforcing their ability to avoid certain “professional risks,” whatever the legal support for posting, as well as to resist unscrupulous propositions, thus promoting the conditions for a transparent call for subcontracting by companies.
We find the same type of orientation when we consider the development of transnational training projects on occupational health and safety initiated by the social partners in certain sectors; this type of training aims to better arm workers who are candidates for posting in Europe.
Developing synergy between social partners and public authorities
Action by social partners is being developed:
- at the European level, with the creation of a site by the EFBWW / FIEC social partners for the construction industry; this site is designed to inform companies and employees of the applicable legal regulations (duration of work, minimum wage, etc.) in the different Member States.
- at the national level, with initiatives in several action areas, as mentioned above, which complement actions by public authorities.
We should ask ourselves whether this complementarity can lead to the development of synergies even further upstream. Concerted action between the different participants was at the centre of our project. This is why most of the examples mentioned above reveal collaboration between different participants. It is, however, possible to go further than merely observing a “bias” related to the goals of our project.
Although certain areas of involvement which we have identified can, effectively enough, be based on either the “unilateral” action of a particular participant (such as an information campaign designed for posted workers or companies) or on “joint” action, our project shows that the action of social partners is even more pertinent and has greater positive effects if it is combined with the action of other participants, in particular the public authorities in charge of posting.
Although certain areas of involvement which we have identified can, effectively enough, be based on either the “unilateral” action of a particular participant (such as an information campaign designed for posted workers or companies) or on “joint” action, our project shows that the action of social partners is even more pertinent and has greater positive effects if it is combined with the action of other participants, in particular the public authorities in charge of posting.
Overall, the practices discussed in our workshops show that collaboration between the social partners themselves and/or between social partners and public authorities enables:
- facilitating the identification of at-risk situations and therefore of reinforcing public supervision (see the examples listed under the alerting role);
- define more effective action frameworks and tools to prevent abuse (example of the elaboration and use of access control badges on construction sites in different countries; in Belgium, example of the Hainaut convention on the analysis of company contracts)
- act on social regulations at major sites in the construction area (example of the concerted actions of trade unions and contracting owners) .
Finally, we must not naively plead for more cooperation. We cannot help but recognise that in this respect, many interesting initiatives have arisen from the contexts which they are part of. This is especially the case of practices in certain countries such as Finland, where the participant/industrial relations system encourages continuing collaboration between participants. This is undoubtedly a preliminary condition for joint mobilisation in specific situations on specific worksites.
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Methodological milestones
- Share pertinent and useful information between public authorities and social partners, in particular by collaborating on the design of data to be supplied.
- Develop the fundamental alerting role of the social partners by reinforcing ties between professional organisations and trade unions and public authorities to act upstream.
- Develop preventive approaches by establishing the conditions for a dialogue between participants as far upstream as possible to promote transparent contracting.
- Study the access of social partners to the IMI database and develop access to information on supplier companies.
- Reinforce transnational collaboration between social partners.
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