The EU must adopt a radically different approach towards labour migration

Despite the European Union's emphasis on the free movement of workers within the EU as part of the "Europeanization" of migration policy, national borders continue to shape various forms of precarious employment and precarious lives. Workers from different national backgrounds continue to face serious obstacles, as illustrated by the example of workers from the Western Balkans[1], highlighted in the report “Workers without borders? The rights of workers from the Balkans in the EU”, and further discussed and validated at the Migrant Workers' Advocacy Roundtable on November 3rd, 2022 at Friedrich-Ebert-Stiftung in Berlin, organized in cooperation with European Alternatives. This article highlights the report’s and roundtable’s findings and illustrates the challenges that workers from the Western Balkans face in the EU labour market.

Second-class workers: migrant work as precarious work

As a result of visa liberalization by the EU, Western Balkans citizens find themselves in a partly privileged position compared to so called third-country nationals.[2] Still, unlike EU citizens who are entitled to fair and equal treatment as nationals of host countries[3], workers from the Western Balkans accession countries still experience obstacles in accessing employment, fair remuneration, labour rights, and proper protection. They are mainly engaged through non-standard short-term contractsthat do not guarantee the same scope of labour and socio-economic rights as in the case of standard (domestic) EU workers. While the latter are generally engaged through full-time contracts of indefinite duration that provide social security, regular income, and full range of labour rights and protections, the former is characterized by employment and income flexibility as well as reduced social security.

Atypical or non-standard employment is precarious employment, which should be understood as the opposite of decent work, i.e. employment that includes adequate wages for the work obtained, occupational health and safety at the workplace, as well as social, health and unemployment protection for the employee and his/her family, in addition to prospects for personal development and social integration.[4] This report clearly confirms that migrant workers are more exposed to non-standard work arrangements than EU nationals.[5]

Workers who shared their experiences with the research team were mainly engaged on the basis of temporary contracts, as seasonal and agency workers, but there are also cases of undeclared work. They all share vulnerabilities based on the temporary nature of employment, including limited access to social security, health protection, and unemployment benefits. As previously mentioned, there are also obstacles when trying to organize in order to negotiate better working conditions – workers engaged through short term contracts (or on the probation time below 6 months in the case of Germany) have limited access to trade unions and other forms of workers representation, such as workers councils.

Limited access to social security and healthcare

Administrative barriers allow only limited access to social benefits – access is limited by the provisions of minimum periods of employment, a problem especially obvious in the case of seasonal workers. In order to claim benefits, seasonal workers must prove their employment and social contributions payment history, which is often not possible due to the fact they have long breaks between their work assignments in host countries. Social security systems within the EU are not sufficiently coordinated which additionally complicates transfer of benefits, as these workers frequently switch between EU member countries. Even when seasonal/short term workers manage to claim their rights and go to court, the compensation might only be applicable for them after many months of battling in court. By that time, the workers might have been unable to stay in the hosting country due to high cost of living and visa issues that arise after losing a job and might already have had to move elsewhere. Besides, due to the temporary nature of stay, member states do not need to apply equal treatment of seasonal workers in regard to unemployment and family benefits, and may limit equal treatment on tax, benefits, education, and vocational training.

Similarly, non-EU workers are not issued a European Health Insurance Card and in case they need urgent treatment they might either bare significant costs or even be denied health services in a host country, whereby the obvious lack of clear information on when, where, and by whom contributions should be paid additionally complicates the situation. Transfer of benefits between member states and the Western Balkans accession countries is still agreed on a bilateral level and the provisions of these agreements are often incomplete or incoherent with other provisions in the legal order. Consequently, it is often unclear if and where the benefits could be claimed. Providing this information in a language and a format easily accessible to migrant workers is essential if the use of administrative loopholes by exploitative employers are to be avoided.

Current visa regulation facilitates exploitation

Both workers and trade union representatives interviewed spoke of workers’ dependency on the employer that emerge due to restrictive visa policies, preventing workers from switching between jobs. As work and residency permits are issued for the period agreed in the labour contract with the “first employer”, workers areinclined to agree to working conditions that might not be considered decent in terms of work time, salaries, housing standards, etc., in order to keep a job and a working permit. Those who dare to exit exploitative employment relationships and manage to find a new job are not necessarily lucky enough to find a new employer willing to enter the process of a new visa application, as it was the case with a chef who shared his story.

Dubious actors: the shady business of employment agencies

Administrative issues and obstacles continue to pile up when employment agencies step in: In order to avoid visa complications, workersrely on services provided by temporary employment agencies whose business practices are often highly dubious and sometimes even against the law. When it comes to agency employment, workers face the following paradox – for many, agency employment is often the only way to find legal employment in the EU, while at the same it is the fastest and easiest way to end up working illegally. Workers and human trafficking experts confirmed that most employment agencies are not trustworthy actors. According to one respondent, “If the agency fulfils 70 per cent of what has been agreed, you can consider yourself lucky”. There are numbers of “fake agencies”, i.e. unregistered businesses or individuals stepping in as mediators between foreign employers and workers. They often breach the law through various malicious practices ranging from sending workers to working illegally (without the contract and/or on a tourist visa), offering contracts in foreign languages (misleading people by making them agree to the provisions contradicting domestic and/or labour laws of the host country), and leaving workers unprotected and without counselling support once the post is taken. These trends arenot unknown and do get reported – media e.g. in Serbia, as well as legal experts and civic organizations have been raising it as an issue for a while.Nevertheless, it would need acollaborative action of authorities of home and host countries in order to tackle problematic issues, as this is still an area that is regulated nationally.

The structural dimension of an exploitative labour migration system

Beside the legal and administrative barriers, the socio-political and economic context in which migration takes place represents another important factor shaping migration patterns and experiences of migrant workers in general. Taking the Western Balkans as an example, the report stresses that current migration patterns are shaped by several factors: A worsening socio-economic and political situation in home countries, decreasing labour standards, lacking employment opportunities, and deteriorating quality of life are considered as main reasons for leaving the region and looking for employment opportunities abroad. At the same time, approaches of richer EU countries also influence growing emigration. For decades, they heavily relied on migrant labour in order to fill their own labour shortages and have adopted various measures in order to liberalize visa procedures and facilitate access of Western Balkans workers to their national labour markets. These processes produced dubious effects regarding the prospects for economic recovery of home countries and the workers’ socio-economic security in the host countries’ economies.

Regardless of the type of contract signed, professional or educational background, all workers included in the report share similar motivation to leave their country of origin. These include low salaries, weak labour standards, and weak socio-economic protection, as well as absence of professional and social recognition. Ironically, finding employment in the EU makes them not less vulnerable – due to economic/financial pressure they tend to accept almost any working conditions, as long as economic benefits are to be expected. In many cases contracts migrant workers sign are just a simulation of regulated anddecent work. There are registered cases of people in the report, who, upon arrival, started working under completely different conditions than previously agreed upon in the contract, working unpaid overtime and being paid lower salaries. For example, one of the nurses interviewed was required to provide cleaning services at the patient’s private home. In other cases, migrant workers have been denied rights guaranteed by the law,including paid holidays, sick leave, or regular breaks during the workday. Their quality of life is also influenced by low standards of accommodation (being either too expensive or not available due to their lacking rental history in the hosting country), social isolation, and lacking integration support by the employer (language courses are often not included in the contract).

Young and skilled but still vulnerable and precarious

Although problems mentioned are somewhat typical for low-skilled workers engaged in sectors such as hospitality, construction, and especially care work,[6] they are also experienced by those taking positions that demand higher educational and professional qualifications. Young and well-educated workers from accession countries have been encouraged to move to the EU by study visa liberalizations that opened up prospects to exit the precariousness they face at home by moving abroad, hoping their skills would be recognized and remunerated adequately. Nevertheless, they have been facing similar challenges: Due to the lack of work experience, complicated diploma recognition procedures, insufficient language skills, and economic urgency they often face discriminatory treatment by employers that pushes them to accept flexible working arrangements and jobs for which they are often overqualified. Similarly, due to the lacking employment opportunities, a growing number of highly qualified workers from the Balkans have been forced to look for a job in the online economy.

The Covid-19 pandemic accelerated these trends as migrant workers who returned to home countries continued working for foreign employers or by providing services to clients online. Although they do not physically emigrate, these highly mobile workers have been virtually moving across borders, finding jobs in the EU and internationally,[7] either through online platforms or online labour markets. While remote work is commonly associated with jobs and sectors that require higher qualifications such as IT, creative industries (writing, translation etc.) or administration, it is also a highly disputed issue due to the numerous uncertainties and irregularities it produces, both in terms of quality of employment and the tendency to generate undeclared work.[8]

One step forward, two steps back: Western Balkans Regulation

Although socio-political and economic processes in the home countries play a decisive role in shaping migration patterns, attitudes of host countries towards migration represent an important factor as well. This aspect has not been sufficiently recognized within the public, policy, and academic discourses.The report suggests that for the past several decades, richer Western European economies have invested greater efforts rather to facilitate labour migration as a mean to address labour shortages of their economies, than to provide decent working conditions and protection of migrant workers upon entry into the host labour markets. High-wage EU countries have been driven primarily by their economic interests, disregarding the negative effects migration flows have on the socio-economic situation in sending countries on the European periphery, and workers themselves. Western Balkan countries do not only face brain drain, demographic decline and a youth exodus as influenced by the ever-growing number of people emigrating, but they also subsidise economic growth of richer European countries through local investment in education and training of skilled workers. Despite the measures taken to enable labour market integration of foreign workers in the EU, they still face significant disadvantages compared to EU nationals.

As a paradigmatic example, Germany has witnessed growing immigration from the Balkans starting from the 70s onward. Following these trends and its national economic demand, over the years Germany adopted various measures and signed bilateral agreements with Western Balkans countries aiming to facilitate issuance of working and residence permits. Concerned by the so-called migration crisis in 2015, Germany took a step forward in this direction by adopting the rather problematic ‘Western Balkans Regulation’. The regulation has been introduced as a means to reduce the number of asylum seekers from the region and to ‘re-route’ so-called “irregular migration flows” via the Balkan route. It is part of a wider political agreement with Western Balkan countries to take a more prominent role in managing the EU external borders with regards to migration movements. These measures contribute to lowering the thresholds for issuing working permits to Western Balkans workers on the one hand[9], but on the other they do not break with the practice of putting these workers in a disadvantaged position regarding the access to adequate and decent employment. According to representatives of the German Trade Union Confederation (DGB), the regulation brings no significant improvementsin areas which trade unions consider crucial, including workers’ dependency of potentially abusive employers as residency and working permits are still dependent on the contract with the ‘first employer’. Other issues are limited access to institutional protection and collective bargaining, and providing information mechanisms suited according to the specific needs of workers engaged through this specific scheme.

What are the next steps towards a borderless Europe?

Even though the EU recently started to work on the revision of the long-term and single permit directive to improve migrant worker’s mobility and equality with the national labour force,the EU and its member states must progress to adopt a radically different approach towards labour migration to improve the work and life situation of migrant workers. This would include the decisiveness to provide equal standards of employment and protection for all workersregardless of their national origin. That migrant workforces are at serious risk of being exploited in the EU, is also acknowledged by European Union Agency for Fundamental Rights (FRA). The adoption of a people-centered, human-rights based approach in designing migration policies, focusing more on workers needs instead of satisfying the need of capital (meaning accumulating the profits though lowering labour costs by engaging the cheap and unprotected migrant labour force) is needed, as well as a major shift in cooperation aiming to address problems of uneven and unfair economic development between the EU and its periphery.

On a more operational level it would include a transnational policy approach in regulating specific areas of work such as agency employment, all kind of mediation and subcontracting arrangements, online and platform work, and measures addressing undeclared work. All workers should be guaranteed long-term socio-economic protection and immediate measures must be adopted in order to ensure it, including an EU-wide regulation on minimum wages and unemployment insurance that would be applicable to all workers regardless of their national background and the type of employment contract. Besides, bridging the gaps in providing social security coverages should include advanced mechanisms of coordination between national authorities, if not the possibility to include non-EU nationaly in any future European social security number aiming to help migrant workers know where and when social security contributions are being made by their employers. Whether the European Labour Authority (ELA), established in 2019, will play a central role here remains to be seen.

Much of the existing deceptive practices could be prevented if employers would be obliged to provide job contracts in the language understood by the migrant worker, if well-designed mechanism for acquiring information about the employers and the rights agreed in contracts existed, and if there were mechanisms of supervision over employers and agencies on the EU level. More advisory centres in home countries should be established in order to provide support to aspiring migrant workers on the problems, rights and duties to be expected when moving abroad. Additionally, these advisory centres should cooperate transnationally with each other and the competent institutions enforcing those rights. Moreover, host countries should participate financially in providing this kind of support.

It is also important to strengthen international trade union cooperationthat would encompass opening up trade unions to more flexible forms of membership. Also, the implementation of support mechanisms tackling specific needs and vulnerabilities of migrant, mobile, and marginalised workers, as well as transnational organizing and campaigning for better working and living conditions for all workers without difference would be great steps ahead in the protection of migrant workers, bearing in mind that trade unions will continue playing a decisive role in future struggles for decent work and building solidarities between workers across and beyond borders.

Sources:

[1] Western Balkans refers to Albania, Bosnia and Herzegovina, Kosovo as defined by the UN Security Council Resolution 1244, Northern Macedonia, Montenegro, and Serbia.

[2] Citizens of Montenegro, Serbia, North Macedonia, Albania, and Bosnia and Herzegovina are allowed to travel (although not for work) for up to 90 days visa-free within the European Union. They also joined the Erasmus+ Program of student exchange (for short term academic and student mobility) while other opportunities to reside in the EU, beyond tourism and studying, have also opened up during the time, often agreed on a bilateral basis.

[3] Nevertheless, it should not go unmentioned that many EU citizens also suffer from precarious and exploitative working conditions, especially workers in seasonal work, transport, care or the meat processing sector. In many cases, however, this is a matter of effectively enforcing the law rather than of the lack of legal instruments granting certain rights.

[4]Savanović, Aleksandra, Lakić, Aleksandra, Kovačević, Miloš, Timotijević, Jovana (2020) Radnici drugog reda: Nestandardni rad u Srbiji. Beograd: Zajedničko.

[5]Quinlan, Michael (2015) The effects of non-standard forms of employment on worker health and safety. Geneva: International Labour Organization.

[6] Care work represents a sector which generates specific problems, including exploitative working conditions and undeclared work. Regarding the latter, both women and young workers are more exposed to working illegally. Although there is no reliable and exact data on the scope of undeclared work, the report notices that it is a widespread practice in the online economy and agency recruitment.

[7] Remote work has become a widespread phenomenon in Southeast Europe, with Serbia, North Macedonia, and Albania heading in terms of numbers of online workers, while on the demand side Germany has been recently picking up the pace, getting closer to the USA and UK. See the „Gigmetar“of Public Policy Center for data on exact number of online workers in the region.

[8] See for example ILO report on platform work

[9] They are allowed to come for work with temporary visa conditional on having a job offer in line with German labour law, while requirements regarding skill levels, professional qualifications, and German language skills are ruled out.