Euro Posting

If we look at its temporal aspect, we see that posting of workers involves three types of possible actions: before the supply of services, during the posting situation when workers are on the workplaces in the “host” country and after service has been provided. The administrations which supervise posting are organised at the national level by defining action frameworks with various organisational configurations (with or without specialised control agents, only one liaison office or several decentralised liaison offices associated to a national liaison office, etc.). To prevent and combat fraud and irregularity, these frameworks also frequently use conventions and partnership agreements to define cooperation arrangements; these are inter-institutional with the relevant public authorities and tripartite with social partners.

Although controlling and supervising workplaces is essential, this is done on already structured operations. However, various determinants influence the quality of service supply, and working and employment conditions are established before these operations begin.
On construction sites, a set of economic, technical, organisation, legal and social factors must be taken into account, and their combination will determine how the project is carried out. An operation must meet cost, quality and deadline criteria. From the start, the evaluation and determination of these goals will weigh on the conditions of worker recruitment and employment and on the conditions for carrying out the work. For major construction projects, the work process is particularly dependent on contractual and financial aspects, as well as on technical and industrial aspects. The client, known in French as the maître d’ouvrage, orders the work to be done and demands in an increasingly clear way a service, which uses the construction as a "material basis".

Several months were necessary to resolve the mutual impossibility of the client and the main contractor to find a solution, which finally resulted in redoing the work. Thus, a re-evaluation of the initial goals was made while these operations were being carried out. For the operations, organisational complexity was combined with reliance on multiple transnational subcontracting services: the Finnish construction site mobilised over 2,000 companies and nearly 30,000 workers of 60 different nationalities. The Flamanville site for the construction of an EPR in France gave rise to 150 main contracts and used nearly 600 companies in 2012; there were 3,000 employees at the site, including 900 foreign workers, essentially Polish, Portuguese and Romanian. Workers of 27 different nationalities participated in the project.

In operational terms, the idea is also to elaborate “solutions” which enable acting throughout the construction project lifecycle (or even beyond when it is a case of future industrial operations requiring maintenance work) by implementing mechanisms of information, dialogue, tracking and supervision. In any event, building these solutions for the “major construction sites” presented during this project was based on feedback by the participants concerning the difficulties encountered during the work process. The strategy is, of course, tied to the complexity of “overall steering” which implies a great diversity of participants. But it is also important that all stakeholders – from the contracting owner to the employees working on the site – take on a transnational character with all that this implies. In this respect, the analyses of the difficulties encountered and the lessons learned by the professional organisation, the trade union and the public authorities at the Olkiluoto 3 nuclear power station site are a good illustration. The “reciprocal” difficulties encountered are “novel” in the Finnish context; these include cultural differences as concerns working methods with the main contractor’s managers (whose previous experience was in the Gulf countries), turnover of foreign employees and language difficulties, as well as employees qualified as “invisible” and afraid - on this point, see also

This initiative aimed to ensure that labour conditions set by collective bargaining agreements would be implemented. Its creation was also motivated by the social partners’ shared goal of combating unfair competition and social dumping in the sector. The office distributes information (in two and three languages), carries out inquiries and controls, undertakes legal proceedings, ensures follow-up of files and carries out analyses to evaluate risk. Like the multipartite convention of Hainaut Province, this joint sectoral initiative aims to act over the long term through a partnership system by combining preventive actions with supervision and enforcement of compliance. Concerning these actions, the Dutch government recognises the office’s role and the exchange of information by the SNCU with the inspection services.

Anticipating and preventing abuse requires delineating the posting phenomenon and understanding how it evolves by detecting situations in which the use of posted workers is potentially an issue.
This identification goes well beyond the knowledge of worker flows obtained from statistics based on the A1s edited by the European Commission. It requires quantitative and qualitative knowledge. European-level studies run up against the complexity of economic and legal arrangements, their lability and the necessarily transnational scope of the analysis. In addition, there are “thermometer” difficulties – in other words, concerning the sensors and measuring tools used – and the need for shared data (see “Identify – Share: Tools to Support Control” in “Monitoring Controlling”). The actions noted and presented during the project nevertheless indicate that a set of initiatives at the European and national levels targets the posting phenomenon or can help to delineate it.

• In France, the Central Office to Combat Illegal Employment (OCLTI), which is under the Directorate General of Police and includes an inter-institutional unit, carries out the analysis of complex situations.
   
• In Belgium, the coordination of trans-regional folders aims at social fraud "on a large scale".
  
  
  
  
   
• In Finland, the "Grey Economy Unit" of the Ministry of Finances produces and distributes data for the set of public authorities concerned.

Work on the Flamanville EPR began in 2007. The future nuclear site has the earmarks of a “major construction site”, with the intervention of hundreds of contracting and subcontracting companies and thousands of employees with several dozen different nationalities. Faced with problems encountered, most notably several “critical” events in 2011 (see “Observations and Motivations” - Flamanville (France) Experience), the client owner and the trade unions created a specific joint forum which was implemented in 2008. The goal is to make mutual information available at the workplaces to encourage employees to express themselves on their working and living conditions. This “negotiated” approach, which results from a process joining the interest of the contracting owner in improving “social and societal” mastery of the construction site and actions led by the party which tracks the living and working conditions at the site, thus leads to a forum for dialogue.

But the corollary – in any case, for the experiences presented during the project – is the importance of trade union action on the necessarily “transnational” scope, since it is a question of the living and working conditions of all workers at a site.

Will these initiatives open new doors to transnational social negotiation? A Community framework already exists through the implementation of European Works Council Directive 94/45/CE
The central managements of numerous European-wide and international groups and employee unions in different member countries have by now experienced a “transnational dialogue” by gradually learning a new type of dialogue and how to weave together points of view and interests. But the scope of these bodies is still limited to the company, and the unity of a worksite which mobilises employees of various nationalities under an international subcontractor is a new configuration. This new order involves public authorities, private and public ordering parties, construction professionals and the trade union organisations of both construction site “host” countries and the “home” countries of posted workers.

This observation, which is based on the traditional employer/salaried employee relationship, has been called into question through the search for a new and more pertinent scope – the site, the territory – as shown by the previously mentioned initiatives. Along with an issue mentioned above, it is also "the emblematic situation of the ‘false self-employed’ illustrating the limits between professional statuses. Although attached to an ordering party by a commercial agreement to provide services, the self-employment finds himself in a relationship of near subordination" (ibid. p.11 LENTIC, 2004).
The dual model is transformed to some extent into a triangular relationship giving rise to a displacement of the link of subordination, thus making the legal protection of workers problematic (ibid. p.13 LENTIC, 2004).
Within the context of transnational supply of services, the evolution of subcontracting also calls into question the scope of stakeholders. With the development of so-called "economic" subcontracting, "which takes advantage of outsourcing in an organisational and contractual context that is constantly re-negotiated through an on-going competition between subcontracting companies" news players appear – investment funds, general contractors, … – who, in fact, outsource risk and move the action levers. How can these third-party players between the client and the general contractor be identified? How can they be mobilised to assume social responsibility and awareness when their main motivation is financial?

• reduction costs and a search for "cheap" labour, to cite Jan Cremers,
  
  
   
• human resource needs, scarcity of labour and qualified workers, as well as insufficient knowledge of legal obligations by service providers and lack of proper management;
• type of legal and economic arrangements in the organisation of productive systems.