Euro Posting


Acting upstream from service supply: the development of new practices

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.
Within and beyond these organisational and institutional frameworks, different approaches anticipating the supply of service are implemented.
These emerging practices aim to:

  • secure the supply of service and its effects on employment and working conditions for posted workers;
  • prevent and avoid fraudulent practices and circumvention of the provisions Directive 96/71/CE.
These initiatives mobilise social partners and public authorities, as well as clients and companies, to develop room to manoeuvre which can be qualified as "strategic".

They are based on feedback and are oriented toward a “search for solutions” by implementing systems and operational tools for detecting and analysing, preventing, monitoring and follow-up the different situations.
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Toward new ways of acting

Among the different "lever effects" being sought, we can identify three preferential ways of acting underlying these anticipation approach.

Action from initial design of building operations

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".

(op.cit p.54 Jean Carassus "Construction : la mutation – de l'ouvrage au service"
- Presse de l'Ecole Nationale des Ponts et Chaussées – 2002)

As they are carried out, these projects – for eminently complex reasons – give rise to delays and extra costs, which are often associated to poor working conditions. The example of the construction site for the Olkiluoto 3 nuclear power plant in Finland is particularly illustrative. Originally estimated to cost 3.5 billion euros, it has currently been evaluated at 8.5 billion euros. Although construction started in 2005, commercial implementation is not expected before 2016. In 2006, serious technical problems affected the work of welding the reactor cover. A Polish company was called on to remedy the situation but used inappropriate working methods.

OL 3 Power Plant (Finland)

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.

Flamanville (France) Experience

Acting from the design and preliminary study phase (which includes the sketch, pre-project summary, and pre-project detail steps), and therefore upstream from the project, thus provides a way to secure the transnational supply of services and, consequently, guarantee proper working and employment conditions.

Long-term action

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

Information workers Belgium

Solutions implemented and planned for the future pertain to several registers:
  • provide information on legislation and the “right to employment” with brochures which are easy to understand, facilitate contact at the site and organise an advice and orientation day or seminar on questions of occupational health and safety;
  • coordinate action among public authorities, in particular as concerns joint inspections;
  • ensure better cooperation upstream from the construction site and over the long term through contacts and regular meetings;
  • more generally, develop and create together “new” solutions based on the experience acquired.
Other initiatives which are sectoral and/or territorial illustrate the desire to find action levers which are not merely transitory but enable structuring actions over the mid-term, thereby ensuring greater effectiveness.
When they experienced unfair competition in their territory and were confronted with a large unemployment rate, Hainaut Province participants implemented, in the form of a territorial convention, a system for combating social dumping, improving sector image (construction) and making everyone concerned aware of their responsibilities.

Convention Hainaut Belgique

Although the agreement, which was drawn up between the public authorities and the social partners, lists specific actions, it is based on an organisation which the participants want to be long-term, in particular through a committee which meets monthly. Implemented in 2009, this multipartite partnership aims over the long term to facilitate contacts and reinforce inter-institutional collaboration and exchange of information to determine specific actions.
In addition to detecting fraudulent situations and ensuring enforcement (see below), it includes a preventive aspect with the organisation of information and awareness campaigns, as well as study and training days targeting companies, ordering parties, salaried and self-employed workers, with the implementation of a specific group on worker posting.
The Dutch office for supervising the application of regulations in the temporary work agency sector in the Netherlands was created in 2004.

Dutch compliance office

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.

Action on identified and pertinent areas

Identifying the pertinent scope is a third way to anticipate. Targeting action on major infrastructure projects in construction, on large-scale agricultural operations (harvesting campaigns), over the territories (Hainaut Province) or over an entire industry or sector (compliance office in the Netherlands) should lead to greater impact.
In some cases, the idea is to start by listing identifiable operations, which may potentially be “lever-effect” situations. Although the sectoral system of the construction industry is heterogeneous and fragmented, major projects, in particular those which are industrial or based on civil engineering and are ordered by public or private entities, are, in contrast, generally predictable. This is also the case for agriculture, the seasonality of part of activities leads, for example, to temporary but repeated actions known as harvesting “campaigns”. Since they are part of the national and transnational distribution and marketing industries, these operations are also identifiable and predictable. Their expected production volumes require a strong reliance on labour which, in many cases, is not met by local labour and/or gives rise to using “cheap” labour because of cost pressures.
In another case, the participants are organised at a territorial and/or sectoral level to orient their action on identified “targets”. To better detect and anticipate problematic situations, the working programme of the Hainaut Convention provides for the analysis of contracts drawn up between contracting owners and contractors and between main companies and their subcontractors. The analysis consists in taking into account price, deadline, volume of labour, volume of services to be provided, etc., to reveal the possible use of undeclared labour.
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Greater room to manœuvre

Better knowledge of the posting phenomenon

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.

Study on the economic and social effects associated with the phenomen of posting of workers in the EU
- Final report VT/2009/062 European Commission

Responses by the partner member countries to the preliminary survey questionnaires (sent at the beginning of the project) indicate that the reports prepared by labour inspectors provide substantial amounts of information on the situation of the posted workers and the service providers, as well as on failures in terms of working and employment conditions.
Using information available to inspection agents, it is possible to describe and reconstitute the legal and economic arrangements observed, the sectors or territories concerned and the type of investigations carried out. These data enable identifying and delimiting the situations, as well as the issues requiring action.
At the national level, public authorities are able to play the role of “observatory” in the combat against social dumping:
  • 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.
Social partners have also carried out initiatives.
  • In Finland, the Confederation of Industries has distributed data each year for the past five years on the evolution of service supply by foreign countries which is based on questions asked to Confederation members. These data are used by public authorities.

  • In Belgium, the Hainault Province multipartite convention stipulates that the federal office of orientation of the Service for Social Research and Information shall provide support for actions by the inspection services by carrying out studies and analyses (especially as concerns supervisory methods, database crossing and the fraud phenomenon).
With the financial support of the European Commission, FIEC and EFBWW have carried out a comparative study of 11 member countries on self-employment and bogus self-employment in the construction sector a key issue which we find in several case studies presented in the transnational workshops.

Self-employment and Bogus Self-employment - FETBB FIEC

Practical cases Poland

Practical case Estonia

Posting of workers: enforcement problems and challenges - Jan Cremers, CLR-expert

Opening new paths to negotiation

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.
The idea is to adopt an integrated approach which takes into account working and living conditions at the construction site, as well as the need to anticipate and support the "after-construction site" period.
Concretely, the framework is both functional and operational:
  • functional, because the forum has been extended to include other participants, including the president of the inter-company association in charge of construction site living condition issues (lodging, meals, transportation), the president of the legal authority in charge of safety at work issues (inter-company body) and public authorities representing supervisory bodies;
  • operational, because information-sharing and dialogue are oriented toward solving issues: allowance of means for trade unions, implementation of a system to supervise access to the construction site, guide and information on worker rights and obligations for workers at the site and services aiming to improve living conditions at the construction site.
As was the case for the initiative at the Olkiluoto 3 power plant in Finland, this initiative first makes apparent the interest of the "client", who is the contracting owner, as the key player in social regulation - see also

"The Contracting Owner: a Key Player" in "Informing, Sensitising, Supporting").

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.

Mobilising new participants ?

The experiences presented during the project provided an opportunity for public authorities and social partners to share the “current state of practices”. Confronted with new configurations where the transnational aspect is central, these practices are far from static. Participants are looking for new ways to act (see also “Acting at the transnational level”), which range – to use the Finnish partners as an example – from explicitly affirming their shared wish to create new ways of thinking to new solutions :

OL 3 Power Plant (Finland)

However, the participants inscribe their practices and look for action levers within existing institutional frameworks. From a perspective of mid-term anticipation, can we identify other participants whose mobilisation could provide room to manœuvre ?
As pointed out by Virginie Xhauflair (L.E.N.T.I.C. –University of Liège) in the first transnational workshop on construction, the exercise consists in taking into account the complexity of organisational evolution and examining its effect on:
  • the scope of stakeholders (constant, expanding?),
  • and the manner in which roles are (re)distributed among the different stakeholders,
by taking a look at the models underlying the existing action frameworks, in addition to the application of rules.
"The regulatory framework which governs working relationships in our societies is both binary (it rests on a base which is dual: employee status and self-employed status), bilateral (it takes into account only the contractual relationship between employee and employer) and standardised (it favours a full-time work contract for a predetermined period)"

"Le réseau et la régulation sociale" - research report – LENTIC 2004

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?

Acting on service supply determinants

Anticipating and planning ahead also means questioning the possibility of acting on service supply determinants. Some of these have been clearly highlighted through the initiatives and cases discussed in the project workshops:
  • 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.

Several “preventive” possibilities have been mentioned by project partners:
  • act on the conditions for establishing services through awareness of the “hidden costs” and negative externalities brought about by the strategy of “lowest common social denominator” and by cooperation between participants in favour of more satisfying relations between the contracting parties;

  • act on a European scope concerning major construction operations which can be considered as “EURO Projects” by looking for the benefits of connection in organising these markets;

  • act on worker qualification as an action lever to develop performance and the quality of human resources (see the SASeC sectorial initiative in Romania – the social partners behind the project look for ways to integrate their arrangement within systems whose goals are analogous in the European area);
  • - act on conditions under which work will be carried out by preventing occupational risks (see the example of tree-cutting work in forestry, where the danger and harshness of work make OSH issues unavoidable).

OL 3 Power Plant (Finland)

SASeC, a construction sector initiative (Romania)

Forestry Work (France)

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