Opinion of the European Economic and Social Committee on Cross-border agricultural labour
Date: 2007-12-13
Institutions: European Economic and Social Committee
Subjects: agricultural labour force, equal pay, free movement of workers, labour standard, migrant worker, moonlighting

16.5.2008

EN

Official Journal of the European Union

C 120/19

Opinion of the European Economic and Social Committee on ‘Cross-border agricultural labour’

(2008/C 120/05)

On 16 February 2007 the European Economic and Social Committee decided to draw up an opinion, in
accordance with Rule 29(2) of its Rules of Procedure, on

Cross-border agricultural labour.

The Section for Agriculture, Rural Development and the Environment, which was responsible for preparing
the Committee's work on the subject, adopted its opinion on 31 October 2007. The rapporteur was Martin
Siecker.

At its 440th plenary session, held on 12 and 13 December 2007 (meeting of 13 December) the European
Economic and Social Committee adopted the following opinion by 104 votes to 3 with 1 abstention.

1. Conclusions and recommendations

Labour migration is of an economic nature and is the
1.1
consequence of free movement of labour in a Europe in which
great differences in living standards exist between the various
Member States. High unemployment rates in a number of the
new Member States and the demand for cheap, semi-skilled
labour in the 15 old Member States ensure a steady stream of
job-seekers.

In 2004 and 2007 transitional arrangements were agreed
1.2
upon to enable the old Member States to regulate migration
from the new Member States. One of the motives for this was
that the old Member States wanted to avoid tensions caused by
too great an influx of migrant workers arising on the labour
market, possibly resulting in illegal employment.

The result of the transitional arrangements was precisely
1.3
what the old Member States were trying to prevent.
In its
Report on the Functioning of the Transitional Arrangements,
the European Commission states that restrictions on legal work
for migrants from the new Member States actually lead to a
‘self-employed’
proliferation of undocumented work, bogus
work, and fictitious service provision and sub-contracting.

1.4
The paradoxical situation has arisen that in the EU-15
countries there is a great deal of seasonal work available in agri-
culture, for which not enough legally resident workers can be
found on the labour market. There are enough migrant workers
from the new Member States who are willing to do that work,
but many of them are not allowed to do it because of the
restrictive transitional measures. Agricultural labour flows vary
according to countries of origin and host countries. These differ-
ences are mainly connected with whether or not transitional
measures, either total or partial, are in place.

In this situation the work often ends up in the black
1.5
economy. It is difficult to obtain accurate information on this
matter since it involves three parties who each have their own
reasons for not making this information public. There are

employers who want to pay rates below those prescribed by law
or the collective wage agreements which are in force. There are
workers who are ready to work for lower rates than those
which they are entitled to receive by law or under collective
wage agreements. And there are employment brokers of
dubious repute who are only too willing to organise such deals
since they may be very lucrative for them.

1.6 Many of the middlemen make sensational offers; ulti-
mately, however,
the price war is paid for by the migrant
workers who have to make do with incomes that are below the
social minimum. There are also cases where employers who
take on seasonal workers pay employment brokers the market
rate but these brokers do not make tax and social security
deductions. On top of this, the middlemen who do this also
frequently pocket part of the migrant workers' salaries. There
are also websites with telephone numbers in both Eastern and
Western Europe which offer self-employed workers for whom
no payment of tax or employers' social security contributions
are required.

1.7
This situation is undesirable in a number of respects. The
basic principle must be that migrant workers must be treated in
every respect in the same way as the legally resident workers
alongside whom they are working. There must be equal pay for
equal work and better conditions with regard to access to social
security. This is not just a social issue for workers. It is also
economically important to employers (a level playing field for
fair competition) and financially important
for the Member
States (tax authorities).

for a Directive of

There is a proposal

1.8
the European
Parliament and of the Council providing for sanctions against
employers of
illegally staying third-country nationals. The
proposal provides for harmonised sanctions for employers and
preventive measures, as well as the identification and exchange
of good practices between Member States on the implementa-
tion of employer sanctions.

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As long as the restrictions on migrants from the new
1.9
Member States remain in place,
the
proposed directive should also apply to employers who illegally
employ workers from EU countries which are still subject to
restrictions. Moreover, the EESC considers it essential that the
EU should ensure that the directive is not just enacted in legisla-
tion in all Member States but is also enforced in practice.

the EESC argues that

2.5
The new day labourers offer their services on the street,
at places that are well-known as ‘pick-up points’ for illegal gang-
masters. They are hired on a daily basis, with no deductions
either for income tax or social security contributions. They have
to work excessively long hours each day, are paid too little per
hour and are not covered in any way by employment legislation
— insofar as it exists.

1.10
The combating of the black economy would benefit
from an unambiguous European definition which makes a clear
distinction between the taking on of work (the supply of
services) and the carrying out of duties in an employer-employee
relationship (the employment contract). The ILO has issued a
clear
recommendation on this subject. This gives bonafide
self-employed workers whose specialism goes beyond the supply
of cheap, unskilled labour a clearer position in the world of
work, and employers the protection they are entitled to. The
EESC is pleased to note that the European Commission has
approved a proposal
for a study to be carried out by the
European social partners in the construction industry on the
subject of (bogus) self-employment. The EESC welcomes the fact
that the Commission will also fund this study.

1.11
In view of the consequences of the restrictions on legal
employment, it would perhaps be better to drop this kind of
transitional measure in any future EU enlargements. The EESC
also calls on the European Commission to explore the possibi-
lity of lifting all restrictions on workers from the 12 Member
States that joined the EU in 2004 and 2007. A large proportion
of the European social partners also hold this view, provided
that real action is taken at EU and national levels, as well as at
social partner level, to monitor equal treatment for migrant
workers.

2. Introduction

2.1
According to the Lisbon strategy, the EU must in future
become a very competitive knowledge-based economy, founded
on sustainable production and consumption and with a consid-
erable degree of social cohesion.

The EU is at present a reasonably competitive knowl-
2.2
edge-based economy with production and consumption patterns
that are at present insufficiently sustainable and with a level of
social cohesion that leaves much to be desired.

2.3
This opinion focuses in particular on this last aspect,
social cohesion. The EU is paying a great deal of attention to
economic development and sustainability, especially of produc-
tion. The lack of attention to policy on the third pillar of the
to an increase but rather a
Lisbon strategy is leading not
decrease in social cohesion.

The consequences of this are clearly apparent on the
2.4
labour market. The proportion of informal labour is increasing
and a type of employee has returned who until recently was
thought to be long since extinct: the day labourer.

2.6
Until a few years ago the labour market, especially for
semi- and unskilled work, was nationally oriented. After the
EU enlargement in 2004, a European labour market emerged
for that segment of the market. Since the 2007 enlargement
there has been a sharp increase in the supply of labour now
that Bulgarian and Romanian workers are entering the market.

The sector where this trend is developing strongly is agri-
2.7
culture. Moreover, many people who are looking for work in
another country almost always find their first job in this sector,
in particular.

The aim of this EESC opinion is to place this problem on
2.8
the EU agenda so that
the relevant European institutions,
together with the Member States and the social partners are in a
position to look for solutions to this major and difficult
problem — which is unfortunately growing.

3. Agriculture

3.1
Agriculture is the totality of economic activities by which
the
the natural environment
is adapted for
production of plants and animals (1). Depending on the product,
the production method and the level of prosperity, use is made
of a large number of diverse methods, ranging from working
large machines which are
with simple tools to the use of
increasingly replacing human labour.

the benefit of

3.2
The agricultural sector in the EU is a major sector. A
total of more than 160 million hectares of land in the EU is
used as farmland. There are 11 million agricultural enterprises,
which provide employment for a total of 15 million people. The
majority of these are the farmers themselves and members of
their families, but about one million farms have a total of
6,5 million employees on the payroll. 4,5 million of these are
working as seasonal workers, an unknown number of them in a
country other than their country of origin (2). Many of
the
seasonal workers come from Poland, Bulgaria and Romania.

and

horticulture

3.3
Agriculture can be sub-divided into different activities:
livestock farming (animal production) and aquaculture (fish
production)
of
short-cycle crops, such as vegetables, ornamental plants, fruit,
and mushrooms), and arable farming (which differs from horti-
culture in that the crop cultivation is on a larger scale and is
less
regarded
everywhere in the EU as forming part of the agricultural sector;
in some countries it is considered to be an independent sector.

labour-intensive). Commercial

forestry is not

(small-scale

production

(1) NACE-code A.
(2) www.agri-info.eu.

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Agriculture produces not just food, but increasingly also
3.4
other goods such as flowers, furs,
leather, biofuels (biodiesel,
ethanol, gas, fast-growing wood), enzymes, fibres, etc. Geneti-
cally modified crops also produce specialised medicines.

from both the

According to figures

3.5
and
Eurofound (4), agriculture
the most hazardous
industrial
there are around
335 000 fatal accidents in the workplace each year. More than
half of these, 170 000 fatal accidents, occur in the agricultural
sector.

for workers.

is one of

In total,

sectors

ILO (3)

4. Types of informal work

legal complications

Because of numerous

4.1
is not
possible to draw up an unambiguous definition of informal
work in the EU. Practices which in one country are quite usual
(if there are no rules in a certain field, there is nothing to
comply with) are considered in another country to be unusual
or even illegal.

it

4.2
The national definitions of informal work differ from
Member State to Member State. It concerns activities that are
not included in the official statistics of the formal economy.
There are figures but they can often be traced back to one
source only, and are not always verifiable and therefore not
always
large-scale
informal work exists.

is undeniable that

reliable. However,

it

4.3
Nearly all national definitions of informal work empha-
sise non-compliance with tax obligations. Non-compliance with
obligations with regard to social security is cited in nearly all
definitions. Oddly enough, non-compliance with other obliga-
tions in the field of employment
law (working conditions,
working time, binding collective agreements) hardly ever forms
part of national definitions of informal work.

4.4
Informal work is done by non-registered employees who
are not necessarily migrant workers without a work and/or resi-
dence permit. People who do have the documents are also
working informally — or else they do not need them because
they are nationals of the country in which the offence takes
place. People without valid documents are more vulnerable
though and therefore easier to exploit than people with valid
documents. After all, the latter group has access to formal work
anyway; the former group does not.

Apart from classic paid employment, there is also the
4.5
‘self-employed person with no employees’. These ‘self-employed
persons’ are seen as entrepreneurs, and no tax or social security
contributions need to be paid for them. They themselves are
responsible for making these contributions.

4.6
Nor are they covered by employment law applicable to
employees. For them there are no minimum wage rates, no
maximum weekly hours of work, no health and safety regula-
tions and no minimum wage. In view of the high risk of serious
industrial accidents in this sector (see point 3.5 above), this
situation is unacceptable. These self-employed persons are free
to work for whatever rates of pay and under whatever condi-
tions they agree on with their clients.

These self-employed persons were originally experienced
4.7
specialists with specific vocational skills. As a rule, they had
spent years qualifying as skilled specialists in order
to be
self-employed.

4.8
As a result of increased outsourcing after the hiving-off
of non-core functions, much more than just specialised work is
at present being outsourced. A small nucleus of permanent and
well-established staff is sufficient, as the frequently simple work
is done to an increasing extent by subcontracting and outsour-
cing. The demand for that sort of work is met by a large group
of new self-employed persons seeking work on the labour
market. The most important specialism of many of these new
self-employed is the supply of cheap, unskilled labour.

This form of pseudo self-employment was used in the
4.9
late 1980s to export unemployment
from Ireland and the
United Kingdom. Until then British law contained numerous
safeguards to test whether the self-employed actually fulfilled a
number of conditions. One of the conditions was that they
should be experienced specialists in a particular vocation. The
British government of the day dropped the assessment criteria,
as a result of which many more people suddenly became able to
register as self-employed persons and get jobs on the continent
without the need to take account of labour law in the other
Member State (5).

self-employed (6). By doing so they can get

4.10 Moreover, this phenomenon is no longer exclusive to
the English-speaking countries: a Polish government spokesman,
for example, said at a conference on the free movement of
workers that his government urged Polish job-seekers to register
as
round all
remaining restrictions on workers in the other Member States
and can work anywhere. In this way, self-employed status is
regularly and deliberately used as a scheme arrangement for
evading labour law or regulations by a chain of subcontracting
and outsourcing. Responsibility for compliance with obligations
with regard to income tax and social security payments, too, is
passed on downwards by means of unfair contracts for bogus
self-employed workers, which are often offered by recruitment
agencies.

(3) International Labour Organisation, the UN labour agency in Geneva.
(4) European Foundation for the Improvement of Living and Working

Conditions, Dublin.

(5) European Institute for Construction Labour Research.
(6) Fafo — conference on the free movement of workers, held in Oslo

on 1 June 2006,
www.fafo.no.

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4.11
This phenomenon is also present on a large scale in the
construction industry. Furthermore, much more research has
already been carried out into this phenomenon in the latter
sector than in the agricultural sector. There are considerable
similarities between these two sectors. What
they have in
common,
in particular, are the three largest risk factors for
informal work, namely labour-intensive work of a temporary
nature which is carried out, above all, by non-resident workers.
The European social partners in the construction industry have
now recognised this danger and have asked the European
Commission to provide
into the
funding
phenomenon of (bogus) self-employment in 18 EU Member
States. The Commission has agreed to this request and the
proposed study will be put out to tender in the EU before the
end of 2007.

study

for

a

4.12
The fact that there is still no European legal framework
for the employment relationship creates room for dubious trade
in cheap labour. This causes serious damaging side effects at
European level. The European Commission itself comes to this
conclusion in its Report on the Functioning of the Transitional
Arrangements set out in the 2003 Accession Treaty which notes
that ‘the restrictions may have encouraged EU-8 nationals to
look for other ways to perform economic activity in EU-15
Member States, reflected in an exceptionally high influx of
posted workers or workers claiming to be self-employed’ (7).

4.13
In that same report the Commission states: ‘Recognising
that migration flows from EU-8 to EU-15 Member States had
been modest, social partners strongly emphasised that erosion
of labour standards and “social dumping” should be avoided.
They also pointed out that restrictions on legal work actually
lead to a proliferation of undocumented work, bogus
“self-employed work”, and fictitious
service provision and
sub-contracting’. The Commission later on corrects the view
that migration flows have not been so great by commenting
that ‘the true migration flows across the enlarged EU may be
larger than would appear from the data presented in this report
as the phenomenon of undeclared work is not fully captured by
official statistics’. The Commission notes that, in general, restric-
tions on labour market access may exacerbate resort to unde-
clared work.

for

example,

In the Netherlands,

4.14
in 1992 in
the Netherlands there was a total of 54 200 FTEs (full time
equivalents) engaged in horticulture, the agricultural sector with
the most employees. Nearly 87 % of the workers were in perma-
nent employment, more than 13 % were connected to the busi-
ness in some other way (employment agency staff, temporary
sector
self-employed).
employment,
numbered 59 000 FTEs, with more than 61 % of the workers
then in permanent employment and nearly 39 % connected to
the business in another way. Please note that these are figures
for the formal economy. It is estimated that in spring 2007 a
further 40 000 FTEs were working informally in the sector (8)

In 2005 the

(bogus)

but there are strong indications that the proportion of informal
work in horticulture has been steadily decreasing since the
lifting of the restrictions imposed on residents of those Member
States which joined the EU in 2004.

5. Labour standards under pressure

The last few years have shown that imposing restrictions
5.1
on access to the labour market is often counterproductive. It
can result in the evasion of labour law and regulations. Until
31 December 2008 there are no restrictions for job-seekers
from Romania and Bulgaria in Estonia, Latvia, Lithuania, Poland,
the Czech Republic, Sweden, Finland, Cyprus and
Slovakia,
Slovenia, although in the latter three countries Romanian and
Bulgarian nationals must register. The remaining 15 EU Member
States do impose restrictions on job-seekers from Romania and
Bulgaria (9). For job-seekers from the ten Member States that
joined the EU in 2004, some restrictions also still apply but in a
smaller number of countries and less
than for
nationals of Bulgaria and Romania (10).

stringent

5.2
Labour migration in the EU is of an economic nature
and is the consequence of free movement of labour in a Union
in which great differences in living standards exist between the
various Member States. High unemployment rates in a number
of the new Member States and the demand for cheap, semi-
skilled labour in the 15 old Member States ensure a steady
stream of job-seekers.

5.3 Many job-seekers find work in the agricultural sector
because there is a great demand for additional
temporary
workers in this sector at harvest time. It is also a sector where
the chance of social dumping is greater than in other sectors.
This is because, among other reasons, in a number of Member
States there are no collective wage agreements in force for the
sector or because in a number of cases those agreements that
do exist have been declared not universally binding.

5.4
Seasonal work is a structural feature of European agri-
culture. Sustainable and efficient agricultural production is not
the deployment of a flexible workforce.
possible without
Seasonal work in the agricultural sector is largely done by
migrant workers. In some cases, problems arise which jeopardise
social cohesion.

5.5 Migrants who work in the formal sector are often
cheaper than legally resident workers because the employer does
not have to pay a number of contributions for them. This
for example, to sectoral training funds and pension
applies,
funds. Migrants from the 10 EU countries that joined the EU in
2004, and for whom there are still restrictions on the labour
market in a number of old EU countries, often do informal
work part of the time so that not all hours worked are reported
to the tax authorities. Migrants from Bulgaria and Romania, for

(7) COM(2006) 48 final.
(8) Productschap Tuinbouw, www.tuinbouw.nl.

(9) http://ec.europa.eu/employment social/free movement/enlargement en.htm.
(10) http://ec.europa.eu/eures/home.jsp?lang=en.

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whom even more restrictions still apply, are in general entirely
dependent on the informal sector, in which they are not paid
for all hours worked, hourly rates are much too low or they are
forced by unfair contracts to be (bogus) self-employed workers.

5.6
The ILO has devoted a number of conventions to the
issues that are discussed in this opinion. These are Conventions
C97 (Migration for Employment, 1949) C143 (Migrant Workers
Supplementary Provisions, 1975), C181 (Private Employment
Agencies, 1997) and C184 (Safety and Health in Agriculture,
2001). Conventions C97 and C181 have not been ratified by
17 of the 27 EU Member States. Convention C143 has not
been ratified by 22 of the EU Member States, nor has Conven-
tion C184 by 24 Member States. Not one of the 27 current
conventions (11).
EU Member States has
Furthermore, in 2006 the ILO issued a Recommendation on the
employment relationship (12). The core of the Recommendation
was to improve legislation in all countries at national level in
order to make a clear and common distinction between self-em-
ployed and employed workers. This is necessary in order to be
able to put an end to the growing number of fraudulent prac-
tices aimed at disguising the fact that the people are employees
and to make it appear that they are self-employed (13).

ratified all

four

6. Enforcing labour regulations

It

issue.

6.1
The basic principle must be that migrant workers must
be treated in every respect in the same way as legally resident
workers alongside whom they are working. There must be equal
pay for equal work and better conditions with regard to access
to social security. This is not just a social
is also
economically important to employers (a level playing field for
fair competition) and financially important
for the Member
States (tax authorities). This basic principle has by no means
been implemented everywhere. In the Netherlands, following the
lifting of the transitional measures applying to residents of the
Member States which joined the EU in 2004, the social partners
expressed their intention to work together, as from 1 May
2007, in monitoring compliance with social laws and regula-
tions and labour law and regulations. The government promised
to introduce back-up measures. No tangible results have so far
been achieved.

for a Directive of

There is a proposal

6.2
the European
Parliament and of the Council providing for sanctions against
employers of illegally staying third-country nationals (14). The
proposal provides for harmonised sanctions for employers and
preventive measures, as well as the identification and exchange
of good practices between Member States on the implementa-
tion of employer sanctions.

estimated 4,5 to 8 million). This results in illegal employment,
agriculture being,
together with construction, hotels/catering
and cleaning, one of the four main sectors in which this practice
occurs. The European Parliament and the Council state in the
proposal
‘like undeclared work by
EU citizens, leads to losses to public finances, can depress wages
and working conditions, may distort competition between busi-
nesses and means that the undeclared workers will not benefit
from health insurance and pension rights’.

illegal employment,

that

In their report on the functioning of the transitional
6.4
in the 2003 Accession Treaty (period
arrangements set out
1 May 2004-30 April 2006),
the European social partners
reported ‘that restrictions on legal work actually lead to a prolif-
eration of undocumented work, bogus “self-employed” work,
and fictitious service provision and sub-contracting’. In the light
of experience,
it would be better to lift all restrictions on
workers from the 12 Member States that joined the EU in 2004
and 2007 in order to create a level playing field. The over-
whelming majority of the European social partners also hold
this view, provided that real action is taken at EU and national
levels as well as at social partner level to monitor equal treat-
ment for migrant workers.

6.5
As long as restrictions are not yet lifted, the EESC argues
that the proposed directive on sanctions against employers who
illegally employ citizens of third countries who are staying in
the EU should also apply to employers who illegally employ
people from EU countries which are still subject to restrictions.
Moreover, the EESC considers it essential that the EU should
ensure that the directive is not just enacted in legislation in all
Member States but also enforced in practice.

6.6 Moreover, the Directive does away with the great differ-
ences that exist in the quality and intensity of checks and the
severity of penalties between the Member States. An employer
in the Netherlands who is found to be illegally employing
workers can receive a maximum fine of EUR 6 700 per worker.
In Belgium it is EUR 20 000, in Luxembourg 50 000. However,
there are some Member States which do not yet have any penal-
ties for employers who are guilty of illegally employing workers.

6.7
The exchange of good practices is an indispensable part
of the process that must result in an increase in social cohesion.
At the hearing in Plovdiv (15), a number of examples of good
practice were mentioned, such as:

6.3
The reason for this proposal is the substantial number of
third-country nationals who are illegally staying in the EU (an

(11) www.ilo.org/ololex/english/convdisp 1.htm.
(12) ILO (2006) Employment Relationship Recommendation R198.
(13) Amsterdam Institute of Advanced Labour Studies.
(14) COM(2007) 249 final.

— the establishment of an international trade union council in
the Austrian/Hungarian border region of Burgenland (16).
The Austrian and Hungarian trade unions work together to
ensure that cross-border labour operates in accordance with
the law and regulations;

(15) Plovdiv, Bulgaria, 18.9.2007.
(16) www.igr.at.

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— the licensing and registration of the gangmaster system in
the United Kingdom (17). By means of strict checks,
the
government grants licenses to bonafide gangmasters who
are the most important middlemen in fulfilling the demand
for temporary labour in the agricultural sector. The ILO cites
this explicitly in its publications as an example of good prac-
tice;

— in Belgium, the social partners in the agricultural sector have
reached agreement on an effective system of administrative
checks to prevent informal labour (18);

— in the Netherlands, the social partners introduced a licensing
and registration scheme in 2007 designed to ensure effective
monitoring of compliance with social and employment stan-
dards in the case of temporary agency work (19). The scheme
is still experiencing a number of teething troubles but the
intention behind it is a good one and it represents a hopeful
development;

— in Italy, the social partners, the Employment Minister and
the Minister for Agriculture reached agreement in September
2007 on an extensive programme of measures designed to

combat the incidence of informal work and bogus self-em-
ployment in the agricultural sector (20);

— the ILO has developed programmes for regulating private
employment brokers and to prevent migrant workers from
entering the path of people trafficking and forced labour via
dubious agents. The programmes are aimed at lawmakers,
the labour inspectorate, police forces, etc.

6.8
The situations described in a number of these examples
of good practice are not all entirely comparable to that of
workers from Bulgaria and Romania who are looking for work
in the old EU-15. For example, Hungarian workers who are
employed in Burgenland simply go home every evening,
whereas workers from Romania and Bulgaria are away from
home for months. Malpractice can still occur in these situations,
but on a much smaller scale, and with effective enforcement it
can be easily detected and penalised. The general impression is
therefore that here people's working conditions are socially
acceptable.

Brussels, 13 December 2007.

The President

of the European Economic and Social Committee

Dimitris DIMITRIADIS

(17) www.gla.gov.uk.
(18) www.limosa.be, www.ksz.fgov.be/En/CBSS.htm.
(19) www.normeringarbeid.nl

(20) www.lavoro.gov.it,

www.lavoro.gov.it/NR/rdonlyres/7E345511-29CC-

4D81-B502-225F85070D3C/0/new_n12ottobre07.pdf.