Since June 2006, migrants from eastern Europe have been able to obtain employment in a number of sectors in Belgium. In particular, the number of migrant workers engaged in construction work has increased considerably and this is expected to rise even further. As a result, new measures have been introduced in an effort to stamp out illegal work among migrants.
Rising migration and illegal work
Since 1 June 2006, workers from the 10 new Member States have been able to apply for a work permit within five days of their arrival in Belgium if they are willing to work in a so-called ‘bottleneck’ trade, where vacancies are difficult to fill. Many of these bottleneck trades can be found in the construction sector. Although efforts have intensified to fill vacancies in the construction sector with available unemployed people, it is generally expected that the number of eastern European workers in this sector will increase significantly in the near future.
Rising migration has raised concerns among policymakers and the social partners, who want to prevent increased labour migration from taking place against a background of illegal work and ‘moonlighting’ (BE0212301N; BE0509303F).
For example, some disreputable employment agencies have been operating outside the normal temporary employment sector and have been exploiting Polish workers in particular. At a press conference in September, the socialist trade union the Belgian General Confederation of Labour (Fédération Générale du Travail de Belgique/Algemeen Belgisch Vakverbond, FGTB/ABVV) recounted the story of a Polish building worker with dual Polish-German citizenship who was therefore able to work in Belgium without too much difficulty, even before the limited opening up of Belgium’s borders to eastern European workers. Sent by a Dutch employment agency, the worker had to stay on a campsite, sharing a caravan with 11 other workers. His contract, which he never received a copy of, was written in Dutch. He ended up working in a cabinetmaking outlet, where he had to use machines that he had never seen before. As a result, the Polish worker seriously injured his hand. The agency provided little help and notified the worker that he had to return to his country. However, he subsequently came into contact with FGTB/ABVV, which provided him with the required legal assistance.
European court slams joint liability measure
Measures aimed at stemming the rise in illegal or quasi-illegal migration faced a setback on 9 November 2006, when a previous initiative designed to limit the extent of moonlighting in the construction sector was condemned by the European Court of Justice. The latter deemed the measure as an unlawful impediment to the free movement of goods and services. The disputed system requires Belgian contractors to withhold 15% of payments to foreign subcontractors and to instead pay this money to the tax authorities, thus serving as a guarantee against any potential tax debts among foreign subcontractors. Moreover, Belgian contractors are also jointly liable for tax owed by their foreign subcontractors, up to an amount of 35% of the total cost of the work carried out.
Joint liability for employers or contractors for posted workers represents an important measure. The posting of workers is a system whereby employers send employees to another country to temporarily carry out a job on behalf of a local firm. However, the posted workers remain subject to the social security and tax systems of their own country. This system enables employers to use eastern European workers as cheap labour. When inspections are carried out, the main contractor often shifts responsibility to the contracted company if certain matters are not in order, such as adhering to the legislation on overtime working. The Belgian government wants to change this system, at the very least, by making the employers jointly liable. At the same time, the Minister for Employment is also working on new measures to prevent fraud and illegal work.
Another important measure will enable workers who are posted in Belgium to raise a case of non-compliance with Belgian wage and employment conditions before a Belgian court.
Trade union position
In general, the trade unions advocate controlled migration. In sectors where staff shortages exist, they contend that every possible step should be taken to ensure that foreign workers take up employment with Belgian employers. Enabling workers to take up legal employment will in turn ensure that it is easier to check for abuses and to guarantee that social security contributions are paid in Belgium.
At the same time, the trade unions are also taking action to raise awareness among foreign workers. For instance, the sectoral branch of the General Christian Trade Union (Confédération des Syndicats Chrétiens/Algemeen Christelijk Vakverbond, ACV/CSC) has set up a service for Polish builders, whereby it distributes leaflets written in Polish at construction sites and in Polish churches. The union wants to ensure that Polish workers are aware of their minimum rights and to prevent them from working illegally.
Guy Van Gyes, Higher Institute for Labour Studies (HIVA), Catholic University of Leuven