«7. CONCLUSION 7.1 Introduction This thesis addressed the (to a large extent) still-unexplored regulatory dynamics within transnational workspaces in ...»
First, at the national level, trade unions demand the curtailing of the development of long subcontracting chains. This would be a preventative measure against possible abusive practices down long subcontracting chains. Second, there is public demand to significantly upgrade sanctions for non-complying firms in order to disincentivise rule circumvention. Third, in Germany, there are proposals to establish a (currently nonexistent) system of legal collective redress. Collective redress enables trade unions to file court proceedings on behalf of workers. Posted workers could file legal proceedings without having to reveal their identities and thus protect their employment relationship. Collective redress would give a voice to posted workers’ concerns but also uncover malpractices. Fourth, trade unions demand a formal role in the labour-inspection process, including both its design and the labour inspections themselves. This may strengthen worker voice as well as enforcement, and could include the involvement of the social partners.
A recent European Parliament report suggests a transnational measure to strengthen effective enforcement of mobile labour rights (European Parliament, 2013). First, the report suggests the introduction of a European agency dealing with all kinds of cross-border matters within the field of labour inspections aimed at more effective administrative cooperation. This could, for example, cover the control of transnational service providers as well as letterbox companies, and the organisation of cross-border controls (European Parliament, 2013). Second, MEPs proposed the implementation of a European social security card, where all necessary data such as working time or social security are stored. This would permit labour inspectors to review all the necessary data on the spot. Such a card has already been implemented in the Swedish construction sector and has proved to be an effective way to control workplaces and facilities. Inspectors would be able to read the information on the cards via detectors. Third, the establishment of an EU-wide register of A1 forms is needed in order to make controls effective in nation states and also quantify the numbers for policy pressure purposes and effective quantitative research.
Apart from these isolated measures, and in order to move away from defeats to improving the PWD, it may be feasible to introduce a whole new directive altogether. This directive would focus and refer to all kinds of crossborder labour mobility in the EU, removing the competition created by different forms of mobility. Such a directive, geared towards a mobile low-wage sector in a pan-European labour market, would articulate and fuse the rights between atypical, posted and agency work.
Besides thinking about preventive or current policy possibilities, it is equally important to think about European utopias. While utopist solutions are rather remote from the current institutional context, they are important in providing paths for alternative thought. Jennifer Gordon (2007), describing similar problems regarding migrant workers in the United States, proposes a more far-reaching change to improve the situation of labour migrants. In her conceptualization of ‘transnational labour citizenship’ she suggests linking the employment permit to non-territorial (industrial) citizenship, that is, to membership in a trade union. EU citizens do not need an employment permit to take up work in another member state. However, by slightly adapting Gordon’s suggestions the idea of establishing a transnational labour citizenship for posted workers is transferable to the EU context.
A possible adaptation of Gordon’s idea may be to create an institutional setting in which the employment at foreign subcontracting chains is not solely determined by the sending firm. For example, similar to the idea of ‘transnational labour citizenship’ EU posted workers (but also labour migrants more generally) could engage in cross-border work after joining an organisation of transnational workers, rather than through a previous employment relationship with a service provider. To foster solidarity, accommodate voice and provide the necessary conditions for collective action, this policy would encompass all workers in a panEuropean labour market to whom collective action is meaningful, regardless of the territory on which they reside. According to Gordon’s idea, the migrant has to commit him or herself to the trade union. The person becomes a member throughout the employment relationship and commits to reporting misconduct.
Thus, while the supranational policy discussions adhere to territoriality, it is practices than span territories that have the potential to disconnect migration from state-based citizenship as suggested by Gordon.
7.4 Implications, future research and industrial and global patterns
This thesis has discussed alternative, uneven and very much dynamic forms of regulation beyond a self-contained view of the national level that do not per se undermine the nation state. In these spaces differentiated forms of regulation are pertinent in which the regular institutional system largely does not apply. This is similar to what Aihwa Ong labels ‘neoliberalism as exception,’ John Agnew depicts as ‘portable sovereignty’ and Lillie, drawing on Palan, labels ‘spaces of exception’ (Ong, 2006; Agnew, 2009; Lillie, 2010). The authors depict spaces in which sovereignty is fragmented, and in which firms can strategize around this disjointed regulation. Palan explains this as a process in which social and political controls are selectively not enforced, in order to allow capital a freer hand in designing the social relations of production (Palan, 2003). My main concern in this thesis was not to accept the ‘lack of regulation’ per se but to investigate how these spaces are structured and how actors in these spaces engage with the institutional framework in place. If one seeks to understand how these spaces come into being and are sustained, one must therefore look not only at the structures laid down by laws and authorities, but also at the various agents reconstituting those structures.
This approach may produce important insights for other industries or policy fields in the European Union or other parts of the world where processes of deterritorialization interact with the changing nature of employment relations. In the European Union similar processes are occurring in industries such as shipbuilding (Lillie and Wagner, 2014), warehouse distribution (Berntsen, forthcoming) and trucking. Workers who may well be permanently mobile inhabit these spaces (Van Hoek and Houwerzijl, 2011). The labour markets of these industries are in the process of being transformed. While this study focuses on the German setting other studies have shown that various EU countries struggled to adapt their labour market policies to implement the Posting of Workers Directive.
For example, Lillie and Greer (2007) look at transnational posted work in the construction industry in Germany, Finland and the UK and examine how transnational politics and labour markets are undermining national industrial relations systems in Europe. Moreover, Lillie, Wagner and Berntsen have discussed the similarities of construction firms in Germany, the Netherlands and Finland in evading or altering the application of the regulation in their employment relations (2014). This cross-country comparison finds that construction firms will oftentimes claim they are complying with the host country’s rules and the Posted Workers Directive, but these claims are difficult to check, and they may be violating their home country’s regulations as well.
Employer behaviour in all countries examined is fairly similar, which is made possible by the ambiguous rule system surrounding posted workers and their work environments.
New EU directives confirm the trend in changing borders between political economic territories and employment relations. The intra-corporate transfer directive (COM (2014/66 EU) on conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer (ICT) is such an example.
‘Intra-corporate transfer’ means the temporary secondment of a third-country national from an undertaking established outside the territory of a member state and to which the third-country national will return. The directive enables thirdcountry nationals to be posted within the European single market. The condition is that they have to have worked for 6 months within a EU member state in a daughter undertaking of the company for which they normally work. For example, a Russian undertaking can send his employee for a secondment to Poland. The worker could be posted under the Posting of Workers Directive to Germany if he or she has worked for the daughter undertaking in Poland for six months. In light of the findings of this study, difficulties in enforcing the regulatory framework in such a situation can easily be imagined.
These findings confirm that similar processes are occurring in other EU member states and in similar policy fields. For future research it may be useful to examine the influence of posting on other institutions such as social policy. Social policy is a crucial component of establishing the comparative advantage of posting.
It deserves more attention to see the extent to which posting impacts the host as well as the home countries’ institutional social policy system. Also, it is important to examine how the two affect one another. Moreover, future research may also look more closely at similar processes within other world regions. Preliminary research in Taiwan and Japan suggests that posted work is increasingly used as an employment flexibilisation measure in East Asia (Mottweiler et al., 2014). Despite the absence of similar supranational regional regulations, the regional integration of transformation market economies (China, India, Vietnam) as well the welldeveloped cross-national capacities of the Japanese temporary-staffing industry in East Asia (Coe et al., 2012) indicate developments which parallel some of the driving forces for the expansion of migrant agency work in Europe.
Finally, it is crucial to further investigate the impact of mobility practices on society at large. The politics of differentiation between mobile workers themselves and between mobile workers and native workers has a strong influence on stability in the process of EU integration. Perceived or existing levels of inequality can spur an anti-EU backlash (Burgoon, 2013). The recent European Parliament elections point to rising levels of xenophobia. EU citizens in several member states expressed concerns about the widening integration. Populist discussions accuse labour migrants of either being ‘welfare tourists’ or of contributing to rising unemployment. The Dutch Freedom Party established a website on which it was possible to name and shame eastern European workers who allegedly stole the jobs of native workers. In the UK, workers took to the streets to demand ‘British jobs for British workers’. Such sentiments are particularly noticeable towards EU citizens from recent EU additions Bulgaria and Romania. Right-wing parties with strong positions on immigration gained major support in the UK, France, the Netherlands and Finland. So far, no similar tendencies are noticeable in Germany.
However, fears of ‘poverty migrants’ settling in Germany to profit from the benefits of the welfare state feature in the popular media and in political discussions.
The main task ahead will be to re-embed mobile workers into structures of social inclusion and collective resistance. This study was firstly interested in how actors order and utilise regulation within transnational workspaces. The findings should not be seen as an end point; rather, they are part of a dynamic process.
Chapters 5 and 6 suggested paths that steer this process in the direction of social inclusion. Labour migration is an opportunity to weave the texture and create the ferment for a New Europe. A focus on actors and on the hopes, needs and strategies of marginalised groups in society may be an enzyme to develop muchneeded transnational labour structures in a pan-European labour market.