Recruitment agencies and their impact on working conditions
MAKING INDUSTRIAL RELATIONS WORK FOR DECENT WORK BRIEFING ON THE SITUATION IN ROMANIA
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1 October 25, 2010 by www.stirileprotv.ro, available at http://stirileprotv.ro/stiri/ international/la-limita-supravietuiriisapte-copii-romani-sclavi-la-o-fermadin-anglia.html 2 April 16, 2011 by www.stirileprotv.ro, available at http://stirileprotv.ro/stiri/ actualitate/zeci-de-romani-sclavi-pe-oplantatie-din-grecia-eliberati-de-politisti. html 3 3, 2011 by www.stirileprotv.ro, available at http://stirileprotv.ro/stiri/social/chinulromanilor-plecati-la-munca-am-statintr-o-camera-cu-sobolani.html 4 May 15, 2011 by www.stirileprotv.ro, available at http://www.crimetime.ro/ international/zeci-de-romani-sclavi-initalia-munceau-15-ore-pe-zi-pentrucateva-sute-de-euro.html 5 Daniel Befu, September 12, 2011, “Romania Liberă”, available at http://www.romanialibera.ro/actualitate/ europa/romanii-sclavi-moderni-inoraselul-claudiei-schiffer-237240.html 6 August 24, 2011, by www.ziare.com, available at http://www.ziare.com/articole/ romani+sclavi+peste+hotare 7 July 28, 2011, by www.libertatea.ro, available at http://www.libertatea.ro/ detalii/articol/romani-sclavi-cehiagermania-347694.html 8 October 11, 2011 by www.realitatea.net, available at http://www.realitatea.net/doicetateni-din-bangladesh-sclavi-la-firmaunui-om-de-afaceri-bacauan_876370.html 9 http://www.adevarul.ro/actualitate/ eveniment/Muncitori-Honduras-Rodipetsclavi-din_0_130187069.html 10 Poelincă C. CEZAR I, October 7, 2009, “Adevărul”, available at http://www.romanialibera.ro/index. php?section=articol&screen=print&id=246 081&page=0&order=0&redactie=0 11 Crăciun A., Stănescu I., December 22, 2008, “Evenimentul Zilei”, available at http://www.evz.ro/detalii/stiri/congoleziin-sclavie-pe-taxiuri-833340.html 12 October 10, 2008, by Prol-position News, available at http://www.prol-position.net/ ppnews/ppnews10.pdf 13 Ana Cosel, September 3, 2008, “LabourNet.de Germany”, available at http://www.labournet.de/internationales/ rumae/sibiu_engl.html
02 Introduction The abuse of migrant workers “On the edge of survival. Seven Romanian children, slaves on a farm in England”1, “Tons of Romanians, slaves on a Greek plantation, released by police”2, “The torture of Romanians going to work: ‘We stayed in a room with rats’”3, “Thousands of Romanians slaves in Italy! They worked 15 hours a day for a few hundred dollars!”4, “Romanian ‘modern day slaves’ in the town of Claudia Schiffer”5, “Romanians blueberry pickers, slaves in Sweden”6, “Romanians, slaves in Czech Republic and Germany”7 are the titles of just a few articles among thousands published in recent years about the Romanians working abroad. While there are fewer articles about immigrants coming to Romania and working in unacceptable conditions, similar titles appear in the Romanian media. “Two citizens from Bangladesh, company slaves to a businessman in Bacau”8, “Workers from Honduras, slaves in Rodipet company”9, “Romanian nightmare for Filipino nannies”10, “Congolese in slavery on taxis”11 etc. Other cases are unknown to the Romanian public, such as the case of 43 Indian workers in Mârşa12, the case of 95 Filipina textile workers in Sibiu13 or the case of the 500 textile workers from Bangladesh kept behind locked gates and exploited in Bacau14, reported in Labournet.de (Germany) and Prol-position News newsletters. Immigrants and emigrants have many things in common: very often they suffer relentless abuse, physical or verbal violence and violations of their rights, including fundamental principles and rights at work. They are subject to differential treatment in terms of remuneration, working time, holidays, social insurance and other aspects of their working conditions. Most of the time they are at the mercy of the recruitment agencies and can easily become their victims. The ILO report, “Protecting the most vulnerable of today's workers”15 shows that “as the power of private, fee-charging recruitment agencies grows rapidly, many migrant workers - especially those in unskilled or non-technical jobs - suffer a host of indignities including wholesale fraud, exorbitant fees, non-existent jobs, and often poor or even dangerous working conditions”. According to this report, “private, fee-charging recruitment agencies are rapidly coming to dominate the organisation of temporary migration, with, for example, as much as 80 per cent of all movements of labour from Asian to Arab countries - one of the world's largest migrant flows - being handled by private agencies.” In Indonesia, the Philippines and Thailand, private agencies dominate the organisation of migration for employment abroad, “accounting for anywhere from 60 to 80 per cent of all migrant workers hired.” This pilot study is trying to draw attention to the situation in Romania created by the private or public, domestic or foreign recruitment agencies as agents of precarious employment, and their impact on migrant and domestic workers’ working conditions.
14 Ana Cosel, September 17, 2008, “LabourNet.de Germany”, available at http://www.labournet.de/internationales/ rumae/wearcompany_engl.html 15 Protecting the most vulnerable of today's workers - Tripartite Meeting of Experts on Future ILO Activities in the Field of Migration. International Labour Office, Geneva, 1997. ISBN 92-2-110465-6.
Overview Migrants and the decent work deficit
16 The Migration and Remittances Factbook 2011, consulted on www.worldbank.org/ prospects/migrationandremittances
Emigration According to the World Bank16 2,769 million Romanians had emigrated by the end of 2010, representing 13.1 per cent of the population. The principal countries of destination were: Italy, Spain, Hungary, Israel, the United States, Germany, Canada, Austria, France, and the United Kingdom. The same report shows that the emigration rate of the tertiaryeducated population is 11.8 per cent. The main official channels used by Romanians in their quest for a better life are the National Employment Agency (NEA) and the private recruitment agencies. According to the law, the NEA promotes measures to ensure and safeguard the rights and freedoms of Romanian citizens working abroad. For instance, it provides information and advice to people wishing to work abroad, working with the Public Employment Services (PESs) of the European Employment Service (EURES) in order to protect their rights and freedoms. The NEA offers employment mediation services free of charge. Competition between the public institution and the private providers is far from fair. In 2010, 110,092 fixed-term
03 contracts for Romanians going to work in Germany were signed on the basis of a mediation agreement. All these contracts were obtained on the basis of bilateral labour exchange agreements with Germany (for guest workers, seasonal workers), France and Switzerland (for the exchange of trainees). The number of Romanians who found a job abroad through EURES in 2010, according to the NEA, was 188517. The NEA publishes announcements of jobs available abroad on its web site and organises selections of personnel at the request of foreign employers. According to the legislation, the NEA must ensure the protection of Romanian workers’ rights in their relations with foreign employers. In the year 2010, the Department of Labour Mediation registered 208 petitions and complaints, and 146 hearings and meetings on problems faced by Romanian citizens before going to work abroad or in the destination state. On its web site, the NEA has published warnings about companies or persons who recruit personnel against whom there are many complaints. At the same time, the NEA itself participates in actions that contradict its mission. For example, the selection of seasonal workers in agriculture is organised by the NEA in only one place for 41 counties: people have to travel hundreds of kilometres, and wait long hours, sometimes in the freezing cold for an interview. In the case of a selection for a Spanish employer in Slatina in December 2010, over 1,800 people came to compete for 400 jobs as seasonal workers on strawberry farms. The announcement published by the NEA outlined the following job requirements: ‘experience in agriculture; fit for hard work in uncovered space - minimum of 6 hours/day, languages: not requested, salary: 37 euros gross/day, other benefits - accommodation provided (Warning - there is no possibility of accommodation for applicants/men in the company), duration of contract: 3 months’. NEA representatives from Olt County and a representative of the Spanish employer participated in the interview. After the interview the participants spoke about discriminatory and even offending criteria for selection: men and women who were too young or over 43, too tall, too thin, with no family, from urban areas or who had contracts with other Spanish employers were not accepted. ‘They told me I am too young and too thin for this job. They even asked me to turn around! They stared at me like I am not a person’. Gina, 24 years old. ‘I told them that I am unemployed, I have a child and big debts to the bank and I am motivated and a hard worker. They responded that I am too tall and too thin and I have no experience in agriculture and I will not cope. They want only women between 30 and 40, with family, from rural areas, with experience in agriculture. If the announcement would have been clearer about these criteria, I would not have travelled for 800 km to come here. I spent the whole night in front of this building, in the cold because I don’t have money to pay for a hotel and now I find out that I am not fit for the job! And the official from the NEA didn’t say anything!’ Maria, 44 years old.
“I told them that I am unemployed, I have a child and big debts to the bank and I am motivated and a hard worker. They responded that I am too tall and too thin and I have no experience in agriculture and I will not cope. They want only women between 30 and 40, with family, from rural areas, with experience in agriculture. If the announcement would have been clearer about these criteria, I would not have travelled for 800 km to come here. I spent the whole night in front of this building, in the cold because I don’t have money to pay for a hotel and now I find out that I am not fit for the job! And the official from the NEA didn’t say anything!“ MARIA, 44 YEARS OLD
In its relationship with foreign employers the NEA acts like a service provider, without making any effort to ensure decent working conditions for Romanian workers. In March 2011 the NEA organised a jobs fair for agricultural work in Denmark. On offer were 200 jobs for workers harvesting strawberries, peas, raspberries, onions, pumpkins, other fruits and vegetables and about ten positions for drivers of tractors / trucks / buses. The detailed offer published on the NEA’s website explained the conditions regarding accommodation and working hours as follows: ‘From May until September you will have to bring your own tent, warm clothes and cooking utensils. A camp site with cooking, bathing, and toilet facilities is always available. From September until May indoor accommodation is guaranteed, normally you may have to pay for it. Especially on farms where the strawberries are harvested, the programme can vary: if in the early season the work can last a few hours a day, during peak season it can be up to 60 hours a week. Work often starts at 4 am and lasts until mid-day, 6-7 days a week’18. It seems that the promise of big salaries takes precedence over decent working conditions, even for a public institution responsible for safeguarding workers’ rights. The number of people mistreated by the private recruitment companies is much higher and the situations described by them more serious. According to the Labour Inspectorate, in Romania there are 1,730 registered recruitment agencies in 201119. In 2010, the number of people who signed contracts with private recruitment agencies was 23,070, 10.5 per cent more than in 2009, and the number of people employed abroad on individual employment contracts was 10,457 (5,306 male and 5,151 female), 29 per cent more than in 200920. We believe the real numbers are higher, because the companies fail in their obligation to report to the Labour Inspectorate. Also the number of registered agencies might vary. There have been many situations where a company functions for a short period of time then closes down officially but continues to work informally; it can also transfer its business to a new company about which applicants will have no negative references in the media, the Internet or from the Labour Inspectorate. In many cases, several companies belong to the same owner and all of them are involved in the same type of activity.
17 National Agency for Employment, Annual Report 2010, available at http://www.anofm. ro/anofm-raport-de-activitate-pentruanul-2010 18 National Agency for Employment, http://eures.anofm.ro/anunturi/NOU%20_ Danemarca_ofera_200_de_locuri_de_mun ca_in_sectorul_agricol_sezonul_2011.pdf 19 Labor Inspection, August 17, 2011, press release available at http://www.inspectmun. ro/Mass%20Media/KatPlasare.pdf 20 Labour Inspection, data provided on our request.
04 Private recruitment agencies have to be registered with the Labour Inspectorate. These companies have an obligation to conclude mediation contracts with the people interested in obtaining a job abroad and to conclude employment contracts between employers and persons recruited for vacancies also in Romanian, not only in the language of the employing company. The mediation contracts must contain the mediation fee, the duration of the contract and provisions on dispute settlement. Many Romanians have fallen victim to this type of company, common recruitment malpractices including: • No firm contractual offer of employment from the individual or employer’s organisation
abroad, or failure to complete mediation, meaning that after paying the fee for mediation the person concern is never invited to take up their post; • failure to ensure completion of individual employment contracts in Romanian; • employment mediation on behalf of the Romanian citizens abroad by legal persons who
were not principally engaged in the selection and placement of personnel, or mediation activity by individuals, which is banned by law; • soliciting applications and demanding fees for non-existent jobs or withholding or
giving false information on the nature of the jobs and terms of employment; • selecting applicants not on the basis of job qualifications, but on the amount of money
they are willing to pay to get the job, or fees for mediation and other commissions paid in private bank accounts; • imposition of unpaid trial periods or conclusion of contracts of vocational training,
exchange of experience, etc masked as employment contracts; • new fees to be paid, as a condition of obtaining a job abroad, on behalf of third persons
or agencies from the receiving State, who placed them at different employers; in many cases the persons have been abandoned in the destination country and could not contact the person indicated before their departure; • non-compliance with the contract provisions (non-payment of work performed, unpaid
overtime, unpaid leave), unpaid sick leave, failure to provide financial support in case of accidents at work, poor conditions of work and accommodation etc.; • conclusion of employment contracts with Romanian companies or even with the
recruitment agency subcontracting activities abroad; • withholding of passport or other identity documents.
Many Romanians speak about sub-standard working conditions, substandard housing, restricted activities and rights, low level/lack of social protection, separation from society at large in restricted housing areas, unpaid/very low salaries, long working hours, 6-7 working days a week, lack of holidays etc. A recent Labour Inspectorate announcement describes the situation of hundreds of Romanians who went to the Czech Republic to take a job which according to official announcement, would pay 1,000 euros but who were cheated by the recruitment agencies. Contracts signed by them were written in Czech, they were paid only 1,000 crowns, the equivalent of 50 euros21. In most cases, the Romanians have not been able to take action against the agency that placed them abroad, because the contracts contain only the provision that the company offers guidance in finding a job for a certain period.
Immigration
21 Labor Inspection, December 12, 2011, press release available at http://www.inspectmun.ro/Mass%20Media /ComunicatCampaniedeInformare.pdf 22 The Romanian Office for Immigration, statistics provided on our request in December 2011.
Immigrants in Romania represent less than 0.3 per cent of the Romanian population and less than 2.2 per cent of the number of Romanians living abroad. According to data provided by the Romanian Immigration Office22 in Romania there were 59,566 foreigners at the end of June 2011, of whom 10,256 had permanent residence and 49,310 had temporary residence. Of the total, 41.7 per cent were women. In 2010 the government approved 8,000 work permits but only 2,910 were issued, while in the first nine months of 2011, 4,899 permits were issued, out of 5,500 approved. The main countries of origin are: Republic of Moldova, Turkey, China, Syria and Serbia. The Romanian mass media rarely reports on foreign citizens abused by the recruitment agencies. The first case that drew public attention to this issue was in 2009, when Chinese workers protested in front of the Chinese Embassy in Romania. Hundreds of Chinese arrived in Romania in 2008, with two agencies, one in Romania and one in China. They paid a fee of at least 8,000 euros to get into Romania, to be employed
05 in the construction industry on a salary of at least 800 euros per month. But they received only 100 lei a month for food, were provided with accommodation, and the rest of the money was supposed to be paid directly to families in China, as they were being employed by a company in China and posted in Romania. Six months later they were dismissed, due to the economic crisis in the construction sector. According to the Chinese embassy, the workers came to Romania to work legally or on a temporary permit, but for many of them the formalities were not completed. Promises by the agencies or the companies employing them were not always respected, and the Chinese workers found themselves being paid far less than had been agreed.
“The posted workers do not have any protection in relation to: minimum wages; working time and other working conditions; statutory social security benefits; access to training; occupational safety and health; compensation in cases of occupational accidents and diseases and insolvency and protection of workers’ claims.”
The report ‘Social and Labour Issues Concerning Migrant Workers in the Construction Industry’, published in 1995 by the International Labour Office in Geneva shows that in China ‘it is common to find firms operating as “labour contractors”, supplying construction labour services to overseas construction firms. Such firms not only recruit labour but also assume direct responsibility for the wages and welfare of the workers. They therefore resemble “labour-only subcontractors” except that they are not responsible for outputs.’ It seems this was the case for the Chinese workers in the construction industry who were provided in Romania with a contract not signed by the employer, which had no identification data for the employer and contained an illegal clause saying that: ‘I acknowledge that if I leave the employer without notice I will be liable to pay a fine of 10,000 euros to the Romanian immigration authorities’. Many workers complained about the lack of transparency surrounding the terms of the contract and said that the recruitment agencies made them promises which were not observed by the employers, once in Romania. The workers were promised employment contracts for four or five years, but the work permit is issued on an annual basis, and, if they lose their job and don’t find another employer in 30 days, they must leave Romania. Most of the workers were not aware of what type of work visa they had (in their case, of posted workers). They didn’t speak the Romanian language and they were not informed about which public institution they could address. Other situations are described by the foreign workers. A construction company in Iaşi signed employment contracts for 1,000 lei instead of 1,000 dollars. In the case of the 300 Chinese women working in Bacau, in the textile industry, their contract with the recruitment agency stipulated that they had to pay up to 4,000 dollars in order to be selected to work in the company. The workers had to transfer 25 per cent of their salary every month to repay this amount. At the time of their recruitment the workers were promised wages of 700 dollars per month. In fact they only received 300 dollars per month. Additional deductions were made for food and accommodation. The workers complained about the unrealistic workload and the sub-standard accommodation, in an industrial building in small makeshift rooms that had no ceiling, sleeping nine to a room. They were totally isolated by their Romanian co-workers and by the local population. Workers also say it is difficult to understand the contents of their contract, especially because Romanian law specifically indicates that employment contracts must be signed in the Romanian language. This is, again, an opportunity for abuse by unscrupulous recruitment agencies, which are using two versions of the same contract, in different language and containing different clauses. In addition the immigrant workers are denied fundamental rights such as freedom of association, collective bargaining, equality of opportunity and treatment. The posted workers do not have any protection in relation to: minimum wages; working time and other working conditions; statutory social security benefits; access to training; occupational safety and health; compensation in cases of occupational accidents and diseases and insolvency and protection of workers’ claims. A special category of private recruitment agencies has begun to develop in Romania in the last few years: baby sitters’, nannies’ and maids’ placement agencies. These specialised companies bring nannies from the Philippines or, more recently, from Thailand, Nepal, and Bangladesh. The commissions paid by the employer range from 500 euros (when the recruitment agency provides only certain services) and 4,500 euros (the recruitment agency is fully in charge of placing the employee), include documentation, the medical check-up, airline tickets and the recruitment agency’s fees. In spite of the economic crisis, in the last two to three years it became fashionable for families with incomes of about 2,000 euros, people working in middle and top management, including ex-pats, politicians and showbiz people to engage foreign nannies, with demand increasing by 70 per cent in 2011 alone. Some of them are living a nightmare once in Romania. Their experiences are terrifying and only a few agreed to be interviewed, on condition of anonymity. Their names have therefore been changed23.
23 The interviews with the Filipino workers, as well as with the representatives of the baby sitter, nannies, and maids’ placement agencies have been realized by Laura Ştefănuţ.
“Romania has not ratified ILO Convention no.181 on private recruitment agencies, which comprises basic rules regarding the transparency of these companies, provides the necessary controls and discourages abusive practices against workers. According to this Convention, recruitment agencies can only operate if licensed or certified and must provide guarantees that in carrying out their activity they will not prevent the observance of the workers’ fundamental rights and that they will not charge the workers, directly or indirectly, for the services provided26. Among the measures to protect against abuses committed by private recruitment agencies, the same Convention provides for the sanctioning of those agencies that use fraudulent or abusive practices, including forbidding their activity, and recommends that States conclude bilateral agreements to prevent abuse and fraud in the recruitment, placement and hiring of migrant workers.”
06 For Ema, the working day started at half past six in the morning and ended at ten p.m. which means about 93 hours per week. During this time, she had to take care of a child aged three years, to cook, to clean the employers’ four storey building and to wash their cars. It was exhausting work, says Ema, who breaks into tears when she remembers. She stayed there six months, during which time she called the agency that brought her there for help. Representatives of the company told her that if she wanted to leave she had to pay the sum of 3,000 euros, the commission paid by the employer for placement services. ‘When I met my employer he told me he hates Filipinos because they love spoiled food. He would not allow me to talk to anyone but him. (...). I slept in the basement; I couldn’t see daylight and I came out only when they called me,’ says Judy. She says that as time passed, the feeling that her employer would do something bad to her intensified. ’He threatened to kill me, to shoot me. I saw him when he hit the nanny and I thought that if they behave like that with a Romanian, in my case it would be much worse. When I saw the assault on his wife, I sent a message to the Romanian Immigration Office, to ask for help’, says Judy. In a discussion with a possible client, a manager of an agency recommends: ‘Make sure that the Filipino woman is over 30, comes from the provinces, not from Manila, has worked at least two years in an Arab country, has references that can be verified, signs a commitment that she will pay $ 5,000 to the employer if she leaves before completing the contract and has no contacts with the Filipino community in Romania, even on the phone. Filipino communities here have become very strong and they influence each other’. Other agencies are advising their clients to withhold the passports of their employees, to be sure they will not leave. The law on Labour Inspection guarantees ’free access, permanently and without notice of the inspectors into the headquarters of legal persons and any other work place they organised’. According to the official interpretation, access by the inspectors to private properties where domestic workers live and work is banned by this restrictive wording. The access of the police and the Romanian Immigration Office is also limited, as it requires an official complaint filed by the worker. In these circumstances, public institutions cannot verify compliance with workers' rights guaranteed by law and this makes them very vulnerable at the hands of the employers. The activities of recruitment agencies bringing foreign workers into the country are not regulated, hence recommendations such as the one above have no impact.
The legal framework Emigration While immigration is subject to a National Strategy and there are laws governing it, there are no public policies concerning emigration. In the absence of public policies, the government started to develop its institutional capacity in the field. Since 2004, under the terms of GD 1326/200424, the Ministry of Labour and Social Solidarity has an explicit responsibility to protect Romanian citizens working abroad, and to provide advice in litigation and labour disputes in order to respect the rights of Romanian citizens working abroad. The 2004 Act established the Body of Work and Social Problems Attaché (CAPMS), located in the Romanian Embassies in Italy, Spain, Hungary, Great Britain (covering also Ireland) and Germany (covering also Austria), operational as of 2005. This post of attaché created the potential to improve the situation of Romanian citizens working abroad, but, due to the limited resources at its disposal (only five attachés) compared with the number of Romanian migrants, the territorial spread of their destinations, the complexity/diversity of their employment situations and the number of active destinations, it has not had a significant impact on the situation of migrants.
24 GD 1326/2004 amending Government Decision 737/2003 on organization and functioning of the Ministry of Labour, Social Solidarity and Family 25 Law no. 156/2000 on the protection of Romanian citizens working abroad
Law no. 156/200025 ensures the protection of Romanian citizens working abroad and regulates the activity of recruitment agencies abroad. In compliance with article 5 of the law on Romanian territory, these agencies may engage in labour brokerage with foreign companies abroad. These companies include subsidiaries principally engaged in ‘the selection and placement of employment’, if they fulfil the legal requirements and are registered with the Territorial Labour Inspectorate in the jurisdiction they are located in (art. 9).
07 Romania has not ratified ILO Convention no.181 on private recruitment agencies, which comprises basic rules regarding the transparency of these companies, provides the necessary controls and discourages abusive practices against workers. According to this Convention, recruitment agencies can only operate if licensed or certified and must provide guarantees that in carrying out their activity they will not prevent the observance of the workers’ fundamental rights and that they will not charge the workers, directly or indirectly, for the services provided26. Among the measures to protect against abuses committed by private recruitment agencies, the same Convention provides for the sanctioning of those agencies that use fraudulent or abusive practices, including forbidding their activity, and recommends that States conclude bilateral agreements to prevent abuse and fraud in the recruitment, placement and hiring of migrant workers. Not only has Romania made no effort to improve the legal framework but Decision of the Government no. 43/200227 modified Law no. 156/2000. It removed the accreditation granted by the Ministry of Labour to recruitment agencies and the certification by the Labour Ministry of the contracts concluded between the agencies and their foreign partners. These companies often break the law and endanger workers’ rights. The task of monitoring respect of the conditions stipulated in Law no. 156/2000 and employment agencies’ activities falls to the Labour Inspectorate (art. 14), but the institution has limited powers and the fines are not very high. An accreditation system would ensure the transparency of these agencies’ activities, provide the necessary control mechanisms, create the framework for a proper observance of workers’ rights and can lead to the use of practices such as the cancellation of the right to place workers abroad if companies use abusive practices.
Immigration
“Like many other European states, Romania has not ratified ILO Convention no. 97 on migration for employment purposes. The Convention includes a number of provisions on the protection, employment and working conditions of migrant workers recruited other than or under agreements concluded by the Government. In both situations, migrant workers benefit from guarantees such as: free services at the recruitment stage, admission to the country and settling in at the work place, the existence of a system for monitoring employment contracts, including the migrant worker knowing in advance their working conditions and salary, as well as accountability mechanisms in case of breach of the above mentioned provisions. The Romanian legislative framework is not complete and this adds to the precariousness of the migrant workers’ situation.”
The main laws that regulate the circulation of persons and legal migration in Romania are: • Government Emergency Ordinance no. 194/2002 on the status of foreigners in Romania,
which is the framework that regulates foreigners’ admission, residence, and departure from Romania, their rights and obligations, as well as specific immigration control measures, in line with the commitments Romania has made under international agreements. • Emergency Ordinance no. 56/2007 concerning the employment and posting of
foreigners to Romania, whereby a work permit can be issued at the employer’s request by the Romanian Immigration Office for those foreigners who meet the requirements stipulated by Romanian legislation. They need authorisation in order to get a long term residence visa for employment or a residence permit for employment. • Government Ordinance no. 44/2004 on the social integration of foreigners who have
been granted a form of protection or the right to residence in Romania. It defines social integration as the active participation of foreigners, who were granted a form of protection or the right to residence in Romania, in the economic, social and cultural life of Romanian society. The aim is to prevent and fight social marginalisation and to ensure their adjustment to the conditions typical of Romanian society. The access of foreign citizens from third countries to the labour market is limited to an annual quota approved by government decision for each type of work permit (for permanent / seasonal workers, interns, sport, etc.). Unlike other European countries, the majority of aliens in Romania do not work in family businesses or for their compatriots but for Romanian and foreign employers. This makes them dependent on recruitment agencies and very vulnerable in the employment relationship with employers or if they lose their employment. There are no regulations in Romania concerning the activity of the agencies bringing in foreign workers. Regarding the placement of foreign workers in Romania, the annual report of the Labour Inspectorate for 2009 states: • The Labour Inspectorate is unable to verify those companies engaged in arranging the
employment of foreign citizens on Romanian territory, based in Romania, due to the lack of provisions in this regard; • The employment of foreign citizens by Romanian companies is in some cases done
with the support of Romanian businesses involved in human resource management, which are in fact engaged in bringing foreign citizens into Romania, and based on civil contracts concluded with the same kind of foreign companies.
26 See the articles 3, 4 and 7 from the Convention 181. 27 Ordinance 43/2002 amending Law no. 156/2000 on the protection of Romanian citizens working abroad
08 Like many other European states, Romania has not ratified ILO Convention no. 97 on migration for employment purposes. The Convention includes a number of provisions on the protection, employment and working conditions of migrant workers recruited other than or under agreements concluded by the Government. In both situations, migrant workers benefit from guarantees such as: free services at the recruitment stage, admission to the country and settling in at the work place, the existence of a system for monitoring employment contracts, including the migrant worker knowing in advance their working conditions and salary, as well as accountability mechanisms in case of breach of the above mentioned provisions. The Romanian legislative framework is not complete and this adds to the precariousness of the migrant workers’ situation.
Industrial Relations Promoting Decent Work On the pretext of pressure from the international financial bodies, the Government adopted Law no. 62/2011 on social dialogue, which repeals the previous legislation on trade unions and employers' organisations, labour conflicts, collective bargaining and the Economic and Social Council. Under the new law, a trade union can only be formed with a minimum of 15 employees from the same company. By imposing this minimum requirement, many categories of employees are denied the right to form/ join a union. They include Romanian and foreign workers working for companies with less than 15 employees, domestic workers, posted foreign workers, self-employed, day-labourers (which may be Romanian or foreign nationals), small farmers and other categories of employees with contracts other than employment contracts. The difficulty is that although these categories are allowed to join existing trade unions, trade unions may not stand for their interests before the employers if they are not represented within the employers’ company. Representatives at the company level are these trade unions which meet the following criteria: have a legal status; have organizational and patrimonial independence; have a number of members which is at least equal to half of the company’s employees plus one. Moreover, the new law establishes a single criterion by which a trade union can be set up, while the previous regulations provided for associations, and sectoral, occupational or territorial criteria. Unions can be legally established only at the economic sector level, which further restricts the possibility for domestic workers, for example, to join an existing union. This new law eliminates collective bargaining at national and branch level, which is replaced on an industrial sector level. Thus, collective agreements can be negotiated at the level of the enterprise, groups of companies and sectors. It is mandatory only at the enterprise level, unless the business unit has less than 21 employees, in which case the right to initiate bargaining lies with the employer or employers' organisation. The clauses of collective agreements apply: • to all employees of the company or group of companies where collective agreements
were concluded at this level; • to all employees engaged in the business units belonging to that sector where collective
agreements were concluded, if the companies belongs to employers' organisations that signed the contract. These regulations exclude the possibility that people who are not employed in these business units may benefit from the provisions of collective labour contracts and is another reason not to join the trade unions. Moreover, the same law significantly changed the regulations concerning the Economic and Social Council, which became a public institution responsible for tripartite dialogue between employers' organisations, trade unions and representatives of organised civil society. As a consequence, representatives of the government in the Economic and Social Council are about to be replaced by civil society representatives. The Economic and Social Council (ESC) has 45 members, appointed as follows: 15 members each appointed by trade unions and employers' organisations representative on national level; 15 members representing civil society, appointed by the Prime Minister, at the proposal of the Ministry of Labour, Family and Social Protection from cooperative structures, the professional organisations, consumers organisations,
09 scientific and academic community and other NGOs. It is not unintentional that NGOs are the last in order in the law, making their possibility of becoming members of the ESC and of having their interests represented extremely low. Non-governmental organisations that could represent the interests of migrants and other disadvantaged groups are excluded by the fact that civil society representatives are appointed by the Prime Minister and by the way the list of potential organisations that could be represented in the Economic and Social Council is made up. Thus, the fundamental right to belong to a trade union, to collective bargaining and to representation in the tripartite structures is denied to some important categories of workers, particularly the ones exposed to social risks. Further, social partners declare they are not consulted or that consultation is merely a formal procedure without any real willingness to exchange views when it comes to policies on migration, and that they are not part of the inter-ministerial committees responsible for implementing national strategies and annual plans in the field. In terms of normative acts, trade union leaders immediately say that the one that is being discussed with social partners is the government decision approving the annual number of work permits that may be issued to foreigners on an annual basis. This number is proposed by the Ministry of Labour. In 2007-2009 the employers put pressure on the government to increase the number of foreign workers, arguing that there is a shortage of available labour in the country. The maximum number of work permits during this period was 15,000 per year. In the period 2010-2011 the number of permits dropped considerably (to 5,500 – 8,000) but not the pressure of trade unions, concerned about rising unemployment in Romania. Unions reproach employers for, above all, the lack of transparency in estimating the demand for foreign labour, accusing them of using foreign labour as a means of avoiding legal obligations in Romania on wages, working conditions, social protection, etc. 'Employers want to overstate the size of the labour shortage to have more facilities. Facilities means the freedom to seek labour where they want and in any circumstances they want because, in fact, the employers want the right to social dumping ... and somehow to legitimise social dumping.’ (representative of a trade union confederations). A very interesting element in this discussion is that recruitment agencies are organised in an employers association which is affiliated to an employers' confederation and participate in social dialogue commissions in discussions on legislative acts on migration. Employment policies have also been criticised, an example raised being the fact that employer’s face the same sanctions, whether they employed undocumented workers, foreign or Romanian, but the consequences for workers are not the same. Trade union leaders are concerned about how the measures taken by the Labour Inspectorate and/or Romanian Immigration Office in some cases are affecting workers. This concern is justified considering the fact that termination of employment automatically leads to withdrawal of the work permit and thus the right to live in the country, if a new employer is not found within 30 days. Collective bargaining contracts in Romania don’t include special clauses concerning migrant workers. With few exceptions, there are no actions for these categories of workers. The National Trade Union Block implemented a project to raise awareness of migration issues among trade union members and set up an office to inform social partners and provide support to trade unions confronted with problems/cases in the field. When the media reported on abuses against foreign workers, the trade union confederations tried to take action against the employers, urged the public institutions to take a position, and informed the international trade union organisations. The situation is similar for Romanians emigrating abroad. They are not members of trade unions, in Romania or in the country of destination, but there are associations of Romanians or local trade unions who might protect them when they are in difficult situations. There are also cooperation agreements between Romanian trade unions and similar organisations in the countries of destination, notably about informing Romanian workers about the working and living conditions in these countries. Asked about the reason for the lack of initiatives to provide better protection for migrant workers, trade union leaders mention the lack of resources, capacity, civic education, prioritisation, cultural barriers, lack of direct contact (through isolation, most often deliberate, of foreign workers), which, at least until now have prevented them from organising migrant workers. The recent legislation will make their involvement even weaker.
“The trade unions and the NGOs are promoting the ratification of ILO Conventions no. 97 and 181 and the adoption of a national legislative package to regulate the activity of national or foreign recruitment agencies.”
10 The new Labour Code, adopted in the same circumstances in 2011, also puts migrant workers in a potentially more vulnerable position: employment contracts now include the job description and the evaluation criteria but only the Romanian language version is signed, exposing the foreign workers who do not speak the Romanian language to abuses from their employers. Further, arbitrary, unrealistic excessive workloads are used by employers to diminish the promised salaries. The legal maximum duration of working time is 48 hours per week, including overtime. Employers are obliged by law to keep track of overtime, which will expose workers working more than the legal maximum to the risk of not being paid for time worked in excess of the 48-hour limit.
Good practice Monitoring and regulating the recruitment agencies The major trade union confederations (the Cartel ALFA National Trade Union Confederation, the FRATIA National Confederation of Free Trade Unions in Romania and the National Trade Union Block) and the main NGOs active in the field of migration have called on public institutions to get actively involved in monitoring the way in which labour legislation is applied with regard to the protection of migrant workers and in improving the regulatory framework, in order to ensure the observance of their rights in Romania. They have also pointed out the problems regarding the non-observance or the subsequent modification by employers and recruitment agencies of the initial verbal agreement or the actual employment contract, especially with regard to wages and working hours. The absence of a proper legislative framework to regulate the activity of these agencies, based in Romania or abroad, leaves room for many violations of migrant workers’ rights, both during recruitment, during the administrative procedures to obtain a work permit in Romania and during their employment period. As for the foreign recruitment agencies, although it is true that the Romanian authorities cannot carry out controls outside the country’s borders, it’s equally true that once on Romanian soil, these companies can be subject to the licensing conditions imposed by the Romanian state, conditions that can ensure enhanced protection and observance of foreign workers’ rights. The trade unions and the NGOs are promoting the ratification of ILO Conventions no. 97 and 181 and the adoption of a national legislative package to regulate the activity of national or foreign recruitment agencies. The Employers’ Association of the Agents for Labour Placement (ACORD) is an employers’ association promoting initiatives for simplifying bureaucracy, for avoiding unfair competition between public institutions and private agents specialised in the field of labour placement. It supports the need to increase monitoring of recruiting agencies, introducing licensing, suggesting that authorities should take more responsibility, promoting collaboration between trade unions and employers' associations on a “win-win” principle28. Until now progress in this field has been minimal but civil society will continue pressing the government to improve legislation is the field.
28 The report of the workshop “Addressing the Demand Side of Chinese Migrant Workers in European Countries: Workshop in Romania”, Bucharest, 2009
The main concern for Romanian emigrants is the lack of social insurance. Most Romanian migrant workers have been involved in agriculture, domestic care or construction for more than ten years now but cannot benefit from health, unemployment, pension or occupational diseases benefits. In October 2010, the Romanian government took the initiative to regulate the situation of people who are not retired or insured, giving them ‘temporary’ permission to pay social security contributions retroactively for the past five years. With Government Emergency Ordinance (GEO) no. 94 the government tried to provide anyone, regardless of citizenship, domicile or residence, who was not insured by the public pension system and had no obligation to pay contributions to the public pension system a chance to get pension insurance. The measure was criticised for the very short period (two months) in which a significant sum (around 2,600 euros) had to be paid and for the bureaucratic procedures, which meant it was not possible to send contracts and money online, as well as for not taking into account the large distances some would have to travel to reach the Romanian consulates (especially for Canada and the U.S.A). The measure supports those who have contributed before but do not have the full contributions needed to make them eligible for a pension. It is less helpful for people who have not contributed so far (as in the case of persons who worked illegally or as seasonal workers). It was the only measure adopted by the government of Romania to try to regulate the situation of Romanian emigrants who are
11 not coved by social insurance. In March 2011 the Ministry of Labour announced that 5,682 contracts had been signed. According to the period of insurance there were 2,185 contracts for a period of up to one year, 1,307 up to 2 years, 833 up to 3 years, 519 - up to 4 years and 834 - up to 5 years. The measure was not repeated in 2011 and the agriculture trade unions, for instance, do not support the idea of introducing social insurance, because small farmers lack the capacity to contribute to them.
Conclusions More protection and regulation needed The current case study looks at the impact of recruitment agencies on migrant and domestic workers’ working conditions and the risks that vulnerable categories of workers are exposed to, owing to the lack of legislation to regulate their activity in Romania. Adequate measures are needed to protect migrants at the national level including local laws, regulations and standards concerning the activity of recruitment agencies (e.g., licensing requirements for private recruiters, recruiters being jointly liable for any and all claims that may arise in connection with the implementation of the employment contract), and sufficient capacity for effective monitoring and enforcement mechanisms. The issuing and withdrawing of licenses to private recruiters is one of the most important instruments governments have to help regulate the activity of private recruitment agencies, protect migrant workers’ rights and ensure the inclusion of international standards (such as the ILO Conventions) in national legislation. Bilateral agreements on labour mobility between sending and receiving countries can also provide a legal and operational framework for mediation services and migrants’ protection. Measures are also needed at the European level for migrants’ protection, since the activity of the recruitment agencies is steadily growing and exceeds national and even European borders. ILO Convention 181 on Private Recruitment Agencies and Convention 97 on Migration for Employment Purposes should be ratified by the European Member States, in order to regulate recruitment agencies’ practices in terms of the respect of workers’ rights and to guarantee similar working conditions to nationals for workers from third countries.
Recommendations To European institutions Introduce tighter European regulations on recruitment agencies There should be a broader discussion on the activity of such recruitment agencies in Europe and outside Europe’s borders. Labour brokerage is an activity that exceeds the national and European framework and that is why the introduction, at European level, of a licensing system for the providers of recruitment and placement services should be considered, following the British model29, which has already been implemented in agriculture. Improve international cooperation to harmonise recruitment practices It is important that migrant workers receive a contract, in the source location, identical to the one in the target location, explaining clearly the workers' rights, as well as their obligations, covering salaries and payment of the same, working hours and other matters. Measures must be put in place to prevent the initial contract being “replaced” by different versions at the target location. Bilateral agreements between countries on labour issues, cooperation between consular officials, Labour Inspectorates, social partners in the country of origin and the country of destination can play an important role in monitoring the application of contracts and informing the relevant authorities of any problems. Public servants from all countries, from all levels, must also be responsible for ensuring that workers understand their rights and that employers and recruiting agencies are fully familiar with the legal procedures.
29 The employment of foreign citizens in agricultural work in Great Britain, under the Seasonal Agricultural Workers Scheme – SAWS – is only allowed through operators that have the approval of the Border and Immigration Agency and have followed the necessary licensing procedures and obtained a license from the Gangmasters Licensing Authority. It might look little strange to propose such a system at the European level now, when there are discussions in Great Britain to completely abolish the funding of the Gangmasters Licensing Authority but this could be an effective instrument for combating worker exploitation, given that the European authorities have a reduced capacity to control private operators based in third countries, and that ILO Convention 181 on private recruitment agencies has only been ratified by 11 European countries (Belgium, Bulgaria, the Czech Republic, Finland, Hungary, Italy, Lithuania, the Netherlands, Poland, Portugal and Spain). Such a procedure can ensure the transparency of these companies’ activity, provide the necessary control mechanisms, and create the framework for a proper observance of workers’ rights. Moreover, this accreditation system will provide the same type of guarantees for workers recruited from a member state to work in another member country and those recruited from a third country to work in the EU.
12 About the project “Making Industrial Relations work for Decent Work” is a one-year project which looks to intensify the cooperation and mutual learning of relevant actors - employers, unions, NGOs, think tanks and workers – to identify the role as well as the tools and models needed for effective industrial relations, with the ultimate aim of combating precarious employment and realising decent working conditions and quality jobs for all. This briefing, coordinated by SOLIDAR, was produced by SOLIDAR member ADO SAH ROM in Romania. www. adosahrom.ro All “Making Industrial Relations work for Decent Work” pilot studies are available on www.solidar.org SOLIDAR is a European network of 56 NGOs active in over 90 countries working to advance social justice in Europe and worldwide. SOLIDAR voices the concerns of its member organisations to the EU and international institutions across the policy sectors social affairs, international cooperation and lifelong learning.
To national governments Forge proper regulations governing employment and recruiting agencies in Romania There is a need for clear regulations on labour operations in the private sector and recruiting agencies using the framework provided by ILO Convention 181 (1997) on Private Recruiting Agencies. It contains several provisions that can help Romania put an end to abusive practices. These include regulations stipulating sanctions, including the exclusion of labour agencies that use illicit practices in the private sector, and the creation of procedures involving the most representative employers’ and trade unions’ organisations to investigate complaints, alleged abuses and illicit practices. Even if Romania is not ready to adopt this Convention, it is possible to improve the existing legislation and introduce at least some of the previsions of the Convention. The government should use legislation to define and promote the characteristics of a good recruitment agency, based on an ethical recruitment code. In addition, the social partners can work to create best-practice guidelines for recruitment agencies. Consolidate the monitoring capacity of public institutions in Romania The Labour Ministry, the Labour Inspectorate, The National Agency for Employment and the Romanian office for Immigration have a role to play in assuring a well organised management of migration while protecting the rights of all workers. An inter-ministry coordination mechanism has been set up and the legislation on immigration was revised in 2011. Improving the monitoring of recruitment activities should follow, based on existing experience. Granting licenses and registering employers in the private sector and private recruitment agencies is an efficient manner of providing compliance with labour legislation. The rules on Labour Inspectorate must be strengthened so that labour inspectors are able to monitor the conditions under which third country nationals are recruited and employed. Labour Inspectorate should cover all workers, including domestic workers.
To social partners Foster social and civic dialogue Social dialogue, between employers’ and trade union organisations, as well as civic dialogue, involving government agencies and NGOs with experience in the field, is important at several levels. It is essential that any new regulations or any new mechanisms for granting licenses and monitoring be adopted by consulting with the employers’ and trade unions’ organisations and should reflect their concerns. It is necessary to promote consolidated dialogue in order to agree upon concrete measures to assist migrant workers and to find ways to solve their grievances. Increase trade unions’ and NGO’ capacity The social partners and the NGOs should increase their capacity to inform migrant workers, protect and promote human rights, by: • providing knowledge and information on legal recruitment, the legal framework and
how to access the labour market in the host country;
Authors: Rodica Novac Interviews with the Filipino workers and the recruitment agencies’ representatives by Laura Ştefănuţ
• offering vocational training;
Responsible editor: Conny Reuter
• providing language skills, cultural accommodation, access to economic and social
Editor: Sara Hammerton Project Coordinators: Adeline Otto and Francesco Zoia Bolzonello
• increasing awareness of fundamental rights;
rights; • using informal communication channels to promote peer-to-peer information
exchange among workers in both online and off-line environments for improving the recruitment process.
Publication Coordinator: Abigail Goundry Printed on recycled paper ©SOLIDAR March 2012 This publication has been produced with the assistance of the European Union. The content of this publication is the sole responsibility of SOLIDAR and can in no way be taken to reflect the views of the European Union.
Supported by DG Employment, Social Affairs and Inclusion.
decent work decent life