Social partners reassess illegal employment

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In 2002, as the Dutch government is adopting a tougher approach to the illegal employment of non-EEA foreign nationals, the Dutch Trade Union Federation (FNV) has openly expressed its support for such illegal workers. At present, the number of illegal immigrants in the Netherlands is estimated at between 70,000 and 150,000, of whom around 70% are employed illegally. Employers’ organisations have also changed their standpoint and are calling for current legislation to be relaxed.

In late 2002, the Dutch government is taking new steps to regulate the growing problem of illegal employment more effectively, while trade unions are calling for more attention to be paid to the circumstances under which illegal immigrants are employed.

Extent of illegal employment

The government defines illegally employed workers as people who are nationals of countries outside the European Economic Area (EEA) and engage in employment without a work permit. To chart the scope of the phenomenon of illegal employment, the Ministry of Social Affairs and Employment (Sociale Zaken en Werkgelegenheid, SZW) initiated two studies in 1992. However, even measuring the extent of the phenomenon in the Netherlands is problematic, and at best the figures are an estimate.

The first study, conducted in 1994 (Illegale arbeid, omvang en effecten[Illegal employment, scope and effects], CT Zandvliet and JH Gravensteijn-Ligthelm, NEI, The Hague, VUGA, 1994), produced an estimate of between 4,000 and 75,000 illegally employed workers. It is assumed that at least two-thirds of these people also reside illegally in the Netherlands. They therefore lack official residence status and do not have a work permit. The remaining group of illegal workers consist mainly of foreign nationals who possess residence status but are employed without a work permit, and asylum-seekers waiting for a decision on their status who engage in employment for a longer period than the legally permitted 12 weeks a year.

The most recent study (Illegale tewerkstelling verkend[Illegal employment study], JP Visser and RG Zevenbergen, Final Research Report on Policy/SZW, Leiden/The Hague, 2000), found that in 1999 somewhere between 70,000 and 150,000 people were probably employed illegally in the Netherlands, figures that represent twice the number originally estimated. As many as two-thirds of this group also reside illegally in the country. This estimate holds for the economy as a whole. The sectors that employ the most illegal workers are agriculture and market gardening (36% of the total), hotels, restaurants and catering (36%) and construction (15%). Most of these workers originate from Eastern Europe, Asia and Africa, and they are generally young men.

Trade union support for illegal workers

The chair of the largest trade union federation in the Netherlands, the Dutch Trade Union Federation (Federatie Nederlandse Vakbeweging, FNV), Lodewijk de Waal, issued a statement in May 2002 to the effect that the FNV would support illegal workers (NL0206105F). He stated that all people have basic rights, such as the right to organise themselves and the right to work under normal circumstances and enjoy a minimum wage. Illegal workers generally work under appalling working conditions at an extremely low wage, and safety in the workplace often leaves much to be desired. This is where trade unions have a role to play. Additionally, Mr De Waal called on employers to organise themselves and to focus on sectors in which illegal employment is most prevalent.

FNV is opposed to illegal employment, not illegal workers. For this reason, illegal workers are welcome to join FNV member unions. The unions' position is that unionising illegal workers may even have a positive effect, causing a decrease in illegal employment. Improving working conditions and enforcing minimum wage levels should make it less attractive for employers to take on illegal workers. Moreover, based on information obtained from the workers, it will be possible to gain deeper insight into the situation at the workplace. The government would then also be placed in a stronger position to act more effectively and target employers which choose to ignore the rules. According to FNV, illegal workers should be heard.

This position has brought fierce responses from the government and individual employers. However, it has also struck a chord with a number of organisations, in the sense that they agree that employers' demand for illegal workers should be tackled first. As such, the largest employers’ organisation, the Confederation of Netherlands Industry and Employers (Vereniging Nederlandse Ondernemers-Nederlands Christelijk Werkgeversverbond, VNO-NCW) is calling for current immigration policy to be relaxed, thus enabling employers more easily to recruit legally certain groups of workers from beyond the EEA.

Employers’ demands

In a letter sent to the Ministers of Social Affairs and Employment, Justice and Foreign Affairs in January 2002, the VNO-NCW general employers’ association called for the expedition of the procedure for issuing work permits for people originating from beyond the EEA. The employers’ association identifies a negative trend in the Dutch economy, whereby serious labour shortages are threatening to arise in the labour market, mainly due to an increasingly ageing population and a decrease in the number of young people entering vocational training. VNO-NCW does not expect the shortfall to be solely compensated for by labour mobility within the EU and asserts that measures must be taken now to avert a crisis in the future. The Netherlands must maintain its competitive position and adapt its legislation to developments in both the economy and the labour market. The VNO-NCW general employers’ association believes that it should become easier for non-EU citizens to find employment in the Netherlands. The government must acknowledge the problem. There is a demand for staff and it would be wiser to regulate the supply than punish employers for attempting to keep their businesses afloat. According to the employers’ association, it is therefore a matter of both national interest – the Netherlands must maintain a healthy economy – and individual interest for employers facing staff shortages.

In studies, individual employers state that they resort to using illegal workers because suitable legal employees cannot easily be found. In those sectors where illegal employment is more prevalent, it is often a question of carrying out unskilled tasks under time pressure. Additionally, seasonal peaks generate the need for inexpensive workers who can be utilised on a flexible basis. It is cheaper to take on illegal workers; which keeps prices in check in order to maintain a competitive edge. There is also a large supply of illegal workers that can be quickly and easily tapped via spurious employment agencies. Some employers consciously make use of such channels and potential Labour Inspectorate (Arbeidsinspectie) fines are considered a necessary business risk.

Restrictive government policy

Current Dutch immigration policy is generally perceived as relatively restrictive and harsh. The government sees the influx of illegal workers as a threat to the domestic labour market. It emphasises that: a supply of illegal workers will suppress the potential supply of legal employees; using illegal workers will lead to unfair competition in the labour market; and illegal employment leads to illegal residence. Moreover, by utilising illegal workers, employers contravene several laws. Harsh sanctions are imposed on transgressors. The Labour Inspectorate, which bears responsibility for supervision and administration, focuses on tracking down illegal workers and providing disincentives for employers to discourage them from employing illegal foreign nationals. The fines imposed in cases of non-compliance on the part of employers were increased recently. Nonetheless, there is a tendency within government to cooperate with employers and the government is looking into the extent to which illegal labour satisfies existing demands.

At the insistence of employers, the government shortened the permit-issuing procedure in 1998 for a number of sectors characterised by seasonal peaks. For example, asylum-seekers with residence status may now be temporarily utilised in such periods. A number of agreements have since been reached and projects initiated with representatives of the agriculture and market gardening sectors and the hotel, restaurant and catering industry. These agreements include arrangements to help these sectors find legal employees (NL0208102F). Furthermore, the Aliens Employment Act (Wet arbeid vreemdelingen, WAV) is now to be relaxed somewhat. This legislation provides that foreigners who do not possess a work permit are barred from working in the Netherlands. The vacancy registration obligation for employers arising by virtue of this Act will be partially set aside, especially as far as this concerns allowing access to highly qualified, specialised or information and communications technology ICT staff from beyond the EEA. To a limited extent, the government has bowed to the wishes of employers. Conversely, proposed legislation containing a far harsher approach towards illegal workers is also in the pipeline; it proposes imposing higher fines and increasing the number of WAV inspectors. Special cooperative ventures – known as intervention teams – have also been established to monitor compliance more intensively in certain sectors, such as agriculture.

Commentary

All parties agree that illegal employment is damaging to the domestic labour market. FNV highlights the bad position of illegal workers. In supporting them in bettering their position, FNV believes that it will be indirectly contributing towards cutting the large number of illegal workers currently active in the labour market. Employers call for existing laws to be relaxed because of staff shortages. Failing legal means of finding staff, employers turn to illegal practices. Conversely, the jobs they offer are far from attractive; often, the working conditions are deplorable, the wages are paltry and the terms and conditions of employment are poor.

Employer and employee organisations are united in their calls to government to amend current immigration policy. While this process is now underway, it is selective: in most cases, those who benefit are highly qualified individuals, otherwise known as 'employment migrants', from beyond the EU. However, the less well qualified individuals – illegal workers – who appear to satisfy an existing demand, consistently suffer the 'short end of the stick'. Europe, including the Netherlands, has an ageing population and in the Netherlands the influx of young people into vocational training is dwindling. Foreseeable shortages will arise in the labour market and this can spark friction. This gives weight to the question of whether the government’s current policy of constriction in terms of illegal employment perhaps requires amendment in the interests of ensuring a sufficient supply of legal employees, which can only be seen as a basic condition for a healthy labour market. (Tanja van den Berge, HSI)