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The issue of contract and agency labour (CAL) was established as a key priority for the ICEM at the ICEM’s World Congress in 2003 At the 2007 ICEM World.

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Presentation on theme: "The issue of contract and agency labour (CAL) was established as a key priority for the ICEM at the ICEM’s World Congress in 2003 At the 2007 ICEM World."— Presentation transcript:

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2 The issue of contract and agency labour (CAL) was established as a key priority for the ICEM at the ICEM’s World Congress in 2003 At the 2007 ICEM World Congress in Bangkok, virtually all participants mentioned the continuous growth of the phenomenon - and talked about the problems that are the result of it. Time and again, reference was made to a clear need for continued action on this issue. This issue is to take centre stage at the 2011 ICEM World Congress again.

3 What is CAL?

4 Many different words exist to describe what essentially is a precarious “work relationship”. Often, CAL jobs are “new ways of employment”, doing away with what used to be “standard”, meaning a permanent full-time job, directly employed by a single company, with a regular working week and benefits, and the protection, including against dismissal, that comes from a legal status as an employee. ICEM concentrates on contract and agency labour, but there are also other forms of precarious employment (informal work, simply badly paid jobs)

5 What is CAL? Some of the ‘precarious job’ terms used Contract labour Agency labour Precarious work Atypical work Flexible work Casual work or contingent work Outsourcing Temporary labour contracts Direct hire Dispatched workers Irregular or non-regular workers Individual contracts Labour brokers Specialist Consultancy Yellow dog Dependent contractors Individual consultancy Seasonal workers Zero hours contracts Industrial trainees Probationers Off site or on-site contracting Personal labour contracts (usually bogus self-employment) On call / daily hire Day labourers Home workers Personnel leasing Loan workers Body Shop Service contract workers In-house subcontracting Quarterización (after tercerización)

6 Contract labour The word “contract” is used in two ways. First in the sense of temporary, short-term or part-time contracts (sometimes through an agency). Secondly, as in “contracting out”, which is when a company “contracts out” work to another employer. In some cases, this can also be to an individual. The work may or may not be done at the same location. The new employer may take on none, some, or all of the staff members of the existing workforce. Whereas the first usually entails an employment relationship, the second usually brings about a commercial relationship. Agency labour Agency labour is where a company needs workers and, rather than employing them directly, asks an agency to send the required number of workers.

7 Who does it affect? Contracting out, slowly but surely, has become a problem for many, if not most, workers in the world, affecting workers everywhere, in different regions, different sectors and different lines of work. It spread from a relatively limited number of sectors - it always was a problem for migrants in the construction sector, for example - to all industries, affecting jobs that were considered “safe”. A leading example are the textile companies, who outsource everything, except “branding”. Inside the ICEM sectors, some sectors appear to be more concerned than others. The mining and diamond sectors, are dealing with huge numbers of contract workers. In the mining sector, there are countless examples where the contracted workforce outnumbers the permanent workforce. However, it also seriously affects the chemical, paper, materials or energy industries.

8 CAL used to be a problem affecting only certain types of jobs : cleaning, catering, security, transport, maintenance or repair. Later, others jobs were outsourced : sorting, packing, loading or unloading, engineering, warehousing and administration or clerical work. Now, almost everything can be contracted out, including, for example, “core” production, extraction or sales jobs. The result: two categories of employees: core workers (of which there are less and less), who commonly receive relatively good employment conditions, on the one hand, and contract or agency workers or workers in other precarious jobs (of which there are more and more), on the other hand, with the latter usually getting the inferior deal. Who does it affect?

9 Main problems caused CAL is the result of a deliberate employer’s decision to lastingly limit or reduce the permanent workforce. Arguments used to do this include the need to “maximise flexibility” (read: make it easier to dismiss workers from one day to the other) or the search for “cheaper alternatives” because of “market pressures”. The end result of the outsourcing effort commonly is a shift of the risk onto the workers, with jobs typically becoming non-permanent, or temporary, casual and insecure. Workers in these jobs are usually not (well) covered by labour law, nor by social security protections. Identifying the real employer, and establishing under whose responsibility such issues as working conditions and benefits fall, is a often a huge problem. A well-defined “work relationship” between an employer and an employee does often not exist. A major (and growing) problem is that, through the use of CAL, the bargaining unit is getting so small that it is too easy for any company to escape its responsibilities.

10 Among the main problems for CAL workers Job insecurity and an uncertain future. Uncertain working hours Low(er) wages, or irregular wages No annual pay rise or bonus, fewer benefits overall The right to sick leave often does not exist Limited or no access to social benefits, including pension rights health insurance maternity/paternity rights holiday rights and payments Increased risk to health and safety problems Poor, or no training - same for career development Difficult or no access to bank loans or child care Lack - or denial - of rights at work, including the right to join, or form, a union and the right to collective bargaining

11 Among the main problems for unions CAL is a threat for trade unions as the phenomenon is often simply misused as a tool to put pressure on workers not to join a union Many contractors/agencies to negotiate with Unclear which employer is responsible Permanent workers can be hostile to contract workers. Sometimes, 2 separate workforces are created with different interests. Contract and agency labour workers are legally, or practically, not allowed to join the union, or a union. Contract and agency workers don’t see an immediate value in joining the union Contract workers are scared of loosing their jobs Unions are losing members Collective bargaining is more difficult as there is less bargaining power

12 Among the main problems for society As CAL workers are commonly poorly paid, they pay less taxes, contributing much less (if at all) to the pension systems. It is part of a race to the bottom. As CAL workers encounter more health and safety problems than other workers, they cost more to the health insurance system (in addition to paying less into the system), … Whereas education is the key to progress in any country, CAL workers get less training and acquire less skills. …

13 A 2009 report by the US Minerals and Management Service warned against the complicated chain of MNEs, contractors, subcontractors and sub- subcontractors in the oil rig drilling industry (even before the Deepwater Horizon oil spill disaster in the Gulf of Mexico in 2010), quoting safety and environment concerns. (Later, BP underlined that “the responsibilities at that platform were shared by various companies”.) The US report investigated almost 1,500 oil platform accidents. The vast majority of these were not caused by defects, but by lack of communication, lack of (and ignoring of) safety procedures. 2009 – USA Oil disaster

14 Tricks and abuses Keeping workers on a series of consecutive short-term contracts - typically a few months (sometimes 3, sometimes 6, depending on what the law, or CBA, says) and have them re-apply time and time again (often a loophole in the law). (Thai Linde example: Dismiss workers after 17 months as they would get CBA benefits after 18 months). Or ask them to re-enter under another company name – or even under another name. Creating fake agencies or (fake) (agency) sub-contractors, catering to only one company (BMW Leipzig Germany 2011: workers started working for a “daughter company” – with a drop in wages of 40%) (“The permanent worker gets € 15 for fixing the left hand door of the car, the agency workers gets € 8.5 for the right hand door.”) (source: MO). Using “seasonal workers” in every season. In Latin America (Uruguay, Colombia, …) cooperatives are widely used to avoid labour contracts, creating millions of bogus self- employed workers. Cooperatives simply became a part of the subcontracting chain.

15 In many countries, as agency or subcontracted workers are not regarded as employees of the user enterprise, CAL workers are often prevented to participate in strikes as this is considered illegal “secondary action”. Agency or outsourced workers are quite often (in many countries) listed as “service sector workers”, making it impossible for them join an “industrial sector” union. The Polish Ministry of Labour estimated (in 2009) that half of the agency workers do not have employment contracts, but, instead, service or commission contracts for a specific task or project (bogus self- employed). In Serbia, Coca-Cola sells its trucks to its drivers, who become “self-employment” (no rights, no paid leave, no benefits, no…). (bogus self-employed)

16 In some cases, agencies themselves are allowed by law to directly employ workers through a contract of unlimited duration. Even though the worker is “guaranteed” a permanent salary, this often leads to situations where there is no longer is any link between the salary of a worker and the salary of a comparable worker at the user- enterprise, opening the door for further misuse. In too many countries (e.g. South Africa), employers start hiring workers through agencies once “independent contracting” becomes illegal. Or they switch from using agencies to using subcontractors once that becomes regulated. In some other countries or situations, it’s the other way around.

17 In New Zealand, “dependent contractors” have contracts which define themselves as contractors (providing contracts for services) and self employed. They are responsible for paying their own income tax and other levies. (bogus self-employed). However, their contracts bind them in to providing services for a single employer, they have little or no say over the terms of that contract and are required to provide a level of service which usually has no hours of work protections. (NZDWU document on precarious employment, 2010) In Malaysia, companies advertise jobs for foreign workers in front of their factory gates, and identify and interview potential candidates themselves. Identified candidates are then sent to an employment agency to sign a contract, usually without receiving a copy. (Presentation on CAL at an ICEM seminar in Malaysia, 2010)

18 Employers’ “views” “The new "Generation X" and "Generation Y" are no longer willing to commit to long-term employment in the hands of a single employer, and favour self- managed development plans and career paths that suit their individual aspirations.” “Permanent and especially unionized workforces tend to possess a "sheltered employment" syndrome, which reduces productivity and installs a "I just need to show up" mentality.” “More than 32% of these (temporary, part-time and contract) employees secured traditional, permanent jobs within 12 months - and 47% did so within 3 years”. Source: CAPES reaction to COSATU, South Africa, 2009

19 Agency workers are the first to be laid off when business turns bad. In Ciett’s words: “The flexible component of a company’s workforce thus serves as a buffer in times of crisis, softening the impact on permanent staff.” Agency workers are the first hired when business recovers. In Ciett’s words: “The agency work industry will be among the first to create jobs as soon as the economy recovers, as companies first hire agency workers to meet an increase in orders, before recruiting permanent staff when the situation stabilises.” Source: Ciett, 2010

20 Many employers argue that open-ended contracts are “difficult” due to the huge dismissals fees. But…according to FGTB figures of 2010, over 80% of all Belgian white-collar workers (a country with decent dismissal fees, at least for white-collar workers), get a termination fee of 3 months salary or less…. ….golden parachutes are not for ordinary workers

21 (More than) A few statistics

22 Higher than average temporary employment is reported in Spain (34%), Poland (27.3%), Portugal (20.6%), Slovenia (17.3%), Sweden (17.3%), the Netherlands (16.6%) and Finland (16.4%). Germany is almost at the EU27 average (14.5%, compared with the average of 14.4%). (Eurostat, 1990-2005) Temporary employment

23 (Eurostat, 1990-2005) Source: Eurostat, Labour Force Survey 2011

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25 Temporary employment advanced economies – 1991 – 2006 (source: IILS - ILO)

26 Temporary employment transition economies – 1998 – 2006 (source: IILS - ILO)

27 The German Statistics Institute said in 2010 that more and more workers have a fixed-term contract while they would prefer a permanent one. In 2008, 8.9% of employees had a fixed-term contract, up from 5,7% in 1991. For new recruits, this figure reached 47%. In France, the vast majority (about 80%) of all job entries into the private sector were made, already in 2004, through fixed-term contracts. (CEPR). In Portugal, more than half of all employees younger than 25 had temporary contracts in 2010 (Financial Times). Fixed term work affects more workers than agency work

28 In Croatia, “almost 90% of new recruitment is for a fixed term, which prevents many people who are newly entering employment or changing jobs to join a trade union”. (FES 2009) In October 2006, about 20% of all employees in the Netherlands had a fixed term contract (not counting people working through temp agencies). In October 2009, this number had risen to 24 %, while the number of agency workers had decreased from 5.5% to 4.5%. (ICEM CAL country report 2010) In New Zealand, almost 10% of all workers has a fixed- term contract in early 2008. (NZDWU Document 2010) Fixed term work affects more workers than agency work

29 From the 2011 annual report of Ciett (the International Confederation of Private Employment Agencies) Across the world, 9 million agency workers (full-time equivalent) were employed daily in 2009, a decrease of 6% since 2008. The number of agency workers has more than doubled from 1997 to 2007. (Ireland x 8.75, Japan and Sweden x 4, Germany, Switzerland, Finland, Denmark and Norway x 3) The average European agency work penetration was 1.5% in 2009, down from 2% in 2007. In Japan, this figure still grew in 2008 (from 2.1% to 2.2%), but also went down in 2009, to 1.7% (due to the impact of the economic crisis)

30 “The global annual turnover of the Private Employment Agency industry amounted to € 203 billion in 2009” Source: Ciett 2011 - “The agency work industry around the world”

31 The agency work industry in Europe returned to growth in 2010

32 Europe is the largest in terms of Ciett affiliates’ income, followed by USA and Japan Source: Ciett 2011 - “The agency work industry around the world”

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36 Large firms play an important role in the TAW (Temporary Agency Work) sector. However, their dominance of national markets varies a great deal between countries. Large firms are generally important in the European countries, in particular those with the most extensive use of agency work. TAW

37 Adecco is the world's largest private employment agency, serving over 100,000 clients (down from 150,000 clients in 2007) in over 60 countries in 2011. The company says it is “connecting more than 700,000 associates” every day. Over 90% of its sales comes through providing temporary staffing. Randstad is the second largest temporary staffing and employment services agency in the world. The company operates in over 40 countries through 4,195 locations, employing 521,300 individuals every day in 2011 (up from 465,000 in 2009). Manpower states it places 3.5 million people (down from 4 million) yearly in permanent, temporary and contract positions through offices in 80 countries. It claims it has 400,000 “clients” per year.

38 According to FNV Netherlands, there were not only around 100,000 agency workers sent out daily in 2009 by reasonably well-behaving bona-fide agencies, there is also an equal 100,000 sent out through (much) smaller, less credible agencies. 33% of all Belgian agency workers works with day contracts (FGTB figures, 2011). 22.4% of all new Belgian job openings go to agency workers. 8% of the remaining 77% are for ex-agency workers and an additional 19% gets a temporary contract. That means that only 49% gets a contract of unlimited duration when hired. (FGTB 2010)

39 Gender - Youth In Japan, 70% of non-regular workers are women (2007). In Thailand, 80% of all contract workers are women (2007). In Korea, 67.7% of women workers are non-regular (versus 32.3 % for men) (2008). The average wage of a female non-regular worker in 2008 was 67% of a typical male worker. In Australia, 1 in 3 women was casually employed in 2008, paid 21% less than permanent workers. In New Zealand in 2009, 70% of all agency workers were female. According to 2011 Ciett figures, in 2009, more than 3 in 5 agency workers were aged less than 30.

40 Gender Differences for agency workers Source: Ciett 2011 - “The agency work industry around the world”

41 Most agency workers are aged below 30 Source: Ciett 2011 - “The agency work industry around the world”

42 Statistics - Europe On average, every year, between one-fifth and one- quarter of all European workers changes jobs. From: European Parliament Resolution on Atypical Contracts, 2010

43 “Even when correcting for factors such as education and tenure of permanent contracts, temporary workers systematically receive lower wages than workers in open ended contracts.” (Source: IMF 2010). For most European countries, the wage gap is around 15 to 25%. (Source: CSID 2010) In West-Germany, average gross income in 2009 was € 2,805 a month, almost twice as high as the € 1,456 for agency workers. (source: DGB)

44 European differences: in the UK, some 70% of temporary work is in the service and public sectors. In France, 75 % is in the construction and the manufacturing sectors. Temporary workers in the EU are mostly men. However, in some Nordic European countries, they are predominantly female. From: European Foundation for the improvement of living and working conditions, 2007

45 Another difference is in the percentage of young/old agency workers, from around 80% under 26 years in Poland, to almost 25% between 45 to 60 in Denmark…. …or in the duration of agency assignments, from short (an average of 1.9 weeks in France) to much longer… ….63% of all Belgian agency workers in the private sector has been working as an agency worker for over 1 year, close to 40% for over 3 years. (FGTB sources, 2009) From: “Temporary agency work and collective bargaining in the EU” (Dec. 2008)

46 Source: Ciett 2011 - “The agency work industry around the world”

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48 Inconsistent and often limited figures In the UK, the figure for agency workers varies from 1.4 million (employer’s organisation) to 270,000. (Labour Force survey, 2008) In the Czech Republic, “agencies are obliged to report data annually to the Ministry, or attract a fine”. However, “only a third of all agencies complies”. The requirement is not enforced partly because the Ministry cannot cope with current levels of data given the large number of agencies now operating.” From: “Temporary agency work and collective bargaining in the EU” (Dec. 2008)

49 Trade union density for agency workers differs widely, also inside Europe. It ranges from Denmark (50%) and Finland (44%), over Netherlands (17%), Austria (5%) or Germany (4.3%) to Italy (1.7%), France (0.9%) and Slovenia (0.18%). In Sweden, a difference is noted between white-collar (17%) and blue-collar (50%), the latter figure “might reflect higher exposure to trade unions in the user companies.” From: “Temporary agency work and collective bargaining in the EU” (Dec. 2008)

50 An August 2009 IG Metall + University (Germany) survey finds that agency labour is increasingly being used more strategically by enterprises as a way of passing on the business risk of the cost of longer-term employment. In 2008, in Germany, 66% of all employed people had a regular job (secure jobs with social benefits and at least 20 hours a week). In 1998, that was still 72.6%.

51 In Germany, the “Hartz reforms” included the creation of ‘mini’ and ‘midi-jobs’ which are typically low quality part-time jobs and established small grants for entrepreneurs to build a group of self-employed workers. This category of self-employed workers came to be known as ‘Ich AG’, or ‘Me inc.’. The percentage of part-time workers in Germany rose from 14 to 22.8% between 1991 and 2004. Similar to experiences in other countries, this employment status is made up of 86% women. Source: “Moving from precarious work to Decent work”, TUAC, 2009

52 In many Central European and Balkans countries, “the legal exclusion of certain larger groups of persons ” (often including contract workers, e.g. Poland ) “from trade union membership” is identified “as a considerable problem” and something which is “no longer compatible with the principle of freedom of association”. (Source: FES 2009) According to 2010 figures, nearly 75% of foreign companies and 35-50% of Russian companies use agency labour - about 0.2% of the work force. But many “unregistered” agencies exist and real figures are much higher. (Source: Association of European Business)

53 Higher-skilled white-collar employees have more permanent open-ended contracts than lower skilled.

54 Agency workers feel they have fewer prospects for career advancement

55 It is a bad ‘sign of the times’ that the European Foundation for the improvement of Living and Work Conditions (an EU agency), as well as its subsidiary, the European Working Conditions Observatory, both published studies dealing with “very atypical work” in 2010. Very atypical work is defined as ‘very short’ fixed-term work of less than six months (which may also include ‘very short’ temporary agency work); ‘very short’ part-time work of less than 10 hours a week; non-contract work; zero hours or on-call work.

56 From these 2 studies on “Very Atypical Work” Employment contracts in the EU in 2005 76% of all employees have a standard employment (meaning an indefinite, full-time employment contract). Atypical employment: 14% of all contracts Very atypical employment represents 6%. Other categories (apprenticeships, other non-specified contracts, …): 4%.

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60 On-call work, or ‘zero hours’ work, is an (in many countries illegal) employment form where the number of working hours is not specified, but where workers are requested to be available in case the company needs them. “The highest prevalence of zero hours working was found in the UK and Austria (about 5% of the workforce), followed by Estonia and the Czech Republic (around 2.6%)“. In Finland, two surveys commissioned by the trade unions highlight that 4% to 8% of respondents are involved in on-call work. From the studies on “Very Atypical Work”

61 “A large proportion of homeworking is in fact bogus self- employment.“ “Empirical evidence from OECD research indicates that temporary jobs tend to provide less favourable conditions than permanent ones, especially in relation to wages”… “temporary employment is found to be associated with a wage penalty of up to 24% in the Netherlands and averaging about 15% in a number of EU countries (OECD, 2002). “On average in the EU27, employees without a contract account for about 7% of employment. (in Ireland 28%, in Greece 26%)” From the studies on “Very Atypical Work”

62 Statistics – Latin America In the Peruvian mining sector, only 16,000 workers were permanent workers in 2008, out of a total of over 85,000. In the early 90’s, 95% were still listed by ministerial figures as direct permanent workers. (source: ICEM project report) There are more CAL workers in the Chilean copper industry in 2011 than there were permanent workers. (source: ICEM project report) In Colombian Ecopetrol, there were 13,850 permanent workers in 1975, vs. 230 temporary and 500 subcontracted workers. In 2011: 8,000 permanent workers, and 30,000 temporary and subcontracted workers. (source: USO Colombia)

63 At the 2011 ICEM Colombia CAL Conference, it was reported that only around 35% of all workers in the mining, glass, paper and energy industries have a direct employment contract. 65% is outsourced. Carbones de Cerrejon in Colombia, the world largest open-pit coal mine, employs around 5,300 workers in 2010. 6,000 additional workers were employed at the mine by subcontractors. (Source: Sintracarbón 2010) One company in Colombia (Seatech international, food sector): 1,500 workers, of which 13 are directly employed. (Source: IUF 2011)

64 In Ecuador, some 75% of the overall industrial workforce is contract labour. (Source: 2009 - National Federation of Chambers of Industry in Ecuador) Contract workers in the oil and gas industries of Trinidad and Tobago earn approximately 40 per cent of the income earned by company employees in the industries. (Source: 2009 ILO Survey response)

65 A questionnaire by the ICEM Brazil social dialogue project in 2008 to unions in 15 major Brazilian companies in different ICEM sectors on “what is the main target we should deal with” lists the issue of “subcontracting” (100% of all respondents mentioned it as a priority) as the number 1 priority to deal with, before “Corporate Social Responsibility” and “Sustainable development”.

66 Source: ICEM co-sponsored research – Brazil chemical sector, Nov. 2009 Permanent vs. CAL workers in the Brazilian Chemical sector

67 Results of research carried out in Latin America in 2010, by RedLat, indicates that There are more than 50 million outsourced workers in this region. In Argentina, Brazil, Mexico and Uruguay, outsourcing rates vary between 30 to 40% of the formal workforce. In Colombia, Ecuador and Peru, outsourcing rates vary between 40 to 50% of the formal workforce. It is very difficult to get good data.

68 Statistics – North America Part-time, contract, and temporary work as well as self-employment, now corresponds to 1/3 of the Canadian workforce nationally. (TUAC Document 2009 - 2008 figures) Almost 70% of the self-employed group in Canada can be considered ‘disguised’ employment. (TUAC 2009 Document - 2004 figures) The US Government Accountability Office has reported that the number of ‘contingent’ workers who are independent contractors, temporary workers, subcontracted and leased workers and part-time workers stood at approximately 31% of the total workforce. (2006)

69 Statistics – USA Source: McKinsey Global Institute, 2011

70 A 2007 Mexican study found that approximately 60% of the 400,000 workers in Mexico’s electronics industry work for temporary agencies, with some companies employing as much as 90% of their workforce through sub-contractors. (source: Cereal) Using official Mexican census sources, a 2009 study reported that fully 10 % of the Mexico’s workforce was employed by temporary agencies. (Source: Center for Labor Research and Union Advisement )

71 Statistics – Asia/Pacific In Korea, 50.2% of the labour market was organised in 2010 (down from 54% in 2007) through non-regular jobs (agency, contract, part-time or temporary work). On average, Korean non-regular workers worked the same amount of hours as their permanent directly employed counterparts in 2008 (an average of 46.6 hours per week). Unfortunately, again on average, they earned only 51,9% of the Korean permanent workers’ salary in 2008. That was 53% in 2000 and became 46.8% in 2010. In Singapore, the number of contract and casual workers increased by over 300 % from 2001 to 2007.

72 Coal India Limited employs some 420,000 permanent and 200,000 contract workers (2009 figures). In the Indian Cement sector, the ratio of CAL workers was estimated by the unions in 2011 at between 75 and 90%, depending on the state. According to a 2011 India Labour ministry study, almost 32% of the labour force in the public sector in India is “on contract”, as against 30% in the private sector.

73 In the Philippines, a February 2010 ILO study found that the rate of “contractualisation” has risen to 70% of the workforce. Citing reports from the World Bank and the ILO, the Indonesian national centre KSBSI said in 2011 that outsourcing and the contract system has sharply reduced the number of permanent workers in the country, from 67% of the total formal labour workforce in 2005 to only 35% in 2011. In its Pakistan Khanewal Lipton Tea factory, Unilever employed, until late 2009, 22 permanent employees and 723 agency workers. The non- permanent workers earned 1/3 of the salary of the permanent workers (if they managed to work the whole month).

74 In Japan, the “category” of CAL workers only came into existence 20 years ago. Their number rose to 17 million in 2004 - over 33% of the labour workforce - up from 20 % in 1990. The rate of short-time workers in employee pension insurance in Japan in 2008 was 30%. (It was 80% for regular workers). In Korea, 6 out of 10 non-regular workers were not enrolled in unemployment insurance in 2009. In Australia, in the early 1990s, around 23% of the workforce was “casual”. In 2008, that already was 27%. According to 2010 CFMEU figures, the use of contract labour in the mining industry stood at about 30% of all employment.

75 Statistics – ICEM Asia MNC Project - 2009 Country Trade unionists at the seminar from CAL workers (partially) unionised Average union density regular workers Average % CAL Indonesia 22 MNCs4 MNCs50%31.7% 16 MNCs2 MNCs90%27.3% 11 MNCs1 MNC95%40.6% 14 MNCs0 MNCs85%41.6% Malaysia 13 MNCs--23.0% 17 MNCs0 MNCs58.5%26.7% 5 MNCs0 MNCs37.5%26.7% 11 MNCs0 MNCs67.9%24.2% Thailand 10 MNCs1 MNC65.9%29.3% 10 MNCs2 MNCs64.9%37.8% 7 MNCs0 MNCs67.1%19.0% 5 MNCs0 MNCs50.1%13.2%

76 Statistics – ICEM Asia MNC Project – 2011 CAL of total workforce

77 From an ICEM seminar in November 2010 in Indonesia Direct permanent workers get a “decent wage” (defined as ‘enough for a family to survive on’) in 16 out of the 23 companies present. On average, the direct permanent workers earn around 2.5 million Indonesian Rupee (about 200 Euro). In contrast, a ‘decent wage’ was paid to CAL workers in only 1 out of 23 companies. These CAL workers, working for the same multinational companies, but through a subcontractor, get (on average) only 1.25 million Indonesian Rupees (about 100 Euro) - so about half - for doing the same job. Judging from the figures quoted at the seminar in Indonesia, typically around 20 to 50% of the workforce is outsourced, depending on the company. Sometimes it is even more.

78 From an ICEM seminar in November 2010 in India Without exception, all average salaries quoted by outsourced workers in India from (from Lafarge, BASF, Rhodia, Holcim, FAG, Goodyear and others) were lower (usually much lower) than what is considered to be “enough to maintain a family”. Around 25 to 60% of all workers in the ICEM sectors were said to be outsourced in one way or another. For these outsourced workers, an average wage is 4,000 to 6,000 Indian Rupees (or about 65 to 100 Euro), while the suggested needed living (“survival”) wage was said to be 15,000 Indian Rupees (or about 250 Euro). A typical wage for a directly employed permanent worker in India in the ICEM sectors (doing the same job as the outsourced worker) is around 15,000 to 20,000 Indian Rupees (or 250 to 350 Euro).

79 Trade union density for CAL workers is low In Japan, 4.4% of non-regular employees are trade union members (2008) In Korea, 3 % of atypical workers belong to unions. (2008) In Australia, 9.4% of casual workers are union members, versus 30.1% for permanent employees. (2009) In Malaysia, the ICEM Asia Social Dialogue project, which started in 2008, still needs to find its first CAL worker who belongs to a union. (2011)

80 Statistics - Africa A 2008 South African Labour Department study highlights the alarming increase of subcontracted labour in the South African mining sector, mainly using workers from foreign countries such as Mozambique and Lesotho, often in an effort to avoid direct accountability in cases of accidents and death. Over 60% of all staff of South African utility company Eskom was temporary in 2008. “Employment informality” within the formal mining sector increased from 90,231 jobs in 2003 to 122,589 in 2005, with subcontracted workers commonly being forced to work under dangerous conditions without protective clothing.

81 According to the Labour Dept study, “It is necessary to re-conceptualise the informal economy from its origins 3 decades ago as a description of the urban poor in developing countries, to a recognition that informality does not exist in small, unregistered enterprises, but is increasingly found inside formal enterprises through the rapid growth of casual and subcontracted work”. It was estimated in 2009 that around 500,000 workers in South Africa are employed by labour brokers. According to the NUM, labour brokers in South Africa usually take as much as 50% - in some cases up to 70% - of what the company pays to the labour broker as their “fee”.

82 In many Sub-Sharan countries, unions affiliate a lot of CAL / informal workers. In Guinea, for example, 40% of all members of ICEM affiliate Sutids are “journaliers” (day workers). (2010) Problems are enormous in many sectors, for example small scale mining.

83 Statistics - Health and Safety In the USA,“19 percent of the day labourers reported work-related injuries that required medical attention in 2006, compared to less than 5 percent of workers in all private industries and about 6 percent of all workers in construction.” In Belgium, agency workers were twice as likely in 2009 to have an accident compared to permanent workers.

84 According to Brazilian ICEM affiliated FUP, 280 Petrobras workers died between 1995 and 2009. 226 of them were outsourced workers. According to the ICEM affiliated Peruvian FNTMMSP (mining), 49 miners died in the first 9 months of 2009. 37 were working for subcontracting companies. Figures by Fundacion Coge, grouping 67 companies in the Brazilian electricity sector, showed that 13 times more CAL workers died in 2009 than permanent workers in Brazilian electricity companies.

85 2008 Canadian research finds a link between "precarious employment" and poor mental health, showing that part-time workers with no job security will develop not only more physical, but also 3 to 4 times more mental health problems than their full-time counterparts. This, in turn, leads to a 50% increased risk of heart diseases. The main reasons include inequality, fear (of termination), the combination of high demands and low control. This is confirmed by UK research (Department for Business Innovation and Skills), which found that workers in insecure jobs are more likely than other workers to suffer from mental health problems, including depression (2008). Evidence from OECD research (2008) also indicates that “atypical” employment is an important determinant of mental well-being.

86 Statistics - Training and Education In Belgium, 33% of all temporary agency workers receive employer-paid training over a specific period of time, compared with 75% of employees with open-ended contracts. (EWCO 2010) A UK 2007 Labour Force Survey shows that only 8% of agency workers had received any job- related training during the previous four weeks, compared with 16% of all employees. Furthermore, over twice the proportion of temporary agency workers (61%) had never been offered training by their employer, compared with the proportion of all employees (30%). (EWCO 2010)

87 Statistics - The crisis CAL workers are time and again the first victims of any crisis. Agency workers are the first go – and they go in masses. Between mid 2008 and mid 2009, the number of workers with a temporary contract in the EU- 27 zone dropped by 6.3%, versus a drop of “only” 1.3% for employees with a permanent contract. (source: Eurostat 2011) Temporary Work Agencies in the Netherlands saw a reduction of 25% of ‘total hours worked by agency workers’ in 2009. That was 50% in the Czech Republic. If a job disappears in Sweden, workers can have their job back if the company decides to restart the job within 9 months. In a time of crisis, many employers wait 9 months… and then hire a temp.

88 For 2010, after the labour market hit bottom in December 2009, 27% of the 1.1 million new jobs in the US have been temporary ones. That is triple the ratio of temps hired after the last recession ended in 2001. “That could be great news for the labor market, since companies typically hire temps before expanding permanent staff. Or it may illustrate a shift in the U.S. work force.” (Source: Wall Street Journal article, February 2011)

89 The ICEM Questionnaire In the second part of 2008, the ICEM carried out a global survey of its affiliates on the issue of CAL, the results of which were released in early 2009. Over 100 ICEM affiliates replied, from 49 different countries, from all continents. Where possible, the same (or similar) questions were asked as in a similar 2007 survey by the International Metalworkers’ Federation (IMF). A shorter follow-up questionnaire was done in late 2009 / early 2010.

90 Has the share of contract and agency labour (CAL) in your sector(s) in your country increased over the last five years? 88% 12% Yes No IMF survey: 9 out of 10

91 83% 10% 7% Yes No Don’t know Do workers in your country feel less secure as a result of the changing employment relations? IMF survey: 9 out of 10

92 Please provide an estimated share of the contract and agency labour work in your sector(s) in your country 53% 33% 14% Less than 20% 20% to 50% More then 50% IMF: 44% IMF: 13% IMF: 33%

93 Are wages of contract and agency labour workers in your country much less than for permanent employees in similar jobs? 78% 22% Yes No

94 If wages are lower, at what percentage of a permanent worker’s wages are they? 40% 48% 12% Less than 50% 50 to less than 75% 75% up to 100%

95 78% replied that wages of CAL workers are less than for permanent employees in similar jobs - 2 out of 3 said wages are much less in the IMF survey. 31% of all ICEM affiliates answered that CAL wages were, on average, less than half of what permanent employees received - 33% said the same in the IMF survey. 34% said that CAL workers receive 50 to 75% of permanent employee wages - 25% in the IMF’s case.

96 Which groups of workers in your country most often work in contract and agency labour jobs? 1 = not affected 5 =very often in precarious jobs 3,3 3,4 2,2 3,3 3,6 2,4 012345 Workers with high skills Workers with limited or no skills Migrant workers Older workers Young workers Women workers

97 In which areas, and to what degree, do employers evade their obligations to contract and agency labour workers? 1= fully complies 5=completely evades obligations Overtime payments Vacation and holidays Maternity and family leave Social security and pensions Occupational health and safety

98 Does your union have contract and agency workers as members? 54% 46% Yes No

99 Is organising contract and agency workers a priority for your union? 62% 38% Yes No

100 Which obstacles, if any, exist to union organising of contract and agency labour workers in your country? 1= not an obstacle 5= severe obstacle Government legislation CAL workers live in fear of dismissal (or of other ways of harassment) Union rules &/or structure Opposition of existing union members 1,9 2,0 4,2 2,8 012345

101 Almost nine out of ten respondents indicate that CAL workers are (where they are organised) mainly organised inside existing trade union structures IMF survey: The actions identified as most important among union strategies regarding precarious workers include first and foremost recruiting these workers into existing unions. 87% 13% Inside existing unions Through separate unions

102 Does your union provide information or education on contract and agency issues to union members? 69% 31% Yes No

103 Has your union revised its rules recently to facilitate CAL workers’ membership?

104 Collective bargaining priorities regarding CAL 1= Low 5 = very high priority Ensure trade union rights4,5 Guarantee equal pay for similar work4,4 Ensure non-discrimination4,4 Protect against dismissals4,4 Convert precarious jobs to permanent4,1 Ensure participation in all union activities4,0 Provide legal counseling3,8 Train & upgrade skills3,7 Educate members on contract and agency work3,6 Reduce / limit allowable time periods3,5 Include a provision in International Framework Agreements on principal employer responsibilities on precarious work 3,5

105 From the IMF 2008 survey The IMF survey findings indicate that collective bargaining objectives of trade union responses to precarious work exist in three groups. The top group of collective bargaining objectives includes converting precarious jobs to permanent, guaranteeing equal pay for similar work, and ensuring trade union rights. A second group of such objectives includes ensuring non- discrimination, protection against dismissals, and reducing/limiting allowable time periods. Finally, a third level objective for responding includes training and upgrading skills.

106 Reform laws to facilitate organising Ensure social security protections Protect against dismissal Reduce/limit allowable time periods The main legislative objectives regarding CAL 3,5 4,1 4,2 3,9 012345

107 Where CAL problems exist in your country, would you say the main problem is the lack of legal protection, or the fact that the law is not enforced correctly/adequately? 44% 56% Not good enough Not enforced

108 Have you ever made use of labour inspection to offset CAL abuses? 47% 53% Yes No

109 If yes, was the experience positive? 57% 43% Yes No

110 The follow-up ICEM-IMF Questionnaire 2009/2010 Asked for their experience over the year 2009, 66% of ICEM and IMF affiliates indicated that there was a continued increase in CAL, in spite of (or thanks to) the economic crisis. Significant was that about on 1 in 3 noted an increase of over 10%.

111

112 Here and there, some CEOs of companies still boast that they “started at the bottom of the latter”. Today, that is no longer possible. There is no longer a bottom of the ladder. Bottom-ladder jobs no longer tend to be jobs within the same company.’

113 The ICEM CAL project The Global ICEM CAL project started in 2005. Funded from the beginning by organisations in Sweden, Norway and Germany. Later also from Finland and the Netherlands. Works with a number of European experts.

114 A wide variety of activities has been organised, reaching, with varying levels of details, all ICEM affiliates in all countries, regions and continents. The project is “run” at the headquarter level, where a global consultant/coordinator is working in close cooperation with the ICEM’s project officer. Four regional coordinators are working “in the field”: Aranya Pakapath in Thailand for Asia, Rosane Sasse / Elias Pintado (each 50%) in Brazil for Latin America and Joseph Toe in Togo for Sub-Saharan Africa.

115 Three global conferences on CAL - a fourth one in November 2011. Year-round local, national and regional workshops, seminars and conferences. The issue is discussed at all major ICEM meetings, including regional and sectoral conferences. Regular meetings with other Global Unions to discuss joint action.

116 Campaign material: Research studies, country studies, leaflets, CAL newsletters, a video documentary, PowerPoint presentations, international surveys, a “Short Negotiators Guide”, a “mini-CAL guide” and a longer “CAL Manual”, most in various languages. A campaign site: cal.icem.org Almost 520 ICEM CAL related articles published, on CAL issues from all parts of the world. Lobby international organisations (ILO, OECD)

117 The ICEM campaign Three main “lines of action” Legal Company, collective bargaining and organising Trade union The exchange of “best practice” examples is an important factor at all three levels

118 The Legal Angle

119 The legal angle Main priorities Changing the law, making it better ØProtecting workers from abuse ØMaking sure that a formal relationship between workers exists and gets recognised ØGood laws also recognise the right of all workers to freedom of association and collective bargaining, and force the employer to recognise the workers’ union Make sure laws are respected Make increased use of labour inspections

120 The legal angle A few examples of what ICEM affiliates have been campaigning on Favour permanent direct employment, limit the number of CAL workers Create better rules to avoid arbitrary dismissals and CAL abuse Guarantee that a formal ‘employment relationship’ will be established, before the work starts Equal pay for equal work, as of day 1 Set other levels of benefits (besides salary) also at same level Guarantee training and career development Better social security protection

121 A few examples of what ICEM affiliates have been campaigning on List categories of work, sectors, or types of jobs where CAL labour is not allowed or make sure the law specifies that CAL work will only be allowed in certain cases (not in case of strikes or dangerous jobs, for example) Reduce the maximum allowed time periods for contract and agency labour Make sure CAL contracts can not endlessly be extended for years and years through loopholes Prohibit employment agencies to charge fees to workers Make sure the trade union at the company receives all available information on contract and agency labour work at plant level Allow core trade union rights, make organising easier

122 There is a continued and very real risk of a ‘new wave’ of CAL hiring as soon as the economy will be “picking up” again. The first statistics after 2008-2009 (i.e. before the double dip) already indicated this in the US. Companies argue that the crisis has shown that they have to work with “easy to dismiss” workers. This shift of the business risk onto the workforce - which would have extremely negative social consequences - needs to be resisted at all levels and trade unions will need to pay a great deal of attention to this. Where it is impossible to avoid precarious work, alternatives may need to be looked at. A short-term worker with a direct contract with the user-enterprise, for example, may be much better of than an agency worker. The legal angle - The crisis

123 The crisis Among the policy measures put forward in a 2010 IMF study on employment (a chapter of the IMF’s “World Economic Outlook 2010”): “Replacing temporary work contracts, which offer flexibility to employers but insecurity and lack of training to workers, with open-ended (permanent) employment contracts that include gradually increased job security provisions over the course of a worker's tenure.”….

124 …. Germany's unemployment rate dropped in 2009 even though its GDP declined by 7 %, while Spain's unemployment increased by 7.5 % although its GDP declined by less than Germany's (about 4%). The IMF study concludes that a large part of that difference can be explained by the extensive application of “Kurzarbeit”, combined with relatively strict employment protection legislation in Germany, versus a proliferation of temporary work contracts offering no job or income security whatsoever for many Spanish workers.

125 Throughout the years, the ICEM found a lot of examples of countries where relatively good laws exist, or where recent changes improved the legal protection. Sadly, in all too many countries, the opposite is true, and/or existing good laws are often not adhered to.

126 The legal angle - Asia In many countries, such as Thailand, Bangladesh or India, it is often illegal for CAL workers to join the union that represents the permanent workers. “Employees need to work for the same employer or in the same category of work”. In Malaysia, CAL workers often need to be “recognised” or “approved” by employers for collective bargaining purposes. On the other hand, in several Asian countries, such as Indonesia or India, the law says that outsourcing is not possible for core jobs. The problem there lies in the implementation. In Malaysia, amendments to the Employment Act to legalise “labour suppliers” were withdrawn after pressure that came as a result of the ICEM CAL conference there in 2010. Unfortunately, the law (on legalising “contractors for labour”) came back in 2011, to be heavily discussed….

127 A particular problem (not only in Asia) is the Korean “Catch 22” situation (as clearly demonstrated in the 2008 IMF Korea ILO complaint) where “the principal employer/subcontracting company refuses to negotiate with subcontracted workers, claiming that it has no employment relationship with them, while the subcontractors also refuse to negotiate, claiming that they do not control the terms and conditions of employment in the plant. (Industrial action against a "third party", i.e. the principal employer/subcontracting company, is treated as an illegal act in Korea).

128 The legal angle - Asia/Pacific In Australia, unions have been demanding a reform of the Australian Labour law, so as to allow bargaining over the control of contract work and contracting out of work. Currently, bargaining over these issues is illegal. In New Zealand, the labour law makes it mandatory to include a provision in collective bargaining agreements on contracting out. So, all agreements need to contain provisions, varying from consultation rights on the matter to prohibition.

129 The legal angle – Latin America A 2006 law change in Chile A clear employment relationship needs to be established. User-enterprise and agency are co- responsible. CAL only in certain cases (holiday replacement, new projects, …). User-enterprise is accountable if the agency doesn’t pay.

130 Peru Adoption of ILO Convention 81 on labour inspection Under the Peru CAL law (2008), companies have to place all individual subcontracted workers on their own payroll (allowing only “tercerizacion” under certain circumstances - no longer allowing it as “a simple provision of workers”). The law was immediately attacked by the business community. An end to the practice of creating cover-enterprises for the purpose of recruiting workers for just one particular company, purely to avoid paying workers’ benefits. Unfortunately, the situation in practice is very different to the theory, with, for example, decrees following the law that flawed the original concept, including by limiting the areas where the user- enterprise can be held co-responsible.

131 Peru – Labour Inspection Through a series of inspection visits in 2009, labour inspectors in Piura, Peru found that Skanska Peru completely “failed to comply” with the requirements of being a subcontractor. Petrobras, as the user-enterprise, not only decided on the total number, the working hours and the salaries of the Skanska workers employed through the “service contract”, Petrobras also “agreed” on collective bargaining agreements and was involved in the evaluation and sanctioning of contract staff. The material used (including even the IT needed to provide the Skanska services) was also that of Petrobras. Skanska was furthermore found to be working for only one client in Piura, i.e. Petrobras. As they only found a “straightforward provision of personnel”, the inspectors ruled that the 380 Skanska workers in Piura, Talara region, needed to be given a “direct and immediate” employment relationship with the user- enterprise, i.e. Petrobras.

132 Ecuador A first new law adopted in 2006 Similar to several EU laws: agencies need to be independent (no mere “intermediaries”) - agency work only in certain cases (temporarily replace another worker, events,…) - 2 contracts needed - training obligatory - not to replace management or to be used during strikes In 2008, a new stronger law, as the first one didn’t have enough (no) results. No agency work, no hourly work, except in certain job categories (security, maintenance, food, cleaning – later amended to also include “strategic sectors”, such as hydrocarbon, electricity, mining, airports,…) Outsourcing to a sub-contractor only when the sub-contractor has all the needed “facilities alien to the core” (e.g. accounting, audits, publicity, etc) Former agency workers become direct employees (with 1 year job stability) No fee to be paid by agency workers Ministerial list of eligible “companies for complementary activities” Rules out “fake-self-employment” For security, catering, cleaning and related jobs, agencies can only employ workers in up to 3 user-companies per year.

133 Ecuador - Results of the new law Very different results in the mining, electricity and oil and gas sector. Positive Over 3,600 “outsourcing” companies have closed. About 200,000 public and private workers changed from outsourced to permanent jobs (although in many cases, only for one year). Thousands of workers could join the social security system. Negative Workers did not get back lost rights (no seniority - so no decent pension). Rehired worker started at a lower salary than others (since they earned less as CAL workers). Companies found new ways of outsourcing. Source: ICEM-FES research document 2010

134 Brazil A law proposal has been introduced by CUT Brazil in 2009, seeking to Reduce CAL, including by making sure that core jobs can not be outsourced. Limiting the ‘tercerización’ of jobs to certain job categories, including cleaning or catering. Give information rights to unions on CAL, making sure unions know about coming changes months in advance. Guarantee equal rights for CAL workers (salary, working hours, health benefits,…). Representation of CAL workers through the industrial union. Joint responsibility of user-enterprise and agency/subcontractor.

135 Colombia - Arbitration A protocol agreement, signed by ICEM affiliate USO, the interior minister and Canadian oil company Pacific Rubiales in mid 2011, calls for a permanent arbitration board to be set up in Bogotá to address the issues of irregular workers labouring in the oilfields. The issues include regularisation of employment, better pay and working conditions, and the right to join a union and bargaining collectively. (Source: ICEM Inbrief)

136 The legal angle – North America Since April 2009, Canadian Ontario legislation (Bill 139) prohibits agencies to charge fees for CVs or interviews, or “temporary to permanent” fees. Temporary workers also need to be paid for public holidays and they have the same rights as regular workers to notice of termination and severance pay (only for workers employed “continuously” by an agency). Before, there was a provision for such temporary workers, saying they “forfeited” their standard labour rights.

137 The Canadian Labour Congress (CLC) has argued in 2010 that the federal labour code should be changed so that ‘‘non-renewal of a contract after 1 year’s employment should be considered as grounds for unjust dismissal, if there is no just cause for non- renewal, and if work is being performed by a newly hired worker of another contractor’’.

138 “Less conventional” assistance in the struggle against CAL comes, among other in the United States, from tax inspectors. The US government announced, starting in February 2010, an audit of 6,000 random US employers in an effort to quantify how many employers “misclassify” workers (for example, using ‘independent contractor’ instead of ‘employee’), thereby avoiding to pay taxes. One US organisation spoke of a 13% rise in the misclassification of workers in 2009 versus 2008.

139 In Namibia, a new law was adopted in 2007, aiming to outlaw the omnipresent system of “labour hire” (the jargon used in Namibia for employing workers through temporary work agencies). The law said that “No person may, for reward, employ any person with a view to making that person available to a third party to perform work for the third party”. This not only banned the use of agency labour, it also made sure that companies could not outsource work to subcontracting companies. The law was declared void in December 2009, leading to a decision by the Cabinet to amend the law and seek limitations and regulations, instead of total ban. The legal angle – Africa

140 In South Africa, CAL legislation continues to be a “hot” issue (500,000 CAL workers in South Africa). ANC wants to regulate labour brokers. ICEM affiliate National Union of Mineworkers adopted a resolution in 2010: “Labour brokering must be done away with as it is in conflict with the principles of Decent Work”.

141 In Mozambique, the ICEM CAL conferences concentrate, among other, on contacts between trade unions and labour inspectors. Union leaders commonly had no clear idea of the work by the labour inspectors. The labour inspectors explained their work is often difficult (lack of resources) and asked trade unions to support them by denouncing CAL violations observed. This “direct social dialogue” resulted in a better cooperation between trade unions and the structures of the Ministry of Labour, including the labour inspectors.

142 In Sierra Leone, the government starting reviewing its national labour law after the ICEM’s national conference there in 2009, specifically looking at CAL issues and problems. Also as a result of ICEM national conference in 2010, the government in Guinea agreed to review all mining contracts and do away with fake subcontracting companies. Workers in Mauritius are facing a different, new “precarious” problem after the country’s government, in February 2009, decided to change its labour law, turning virtually every worker into a “contractual.” The new law removes obligations to pay dismissal fees. At the same time, it also makes it possible to dismiss any worker at any time without good reason.

143 In Senegal, the President signed, in early 2010, a new decree to protect short-term workers, following pressure by ICEM affiliate SUTIDS and the CAL campaign. The decree says, among other, that The duration of a mission cannot exceed 2 years. The user-enterprise is responsible for working conditions, as well as for salary obligations should the agency “fail”. Workers “in mission” must enjoy the same working conditions as similar workers at the user enterprise. At the end of his or her contract, the short-term worker will be entitled to a severance pay equal to 7% of the total gross remunerations paid since the start of the contract. No use of agency workers in case of a strike.

144 The legal angle - Europe 19 EU countries made changes to their laws on Temporary Work Agencies between 2004 and 2008 (e.g. limit successive temporary contracts, strengthen enforcement or introduce equal rights, new licensing requirements or new social security measures). Most EU countries do not allow entry-level jobs (agency workers on a “try them out basis”). A prohibition on using agency workers to replace workers on strike is the most common form of legal restriction in the EU. Most EU countries have no special rules for agency work concerning social security and social benefits such as health insurance, invalidity, unemployment benefits and pensions, which are governed by the normal rules that apply to all firms. Source: European Institute for the Improvement of Living Conditions, Dec. 2008

145 Belgian legislation is often used as an example Limits agency work to specific situations and periods - forbids CAL work in other situations (only for temporary replacement - unexpected increase in work - special activities, e.g. exhibitions). Detailed contracts needed. Describes rights of agency workers in detail. Union permission needed in many cases. User-enterprise needs to provide the company council with information on CAL, including why, how many, when, … Recognition of all agencies by an independent commission.

146 The law in Germany already stated before the EU Directive on agency work that agency workers have the right to the same wages as permanent workers, unless there is a collective bargaining agreement that says otherwise. A somewhat bizarre consequence of this legislation is that, as reported by German trade unions, employers are showing a clear interest in working together with unions, as it is the only way for them to discuss lower salaries… unfortunately not always with the most relevant unions. A “veto clause” also exists in German legislation, allowing a works council to veto the use of agency labour in certain well-described circumstances (ex: when there is a danger that permanent employees of the company will loose their jobs as a result).

147 In October 2010, a tripartite committee, set up think about ways to improve fixed-term contracts legislation, recommended that employers shouldn't use fixed-term contracts if the duration and/or the number of those contracts point to a clear need for constant and regular staff. The proposal was supported by all employees’ organisations and some employers. The proposal clarifies situations where it is possible to appeal to successive fixed-term contracts. Fixed-term contracts aren’t allowed if the duration and/or the number of those contracts point out that the employer needs, to perform the job in question, permanent staff. The idea is to determine criteria to assess the permanent nature of the job offered by the employer. Finland

148 In Russia, the legal situation in regard to contract and agency labour is somewhat ambiguous. Unions are of the idea that it is, by and large, illegal – and that is should remain that way. Legislation was proposed to the Duma in November 2010 to effectively ban the use of temporary agency labour (generating a hostile reaction by Ciett). In the Middle East, for example in Iraq, the situation is especially difficult. (E.g. electricity workers working under a daily wage system) Several former anti-union laws in Iraq have not been changed since the fall of the previous regime, including Decree 150, which bans unions in public enterprises, including in the oil sector.

149 From a European Parliament Resolution on atypical contracts, 2010 Whereas non-standard employment has grown significantly since 1990… …facilitating the transition towards permanent employment … …firmly convinced that employment contracts of an indefinite duration must continue to be the main form of employment … …strongly condemns the replacement of regular employment with forms of atypical contract that contribute to poorer and more uncertain working conditions than regular employment conditions…

150 The legal angle - International ILO Recommendation No. 198 on the Employment Relationship In 2006, after a long struggle, the ILO adopted a recommendation (not a convention) on the employment relationship. The recommendation calls for The national policy should include measures to: ØProvide guidance on effectively establishing the existence of an employment relationship and on the distinction between employed and self-employed workers. ØCombat disguised employment relationships.

151 The recommendation also calls for Regarding the determination of the existence of an employment relationship ØPrimacy of facts notwithstanding how the relationship is characterized by the parties. ØSpecific indicators of the existence of an employment relationship. Regarding monitoring and implementation ØMechanisms are needed for monitoring developments in the labour market and the organisation of work, and for formulating advice. ØThe most representative organisations of employers and workers should be represented, on an equal footing, in the above mechanism.

152 The ILO’s Committee on Freedom of Association issued, in March 2008, a decision on temporary work agencies and trade union rights in a case involving Colombia. The ILO ruled that the status under which workers are engaged with the employer should not have any effect on their right to join workers’ organisations and participate in their activities. The union’s membership included workers from the temporary agencies and the government had argued that workers have to be providing their services within companies belonging to the same industry.

153 ILO Convention No. 181 on Private Employment Agencies (1997) Need for licensing or certification of Private Employment Agencies Equality of opportunity and non-discrimination Protection of personal data of workers It is significant that “No replacement of the workers of the user enterprises who are on strike” is not mentioned in the convention, but only in the recommendation that is attached to it.

154 The ILO Convention No. 181 does call for adequate protection of the workers - and allocation of responsibilities between PEAs and user enterprises in relation to: Freedom of Association and Right of Collective Bargaining Minimum wages Working time and other working conditions Statutory social security benefits Access to training Safety and health protection Compensation in case of ØOccupational accidents or diseases ØInsolvency Maternity and parental protection

155 The ILO receives an increasing proportion of complaints relating to CAL Freedom of Association violations at the workplace. “Disguised employment can involve …several layers of subcontractors.” “Workers are not fired, their contracts are simply ended.” “Non-extension of contract with sub- contractor, but privileged renewal with non-unionised workers.” Source: Presentation by an ILO Deputy Director, 2009

156 EU Directive on Fixed-term Work (1999) To ensure equal treatment and remove all forms of discrimination (it forbids the employer to treat fixed-term workers in a less favourable manner than permanent workers). “To prevent abuse arising from the use of successive fixed- term employment contracts” … member States, after consultation with social partners … shall … introduce …one or more of the following measures: Ø(a) objective reasons justifying the renewal of such contracts or relationships; Ø(b) the maximum total duration of successive fixed-term employment contracts or relationships; Ø(c) the number of renewals of such contracts or relationships.” To “facilitate the development of part-time and flexi-time work”. Excludes agency workers.

157 EU Directive on Agency Work (2008) An agreement in 2008 - finally - after over ten years of discussions. One basic principle: Equal treatment for agency workers as for permanent workers (doing the same job), including on issues such as salary, holiday payments and sick pay, as of Day 1. Except when the social partners come to an agreement at the national level, as has happened in the UK (where equality only comes after 12 weeks – affecting 50 to 60% of all agency workers in 2011).

158 EU Directive on agency work (provisions) “The basic working and employment conditions of temporary agency workers shall be …. at least those that would apply if they had been recruited directly by that undertaking to occupy the same job.” “Basic working and employment conditions” are those relating to: duration of working time, overtime, breaks, rest periods, night work, holidays and pay. Temporary agency workers shall be informed of any vacant posts in the user undertaking to give them the same opportunity as other workers in that undertaking to find permanent employment.

159 OECD Guidelines for Multinational Enterprises (after the 2011 revision). “Enterprises should …seek to prevent or mitigate an adverse impact where they have not contributed to that impact, when the impact is nevertheless directly linked to their operations, products or services by a business relationship.” and “…encourage, where practicable, business partners, including suppliers and sub-contractors, to apply principles of responsible business conduct compatible with the Guidelines.” From the “commentary” to the Guidelines: “The Guidelines concern those adverse impacts that are either caused or contributed to by the enterprise, or are directly linked to their operations, products or services by a business relationship.” “The term ‘business relationship’ includes relationships with business partners, entities in the supply chain and any other non-state or state entities directly linked to its business operations, products or services.” “Where enterprises have large numbers of suppliers, they are encouraged to identify general areas where the risk of adverse impacts is most significant. “In the context of its supply chain, if the enterprise identifies a risk of causing an adverse impact, then it should take the necessary steps to cease or prevent that impact.”

160 From the Global Union Principles on Temporary Work Agencies (2010) “Policy positions differ in the trade union movement, both at national and international levels concerning the use of temporary work agencies. Views vary from total bans on such agencies over partial bans to strict regulation. There are also differences as to on what basis workers should be covered by collective bargaining agreements. However, there are certain views shared by all Global Unions.” Among the many principles: “Agency workers must be specifically guaranteed the right to join a union with a collective bargaining relationship with the user enterprise and be part of a bargaining unit comprising direct employees of the user enterprise and be covered by all collective bargaining agreements applying to the user-enterprise.“

161 Companies, collective bargaining and organising

162 The second main “line of action” of the ICEM’s campaign is the work at company, or employer(s), level. As in so many other situations, good collective bargaining, and good organising, are key. The campaign encourages all affiliates to include CAL issues into all collective agreements.

163 The overriding principle is that agreements should concentrate on keeping employment direct and permanent…. …even where social partners agree that there may be reason, at times, to use contract and agency labour. Central to the ICEM campaign is a model clause aimed at avoiding problems through pre-emptive action. The fundamental idea is to agree that the union(s) will be consulted prior to changes that could affect the employment status of employees. “Employers will not sign any contracts with a third party that could affect the employment status of their direct employees, prior to consulting with such employees’ union representatives.”

164 What can also be negotiated in collective bargaining Agreement on converting precarious jobs to permanent directly employed jobs Favour the use of direct permanent employment, also in new hiring Make sure collective agreements also apply to CAL workers Guarantee equal pay, and more, for equal work, as of day 1 Make sure that workers’ earlier “CAL periods” are taken into account for seniority calculations. Negotiate good training and learning of skills for all Respect of trade union rights for all Negotiate union protection for CAL workers. Agree that all CAL workers can affiliate to the permanent workers’ union

165 Organising, organising and organising Often difficult, as many employers are using contract and agency labour as precisely one of the ways to avoid a high unionisation rate. Many CAL workers have been dismissed as soon as they joined a union, or started to ask questions about one.

166 The company angle – Asia/Pacific A lot of horror stories exist, but also some good examples, such as in India, where ICEM affiliate INMF (Indian National Mineworkers’ Federation) has managed to recruit 30,000 contract workers into the coal mining union in 2008, as well as another 8,000 in 2009. The project found many cases where workers have been working for 10, 15, 20, in some cases even 25 years with a temporary contract…. … as well as workers who had been doing the same job, but, “technically” for different companies during different periods. Permanent workers are often dismissed, only to be rehired by contractors or agencies, in the end doing the same work under poorer conditions.

167 From a visit to a Goodyear plant in Indonesia: A Goodyear agency worker in Indonesia is close to being top of the range. Below the agency workers are the subcontractor workers (who would be happy with an agency job), followed by day-workers (who would be very happy with a job with the subcontractor). “The difference between the living conditions of union workers with permanent jobs and contract workers could be measured in centuries” (Source: ICEM report after a visit to Indonesia)

168 In Thailand, CAL problems often appear to be particularly difficult. One example is the years- long struggle of local union TIGLU, which managed, in 2008, to organise all 13 Thai Linde (a German-based industrial gas company) work sites, organising contract and agency workers into their union. Problems (as well as national and international solidarity actions) continue until today. But there are also victories. ICEM affiliated EGAT LU, for example, secured an agreement in 2011 to award permanent contracts for 1,200 fixed-term workers who had been in service for six years.

169 All things into perspective: TEAM (IMF affiliate in Thailand) has a policy in 2010 on limiting the growing number of CAL workers in the production line by negotiating an acceptable proportion of CAL employment: between 30 to 50%. In New Zealand, the largest Fonterra (a dairy multinational) CBA limits the number of temporary workers and contractors to 5% of the total contracted hours throughout the year. (There is an exemption to this restriction during the 12 week flush period at the peak of the season.)

170 Kiryung Electronics Factory – Seoul Korea (From the Korean “In these times”, December 2008) A group of women who assemble radios for Sirius in Seoul, South Korea, organized a union three years ago in 2005 after the company made the women work 13-hour days, six to seven days a week. Pay was only $3.62 an hour in the capital city, where the cost of living is similar to that of New York. Their bosses responded by firing the union organizers and threatening to fire anyone who had worked at the factory less than a year. That was most of them. Only 10 of 250 assembly-line workers were permanent. In South Korea, agency temps can be fired for any reason. What’s more, they lack the legal protections guaranteed to other workers and make half as much as permanent workers. Today, there are about 8.6 million dispatch workers in the country. Close to two-thirds of the work force does not have permanent employment status. Kiryung hired mostly women. It gave three-month contracts to married women, presumably so they could be fired if they became pregnant. Unmarried women received six-month contracts. Management’s policy was to fire one dispatch worker every week, to “keep the waters clean,” according to an October report from the National Labor Committee, a New York-based labor research and advocacy group. “People were fired for the pettiest reasons,” says Seok-Soon Oh, a Kiryung worker. “The supervisor would just say he didn’t like your face, you were too fat.” Managers sometimes wouldn’t even tell them face-to-face that they were going to be fired. Pink slips would arrive via text message. The National Labor Committee reported that Kiryung supervisors kept production quotas so high that women couldn’t take bathroom breaks. Shifts could stretch to 38 hours, but workers received only two 10-minute breaks, in addition to meals. “People were terrified. If you were sick, you took some pills and kept working,” Oh says. “Once a co-worker collapsed and the boss sent her home, and said, ‘Don’t bother coming back.’

171 Regular workers Directly employed by Lafarge itself (116 permanent workers, all are union members) Same jobs - same workplace Job order given by the Lafarge managers Monthly wage system - 500~750 USD as basic monthly wage (2008) 8 hours work a day, overtime is paid at a premium rate Some holidays, Sundays Pension, health insurance, paid annual leave, paid sick leave, bonuses Safety equipment provided Annual medical check-up Permanent workers are scared of loosing their jobs Non-regular workers Indirectly employed through 11 agencies (around 200 workers, no one is a union member) Same jobs - same workplace Job order given by the Lafarge managers Hourly rate system - 270 USD monthly (2008) All agency workers work 12 hours a day without any premium rate (often 24-hour working days) Almost no holidays, no Sundays No pension, no health insurance, no annual leave, no sick leave, no bonuses Agency workers have to buy their own safety equipment No medical check-ups Agency workers are scared of loosing their jobs Lafarge Kuantan Cement Factory, Malaysia (2010)

172 According to a February 2010 article (in the Australian Financial Review), BHP Billiton has a plan to replace contractors with employees in the Pilbara region. (Then again, it was estimated in 2009 that 75% of the total 10,000 workers of mining giant BHP in Pilbara are employed by contractors) The company was said to “promote this move”, among other, “on the grounds of improving safety”. The article ended with “the staffing change may also increase exposure to union pressure”. Nike is said to have a policy (non-written for the moment) for subcontractors to employ no more than 10% of their workers on short-term contracts.

173 There are some good examples: South African Airways agreed, in 2009, to stop using labour brokers, making temporary workers permanent. At the end of 2010, NUMSA agreed with the Tyre Employers’ Federation and the Automobile Employers’ Federation to phase out labour brokers and ban it. NUMSA also agreed with the auto supplier industry to reduce the number of contract workers, albeit to “only” 35%. The agreement furthermore foresees equal payment and equal conditions. In 2011, NUMSA agreed with the Steel and Engineering Federation of South Africa, the main metal employer’s federation, that workers can not be employed through labour brokers for longer than 4 months. After that, a worker needs to be come permanent, if retained. South Africa The company angle – Africa

174 At the CAL project meeting in 2009 for Nigeria, NUPENG and PENGASSAN announced that they now represents 60% of all labour contract workers in their sector and negotiate collective bargaining agreements for them. However, they also mentioned that collective agreements for CAL workers may “not in any way be comparable to the permanent staff conditions”. Their aim is to convert 10% of labour contract staff to direct and permanent each year. Nigeria

175 In Guinea, in 2009, the mining unions managed to negotiate a clause that says that a worker becomes permanent after 3 short-term contracts. Also in Guinea in 2009, the Director of Russian aluminium company Rusal was forced to leave by the ministry after the national ICEM project conference. It had become clear that he worked with 120 outsourcing companies. Formerly permanently employed supervisors had become subcontractors/agencies, handling their “own” staff. In 2010 in Guinea, unions carried out a study at Rusal (Friguia) and found 2,643 outsourced workers (in violation of the labour code and the mining sector bargaining agreement). The union managed to win a 50% salary increase for the CAL workers. Their salaries started to be paid in time, benefits were paid and workers were registered with the Social Security Fund. Additionally, 50% of their hospital bills are now paid by the company and a family allowance is paid. Guinea

176 ICEM Affiliate CMCTEU signed a sector-based collective agreement in 2010 for the building and chemical sectors, guaranteeing equal work and the right to paid leave, sick leave and more to all workers – of which 80% are contract workers. They also won a 110% salary increase for domestic workers. The CMCTEU won 3,000 new CAL members in 2010. Also by the CMCTEU: A name and shame campaign in 2011 to expose companies that overexploit CAL workers Mauritius

177 In Sierra Leone, there was 1 labour inspector for the whole country in 2009.

178 The company angle - Europe In Europe, collective bargaining for agency workers differs greatly inside European countries. There are 4 main areas: agreements at inter-sectoral (highest level social partners and governments) level – agreements with a combination of temporary agency employers - with individual agencies - and at sectoral level. Agreements at TAW sectoral level are most common, followed by sector (industry) agreements. Often, the law influences collective bargaining and vice-versa. Only a few (usually more recent and/or smaller) EU countries have no regulation on TAW by collective bargaining.

179 10 EU countries have umbrella employer associations which bargain collectively with trade unions on behalf of temporary agency firms. In contrast, trade union organisation is relatively under-developed inside the agencies. In spite of that, collective agreements do form an important means of regulation in many EU countries (although much more so in the ‘old’ EU members) - and coverage is often high or near universal (for example, it’s close to 100% in Spain, Luxemburg, Austria, Netherlands, Germany, Italy, Belgium or Denmark). In quite a few countries, different agreements apply to blue and white-collar workers (e.g. Denmark, Sweden, Austria).

180 Some ICEM affiliates have agreements directly with major agencies, for example IG Metall (Germany) or GMB (UK) with Adecco or Unite (UK) with Manpower. Some have nationwide collective agreements, for example, ICEM affiliate TEAM in Finland with the Services Employers’ Association.

181 Some EU countries’ sectoral agreements require user companies to inform employee representatives of the plans to use agency labour, for example in Norway (metal sector). In Belgium, the Netherlands and Sweden, where collective bargaining plays an important role in the temporary agency sector, the social partners have a role in monitoring - and may even impose sanctions in addition to penalties issued by the labour inspectorate.

182 Collective bargaining is important for the regulation of temporary agency work in many EU countries. A few examples of issues that have been regulated this way (2008): Length of assignment (Belgium, Italy) Proportion of agency workers allowed (Austria, Germany, Ireland, Spain, Italy, Sweden) The use of TAW in strikes (Denmark, Lithuania, Norway, Sweden) The employment contract (Netherlands, Sweden) Social security and benefits (Belgium, France, Netherlands) The regulation of pay equality (Austria, Denmark, Germany, Italy, Luxembourg, Netherlands, Sweden) Training (Austria, Belgium, Denmark, France, Italy, Luxembourg, Netherlands, Spain) Representation (Belgium, Denmark, Italy)

183 Sectoral agreements in European countries often aim to limit the use of agency work, e.g. specifying only certain or exceptional conditions, or a maximum contract duration, or a maximum permissible proportion of the workforce to be employed through agencies. In Spanish agreements, limits sought are usually between 5% and 12%, according to the size of workforce. In Italy, the metalworking agreement stipulates a limit of agency workers as 8% of a company’s workforce. In Austria, sectoral works agreements also often stipulate limits to the use of agency work, including quotas (usually 5%–10% of the workforce) and obligations to hire agency workers as permanent staff after a certain period (normally one year).

184 2008 Collective agreement in Spain (unions, employers and government) Permanent employment is promoted from the start Incentives to change temporary work to fixed-term work, including through reductions in social security contributions Ending the abuse of continuous temporary contracts If the contract or subcontract workers do not have their own trade union representation, they are able to channel their demands through the trade union of the company The trade union representations of the company, and of the contractors, are allowed to meet to coordinate their activities Trade unions can participate in planning by the labour inspection.

185 2008 National Collective Agreement in Italy Agencies are obliged to inform trade unions when at least 20 contracts are involved. Notice was introduced for CAL worker resignations. (calculated from the 16th day of assignment as one day for every 15 days of assignment - up to a maximum of seven, 10 and 20 days according to the worker’s job classification) Permitted assignment extensions increased from four to five, for a maximum of 36 (previously 24) months. Leased workers must be hired on open-ended contracts if assigned for 36 months to the same user firm.

186 National Collective Agreement in Italy (continuation) A sectoral fund has been created for supplementary social security (when workers do not qualify in another system): maternity allowance, accident protection, a one-off payment of € 700 to workers unemployed for 45 days and who have worked for at least 6 months in the past 12 months. A National Training Fund for Temporary Workers is financed directly by the agencies, which must make contributions equal to 4% of the gross wages paid to leased workers during assignments. The fund provides agency workers with free, certified training schemes. (similar systems exist in France, Denmark and Spain) The agency must instruct the worker on the general sectoral health and safety risks, while the user firm must provide training during the first two hours of work on the specific risks connected with the job.

187 ICEM affiliate CO Industry in Denmark has a collective agreement containing the “area agreement” principle. This means that all work done in a company is covered by the agreement, no matter if a worker is a company employee or an agency worker. This also means that an agency worker has his or her contract with the agency company, but is covered by the local agreement, negotiated by shop stewards at the company. As of 2010, the new agreement also reduces the period after which a worker is entitled to pension contributions: from 9 to 2 months.

188 From collective agreements in Sweden All new employees have the right to one hour of introductory information on the union. Unions and employers are jointly dealing with the issue of authorisation of employment agencies. Agency workers get, as a minimum, “an average salary at the workplace” (not the salary of the lowest earning comparable worker, but an average wage of all comparable workers’ wages).

189 From collective agreements in Sweden (continuation) In early 2010, a new agreement was signed that also says that companies can not hire agency workers if they have dismissed permanent workers in the last 6 months. From ICEM affiliate IFMetall agreement with Teknikföretagen (Swedish Engineering Industries Association), covering 160,000 workers: employers must negotiate with IFMetall before employing temporary staff longer than a month. From the April 2010 Swedish food workers’ agreement: if an employer wishes to use temporary workers, it must first negotiate and agree with the local trade union.

190 In the Netherlands, ICEM affiliate FNV Bondgenoten campaigns for the ‘9 by 12’ rule in CBAs (it is already part of 5 CBAs). Where any given job is being performed by an agency worker for 9 months out of 12, then that job needs to be become permanent, and so does the worker. In one company in Croatia, unions and employers agreed to look at the total overtime worked during one year and decided, based on that, that it should be possible to directly and permanently new workers.

191 Until the late 1970’s, temp work was mostly used by “gang masters and criminal networks”, as a way to organise the black market in the construction sector. In an effort to eradicate this, it was decided to forbid all use of temporary work in the Belgian construction sector (1980’s until 2001). Then, the Belgian social partners negotiated a collective labour agreement, regulating temporary work as of 2002. 1.A specific temporary agency exclusively for construction workers had to be founded by already existing temporary agencies. 2. Temporary agencies need a licence, delivered by the government on the advice of a commission composed by social partners. This commission has to, among other, proceed to a screening by interrogation of the management on experience, financial plan, organisation, etc…. The validity of the licence is for 1 year. 3. Temporary work in a construction company is only authorised if it is to replace a worker who is incapacitated or because of an increase in the volume of work. 4. An approval of a majority of workers representatives is needed. Temporary work in the construction sector in Belgium (1)

192 5. The temporary worker has to be titular of a security passport (delivered after a security training of 16 hours) or prove an experience of 5 years within the last 15 years as a construction worker. 6. One day contracts for temporary workers are not allowed. 7. Temporary work is not authorised in a 6 month period following a collective redundancy or in case of temporary unemployment in the company. 8. All collective agreements on working conditions of normal construction workers (remuneration, working time, health and safety, social funds of the construction sector) are also declared generally binding for construction temporary agencies. Result: Temporary work is almost non-existent in the construction sector in Belgium. However, mala fide employers are now exploiting the lack of European coordination and regulation on social security matters. This is apparent through the presence of a significant number of bogus self-employed and fake posted workers in Belgian construction sites. (Source: CSC – Building, Industry and Energy, Belgium, 2011) Temporary work in the construction sector in Belgium (2)

193 In Brazil, until 2005, there were almost 4 CAL workers for each Petrobras permanent worker. (Petrobras is Brazil’s largest industrial company, operating in the oil and gas sector.) After years of negotiations - where it helped that the union could count on a supportive government - the Petrobras CAL ratio came down to just under 1 permanent Petrobras worker for every 3 CAL workers in 2008. But then it went back up again… A lot remains to be done: in 2011, Petrobras had 76,919 permanent workers (versus 72.137 in 2008) and 295.260 CAL workers (versus 211.566 in 2008). i.e. 81% of the workforce was outsourced. (Source: FUP Brazil) A 2009 Brazilian FUP-Petrobras collective agreement says that the company will seek “primerización”. The company angle – Latin America Brazil

194

195 In 2010, an agreement was reached at the Labour Ministry of São Paulo between BASF Brazil and the chemical workers of Guaratinguetá (the largest BASF entity in Latin America). The agreement aims to regulate the use of (CAL) and requires the company to pay the same salary and benefits to agency workers as to permanent, directly- employed workers. Failure to implement the agreement will result a fine of 500 Reales per worker/per day. A negotiated code of conduct also exists since 2010 for Bayer in Brazil on CAL. It says that, among other, The company needs to analyse if Bayer workers can not do the work that the company might outsource. All applicable Bayer rules in regard to health an safety also need to be adhered to by all contractors. The code guarantees social dialogue and says there will be open and transparent communications with all unions, including those of subcontracted workers. Outsourcing will not be done on an individual basis.

196 Efforts by Brazilian trade unions are starting to bear fruit in 2010 and 2011. There are a number of reports coming in, through the ICEM CAL project, on companies that have reversed course on outsourcing. Unions managed to make quite a few CAL workers permanent and direct. A number of unions indicate that they have managed to convince their companies to reduce the number of CAL and outsourced workers through pure economical reasoning, particularly in those cases where it could be shown that the quality of services reduced a lot after regular workers became irregular.

197 (Union Of Rubber Workers Of São Paulo) There is a sectoral agreement that mentions the amount of workers that can be outsourced, based on the number of permanent workers. The union also needs to be consulted on outsourcing and outsourced workers can also join the union. The networks of Bridgestone, Pirelli and Goodyear are in constant contact with each other and harmonise their actions (Ariston – a company in the pharmaceutical sector) The company no longer works with outsourced or temporary workers, with the exception of the catering staff. Source: ICEM project reports

198 (FUP – Oil workers’ union) FUP solves a lot of problems of outsourced workers through negotiating directly with Petrobras instead of with the service provider. (Union of Chemical, Pharma, Ink and Varnish workers of ABC) Soplast is not hiring outsourced workers anymore, after it discovered quality reduced a lot. Outsourced workers are made permanent again. (Union of Paper Workers) At Cia Suzano, mechanics and electricians were outsourced for two years. Now, 50% of them has returned as regular employees. At Kimberly Clark, cargo handling was outsourced. Now, all workers will again be permanent and direct, because of “problems in the work performed.” Source: ICEM project reports

199 Petrobras in Peru (2009)

200 An interesting “best practice” example comes from Argentinean ICEM affiliate F.A.S.P.yG.P (Federación Argentina Sindical del Petróleo, Gas y Biocombustibles). In each of their 3 sectors (oilfields, oil refineries and gas), good sectoral collective agreements exists. And each of these sectoral agreements also fully cover all outsourced workers. The need to respect the collective agreements is written into all contracts with subcontractors. The result is that, even though the outsourcing rate is around 60%, all workers - CAL or not - receive the same salaries and the same benefits for equal work of equal value. Argentina

201 An ongoing struggle in Colombia is with Sotrans, a transport subcontractor, and Chamene, a mechanical maintenance contractor, of Carbones de Cerrejon in Colombia. As soon as the non-unionised Sotrans workers, with the help of ICEM affiliate Sintracarbon, started to talk about a union in 2010, 2 union leaders were “dismissed” (their contracts ended) – 33 other (also unionised) workers were later told that their contracts were not “prolonged”. In the other case, the union (Sintrachamene) was recognised, but then the company refused to talk. On the other hand, also in Colombia, ICEM affiliate USO managed to sign an agreement in August 2009 with Ecopetrol, winning health care for families of temporary workers.

202 The company angle - International More and more work is being done by the ICEM in cooperation with all other GUFs, the ITUC and TUAC, as part of the Council of Global Unions’ “Work Relationship Group”. Actions have include: Stressing the importance of the issue in different areas Regular meetings with representatives of all Global Unions Exchange of information, including from individual affiliates Joint lobby work / presentations at international institutions, for example the ILO and OECD Support for other GUFs’ CAL campaigns and solidarity actions (most other Global Union Federations also work a lot on precarious work issues) Joint targeting of CAL issues in specific countries Drafting the joint Global Union Principles on Temporary Work Agencies (in close cooperation with, in particular, UNI)

203 The company angle - International Global Framework Agreements (GFAs) Work is ongoing to include clauses on CAL into the ICEM’s GFAs. So far, negotiations on this have been difficult (more so than on reaching, for example, a clause on HIV/AIDS) Some ICEM GFA agreements do state that the company will make sure that the basic principles of the agreements also apply to the workers of subcontractors and suppliers.

204 Global Framework Agreements One recent success comes from the ICEM- Rhodia agreement, which now contains a section that says that all contractors and suppliers will need to agree to follow the stipulations of the contract, and that Rhodia agrees to terminate its links with the subcontractor in case of violations. Another is the language from the ICEM-SCA GFA (adopted in March 2009), which says that conditions for all jobs will be based on conditions of workers with a permanent employment. “Temporary and part-time employees should, as a main rule, receive the same relative terms and conditions as full-time permanent workers.”

205 GFA with GDF-Suez - The best language so far “GDF SUEZ recognizes the importance of secure employment for both the individual and for society through a preference for permanent, open-ended and direct employment.” “GDF SUEZ and all sub-contractors shall take full responsibility for all work being performed under the appropriate legal framework and, in particular, shall not seek to avoid obligations of the employer to dependent workers by disguising what would otherwise be an employment relationship or through the excessive use of temporary or agency labour. “ “Companies will ensure that workers are not classified as self- employed when working under conditions of direct employment (bogus self-employment). GDF SUEZ expects its partners to apply comparable principles and regards this to be an important basis for a lasting business relationship.”

206 Global Framework Agreements In South Africa, Umicore committed to no longer using agency staff after a joint visit by ICEM and the company in 2010, organised as part of the GFA work.

207 Global Framework Agreements The IMF – GEA AG GFA says that “Contracts of unlimited duration always take priority over temporary contracts”. The IMF – Aker agreement states that the company “recognises that permanent employment is preferable to both parties”, and that it “will not use hired-in personnel, part-time and temporary employment to undermine wages and working conditions”. At the same time, the parties to the agreement “acknowledge that hired-in, part-time and temporary workers are occasionally necessary”.

208 The ITGLWF (International Textile, Garment and Leather Workers’ Federation) has reported at least two cases, one in Peru and one in India, where their framework agreement with the textile giant Inditex, managed to improve an appalling contract labour situation. BWI’s model GFA agreement has a clause on the establishment of an employment relationship. It calls for companies to “respect obligations to all workers under labour and social security laws and regulations arising from the regular employment relationship (Social Security Minimum Standards Convention C102). In locations where conditions permit, efforts shall be made to offer fixed employment opportunities. All workers shall receive a written contract of employment. The company and all sub-contractors shall, wherever practicable, directly employ all labour, and shall pay social security and pension contributions for their workers.”

209 Trade union structures (and how to change them)

210 Trade union approaches and strategies CAL affects all unions - to different degrees A number of unions around the world have taken a principled stand to work towards a complete ban of contract or agency labour, a strategy which has failed in most cases. Most ICEM affiliates have taken a more or less pragmatic approach - often forced by circumstances - accepting that a certain amount of contract and agency labour may be “a necessary evil” and that it is extremely difficult to avoid it completely.

211 A particular problem has been that two different categories of workers are often created: permanent workers vs. CAL workers. The result of this split has all too often created tensions, and even conflicts It is imperative to avoid this split. The fact that CAL workers most often earn less is a threat that will not be solved by antagonism. CAL workers’ themselves do not fix wages and other benefits.

212 From a report of a 2011 ICEM project meeting in India Union leaders, who are permanent workers, are worried about the possibility that contract workers would take over the union leadership, because of the large number of contract workers. So, some union leaders seem to exclude agency workers from union structure and activity. Sign of the times

213 Some consensus exists (90% of all ICEM affiliates) that the best practice is to bring CAL workers into the regular union structures. But that is not always possible. It is often illegal for CAL workers to join the permanent workers’ union, or a union altogether. In some cases, separate unions have been created in some countries and sectors for CAL workers (Peru, France, India…). Other (better) solution: organise all in branch unions – transform company based unions into sectoral industry-wide unions, allowing both permanent and CAL workers to join - while avoiding differences and splits between different parts of the workforce.

214 Among the things unions can do to attract CAL workers Open the union to all workers. Avoid having different categories of workers being set up against one another. If needed, change the union rules, allow CAL workers to become members (possibly at alternative contribution levels). Set up a specific union section to deal with CAL issues … …or create “precarious worker union reps”. Provide specialised services to CAL workers (unemployment help, education, insurance, training, legal counselling).

215 Among the things unions can do to attract CAL workers Negotiate agreements that take the concerns of CAL workers into account. (“equal work for equal pay”, and more…). Negotiate to get CAL workers into regular permanent jobs. Encourage participation of CAL workers in trade union activities and/or collective bargaining. Engage in solidarity actions with CAL workers. Organise, organise and organise … … CAL workers into permanent worker’s unions (where possible), at sectoral level (where possible).

216 Trade union actions and strategies Many ICEM affiliates have general campaigns running, specifically on CAL issues (Japan, Korea, Thailand, India, Malaysia, UK, Netherlands, Sweden, Ireland, Germany, Nigeria, Sierra Leone, Zambia, South Africa, Senegal, Guinea, Peru, Colombia, Brazil, ….) Various unions have specific subsections set up, dealing exclusively with CAL workers (Japan, Korea, Indonesia, Singapore, Italy, France, Sweden, Greece, Nigeria, Senegal, DRC,…)

217 Individual unions engage in specific actions The CMTEU in Mauritius reduced the monthly union’s affiliation fee for CAL workers in 2010 from 50 Rs to 1 Rs. The same union also gives preference to CAL workers to enter its IT school. And it provides fast-track loans for contractual workers. They also ask employers to pay a one-day’s salary per month into a fund to cover dismissal fees.

218 Sometimes big things Belgian ABVV/FGTB has decided to dedicate 28 April (the international day of mourning) to the issue of health and safety for CAL workers. ICEM affiliates in Latin America have an Annual Contract and Agency Labour Day on 28 July. In February 2011, over 210,000 workers protested against the growing threat of precarious employment in Germany. Workers from 1,360 companies participated in the nation-wide IGMetall action.

219 The Indian ICEM Affiliates Council, set up in 2009, set as one of its goals to organise a level of 10% CAL workers into their unions. Unions in New Zealand campaign to the public at large on the threat that precarious work poses for the quality of work, product or service safety and productivity. In Uruguay, ICEM affiliates elected CAL workers into leadership of the union.

220 An ICEM overview study in Colombia found one union sharing meals with CAL workers, as they did not have a food allowance. In November 2010, the 750 permanent workers at Indian Neyveli Lignite Corporation organised a day of fasting in support of 13,000 striking contract workers (and threatened they would also strike). Sometimes small things

221 The ICEM CAL Campaign site cal.icem.org This PowerPoint Presentation is also available on the ICEM CAL site, under “Publications / CAL background documents”


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