External expertise for the project “FELM” - Better Functioning of the European Construction Labour Market

FINDINGS

The findings were comprised of three parts: a critical analysis of the EU regulatory and policy framework on the access of non-EU companies and workers to the European market; a quantitative analysis of the number and characteristics of third-country construction companies, construction workers, and posted construction workers in the EU; and six case studies, three on third-country companies’ and three on third-country workers’ access and participation in the EU construction market.

• The findings showed that economic operators’ activity is regulated at the international, EU and national level, whereas the third-country nationals’ access to the European labour market is regulated at the EU and national levels. While the EU regulations outline the broader frameworks for companies’ and workers’ access, national level institutions remain the main responsible authorities for defining the inclusion and exclusion criteria as well as admission and screening procedures. Bilateral trade and labour agreements between EU Member States and third countries play an important role providing access.
• In addition to laws and regulations, the case studies showed that geographical proximity, historical background, and cultural similarities influence where in Europe third-country construction workers and companies are active, as is the case of Turkish companies on the Balkan peninsula or the presence of Ukrainian workers in Poland and Bosnian workers in Slovenia.
• A third set of factors are the sending and, most importantly for the objectives of this study, receiving EU countries’ labour market needs and characteristics. The case studies on third-country companies showed that these companies are involved in large scale projects, where experience and expertise have played a significant role in the award criteria, as the case of the Turkish company in Slovenia indicated. For the participation of third-country workers the case studies suggested that skills shortages and labour demand are the main pull factors.
• The three parts of the study also revealed several challenges related to third-country companies’ and workers’ access and participation in the European construction. The regulatory framework and monitoring measures regarding the participation of third-country companies in public procurement, such as the methods used for identifying abnormally low tenders and procedures for verification by contracting authorities, differ across national legislations.
• Differences across Member States exist also on exclusion criteria. In some countries, for example in the case of Slovenia, the national state audit has excluded companies from countries with no bilateral/EU-level agreement. Therefore, the importance of convergence on inclusion/exclusion criteria which might help guarantee a level-playing field across the EU was highlighted.
• The need for more emphasis on environmental and social sustainability in public procurement by making them more prominent criteria in the evaluation and awarding of public tenders was also identified.
• Furthermore, contracting authorities often lack the mandate and/or resources to verify information provided by bidders in cases when the offer appears abnormally low such as whether the bidding company receives state aid.
• The protection of labour standards and TCN workers’ labour rights is another challenge. Our case study findings indicated that TCN workers employed through intermediaries, such as temporary work agencies and recruitment agencies, or those at the end of the subcontracting chain, such as posted workers or the (bogus) self-employed, are particularly exposed to the risk of exploitation. For TCN workers with temporary work permits, the dependence on the employers or intermediaries for the renewal of the right to work and reside in an EU country can be an additional risk. The monitoring and enforcement of labour standards for TCNs also presents challenges as public authorities, social partners, and workers themselves face language barriers. In the case of posted TCNs, cross-border information exchange and cooperation needs to be adjusted to the specific complex circumstances of these workers.
• Finally, the analysis revealed data gaps that need to be addressed to improve the understanding of the activities of third-country construction companies and workers in European countries. EU-level data on third-country companies are generally limited both in terms of the level of detail on issues like company characteristics and ownership and the timeliness of data. Similarly, data on posted and TCN workers in the EU are available to researchers only for a limited number of countries and the share of posted third-country nationals in construction can only be estimated. Accurate and more up-to date administrative data on TCNs residing in every EU Member States could also be collected and made available at the EU level. TCNs and migrants in general are also under-represented in large scale surveys like LFS, therefore there is room there for more targeted surveys and research that would enable the in-depth quantitative analysis of the conditions of this category of workers in the European labour market.

The challenges identified by the findings were used as the basis for the social partners at the EU level, namely EFBWW and FIEC to draft their joint recommendations. The results of the study, however, are useful to diverse audiences such as EU institutions, national public authorities, social partners at the national level, and the research community, who can access them to stir policymaking, design policies, enact monitoring and enforcement practices, and conduct further research.