Recruitment agencies and their impact onworking conditions

MAKING INDUSTRIAL RELATIONS WORK FOR DECENT WORKBRIEFING ON THE SITUATION IN ROMANIA 48

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IntroductionThe abuse of migrant workers

“On the edge of survival. Seven Romanian children, slaves on a farm in England”1, “Tonsof Romanians, slaves on a Greek plantation, released by police”2, “The torture ofRomanians going to work: ‘We stayed in a room with rats’”3, “Thousands of Romaniansslaves in Italy! They worked 15 hours a day for a few hundred dollars!”4, “Romanian ‘modernday slaves’ in the town of Claudia Schiffer”5, “Romanians blueberry pickers, slaves inSweden”6, “Romanians, slaves in Czech Republic and Germany”7 are the titles of just a fewarticles among thousands published in recent years about the Romanians working abroad.

While there are fewer articles about immigrants coming to Romania and working inunacceptable conditions, similar titles appear in the Romanian media. “Two citizens fromBangladesh, company slaves to a businessman in Bacau”8, “Workers from Honduras,slaves in Rodipet company”9, “Romanian nightmare for Filipino nannies”10, “Congolese inslavery on taxis”11 etc. Other cases are unknown to the Romanian public, such as the caseof 43 Indian workers in Mârşa12, the case of 95 Filipina textile workers in Sibiu13 or thecase of the 500 textile workers from Bangladesh kept behind locked gates and exploitedin Bacau14, reported in Labournet.de (Germany) and Prol-position News newsletters.

Immigrants and emigrants have many things in common: very often they suffer relentlessabuse, physical or verbal violence and violations of their rights, including fundamentalprinciples and rights at work. They are subject to differential treatment in terms ofremuneration, working time, holidays, social insurance and other aspects of their workingconditions. Most of the time they are at the mercy of the recruitment agencies and caneasily become their victims.

The ILO report, “Protecting the most vulnerable of today's workers”15 shows that “asthe power of private, fee-charging recruitment agencies grows rapidly, many migrantworkers - especially those in unskilled or non-technical jobs - suffer a host of indignitiesincluding wholesale fraud, exorbitant fees, non-existent jobs, and often poor or evendangerous working conditions”. According to this report, “private, fee-chargingrecruitment agencies are rapidly coming to dominate the organisation of temporarymigration, with, for example, as much as 80 per cent of all movements of labour fromAsian to Arab countries - one of the world's largest migrant flows - being handled byprivate agencies.” In Indonesia, the Philippines and Thailand, private agencies dominatethe organisation of migration for employment abroad, “accounting for anywhere from60 to 80 per cent of all migrant workers hired.”

This pilot study is trying to draw attention to the situation in Romania created by theprivate or public, domestic or foreign recruitment agencies as agents of precariousemployment, and their impact on migrant and domestic workers’ working conditions.

Overview Migrants and the decent work deficit

Emigration

According to the World Bank16 2,769 million Romanians had emigrated by the end of2010, representing 13.1 per cent of the population. The principal countries of destinationwere: Italy, Spain, Hungary, Israel, the United States, Germany, Canada, Austria, France,and the United Kingdom. The same report shows that the emigration rate of the tertiary-educated population is 11.8 per cent.

The main official channels used by Romanians in their quest for a better life are theNational Employment Agency (NEA) and the private recruitment agencies. According tothe law, the NEA promotes measures to ensure and safeguard the rights and freedomsof Romanian citizens working abroad. For instance, it provides information and advice topeople wishing to work abroad, working with the Public Employment Services (PESs) ofthe European Employment Service (EURES) in order to protect their rights and freedoms.The NEA offers employment mediation services free of charge. Competition between thepublic institution and the private providers is far from fair. In 2010, 110,092 fixed-term

1 October 25, 2010 by www.stirileprotv.ro,available at http://stirileprotv.ro/stiri/international/la-limita-supravietuirii-sapte-copii-romani-sclavi-la-o-ferma-din-anglia.html

2 April 16, 2011 by www.stirileprotv.ro,available at http://stirileprotv.ro/stiri/actualitate/zeci-de-romani-sclavi-pe-o-plantatie-din-grecia-eliberati-de-politisti.html

3 3, 2011 by www.stirileprotv.ro, available athttp://stirileprotv.ro/stiri/social/chinul-romanilor-plecati-la-munca-am-stat-intr-o-camera-cu-sobolani.html

4 May 15, 2011 by www.stirileprotv.ro,available at http://www.crimetime.ro/international/zeci-de-romani-sclavi-in-italia-munceau-15-ore-pe-zi-pentru-cateva-sute-de-euro.html

5 Daniel Befu, September 12, 2011, “RomaniaLiberă”, available athttp://www.romanialibera.ro/actualitate/europa/romanii-sclavi-moderni-in-oraselul-claudiei-schiffer-237240.html

6 August 24, 2011, by www.ziare.com,available at http://www.ziare.com/articole/romani+sclavi+peste+hotare

7 July 28, 2011, by www.libertatea.ro,available at http://www.libertatea.ro/detalii/articol/romani-sclavi-cehia-germania-347694.html

8 October 11, 2011 by www.realitatea.net,available at http://www.realitatea.net/doi-cetateni-din-bangladesh-sclavi-la-firma-unui-om-de-afaceri-bacauan_876370.html

9 http://www.adevarul.ro/actualitate/eveniment/Muncitori-Honduras-Rodipet-sclavi-din_0_130187069.html

10 Poelincă C. CEZAR I, October 7, 2009,“Adevărul”, available athttp://www.romanialibera.ro/index.php?section=articol&screen=print&id=246081&page=0&order=0&redactie=0

11 Crăciun A., Stănescu I., December 22,2008, “Evenimentul Zilei”, available athttp://www.evz.ro/detalii/stiri/congolezi-in-sclavie-pe-taxiuri-833340.html

12 October 10, 2008, by Prol-position News,available at http://www.prol-position.net/ppnews/ppnews10.pdf

13 Ana Cosel, September 3, 2008,“LabourNet.de Germany”, available athttp://www.labournet.de/internationales/rumae/sibiu_engl.html

14 Ana Cosel, September 17, 2008,“LabourNet.de Germany”, available athttp://www.labournet.de/internationales/rumae/wearcompany_engl.html

15 Protecting the most vulnerable of today'sworkers - Tripartite Meeting of Experts onFuture ILO Activities in the Field ofMigration. International Labour Office,Geneva, 1997. ISBN 92-2-110465-6.

16 The Migration and Remittances Factbook2011, consulted on www.worldbank.org/prospects/migrationandremittances

“I told them that I amunemployed, I have a child andbig debts to the bank and I ammotivated and a hard worker.They responded that I am tootall and too thin and I have noexperience in agriculture and I will not cope. They want onlywomen between 30 and 40, with family, from rural areas,with experience in agriculture.If the announcement wouldhave been clearer about thesecriteria, I would not havetravelled for 800 km to comehere. I spent the whole night infront of this building, in the coldbecause I don’t have money topay for a hotel and now I findout that I am not fit for the job!And the official from the NEAdidn’t say anything!“

MARIA, 44 YEARS OLD

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contracts for Romanians going to work in Germany were signed on the basis of amediation agreement. All these contracts were obtained on the basis of bilateral labourexchange agreements with Germany (for guest workers, seasonal workers), France andSwitzerland (for the exchange of trainees). The number of Romanians who found a jobabroad through EURES in 2010, according to the NEA, was 188517.

The NEA publishes announcements of jobs available abroad on its web site and organisesselections of personnel at the request of foreign employers. According to the legislation,the NEA must ensure the protection of Romanian workers’ rights in their relations withforeign employers. In the year 2010, the Department of Labour Mediation registered 208petitions and complaints, and 146 hearings and meetings on problems faced by Romaniancitizens before going to work abroad or in the destination state. On its web site, the NEAhas published warnings about companies or persons who recruit personnel against whomthere are many complaints. At the same time, the NEA itself participates in actions thatcontradict its mission. For example, the selection of seasonal workers in agriculture isorganised by the NEA in only one place for 41 counties: people have to travel hundreds ofkilometres, and wait long hours, sometimes in the freezing cold for an interview. In thecase of a selection for a Spanish employer in Slatina in December 2010, over 1,800 peoplecame to compete for 400 jobs as seasonal workers on strawberry farms. Theannouncement published by the NEA outlined the following job requirements: ‘experiencein agriculture; fit for hard work in uncovered space - minimum of 6 hours/day, languages:not requested, salary: 37 euros gross/day, other benefits - accommodation provided(Warning - there is no possibility of accommodation for applicants/men in the company),duration of contract: 3 months’. NEA representatives from Olt County and a representativeof the Spanish employer participated in the interview. After the interview the participantsspoke about discriminatory and even offending criteria for selection: men and womenwho were too young or over 43, too tall, too thin, with no family, from urban areas or whohad contracts with other Spanish employers were not accepted. ‘They told me I am tooyoung and too thin for this job. They even asked me to turn around! They stared at me likeI am not a person’. Gina, 24 years old. ‘I told them that I am unemployed, I have a child andbig debts to the bank and I am motivated and a hard worker. They responded that I am tootall and too thin and I have no experience in agriculture and I will not cope. They want onlywomen between 30 and 40, with family, from rural areas, with experience in agriculture.If the announcement would have been clearer about these criteria, I would not havetravelled for 800 km to come here. I spent the whole night in front of this building, in thecold because I don’t have money to pay for a hotel and now I find out that I am not fit forthe job! And the official from the NEA didn’t say anything!’ Maria, 44 years old.

In its relationship with foreign employers the NEA acts like a service provider, withoutmaking any effort to ensure decent working conditions for Romanian workers. In March2011 the NEA organised a jobs fair for agricultural work in Denmark. On offer were 200jobs for workers harvesting strawberries, peas, raspberries, onions, pumpkins, otherfruits and vegetables and about ten positions for drivers of tractors / trucks / buses.The detailed offer published on the NEA’s website explained the conditions regardingaccommodation and working hours as follows: ‘From May until September you will haveto bring your own tent, warm clothes and cooking utensils. A camp site with cooking,bathing, and toilet facilities is always available. From September until May indooraccommodation is guaranteed, normally you may have to pay for it. Especially on farmswhere the strawberries are harvested, the programme can vary: if in the early seasonthe work can last a few hours a day, during peak season it can be up to 60 hours a week.Work often starts at 4 am and lasts until mid-day, 6-7 days a week’18. It seems that thepromise of big salaries takes precedence over decent working conditions, even for apublic institution responsible for safeguarding workers’ rights.

The number of people mistreated by the private recruitment companies is much higher andthe situations described by them more serious. According to the Labour Inspectorate, inRomania there are 1,730 registered recruitment agencies in 201119. In 2010, the number ofpeople who signed contracts with private recruitment agencies was 23,070, 10.5 per centmore than in 2009, and the number of people employed abroad on individual employmentcontracts was 10,457 (5,306 male and 5,151 female), 29 per cent more than in 200920. Webelieve the real numbers are higher, because the companies fail in their obligation to reportto the Labour Inspectorate. Also the number of registered agencies might vary. There havebeen many situations where a company functions for a short period of time then closesdown officially but continues to work informally; it can also transfer its business to a newcompany about which applicants will have no negative references in the media, the Internetor from the Labour Inspectorate. In many cases, several companies belong to the sameowner and all of them are involved in the same type of activity.

17 National Agency for Employment, AnnualReport 2010, available at http://www.anofm.ro/anofm-raport-de-activitate-pentru-anul-2010

18 National Agency for Employment,http://eures.anofm.ro/anunturi/NOU%20_Danemarca_ofera_200_de_locuri_de_munca_in_sectorul_agricol_sezonul_2011.pdf

19 Labor Inspection, August 17, 2011, pressrelease available at http://www.inspectmun.ro/Mass%20Media/KatPlasare.pdf

20 Labour Inspection, data provided on ourrequest.

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Private recruitment agencies have to be registered with the Labour Inspectorate. Thesecompanies have an obligation to conclude mediation contracts with the people interestedin obtaining a job abroad and to conclude employment contracts between employers andpersons recruited for vacancies also in Romanian, not only in the language of theemploying company. The mediation contracts must contain the mediation fee, theduration of the contract and provisions on dispute settlement. Many Romanians havefallen victim to this type of company, common recruitment malpractices including:

• No firm contractual offer of employment from the individual or employer’s organisationabroad, or failure to complete mediation, meaning that after paying the fee for mediationthe person concern is never invited to take up their post;

• failure to ensure completion of individual employment contracts in Romanian;

• employment mediation on behalf of the Romanian citizens abroad by legal persons whowere not principally engaged in the selection and placement of personnel, or mediationactivity by individuals, which is banned by law;

• soliciting applications and demanding fees for non-existent jobs or withholding orgiving false information on the nature of the jobs and terms of employment;

• selecting applicants not on the basis of job qualifications, but on the amount of moneythey are willing to pay to get the job, or fees for mediation and other commissionspaid in private bank accounts;

• imposition of unpaid trial periods or conclusion of contracts of vocational training,exchange of experience, etc masked as employment contracts;

• new fees to be paid, as a condition of obtaining a job abroad, on behalf of third personsor agencies from the receiving State, who placed them at different employers; in manycases the persons have been abandoned in the destination country and could notcontact the person indicated before their departure;

• non-compliance with the contract provisions (non-payment of work performed, unpaidovertime, unpaid leave), unpaid sick leave, failure to provide financial support in caseof accidents at work, poor conditions of work and accommodation etc.;

• conclusion of employment contracts with Romanian companies or even with therecruitment agency subcontracting activities abroad;

• withholding of passport or other identity documents.

Many Romanians speak about sub-standard working conditions, substandard housing,restricted activities and rights, low level/lack of social protection, separation from societyat large in restricted housing areas, unpaid/very low salaries, long working hours, 6-7working days a week, lack of holidays etc. A recent Labour Inspectorate announcementdescribes the situation of hundreds of Romanians who went to the Czech Republic totake a job which according to official announcement, would pay 1,000 euros but who werecheated by the recruitment agencies. Contracts signed by them were written in Czech,they were paid only 1,000 crowns, the equivalent of 50 euros21. In most cases, theRomanians have not been able to take action against the agency that placed them abroad,because the contracts contain only the provision that the company offers guidance infinding a job for a certain period.

Immigration

Immigrants in Romania represent less than 0.3 per cent of the Romanian population andless than 2.2 per cent of the number of Romanians living abroad. According to dataprovided by the Romanian Immigration Office22 in Romania there were 59,566 foreignersat the end of June 2011, of whom 10,256 had permanent residence and 49,310 hadtemporary residence. Of the total, 41.7 per cent were women. In 2010 the governmentapproved 8,000 work permits but only 2,910 were issued, while in the first nine monthsof 2011, 4,899 permits were issued, out of 5,500 approved. The main countries of originare: Republic of Moldova, Turkey, China, Syria and Serbia.

The Romanian mass media rarely reports on foreign citizens abused by the recruitmentagencies. The first case that drew public attention to this issue was in 2009, whenChinese workers protested in front of the Chinese Embassy in Romania.

Hundreds of Chinese arrived in Romania in 2008, with two agencies, one in Romania andone in China. They paid a fee of at least 8,000 euros to get into Romania, to be employed

21 Labor Inspection, December 12, 2011, pressrelease available athttp://www.inspectmun.ro/Mass%20Media/ComunicatCampaniedeInformare.pdf

22 The Romanian Office for Immigration,statistics provided on our request inDecember 2011.

“The posted workers do nothave any protection in relationto: minimum wages; workingtime and other workingconditions; statutory socialsecurity benefits; access totraining; occupational safetyand health; compensation incases of occupational accidentsand diseases and insolvencyand protection of workers’claims.”

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in the construction industry on a salary of at least 800 euros per month. But they receivedonly 100 lei a month for food, were provided with accommodation, and the rest of themoney was supposed to be paid directly to families in China, as they were being employedby a company in China and posted in Romania. Six months later they were dismissed, dueto the economic crisis in the construction sector.

According to the Chinese embassy, the workers came to Romania to work legally or ona temporary permit, but for many of them the formalities were not completed. Promisesby the agencies or the companies employing them were not always respected, and theChinese workers found themselves being paid far less than had been agreed.

The report ‘Social and Labour Issues Concerning Migrant Workers in the ConstructionIndustry’, published in 1995 by the International Labour Office in Geneva shows that inChina ‘it is common to find firms operating as “labour contractors”, supplying constructionlabour services to overseas construction firms. Such firms not only recruit labour but alsoassume direct responsibility for the wages and welfare of the workers. They thereforeresemble “labour-only subcontractors” except that they are not responsible for outputs.’

It seems this was the case for the Chinese workers in the construction industry who wereprovided in Romania with a contract not signed by the employer, which had no identificationdata for the employer and contained an illegal clause saying that: ‘I acknowledge that if Ileave the employer without notice I will be liable to pay a fine of 10,000 euros to theRomanian immigration authorities’. Many workers complained about the lack oftransparency surrounding the terms of the contract and said that the recruitment agenciesmade them promises which were not observed by the employers, once in Romania. Theworkers were promised employment contracts for four or five years, but the work permitis issued on an annual basis, and, if they lose their job and don’t find another employer in30 days, they must leave Romania. Most of the workers were not aware of what type ofwork visa they had (in their case, of posted workers). They didn’t speak the Romanianlanguage and they were not informed about which public institution they could address.

Other situations are described by the foreign workers. A construction company in Iaşisigned employment contracts for 1,000 lei instead of 1,000 dollars. In the case of the 300Chinese women working in Bacau, in the textile industry, their contract with therecruitment agency stipulated that they had to pay up to 4,000 dollars in order to beselected to work in the company. The workers had to transfer 25 per cent of their salaryevery month to repay this amount. At the time of their recruitment the workers werepromised wages of 700 dollars per month. In fact they only received 300 dollars per month.Additional deductions were made for food and accommodation. The workers complainedabout the unrealistic workload and the sub-standard accommodation, in an industrialbuilding in small makeshift rooms that had no ceiling, sleeping nine to a room. They weretotally isolated by their Romanian co-workers and by the local population.

Workers also say it is difficult to understand the contents of their contract, especiallybecause Romanian law specifically indicates that employment contracts must be signedin the Romanian language. This is, again, an opportunity for abuse by unscrupulousrecruitment agencies, which are using two versions of the same contract, in differentlanguage and containing different clauses. In addition the immigrant workers are deniedfundamental rights such as freedom of association, collective bargaining, equality ofopportunity and treatment. The posted workers do not have any protection in relation to:minimum wages; working time and other working conditions; statutory social securitybenefits; access to training; occupational safety and health; compensation in cases ofoccupational accidents and diseases and insolvency and protection of workers’ claims.

A special category of private recruitment agencies has begun to develop in Romania inthe last few years: baby sitters’, nannies’ and maids’ placement agencies. Thesespecialised companies bring nannies from the Philippines or, more recently, fromThailand, Nepal, and Bangladesh. The commissions paid by the employer range from500 euros (when the recruitment agency provides only certain services) and 4,500 euros(the recruitment agency is fully in charge of placing the employee), includedocumentation, the medical check-up, airline tickets and the recruitment agency’s fees.In spite of the economic crisis, in the last two to three years it became fashionable forfamilies with incomes of about 2,000 euros, people working in middle and topmanagement, including ex-pats, politicians and showbiz people to engage foreignnannies, with demand increasing by 70 per cent in 2011 alone. Some of them are livinga nightmare once in Romania. Their experiences are terrifying and only a few agreed tobe interviewed, on condition of anonymity. Their names have therefore been changed23.

23 The interviews with the Filipino workers,as well as with the representatives of thebaby sitter, nannies, and maids’ placementagencies have been realized by LauraŞtefănuţ.

“Romania has not ratified ILOConvention no.181 on privaterecruitment agencies, whichcomprises basic rules regardingthe transparency of thesecompanies, provides thenecessary controls anddiscourages abusive practicesagainst workers. According tothis Convention, recruitmentagencies can only operate iflicensed or certified and mustprovide guarantees that incarrying out their activity theywill not prevent the observanceof the workers’ fundamentalrights and that they will notcharge the workers, directly orindirectly, for the servicesprovided26. Among themeasures to protect againstabuses committed by privaterecruitment agencies, the sameConvention provides for thesanctioning of those agenciesthat use fraudulent or abusivepractices, including forbiddingtheir activity, and recommendsthat States conclude bilateralagreements to prevent abuseand fraud in the recruitment,placement and hiring of migrantworkers.”

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For Ema, the working day started at half past six in the morning and ended at ten p.m. -which means about 93 hours per week. During this time, she had to take care of a childaged three years, to cook, to clean the employers’ four storey building and to wash theircars. It was exhausting work, says Ema, who breaks into tears when she remembers. Shestayed there six months, during which time she called the agency that brought her therefor help. Representatives of the company told her that if she wanted to leave she had topay the sum of 3,000 euros, the commission paid by the employer for placement services.

‘When I met my employer he told me he hates Filipinos because they love spoiled food. Hewould not allow me to talk to anyone but him. (...). I slept in the basement; I couldn’t seedaylight and I came out only when they called me,’ says Judy. She says that as time passed,the feeling that her employer would do something bad to her intensified. ’He threatenedto kill me, to shoot me. I saw him when he hit the nanny and I thought that if they behavelike that with a Romanian, in my case it would be much worse. When I saw the assault onhis wife, I sent a message to the Romanian Immigration Office, to ask for help’, says Judy.

In a discussion with a possible client, a manager of an agency recommends: ‘Make surethat the Filipino woman is over 30, comes from the provinces, not from Manila, has workedat least two years in an Arab country, has references that can be verified, signs acommitment that she will pay $ 5,000 to the employer if she leaves before completing thecontract and has no contacts with the Filipino community in Romania, even on the phone.Filipino communities here have become very strong and they influence each other’. Otheragencies are advising their clients to withhold the passports of their employees, to besure they will not leave.

The law on Labour Inspection guarantees ’free access, permanently and without notice ofthe inspectors into the headquarters of legal persons and any other work place theyorganised’. According to the official interpretation, access by the inspectors to privateproperties where domestic workers live and work is banned by this restrictive wording.The access of the police and the Romanian Immigration Office is also limited, as it requiresan official complaint filed by the worker. In these circumstances, public institutions cannotverify compliance with workers' rights guaranteed by law and this makes them veryvulnerable at the hands of the employers. The activities of recruitment agencies bringingforeign workers into the country are not regulated, hence recommendations such as theone above have no impact.

The legal framework

Emigration

While immigration is subject to a National Strategy and there are laws governing it, thereare no public policies concerning emigration. In the absence of public policies, thegovernment started to develop its institutional capacity in the field. Since 2004, underthe terms of GD 1326/200424, the Ministry of Labour and Social Solidarity has an explicitresponsibility to protect Romanian citizens working abroad, and to provide advice inlitigation and labour disputes in order to respect the rights of Romanian citizens workingabroad. The 2004 Act established the Body of Work and Social Problems Attaché(CAPMS), located in the Romanian Embassies in Italy, Spain, Hungary, Great Britain(covering also Ireland) and Germany (covering also Austria), operational as of 2005. Thispost of attaché created the potential to improve the situation of Romanian citizensworking abroad, but, due to the limited resources at its disposal (only five attachés)compared with the number of Romanian migrants, the territorial spread of theirdestinations, the complexity/diversity of their employment situations and the number ofactive destinations, it has not had a significant impact on the situation of migrants.

Law no. 156/200025 ensures the protection of Romanian citizens working abroad andregulates the activity of recruitment agencies abroad. In compliance with article 5 ofthe law on Romanian territory, these agencies may engage in labour brokerage withforeign companies abroad. These companies include subsidiaries principally engagedin ‘the selection and placement of employment’, if they fulfil the legal requirements andare registered with the Territorial Labour Inspectorate in the jurisdiction they arelocated in (art. 9).

24 GD 1326/2004 amending GovernmentDecision 737/2003 on organization andfunctioning of the Ministry of Labour,Social Solidarity and Family

25 Law no. 156/2000 on the protection ofRomanian citizens working abroad

“Like many other Europeanstates, Romania has not ratifiedILO Convention no. 97 onmigration for employmentpurposes. The Conventionincludes a number of provisionson the protection, employmentand working conditions ofmigrant workers recruitedother than or under agreementsconcluded by the Government.In both situations, migrantworkers benefit fromguarantees such as: freeservices at the recruitmentstage, admission to the countryand settling in at the workplace, the existence of a systemfor monitoring employmentcontracts, including the migrantworker knowing in advancetheir working conditions andsalary, as well as accountabilitymechanisms in case of breachof the above mentionedprovisions. The Romanianlegislative framework is notcomplete and this adds to theprecariousness of the migrantworkers’ situation.”

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Romania has not ratified ILO Convention no.181 on private recruitment agencies, whichcomprises basic rules regarding the transparency of these companies, provides thenecessary controls and discourages abusive practices against workers. According to thisConvention, recruitment agencies can only operate if licensed or certified and must provideguarantees that in carrying out their activity they will not prevent the observance of theworkers’ fundamental rights and that they will not charge the workers, directly or indirectly,for the services provided26. Among the measures to protect against abuses committed byprivate recruitment agencies, the same Convention provides for the sanctioning of thoseagencies that use fraudulent or abusive practices, including forbidding their activity, andrecommends that States conclude bilateral agreements to prevent abuse and fraud in therecruitment, placement and hiring of migrant workers.

Not only has Romania made no effort to improve the legal framework but Decision of theGovernment no. 43/200227 modified Law no. 156/2000. It removed the accreditationgranted by the Ministry of Labour to recruitment agencies and the certification by theLabour Ministry of the contracts concluded between the agencies and their foreignpartners. These companies often break the law and endanger workers’ rights. The taskof monitoring respect of the conditions stipulated in Law no. 156/2000 and employmentagencies’ activities falls to the Labour Inspectorate (art. 14), but the institution has limitedpowers and the fines are not very high. An accreditation system would ensure thetransparency of these agencies’ activities, provide the necessary control mechanisms,create the framework for a proper observance of workers’ rights and can lead to the useof practices such as the cancellation of the right to place workers abroad if companies useabusive practices.

Immigration

The main laws that regulate the circulation of persons and legal migration in Romania are:

• Government Emergency Ordinance no. 194/2002 on the status of foreigners in Romania,which is the framework that regulates foreigners’ admission, residence, and departurefrom Romania, their rights and obligations, as well as specific immigration controlmeasures, in line with the commitments Romania has made under internationalagreements.

• Emergency Ordinance no. 56/2007 concerning the employment and posting offoreigners to Romania, whereby a work permit can be issued at the employer’s requestby the Romanian Immigration Office for those foreigners who meet the requirementsstipulated by Romanian legislation. They need authorisation in order to get a long termresidence visa for employment or a residence permit for employment.

• Government Ordinance no. 44/2004 on the social integration of foreigners who havebeen granted a form of protection or the right to residence in Romania. It definessocial integration as the active participation of foreigners, who were granted a formof protection or the right to residence in Romania, in the economic, social and culturallife of Romanian society. The aim is to prevent and fight social marginalisation and toensure their adjustment to the conditions typical of Romanian society.

The access of foreign citizens from third countries to the labour market is limited to anannual quota approved by government decision for each type of work permit (forpermanent / seasonal workers, interns, sport, etc.). Unlike other European countries, themajority of aliens in Romania do not work in family businesses or for their compatriotsbut for Romanian and foreign employers. This makes them dependent on recruitmentagencies and very vulnerable in the employment relationship with employers or if theylose their employment.

There are no regulations in Romania concerning the activity of the agencies bringing inforeign workers. Regarding the placement of foreign workers in Romania, the annualreport of the Labour Inspectorate for 2009 states:

• The Labour Inspectorate is unable to verify those companies engaged in arranging theemployment of foreign citizens on Romanian territory, based in Romania, due to thelack of provisions in this regard;

• The employment of foreign citizens by Romanian companies is in some cases donewith the support of Romanian businesses involved in human resource management,which are in fact engaged in bringing foreign citizens into Romania, and based on civilcontracts concluded with the same kind of foreign companies.

26 See the articles 3, 4 and 7 from theConvention 181.

27 Ordinance 43/2002 amending Law no.156/2000 on the protection of Romaniancitizens working abroad

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Like many other European states, Romania has not ratified ILO Convention no. 97 onmigration for employment purposes. The Convention includes a number of provisionson the protection, employment and working conditions of migrant workers recruitedother than or under agreements concluded by the Government. In both situations,migrant workers benefit from guarantees such as: free services at the recruitment stage,admission to the country and settling in at the work place, the existence of a system formonitoring employment contracts, including the migrant worker knowing in advancetheir working conditions and salary, as well as accountability mechanisms in case ofbreach of the above mentioned provisions. The Romanian legislative framework is notcomplete and this adds to the precariousness of the migrant workers’ situation.

Industrial Relations Promoting Decent Work

On the pretext of pressure from the international financial bodies, the Governmentadopted Law no. 62/2011 on social dialogue, which repeals the previous legislation ontrade unions and employers' organisations, labour conflicts, collective bargaining andthe Economic and Social Council.

Under the new law, a trade union can only be formed with a minimum of 15 employeesfrom the same company. By imposing this minimum requirement, many categories ofemployees are denied the right to form/ join a union. They include Romanian and foreignworkers working for companies with less than 15 employees, domestic workers, postedforeign workers, self-employed, day-labourers (which may be Romanian or foreignnationals), small farmers and other categories of employees with contracts other thanemployment contracts. The difficulty is that although these categories are allowed to joinexisting trade unions, trade unions may not stand for their interests before the employersif they are not represented within the employers’ company. Representatives at thecompany level are these trade unions which meet the following criteria: have a legalstatus; have organizational and patrimonial independence; have a number of memberswhich is at least equal to half of the company’s employees plus one. Moreover, the newlaw establishes a single criterion by which a trade union can be set up, while the previousregulations provided for associations, and sectoral, occupational or territorial criteria.Unions can be legally established only at the economic sector level, which further restrictsthe possibility for domestic workers, for example, to join an existing union.

This new law eliminates collective bargaining at national and branch level, which isreplaced on an industrial sector level. Thus, collective agreements can be negotiated atthe level of the enterprise, groups of companies and sectors. It is mandatory only at theenterprise level, unless the business unit has less than 21 employees, in which case theright to initiate bargaining lies with the employer or employers' organisation. The clausesof collective agreements apply:

• to all employees of the company or group of companies where collective agreementswere concluded at this level;

• to all employees engaged in the business units belonging to that sector where collectiveagreements were concluded, if the companies belongs to employers' organisationsthat signed the contract.

These regulations exclude the possibility that people who are not employed in thesebusiness units may benefit from the provisions of collective labour contracts and isanother reason not to join the trade unions.

Moreover, the same law significantly changed the regulations concerning the Economicand Social Council, which became a public institution responsible for tripartite dialoguebetween employers' organisations, trade unions and representatives of organised civilsociety. As a consequence, representatives of the government in the Economic andSocial Council are about to be replaced by civil society representatives.

The Economic and Social Council (ESC) has 45 members, appointed as follows: 15members each appointed by trade unions and employers' organisations representativeon national level; 15 members representing civil society, appointed by the PrimeMinister, at the proposal of the Ministry of Labour, Family and Social Protection fromcooperative structures, the professional organisations, consumers organisations,

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scientific and academic community and other NGOs. It is not unintentional that NGOsare the last in order in the law, making their possibility of becoming members of the ESCand of having their interests represented extremely low.

Non-governmental organisations that could represent the interests of migrants and otherdisadvantaged groups are excluded by the fact that civil society representatives areappointed by the Prime Minister and by the way the list of potential organisations that couldbe represented in the Economic and Social Council is made up. Thus, the fundamentalright to belong to a trade union, to collective bargaining and to representation in thetripartite structures is denied to some important categories of workers, particularly theones exposed to social risks.

Further, social partners declare they are not consulted or that consultation is merely aformal procedure without any real willingness to exchange views when it comes topolicies on migration, and that they are not part of the inter-ministerial committeesresponsible for implementing national strategies and annual plans in the field.

In terms of normative acts, trade union leaders immediately say that the one that isbeing discussed with social partners is the government decision approving the annualnumber of work permits that may be issued to foreigners on an annual basis. Thisnumber is proposed by the Ministry of Labour. In 2007-2009 the employers put pressureon the government to increase the number of foreign workers, arguing that there is ashortage of available labour in the country. The maximum number of work permitsduring this period was 15,000 per year. In the period 2010-2011 the number of permitsdropped considerably (to 5,500 – 8,000) but not the pressure of trade unions, concernedabout rising unemployment in Romania. Unions reproach employers for, above all, thelack of transparency in estimating the demand for foreign labour, accusing them ofusing foreign labour as a means of avoiding legal obligations in Romania on wages,working conditions, social protection, etc.

'Employers want to overstate the size of the labour shortage to have more facilities.Facilities means the freedom to seek labour where they want and in any circumstancesthey want because, in fact, the employers want the right to social dumping ... andsomehow to legitimise social dumping.’ (representative of a trade union confederations).

A very interesting element in this discussion is that recruitment agencies are organised inan employers association which is affiliated to an employers' confederation and participatein social dialogue commissions in discussions on legislative acts on migration.

Employment policies have also been criticised, an example raised being the fact thatemployer’s face the same sanctions, whether they employed undocumented workers,foreign or Romanian, but the consequences for workers are not the same. Trade unionleaders are concerned about how the measures taken by the Labour Inspectorate and/orRomanian Immigration Office in some cases are affecting workers. This concern isjustified considering the fact that termination of employment automatically leads towithdrawal of the work permit and thus the right to live in the country, if a new employeris not found within 30 days.

Collective bargaining contracts in Romania don’t include special clauses concerningmigrant workers. With few exceptions, there are no actions for these categories ofworkers. The National Trade Union Block implemented a project to raise awareness ofmigration issues among trade union members and set up an office to inform socialpartners and provide support to trade unions confronted with problems/cases in thefield. When the media reported on abuses against foreign workers, the trade unionconfederations tried to take action against the employers, urged the public institutionsto take a position, and informed the international trade union organisations.

The situation is similar for Romanians emigrating abroad. They are not members oftrade unions, in Romania or in the country of destination, but there are associations ofRomanians or local trade unions who might protect them when they are in difficultsituations. There are also cooperation agreements between Romanian trade unions andsimilar organisations in the countries of destination, notably about informing Romanianworkers about the working and living conditions in these countries. Asked about thereason for the lack of initiatives to provide better protection for migrant workers, tradeunion leaders mention the lack of resources, capacity, civic education, prioritisation,cultural barriers, lack of direct contact (through isolation, most often deliberate, offoreign workers), which, at least until now have prevented them from organising migrantworkers. The recent legislation will make their involvement even weaker.

“The trade unions and the NGOsare promoting the ratification ofILO Conventions no. 97 and 181and the adoption of a nationallegislative package to regulatethe activity of national orforeign recruitment agencies.”

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The new Labour Code, adopted in the same circumstances in 2011, also puts migrantworkers in a potentially more vulnerable position: employment contracts now includethe job description and the evaluation criteria but only the Romanian language versionis signed, exposing the foreign workers who do not speak the Romanian language toabuses from their employers. Further, arbitrary, unrealistic excessive workloads areused by employers to diminish the promised salaries. The legal maximum duration ofworking time is 48 hours per week, including overtime. Employers are obliged by lawto keep track of overtime, which will expose workers working more than the legalmaximum to the risk of not being paid for time worked in excess of the 48-hour limit.

Good practiceMonitoring and regulating the recruitment agencies

The major trade union confederations (the Cartel ALFA National Trade UnionConfederation, the FRATIA National Confederation of Free Trade Unions in Romania andthe National Trade Union Block) and the main NGOs active in the field of migration havecalled on public institutions to get actively involved in monitoring the way in which labourlegislation is applied with regard to the protection of migrant workers and in improvingthe regulatory framework, in order to ensure the observance of their rights in Romania.

They have also pointed out the problems regarding the non-observance or the subsequentmodification by employers and recruitment agencies of the initial verbal agreement orthe actual employment contract, especially with regard to wages and working hours. Theabsence of a proper legislative framework to regulate the activity of these agencies, basedin Romania or abroad, leaves room for many violations of migrant workers’ rights, bothduring recruitment, during the administrative procedures to obtain a work permit inRomania and during their employment period. As for the foreign recruitment agencies,although it is true that the Romanian authorities cannot carry out controls outside thecountry’s borders, it’s equally true that once on Romanian soil, these companies can besubject to the licensing conditions imposed by the Romanian state, conditions that canensure enhanced protection and observance of foreign workers’ rights.

The trade unions and the NGOs are promoting the ratification of ILO Conventions no. 97and 181 and the adoption of a national legislative package to regulate the activity ofnational or foreign recruitment agencies.

The Employers’ Association of the Agents for Labour Placement (ACORD) is an employers’association promoting initiatives for simplifying bureaucracy, for avoiding unfaircompetition between public institutions and private agents specialised in the field of labourplacement. It supports the need to increase monitoring of recruiting agencies, introducinglicensing, suggesting that authorities should take more responsibility, promotingcollaboration between trade unions and employers' associations on a “win-win” principle28.Until now progress in this field has been minimal but civil society will continue pressingthe government to improve legislation is the field.

The main concern for Romanian emigrants is the lack of social insurance. Most Romanianmigrant workers have been involved in agriculture, domestic care or construction for morethan ten years now but cannot benefit from health, unemployment, pension or occupationaldiseases benefits. In October 2010, the Romanian government took the initiative to regulatethe situation of people who are not retired or insured, giving them ‘temporary’ permissionto pay social security contributions retroactively for the past five years. With GovernmentEmergency Ordinance (GEO) no. 94 the government tried to provide anyone, regardless ofcitizenship, domicile or residence, who was not insured by the public pension system andhad no obligation to pay contributions to the public pension system a chance to get pensioninsurance. The measure was criticised for the very short period (two months) in which asignificant sum (around 2,600 euros) had to be paid and for the bureaucratic procedures,which meant it was not possible to send contracts and money online, as well as for nottaking into account the large distances some would have to travel to reach the Romanianconsulates (especially for Canada and the U.S.A). The measure supports those who havecontributed before but do not have the full contributions needed to make them eligible fora pension. It is less helpful for people who have not contributed so far (as in the case ofpersons who worked illegally or as seasonal workers). It was the only measure adopted bythe government of Romania to try to regulate the situation of Romanian emigrants who are

28 The report of the workshop “Addressingthe Demand Side of Chinese MigrantWorkers in European Countries: Workshopin Romania”, Bucharest, 2009

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not coved by social insurance. In March 2011 the Ministry of Labour announced that 5,682contracts had been signed. According to the period of insurance there were 2,185 contractsfor a period of up to one year, 1,307 up to 2 years, 833 up to 3 years, 519 - up to 4 years and834 - up to 5 years. The measure was not repeated in 2011 and the agriculture trade unions,for instance, do not support the idea of introducing social insurance, because smallfarmers lack the capacity to contribute to them.

Conclusions More protection and regulation needed

The current case study looks at the impact of recruitment agencies on migrant anddomestic workers’ working conditions and the risks that vulnerable categories of workersare exposed to, owing to the lack of legislation to regulate their activity in Romania.

Adequate measures are needed to protect migrants at the national level including locallaws, regulations and standards concerning the activity of recruitment agencies (e.g.,licensing requirements for private recruiters, recruiters being jointly liable for any andall claims that may arise in connection with the implementation of the employmentcontract), and sufficient capacity for effective monitoring and enforcement mechanisms.The issuing and withdrawing of licenses to private recruiters is one of the most importantinstruments governments have to help regulate the activity of private recruitmentagencies, protect migrant workers’ rights and ensure the inclusion of internationalstandards (such as the ILO Conventions) in national legislation. Bilateral agreements onlabour mobility between sending and receiving countries can also provide a legal andoperational framework for mediation services and migrants’ protection.

Measures are also needed at the European level for migrants’ protection, since the activityof the recruitment agencies is steadily growing and exceeds national and even Europeanborders. ILO Convention 181 on Private Recruitment Agencies and Convention 97 onMigration for Employment Purposes should be ratified by the European Member States, inorder to regulate recruitment agencies’ practices in terms of the respect of workers’ rightsand to guarantee similar working conditions to nationals for workers from third countries.

Recommendations

To European institutions

Introduce tighter European regulations on recruitment agenciesThere should be a broader discussion on the activity of such recruitment agencies in Europeand outside Europe’s borders. Labour brokerage is an activity that exceeds the national andEuropean framework and that is why the introduction, at European level, of a licensingsystem for the providers of recruitment and placement services should be considered,following the British model29, which has already been implemented in agriculture.

Improve international cooperation to harmonise recruitment practicesIt is important that migrant workers receive a contract, in the source location, identical tothe one in the target location, explaining clearly the workers' rights, as well as theirobligations, covering salaries and payment of the same, working hours and other matters.Measures must be put in place to prevent the initial contract being “replaced” by differentversions at the target location. Bilateral agreements between countries on labour issues,cooperation between consular officials, Labour Inspectorates, social partners in thecountry of origin and the country of destination can play an important role in monitoringthe application of contracts and informing the relevant authorities of any problems. Publicservants from all countries, from all levels, must also be responsible for ensuring thatworkers understand their rights and that employers and recruiting agencies are fullyfamiliar with the legal procedures.

29 The employment of foreign citizens inagricultural work in Great Britain, underthe Seasonal Agricultural WorkersScheme – SAWS – is only allowed throughoperators that have the approval of theBorder and Immigration Agency and havefollowed the necessary licensingprocedures and obtained a license fromthe Gangmasters Licensing Authority. Itmight look little strange to propose such asystem at the European level now, whenthere are discussions in Great Britain tocompletely abolish the funding of theGangmasters Licensing Authority but thiscould be an effective instrument forcombating worker exploitation, given thatthe European authorities have a reducedcapacity to control private operators basedin third countries, and that ILO Convention181 on private recruitment agencies hasonly been ratified by 11 European countries(Belgium, Bulgaria, the Czech Republic,Finland, Hungary, Italy, Lithuania, theNetherlands, Poland, Portugal and Spain).Such a procedure can ensure thetransparency of these companies’ activity,provide the necessary controlmechanisms, and create the frameworkfor a proper observance of workers’ rights.Moreover, this accreditation system willprovide the same type of guarantees forworkers recruited from a member state towork in another member country andthose recruited from a third country towork in the EU.

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To national governments

Forge proper regulations governing employment and recruiting agencies in Romania

There is a need for clear regulations on labour operations in the private sector andrecruiting agencies using the framework provided by ILO Convention 181 (1997) onPrivate Recruiting Agencies. It contains several provisions that can help Romania put anend to abusive practices. These include regulations stipulating sanctions, including theexclusion of labour agencies that use illicit practices in the private sector, and thecreation of procedures involving the most representative employers’ and trade unions’organisations to investigate complaints, alleged abuses and illicit practices. Even ifRomania is not ready to adopt this Convention, it is possible to improve the existinglegislation and introduce at least some of the previsions of the Convention. Thegovernment should use legislation to define and promote the characteristics of a goodrecruitment agency, based on an ethical recruitment code. In addition, the socialpartners can work to create best-practice guidelines for recruitment agencies.

Consolidate the monitoring capacity of public institutions in Romania

The Labour Ministry, the Labour Inspectorate, The National Agency for Employment and theRomanian office for Immigration have a role to play in assuring a well organisedmanagement of migration while protecting the rights of all workers. An inter-ministrycoordination mechanism has been set up and the legislation on immigration was revised in2011. Improving the monitoring of recruitment activities should follow, based on existingexperience. Granting licenses and registering employers in the private sector and privaterecruitment agencies is an efficient manner of providing compliance with labour legislation.The rules on Labour Inspectorate must be strengthened so that labour inspectors are ableto monitor the conditions under which third country nationals are recruited and employed.Labour Inspectorate should cover all workers, including domestic workers.

To social partners

Foster social and civic dialogue

Social dialogue, between employers’ and trade union organisations, as well as civicdialogue, involving government agencies and NGOs with experience in the field, isimportant at several levels. It is essential that any new regulations or any new mechanismsfor granting licenses and monitoring be adopted by consulting with the employers’ andtrade unions’ organisations and should reflect their concerns. It is necessary to promoteconsolidated dialogue in order to agree upon concrete measures to assist migrant workersand to find ways to solve their grievances.

Increase trade unions’ and NGO’ capacity

The social partners and the NGOs should increase their capacity to inform migrantworkers, protect and promote human rights, by:

• providing knowledge and information on legal recruitment, the legal framework andhow to access the labour market in the host country;

• offering vocational training;

• increasing awareness of fundamental rights;

• providing language skills, cultural accommodation, access to economic and socialrights;

• using informal communication channels to promote peer-to-peer informationexchange among workers in both online and off-line environments for improving therecruitment process.

Authors: Rodica Novac Interviews with the Filipino workersand the recruitment agencies’representatives by Laura ŞtefănuţResponsible editor: Conny Reuter

Editor: Sara Hammerton

Project Coordinators:Adeline Otto and Francesco Zoia Bolzonello

Publication Coordinator:Abigail Goundry

Printed on recycled paper©SOLIDARMarch 2012

This publication has been produced with theassistance of the European Union. The contentof this publication is the sole responsibility ofSOLIDAR and can in no way be taken to reflectthe views of the European Union.

About the project“Making Industrial Relations workfor Decent Work” is a one-yearproject which looks to intensify thecooperation and mutual learning ofrelevant actors - employers, unions,NGOs, think tanks and workers – toidentify the role as well as the toolsand models needed for effectiveindustrial relations, with the ultimateaim of combating precarious employ -ment and realising decent workingconditions and quality jobs for all.

This briefing, coordinated by SOLIDAR,was produced by SOLIDAR memberADO SAH ROM in Romania. www.adosahrom.ro

All “Making Industrial Relations workfor Decent Work” pilot studies areavailable on www.solidar.org

SOLIDAR is a European network of 56NGOs active in over 90 countriesworking to advance social justice in Europe and worldwide. SOLIDARvoices the concerns of its memberorganisations to the EU and inter -national institutions across the policysectors social affairs, internationalcooperation and lifelong learning.

Supported by DG Employment, Social Affairs and Inclusion.

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