EU Regulations: Employer Sanctions & Workplace Safety
Sanctions Against Employers of Third-Country Nationals in Irregular Situation
This section addresses the importance of access to the world of work as a powerful mechanism of attraction for foreign people. It aims to establish legal mechanisms to limit work performed in an irregular situation, which poses a significant risk to social cohesion. The rule combats illegal immigration by prohibiting businesses from employing third-country nationals who are undocumented. The specific situation of irregularity is the presence in a Member State of a national of a third country that does not comply, or has ceased to comply, with the conditions for stay or residence in that Member State, as determined by the regulations of each state.
Businesses must play an active role in checking the administrative regularity of the worker to be hired. Otherwise, they may be held economically liable, with different graduations if the workers provide services at the employer’s home for private purposes, provided that the conditions of their activities are not abusive. Diligent performance by the employer will allow them to be relieved of liability if it is subsequently found that the documentation submitted by the foreign person was false or had been used illegally.
Financial liability applies not only to the employer but also to potential contractors or subcontractors in the production chain. The bill requires Member States to ensure the acceptance of those responsibilities, without prejudice to establishing strict liability rules under national law.
An irregular situation, even if “consolidated” (i.e., the provision of services outside the law), does not imply endorsement for the immigrant to remain, either for residence or work purposes, in the host country. Business practices that clearly infringe upon the rights of immigrant workers (e.g., abusive conditions in the employment of minors, or the illegal employment of a “large number” of workers simultaneously) will lead to criminalization, as the rule requires states to provide for criminal penalties in their national legislation.
Penalties, which may be economic (“direct” or “indirect”), can be imposed on employers who hire illegally, either voluntarily or by failing to adopt control measures to verify the regularity of the foreign worker’s documents.
Health and Safety at Work
The Treaty establishing the European Economic Community includes a commitment by States to protect health and safety, as well as a commitment to regular improvement, “by way of progress,” of the framework “to protect the health and safety of workers.” Agreements are taken by qualified majority.
TCCE: Improvement of these provisions by the states, provided they are compatible with the Treaty. Example: Article 1.3 of Directive 89/391/EEC, which does not affect “the national and Community provisions, present or future, which are more favorable for the protection of safety and health of workers at work.”
Directive 89/391/EEC of 12 June 1989 (“Framework Directive”)
Its objective is the implementation of measures to encourage improvements in the safety and health of workers at work. It applies to all sectors of activity, public or private, except for certain specific public duties such as military, police, and civil protection services.
Key Definitions:
- Worker: Any person employed by an employer, excluding workers employed by the family home.
- Employer: Any natural or legal person who holds an employment relationship with the worker and has responsibility for the company and/or establishment.
- Representative: Any person designated by the workers as a safety officer and occupational health representative.
- Prevention: The set of steps or measures taken or planned at all stages of business activity “in order to prevent or reduce occupational risks.”