Essential, lonely and exploited: why mobile EU workers’ labour rights are not enforced

ABSTRACT

Labour mobility within the European Union (EU) is still increasing, and often such workers carry out ‘essential’ work. Yet, while EU law accords certain labour and social rights, mobile workers de facto often have only limited rights. We study why especially these ‘essential’ workers are often exploited and focus on enforcement actors – control authorities checking upon and interest representation bodies pushing for workers’ rights. We thereby contribute to broader literature on the precarious character of EU free movement in practice. For one, we offer an analytical framework to grasp enforcement by using the dichotomy of police patrol and fire alarm, each breaking down for willingness and capabilities. For another, we stress the relevance of two factors hampering enforcement: While, as we argue, the demand for cheap labour by economies and societies of destination has an impact on the willingness to see rights guaranteed, the isolation of workers limits the capabilities of both police patrol and fire alarm. We illustrate our argument with empirical evidence from live-in care work and international road transport, mainly based upon semi-structured interviews with control authorities and interest representation bodies in Austria and Germany, and with additional interviews in Poland and Slovenia.

KEYWORDS:

• European Union
• labour mobility
• exploitation
• isolation
• enforcement

Introduction

During the Covid-19 crisis, the significance of (EU) mobile workers – persons working in another country for a rather short time via posting, hiring-out, self-employment or atypical employment – for Western EU member states has once again become obvious. When borders within the EU were partly closed, a range of member states introduced special rules and measures to ensure that certain persons could still move to their country. These persons, undertaking work that ensures the ‘reproduction of labour power and social relations’ (Mayer-Ahuja and Nachtwey 2021, 13), typically referred to as ‘low-skilled’ work, have suddenly been named ‘essential’¹ workers at the EU and national level (Bergfeld and Farris 2020; Rasnača 2020; see European Commission 2020). As such, they were exempted from (travel) restrictions. At the same time, their labour and social rights were paradoxically loosened. For instance, Austria ordered special flights and train rides for live-in care workers from Romania and Bulgaria in order to prevent the collapse of the care sector (Leiblfinger et al. 2021, 6).² In the road transport sector, several countries loosened the EU rules on driving and resting times in order to ensure the supply of food and medical products.³ In short, mobile workers, especially EU citizens from Central and Eastern European countries, but also (posted) third-country nationals are an important labour force for Western member states, and labour mobility in the EU is still increasing. Yet, it is in many cases far from being a ‘fair’ mobility in practice. While EU law accords certain labour and social rights that have even been strengthened by e.g. the revision of the Posted Workers Directive, various literature has demonstrated that mobile workers’ rights are de facto often violated (Arnholtz 2019; Wagner 2018). This has become even more apparent during the Covid-19 crisis (Rasnača 2020).

We study why especially these ‘essential’ workers are often exploited and focus on EU member states’ procedures of enforcement, i.e. their mechanisms, involving control authorities and interest representation bodies, to oversee compliance with EU or national law and to curb exploitative work arrangements of foreign workers within their boundaries. By doing so, we contribute to the literature on the practical implementation and the precarious and exploitative character of labour mobility and EU free movement in practice. Enforcement via controls of working conditions, by checking upon the situation of the worker at the workplace, and representation of workers’ interests are two crucial mechanisms to ensure that rights are de facto applied, hence to counter the violation of workers’ rights (Wagner and Berntsen 2016, 6). While several studies dealt with the enforcement of labour and social rights (e.g. Wagner 2018), there is still more research in this respect needed: especially ‘more attention should (…) be paid to enforcement actors such as unions and labour inspectors’ (Arnholtz 2019, 1162). Our contributions are fourfold: First, we develop an analytical framework to grasp enforcement in a systematic way: We differentiate between police patrol executed by control authorities and fire alarm set off by interest representation (McCubbins and Schwartz 1984) and break down each for willingness and capabilities. Research has already identified several obstacles to enforcement, e.g. that controls are costly and elaborate (e.g. Jensen 2007; Wagner 2018), which can be assigned to the categories of willingness and capabilities of police patrol and fire alarm. Secondly, we stress two factors whose relevance for non-enforcement has received less attention so far: the demand for cheap labour by societies and economies of destination and the isolation of mobile workers. While the former reduces especially the willingness to (let) execute police patrol, the latter hampers the capabilities of both control authorities and interest representation to reach mobile workers. Thirdly, we specify two mechanisms of alternative police patrol: controls via the back door and indirect controls. We define the former as controls in which authorities officially check upon something else, and by doing so, have the possibility to also check upon workers’ rights. Indirect controls, for their part, refer to controls of third parties who are involved, e.g. brokering agencies.

We illustrate our argument with empirical evidence from international road transport and live-in care work, mainly derived from semi-structured interviews with control authorities as well as interest representation in Austria and Germany, and with additional interviews in Poland and Slovenia. We thus, fourthly, provide an empirical contribution based upon perspectives of typical countries of destination but also of origin or posting, as well as of two sectors which have only at first sight few in common: Transport is mostly in the hands of men,⁴ care in those of women (Leiblfinger et al. 2021, 3). Furthermore, international truck drivers⁵ are hyper mobile, while live-in caregivers perform most of their work at the ‘client’s’ home, i.e. in a private household. Yet, the two sectors have striking similarities: First, parts of economies and societies of destination heavily rely upon this cheap labour. Second, they are characterised by an isolated work environment. They are hence ‘extreme’ cases (Seawright and Gerring 2008), in which general problems of labour mobility become even more apparent.

The article is structured as follows: The subsequent section lays down the analytical framework of enforcement. We then move on with our theoretical arguments on hampered enforcement (section 3). The fourth section presents the case selection and methodology. Our argument is illustrated with empirical evidence from international road transport (section 5) and live-in care work (section 6). The final section summarises and draws a broader picture, stressing that labour market dynamics, as well as welfare policies, can bring mobile workers into precarious situations.

Assessing enforcement: willingness and capabilities of police patrol and fire alarm

Hereafter, we show the necessity to focus on enforcement and provide an analytical framework to assess enforcement in a systematic way, by building upon diverse scholarly contributions of e.g. public administration.

De facto rights may not correspond to de jure rights. To what extent the law in the books corresponds to the law in action highly depends upon application and enforcement (Martinsen and Vollaard 2014, 684). While EU-level actors can also be engaged in enforcement, it is mostly up to member states to oversee compliance with EU rules (Hartlapp 2014, 806), in this case ‘fair mobility’. When doing so, member state governments can either employ the technique of police patrol or rely on fire alarm (McCubbins and Schwartz 1984). Police patrol involves a rather active role of the state: Member state governments (instruct to) check a sample of activities to detect breaches of the law in practice. Such regular surveillance should have a deterrent effect and hence discourage non-compliance. In contrast, fire alarm rests upon a less active principle of supervision. It relies upon (third) parties, such as interest groups, that point to violations (McCubbins and Schwartz 1984, 166). In our context, it is typically (labour) inspectorates, subordinated to the Ministry of Finance or Employment, that have the task to examine labour and social rights in practice as police patrol. And it is the persons whose rights are violated or their interest representations that may set off a fire alarm – in our context mobile EU workers themselves and workers’ representation bodies.

In order to analytically capture member states’ procedures of enforcement in a nuanced way, we further build upon the concepts of willingness and capability⁶ that are extensively researched in public administration (May 2012; May and Winter 2009; Tummers, Steijn, and Bekkers 2012) and have also been used in EU implementation and compliance research (Rennuy 2020; Treib 2014). While research on mobile workers or migrants mentioned the importance of willingness and capacities for enforcement (Hartlapp 2014) and studied both labour inspectorates and interest representation (e.g. Wagner 2018), it focused on the role of either capabilities (Hartlapp 2014; Wagner 2018) or willingness (e.g. Van der Leun 2003). However, ‘capability and willingness are not only individually necessary but also jointly sufficient for the outcome’ (Schmälter 2018, 511), and therefore both have to be considered. Enforcement has, to our knowledge, not been grasped in such an encompassing way, taking both willingness and capabilities of both police patrol and fire alarm into account – a gap that our contribution seeks to overcome.

We thereby define willingness as actors’ desire (Lipsky 1980) to (let) enforce law or policies in practice, what can be influenced by e.g. preferences and incentives (Schmälter 2018), managerial or political signals as well as personal characteristics (Lipsky 1980; May and Winter 2009; Tummers, Steijn, and Bekkers 2012). This means that actors may or may not (have been signalled to) have a high interest in seeing rights enforced. Capabilities, for their turn, refer to, e.g. institutional power, (financial, personnel or time) resources and structural factors that are necessary in order to be able to enforce law or policies (Addison 2009; Lipsky 1980). Actors may be willing to enforce rights, but may not make much progress because they do not have the capabilities to do so.

Enforcement in the context of exploitation

Research has already identified a range of factors which concern willingness and capabilities of enforcement actors: For instance, police patrol takes effort, is costly and time consuming (Jensen 2007, 455), what may result in only a minimal extent of controls, all the more in case inspectorates face a staff shortage (Iannuzzi and Sacchetto 2020). Moreover, inspectorates may have only a limited mandate (Wagner 2018, 35, 61ff.). These factors can be assigned to resources of capabilities (e.g. shortage of staff) and institutional power (limited mandate) and are hence factors that hamper the capabilities of police patrol control authorities. Interest representations, for their part, are – as research already found – confronted with several challenges that hamper the capabilities of such fire alarm: inter alia limited resources (staff, time or money), or structural factors such as mistrust, language barriers or short-terms stays (Bernaciak 2015; Fitzgerald and Hardy 2010; Wagner 2018).

While the reasons are hence manifold and scholars have already pointed to a variety of reasons for limited enforcement, two underlying factors have attracted less attention so far: (1) the demand for cheap labour – as a factor affecting willingness, and (2) the isolation of foreign workers – as a structural factor affecting capabilities. While the former concerns the willingness for police patrol, the latter impacts on the capabilities of both police patrol and fire alarm.

Demand for cheap labour

Many EU states have undergone a process of deregulation and flexibilization of labour markets leading to dualised labour markets (e.g. Emmenegger et al. 2012) with a tendency to low-wage, precarious employment in the secondary sector. In the latter, (female) migrants are over-represented (European Commission 2021). Moreover, posting of workers has become a transnational, low-skilled labour market (Dølvik and Visser 2009). Often, work in the secondary sector is ‘essential’ for societies – work that ensures the ‘reproduction of labour power and social relations’ (Mayer-Ahuja and Nachtwey 2021, 13): inter alia to make labour power of other persons ‘available’ e.g. via care work, to ‘maintain labour power’ e.g. via food processing, or to provide goods for ‘the everyday reproduction of labour force’ e.g. via transport (Mayer-Ahuja and Nachtwey 2021, 41f.).

In general, capitalist systems rely on cheap labour and companies may search for persons undertaking such work beyond national borders. A strand of research has been dealing with the global division of labour and the relocation to the ‘Global South’ where labour rights are supposedly weaker, also since they are less enforced, and costs are hence smaller. In this case, labour standards are not within the competence of the states of consumption (see e.g. Scherrer 2017). Yet, also in case work takes place within a state’s territory, economic interests are similar and enforcement may not be guaranteed, especially in transnational work arrangements. Companies may also employ posting or other forms of atypical transnational work within their state’s borders, partly with opaque chains of subcontractors, as a long-term strategy, while the ‘sovereignty of states is territorially bounded’ (Scharpf 1999, 14). Companies may make strategic use of e.g. posting and thereby transfer the burden of economic uncertainty to workers (Meardi, Martín, and Riera 2012). The EU is insofar an extreme case, as its four freedoms are core elements of a deep economic integration allowing for diverse forms of transnational employment, while social policy is not harmonised (Dølvik and Visser 2009; Wagner 2018). This demand for cheap labour by societies and economies of destination matches a demand for any or comparatively better paid work by persons from countries of origin – an additional factor that we, however, cannot focus on in detail in this contribution (but see Conclusion).

The demand for cheap labour has implications for the willingness to (let) undertake police patrol, as we argue in the following. Literature has already shown that enforcement in labour markets may be selective, and depend upon political interests (Van der Leun 2003; for global division of labour see Scherrer 2017). Indeed, parts of societies or economies of destination states highly rely on cheap labour in certain sectors, especially those considered ‘essential’. This private interest spills over to a public one, if financial costs for the citizens of that state, as e.g. consumers, would otherwise rise. It may hence be chosen to rely upon a system which is to the disadvantage of (less) persons who are not allowed to vote – exploited mobile workers – instead of having negative effects for many persons who are allowed to vote – the citizens of that state. There may hence be no political will to see foreign workers’ rights guaranteed. Control authorities may receive signals from superiors to turn a blind eye on several spots, or staff may not be topped up – which links over to capabilities of enforcement actors. The demand for cheap labour hence hampers the willingness for police patrol.

Isolation of workers

Partly because of their position in the secondary labour market, mobile workers are isolated – independent from the freedom under which they move (see also Caro et al. 2015; Stachowski 2020). Exploitation and isolation are mutually dependent and reinforcing – and we will focus on the impact of isolation on enforcement of labour and social rights hereafter.

Mobile workers are typically ‘physically isolated’ and do not have relationships with e.g. the local community or most parts of the society in which they work (Stachowski 2020). They may be even spatially and structurally invisible (Lever and Milbourne 2017). Newly arrived persons are not within the focus of housing and integration policies (Malmberg et al. 2018). Mobile workers, for their part, may save as much money as possible and hence rather stay at their homes for the time abroad (Nikolova and Balhorn 2020) – as they are forced to ‘separate the spaces of labour from the spaces of social reproduction’ including social networks (Hristova 2020, 127). Isolation may hence also be a consequence of economic realities. In general, mobile EU workers therefore can be described as spatially and socially isolated. Workers’ isolation is an underlying factor of several factors hampering enforcement described above. It hinders the enforcement of labour and social rights.

As research on construction workers has shown, systematic enforcement is barely possible if there is a ‘geographical dispersion’ of workers (Arnholtz 2019, 1152). Controls in general are costly, and costs rise in case enforcement bodies need more effort to control workers, which is the case for individually isolated workers. For enforcement bodies, it therefore makes sense to focus on sectors in which they can more easily control a high number of persons, within little time. In short, isolation hampers capabilities of police patrol.

As concerns fire alarm, even though interest representation bodies take an effort in including mobile workers and are hence willing to set off a fire alarm (e.g. Boräng, Kalm, and Lindvall 2020), they face difficulties in reaching and organising mobile workers. With isolation, it becomes increasingly cumbersome for interest representation bodies to contact and organise this workforce. It is a challenge to create a feeling of unity (Refslund and Sippola 2020), that is the fundament for collectivism, amongst isolated workers. Thus, isolation hampers capabilities of fire alarm.

Case selection and methods

We illustrate our argument with empirical evidence from the extreme cases (Seawright and Gerring 2008) of live-in care and cross-border transport in Austria and Germany. The two sectors are extreme due to several reasons: First, societies and economies of destination highly rely upon these ‘essential’ workers. Second, live-in care workers and truck drivers are individually isolated: they typically work alone and have little contact with similar workers and the society in which they work. Third, they face a blurring of boundaries between work and private life: typically, workers even sleep at their work place, i.e. in the cabin of the truck or in the home of the person they look after. For the period in which they work, the work basically constitutes their life; both sectors can therefore be classified as 24 h work. In these extreme sectors, general problems of labour mobility become ever more apparent.

Austria and Germany were chosen because they are in general typical destination countries (European Commission 2021). In particular, mainly foreign workers carry out live-in care work as well as international transport in the two states. Both countries have powerful interest representation bodies and control authorities which could be expected to enforce workers’ rights. Yet, the two sectors in the two countries vary in important dimensions which allows for controlling further factors. The Austrian concept of Social Partnership involves very strong trade unions (Pernicka and Hefler 2015), while they are weaker in Germany (Dribbusch and Birke 2019). Germany further insofar differs from Austria as it has a special labour inspectorate, checking e.g. working times, in the transport sector, the Federal Office for Goods Transport. Finally, live-in caregivers mostly work via posting in Germany, and via self-employment in Austria.

Our qualitative analysis is mainly based upon semi-structured interviews with enforcement actors – control authorities checking upon workers’ rights such as the Financial Control of Undeclared Work Unit in Germany and interest representation bodies pushing for workers’ rights such as the German labour union ver.di – as well as further key insiders such as the Austrian social security authority. In total, we conducted 38 interviews, whereof 7 with control authorities, 18 with interest representation bodies and 6 with key insiders in the two states of destination. To complement our analysis for Austria and Germany with a perspective from typical member states of origin or posting, we further conducted interviews in Poland and Slovenia, 2 with trade unions and 5 with key insiders, e.g. the social security authorities. To guarantee a triangulation of data, our corpus of data further contains statistical data, reports, documents of e.g. parliaments and media articles. We focus on the perspective of (institutionalised) enforcement actors acknowledging this limitation to our study.

In the subsequent two empirical sections, we contrast the de jure and the de facto situation first, to demonstrate to what extent rights are violated. Afterwards, we focus on enforcement, which could counter these violations. We thereby illustrate our arguments on lacking enforcement, i.e. that the demand for cheap labour hampers the willingness to carry out police patrol and that isolation hampers the capabilities of both, police patrol and fire alarm.

International road transport

The situation of truck drivers in theory and in practice

While it had been controversial for a long time whether international transport fell under the Posted Workers Directive (Windisch-Graetz 2013),⁷ many countries – such as Austria and Germany – interpreted cabotage, i.e. when goods are moved in country A by an operator from country B after a cross-border transport, as well as transport of source from country A and transport of destination to country A as posted work.⁸ Hence, both in Austria and in Germany, truck drivers engaged in cabotage, transport of source and of destination had to be paid the collectively agreed wage or minimum wage for their working time in the respective country.⁹ In 2022, the Austrian collective wage for truck drivers starts at € 10.03/h.¹⁰ In Germany, the general minimum wage is €9.82/h in 2022.¹¹ As concerns working and rest time, according to the EU Regulation 561/2006 on the harmonisation of certain social legislation relating to road transport, truck drivers are in general allowed to drive up to 9 h per day and need to have a break of at least 45 min after driving 4.5 h. Per day, they need to rest at least for 11 consecutive hours; and per week for at least 45 h which the driver may no longer spend inside the truck.

De facto, truck drivers typically receive neither the German minimum wage nor the Austrian collective wage when engaged in cabotage, transport of source or destination in the two states. Rather, they are paid the minimum wage of the posting country (AT_1; AT_4; AT_6), often topped up with daily rates to reach the German or Austrian wage level (AT_1; DE_1; SI_3). This means that they receive around €250–600 of basic wage per month, and the rest in expenses for which the employers pay neither social security contributions nor taxes.¹² With this method, employers can demonstrate that the pay somehow equals the demanded wage when being controlled, but they still save money (AT_1). For truck drivers, this payment method has severe consequences, e.g. on unemployment benefits and pensions, where they could be ‘at the edge of ruin’ (AT_7). Besides, yet very rarely, drivers (of trucks > 3.5t) are bogusly self-employed (DE_1; AT_7),¹³ i.e. their ‘conditions of employment are similar to those of employees’, but they ‘declare themselves (or are declared) as self-employed simply to reduce tax liabilities, or employers’ responsibilities’ (OECD 2000, 156). As regards working and rest time, interviewees highlighted the high time pressure in the transport sector leading to violations of rules on working and rest time (AT_6; Bundesamt für Güterverkehr 2019). Reports about severe violations – working hours of more than 15 h per day with overtime being unpaid¹⁴ – demonstrate this pressure again.¹⁵

To sum up, labour and social rights are de facto frequently violated in the international transport sector. But how is that (made) possible? We point to the lack of enforcement and especially to two factors that have received less attention so far: the demand for cheap labour affecting willingness, and the isolation of drivers affecting capabilities of enforcement actors.

Limited police patrol in general and for demanded cheap labour in particular

Interviewees held that enforcement of labour rights in general did not have a high political priority within the Ministries of Finance, which are the superior authorities for inspectorates checking upon e.g. wage: for instance, the German government did not have ‘serious interest in controls or at all in effectively combating crime in the labour market’ (DE_3). Austria and Germany may hence show only a half-hearted approach in enforcing rights.

In general, inspectors of the German Financial Control of Undeclared Work Unit of the Customs Administration held that they were encouraged to undertake a certain amount of controls, whereas the quality of such controls was neglected. The Ministry of Finance considered the Inspectorate rather as a ‘verification service’ than as a police patrol, rather as a ‘partner of the economy’ (DE_3). While Austria highlights its particularity, with state officials describing it as ‘equator of wage’, neighbouring countries with lower socio-economic levels, the Ministry of Finance would also not be of the opinion that more presence of inspectors would have a positive effect (AT_1). The Ministries, therefore, have less interest in topping up staff of the Financial Police (AT_1; AT_7), linking over to capabilities of control authorities. Trade unionists held that ‘abuse is wanted’ by the Ministry (AT_7) and that ‘many [in the destination country] benefit from exploitation’: German enforcement authorities would not undertake controls so that German companies could make use of cheap mobile labour. One interviewee defined it as ‘structural racism’ – ‘one does not care if persons from the Western Balkans are exploited’ (DE_14).

As concerns the constellation of interests in the transport sector in particular, it is ambivalent, given that economic actors do not share an opinion: while several domestic transport firms face high competition and call for more rigid rules and enforcement, others, e.g. the industry, also benefit from cheap transport costs, and several domestic transport firms also established companies abroad and post workers from there (AT_1, AT_6). Personnel costs are the costs that make a difference in the competitive transport sector, and companies therefore often post workers from countries where social security contributions and wages are lower (AT_1; AT_2). Often it is brought forward that costs for consumers would rise if transport workers earned more (but see AK Europa 2020). A German trade unionist highlighted that it was in the interest of German (car) industry that (cheap) transport could take place without interruptions.¹⁶ Due to employer-friendly priorities, German inspections would also be laxer compared to those in other countries like Belgium (DE_1).

Police patrol and the hypermobile character of truck drivers

According to the competent Austrian enforcement authority for e.g. wage, the Financial Police, the transport sector is an exposed sector such as the construction sector, given the extremely high pressure on costs (AT_1). It is therefore also subject to ‘focus checks’ (AT_2; AT_8; Bundesministerium für Finanzen 2020). Still, the sector it focuses on most is the ‘risk sector’ of construction (AT_8). As data on controls of selected sectors shows, for instance in 2017, the Financial Police controlled twice as many companies in the construction sector as in the transport sector (see Table 1). In Germany, the picture is quite similar. Also here, while the Financial Control of Undeclared Work Unit considers transport a focus sector (DE_14), the sector checked on most is the construction sector, with the number of controls in this sector being two to three times higher than in the transport sector (see Table 1).

Table 1. Number of controlled companies by the Austrian Financial Police, in selected sectors^a & number of controls of companies by the German Financial Control of Undeclared Work Unit of the Customs Administration, in selected sectors^b.

		2016	2017	2018	2019
Austria	Construction		5517	5884
	Gastronomy & accommodation		4794	4717
	Transport		2466	3144
Germany	Construction	13,473	14,005	12,943	12,718
	Gastronomy & accommodation	6030	8179	9239	9610
	Haulage, transport and related logistics business	4635	6781	4975	6135

^a Austrian Nationalrat, 367/AB, 27 April 2018 and 2720/AB, 29 March 2019; data for the transport sector received from the Financial Police.

^b German Bundestag, Drucksache 19/875, 22 February 2018 and 19/18583, 7 April 2020.

In the transport sector, police patrol is hence limited. Austrian inspectors indicated a striking difference between sectors: while they dealt with, for instance, around 30 persons when checking an enterprise, they only controlled 1–2 truck drivers at the same time (AT_8). This hints already at an explanation for the lower number of checks given by a representative of an interest representation: the lower number for trucks could be explained by administrative economic thinking – ‘where do I catch more within a shorter time?’ – and by the complex legal and individual situation. ‘Controls are already difficult in the construction sector, but even more difficult in the transport sector’ (AT_6). What is more, for control staff, it was extremely difficult to assess wage in individual cross-border constellations, as they had to calculate the share for the work conducted on Austrian territory, which was again more complicated given that Austria has a complex collective agreement breaking down salary for qualification, job tenure etc. (AT_8). German inspectors describe the transport sector as a ‘huge problem’, and they admit that it is ‘under-controlled’ (DE_3).

The hypermobile and individual character of international truck drivers’ work makes controls a cumbersome process: truck drivers may cross different borders and underlie hence different rules of salary; the situation and constellation of each transport is different (SI_3). To sum up, the isolation of truck drivers hampers police patrol. As some compensation for this lack of controls, interest representation would be crucial to set off a fire alarm and enforce workers’ rights. To what extent also this latter factor is hampered by isolation is elaborated upon in the next section.

Fire alarm in multiple cross-border constellations

Truck drivers, as mobile workers in general, are typically neither part of their national interest representation nor of that of the countries they work in (Danaj et al. 2020), hence having formally no competent interest organisation. A further component, which has exacerbated the situation in the transport sector, is the fact that more and more third-country nationals are posted via Eastern European states – especially via Poland. Between 2012 and 2019, the number of driver attestations for third-country nationals more than quadrupled – from around 44,000 to around 199,000.¹⁷ This means that drivers can for example be of Bosnian origin, be employed by a company in Slovenia and be posted to Austria and Belgium. Often, at least three countries are somehow involved and the interest representation bodies of several countries could hence be concerned.

Truck drivers in international transport may operate in a range of countries. While they may not be familiar with the law and structures of the posting country, they may all the more not be familiar with those of the countries in which they work. As trade unionists highlight, workers agree to any employment rules because they are not aware of the formal rules, may not understand what they sign and accept any wage which is higher than the one at home (SI_3; AT_7). And with more and more third-country nationals carrying out transport activities, further languages and hence also language barriers arise.

Direct communication of trade unions with truck drivers is only rarely taking place, given that isolation is one aspect of how the work of the latter is organised. Therefore, truck drivers receive most of the information – if ever – from colleagues (Danaj et al. 2020). Truck drivers, for their part, only contact trade unions in extreme cases, e.g. in case they have not received any salary at all for a couple of months (SI_3). Contact between trade unions and isolated international truck drivers is therefore rather punctual, without any broader mobilisation and organisation of truck drivers.¹⁸

In short, traditional forms of interest representation prove inadequate for the organisation of hyper mobile, isolated truck drivers. While it is already difficult to reach, inform and organise mobile EU workers in e.g. construction, it is all the more difficult to do so for hyper mobile, individually isolated truck drivers. Their isolation therefore also hampers fire alarm.

Live-in care work

The situation of live-in care workers in theory and in practice

Live-in care work occurs under different legal regimes in the EU, e.g. under the posting of workers in Germany, and self-employment in Austria (Frerk et al. 2018). In Germany, live-in care workers have to receive, as posted workers, the German minimum wage, currently €9.82/h, and should commonly work 8 h per day and rest for at least 11 consecutive hours (German Working Hours Act). Typically, a brokering agency is involved (Verbraucherzentrale Rheinland-Pfalz and Verbraucherzentrale NRW e.V 2020). In Austria, live-in care work is mainly carried out by persons who are (formally) self-employed. As such, they do not underlie regulations on e.g. the (minimum) amount of salary or working hours. De jure, rights are hence already weaker in Austria. Such as in Germany, typically a brokering agency is involved (Durisova 2017).

De facto, in Germany, about 300,000 to 400,000 live-in care workers are irregularly employed (Satola and Schywalski 2016, 128). Posted live-in care workers typically receive fixed monthly earnings, e.g. around €1000 of net wage (DE_4),¹⁹ the rest – to reach the minimum wage – is topped up with daily allowances. Besides, social security payments for live-in caregivers are often low or, in some cases of undeclared work, non-existent. In the case of posting, the fact that social security contributions are calculated on the basis of the wage, excluding allowances, renders the contributions lower, which in turn has negative consequences for e.g. pension entitlements of the persons (Freitag 2020).

In Austria, where (bogus) self-employment prevails, in which the remuneration has to be negotiated with the care recipient and/or the brokering agency, it is rather difficult to show representative wages. Nevertheless, in order to give some practical insight, we use the following example which was given by an interviewee (AT_16): Ms. A gets €50 of remuneration per day (× 14 days rotation) totalling €700 for the 14 days, €110 travel expenses to get there and to go back, and €192 taxes for social insurance (paid by the client). Thus, her annual income amounts to €12,024. However, this is not the amount that she actually gets. Often a registration fee, as well as service fees, are deducted for the benefit of the brokering agency. At the beginning of the cooperation with an agency, the fees can be up to €800. Some agencies charge the fees in advance, others charge the service fees in monthly instalments, which amount to 7–10% of the care worker’s remuneration. The working time is oriented to the needs of the care recipients. Usually, live-in care workers take a rest break of 2 h per day and some smaller breaks (e.g. one smoke break per hour). They have an on-call duty 24 h a day (Durisova 2017; AT_16).

In sum, live-in care workers often find themselves in legal or illegal employment constellations in which they receive little money. What is more, they are confronted with a blurring of boundaries between work and private life as they have to adapt to the care recipient’s everyday activities in ‘pseudo-familial relationships’, which exacerbates their isolation (Xypolytas 2016, 33). They often face tremendous physical and psychological stress intensified by care recipients with serious illnesses (e.g. dementia), have little to no privacy and may even be exposed to physical and sexual violence (AT_13).

Due to the need for such cheap labour, political willingness to change the situation and enforce rights is limited. And especially due to the underlying factor of live-in care workers’ isolation, it is extremely difficult for control authorities to conduct police patrol as well as for trade unions to set off a fire alarm if necessary – what would be necessary to counter the violations of labour and social rights mentioned above.

Cheap live-in care as important pillar of the care sector

Without cheap labour from abroad, costs in the Austrian and German elderly care systems would explode, as brought forward by e.g. the Austrian Chamber of Commerce.²⁰ In the two countries, a system has developed which rests upon the exploitation of Eastern European women to allow (more affluent) parts of the society to (let) stay at home. Care of elderly persons, which used to be carried out – unpaid – by female members of the family that now tend to work, goes over to female foreign workers (Spindler 2011). Austria and Germany may hence (signal to) turn a blind eye on the situation and also show only a half-hearted approach in changing the situation and guaranteeing ‘fair’ rights to care workers.

Several factors suggest that countries of destination have less interest in seeing labour and social rights guaranteed. To begin with, while Austria provided a legal basis for the formerly illegal live-in care²¹ in 2007 (Österle and Bauer 2015), bogus self-employment is widespread ever since leading to the fact that already on paper, care workers have little formal rights. Furthermore, interviewees held that the state would not dare to enter private homes due to the sensitivity of the topic and in order to avoid bad publicity: ‘nobody (…) would like to see themselves lynched in the press, so to speak, because they let the customs officers trample through the house of the old, sick grandma’ (DE_3). And finally, while it may be difficult to undertake controls in private homes (see below), the control options that would be available, at least through the back door or indirectly, are rarely used or ineffective. Controls through the back door occur in case of authorities officially check upon something else, and by doing so, have the possibility to also examine workers’ rights. Indirect controls take place in case third parties who are involved, e.g. brokering agencies, are checked upon. In the case of live-in care, home visits of the Social Insurance of Farmers are announced in advance (Rechnungshof Österreich 2018). Unannounced home visits, implemented in a pilot project by the Ministry of Social Affairs in 2019, primarily aim at determining the needs of the care recipient (Bundesministerium für Arbeit, Soziales, Gesundheit und Konsumentenschutz 2019). These home visits open the doors of the private sphere of a household and could thus counteract the special isolated situation of live-in caregivers in private households and hence constitute controls through the back door. For agencies that broker caregivers, so-called rules of professional conduct and practice were introduced in 2015 and are checked upon by Austrian district authorities – a mechanism which can be classified as indirect control. The administrative authorities notified only 24 violations of rules in 2016, and only 28 in 2017 (around 800 brokering agencies are operating in Austria).²² These small numbers of violations do not implicate that brokering agencies follow the rules. They rather speak in favour of administrations’ unwillingness and incapability to conduct controls.

In Germany, the Financial Control of Undeclared Work Unit can, besides interviews with persons, carry out inspections via business records at brokering agencies, with due regard for the persons receiving care. In 2018, 403 employers were checked regarding compliance with the rules based on the Act to Combat Undeclared Work and Unlawful Employment. However, this number includes both care institutions and private employers. Interestingly, the number of controls of brokering agencies for the placement of live-in care workers is not statistically recorded by the Financial Control of Undeclared Work Unit (DE_9). This suggests that brokering agencies are rarely monitored and that controls in the live-in care sector are de facto non-existent. In sum, there is a lack of willingness for police patrol in the live-in care sector.

Police patrol and the inviolability of private homes

Live-in caregivers are considered mobile because they move from their home country to another member state every two to four weeks. At their working place, however, they are immobile and isolated, meaning that they work individually. Live-in care workers are in a special situation of isolation, in a private household. This form of isolation hampers controls in an extraordinary way, as private households are a safe space which is particularly protected from state intervention and control.

In Germany, the Financial Control of Undeclared Work Unit carries out almost no controls in private households, with reference to the inviolability of the home. Inspections are only possible with the explicit consent of the tenant or a warrant (DE_3; DE_9). As one inspector framed it, ‘as soon as I go into the private sphere, state control reaches its limits at some point. That's just the way it is’ (DE_3). In Austria, live-in care workers are in an equally isolated situation which constitutes, again, a crucial barrier for control authorities. Moreover, 95% of live-in caregivers in Austria are self-employed. The application of this labour regime to live-in caregivers means that there is no statutory control of the caregiver with regard to the provision of the service in terms of time and place or with regard to the sequence of work (AT_14).

Consequently, the special isolation of live-in care workers in private households does not only hamper police patrol, but almost prevents control authorities from checking the working conditions at all in traditional ways. Controls can only be achieved through the back door or indirectly.

Fire alarm and the unreachability of live-in care workers

The isolation of live-in care workers clearly hampers the capability of interest representations to develop substantial contacts to this workforce. Given that different labour regimes prevail in the German and Austrian live-in care sector, we do not only see different types of bodies responsible for interest representation but also different responses to foreign EU mobile workers. Both can be characterised as setting insufficient fire alarm, however, to different degrees.

Live-in care workers posted to Germany are typically neither members of the competent German trade union ver.di nor of the trade union of their state of origin (DE_4; PL_1). While ver.di tried to establish contacts by finally also proposing ‘low-threshold things’ such as ‘having a coffee together’, it complained about difficulties to reach this workforce due to workers’ isolation as well as disinterest as long as they did not face any serious problems (DE_7). And even when ver.di managed to get in touch with live-in caregivers from abroad, the temporary character of their work and language barriers prevented an ongoing collaboration. In Austria, self-employed live-in caregivers have to register at the Chamber of Commerce that also serves as their main body of interest representation. This Chamber provides basic legal and social advice for live-in care workers. However, it is confronted with the paradox to represent live-in care workers as well as brokering agencies at the same time, and sees itself rather as a representation of companies (AT_13; AT_16).

To sum up, traditional forms of representation fall short in informing and organising live-in care workers. The isolation of such workers hampers the capabilities of fire alarm.

Conclusion

Our article shows that traditional forms of enforcement prove insufficient in a transnational labour market. Importantly, enforcement actors – of police patrol and fire alarm – have to be both willing and capable to enforce labour rights in practice. However, as our research illustrates, member states are rather reluctant as concerns police patrol. They are not strongly willing to see workers’ rights enforced, especially in case economy and society highly rely upon such cheap labour. Controls rarely take place, inter alia as they are hampered by the fact that isolation is one part of the organisation of such work – and if controls do take place, they may be rather a ‘verification service’ instead of police patrol checking upon employers’ compliance. Member states rather stay passive and rely on fire alarm, whose traditional bodies would be willing to enforce rights, but are not strongly capable in reaching and organising transnational, isolated workers.

In response to this failure of traditional enforcement, alternative forms of interest representation via trade unions or counselling services for mobile workers (e.g. Wagner 2018) have been established. In international transport, for instance, the Austrian trade union vida and also the German counselling centres ‘Fair Mobility’, which were founded by the German Trade Unions Confederation to address the needs of migrant and mobile workers, started to approach truck drivers on rest areas. Vida also cooperates with Slovenian trade unions and started information activities on Slovenian territory (AT_7). In live-in care in Germany, the ‘Fair Mobility’ service centres across Germany also at least achieve to inform some of the workers about their rights. Further research needs to explore these alternative forms of fire alarm. While we concentrated on the side and perspective of enforcement actors, further research could deal with mobile workers’ perspective, and study how they may become political agents by e.g. claiming their rights or founding new forms of interest groups. In Germany, a live-in care worker that was informed by ‘Fair Mobility’ finally asserted her rights in court in a ground-breaking judgment.²³ In Austria, self-organised voluntary organisations advocating better conditions in live-in care work were founded.²⁴ These alternative forms of interest representation try to overcome the challenge of reaching and organising isolated live-in care workers via social media (AT_16). Finally, police patrol could also happen through the back door or indirectly. Yet, while controls can have a positive impact on labour and social rights, we would like to stress that they can also be intimidating for workers or not safeguard rights, e.g. in case fees are deducted from the salary.

An underlying factor which we could not discuss in detail in this paper is that mobile workers to some extent accept bad working conditions, inter alia given that they still earn more than in their state of origin (Refslund and Sippola 2020; Weisskirchner, Rone, and Mendes 2020; see also Xypolytas 2016). The socio-economic heterogeneity in the EU and beyond is thus a crucial, underlying factor determining the motivations and thresholds of acceptable conditions of diverse actors involved, both in states of origin and of destination. The division of labour in the EU along regions of origin hence needs further attention (Felbo-Kolding, Leschke, and Spreckelsen 2019), and also to what extent third-country nationals are (posted) mobile workers in the EU, in the sense of an international labour chain.

While our paper focused on the two sectors of live-in care and transport, our arguments are expected to apply to others, e.g. agriculture, too. Thus, our two case studies should not be considered as outliers. As extreme cases (Seawright and Gerring 2008), they rather serve as a magnifying glass, placing a spotlight on enforcement problems with regard to controls and interest representation. They demonstrate that isolation is a main characteristic as well as a condition of types of work that are related to extreme forms of exploitation and servitude such as also sex work or cleaning.²⁵ Moreover, they show that exploitation can concern both mobile women and men, yet, in different settings. Further research could delve more into the gendered segmentation of the European labour market (see already Kofman 2013) and offer deeper intersectional analyses.

Overall, our research speaks to the broader literature on precarious migration and mobility within the EU. Studies have already pointed to the fact that EU migrants are de facto not so privileged migrants given that their social and labour rights are eroded (Manolova 2021; O'Brien 2016). Their access to social benefits (and residence) is conditional upon work (Heindlmaier and Blauberger 2017; Shutes 2016), leading, together with workfarist policies, to ‘low-pay-no pay cycles’ (Alberti 2017; see also Lafleur and Mescoli 2018). This shows that motivations to take up work may not only lie in the fact that it is comparatively better paid in states of destination, but also be a consequence of labour market and welfare policy dynamics, as ‘everyday bordering’, i.e. constructed borders via e.g. bureaucratic practices within state boundaries (Yuval-Davis, Wemyss, and Cassidy 2018). We add to and move beyond this literature by pointing to the role of enforcement and by highlighting that violations in practice, as well as enforcement deficits, can be found independent from the exact freedom under which persons move within the EU. Rather, we point to the relevance of characteristics of labour markets (demand for cheap labour) and of the organisation of that work (isolation). Importantly, such work is often called temporary, but may de facto be a long-term employment situation of the respective persons (Manolova 2021) as well as a strategy of employers. In such situations, persons are ‘physically inside, but [partly also] juridically and socially set apart, from national systems’ (Wagner and Lillie 2014, 403). Borders have become ‘porous’ in the EU: in favour of capital but to the disadvantage of labour rights (Wagner 2015) – and enforcement actors. While the discussion about the global division of labour and labour standards within the ‘Global South’ is ongoing, as initiatives like supply chain laws that seek to guarantee core rights along the whole chain of supply demonstrate,²⁶ also labels such as ‘Made in Germany’ or ‘Made in Austria’ transporting images of a certain product standard paradoxically do not guarantee that workers see their core rights enforced.

Acknowledgements

We would like to thank our interview partners who made this research possible. All interview partners have received information about the purpose of data collection and processing, the possibility of revocability, and have given their consent. We are very grateful for the constructive comments of the two anonymous reviewers. The text further benefitted from comments by Susanne K. Schmidt, Michael Blauberger, Josephine Assmus, Christina Grabbe, Johannes Lindvall, Julia Rone, Kyoko Shinozaki, Dženeta Karabegović and Margitta Mätzke.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This work was supported by Austrian Science Fund [Grant/Project I 4064].

Notes

1 The European Commission (2020) referred to ‘those working in the health care and food sector, and other essential services (e.g. child care, elderly care, critical staff for utilities)’. Furthermore, ‘the transport and mobility sector [was considered] essential to ensure economic continuity’. Definitions of ‘essential workers’ vary between states, as governments were trying to exempt different jobs from restrictions (see Rasnača 2020).

2 https://www.derstandard.at/story/2000116365801/weitere-charterfluege-sollen-den-kollaps-der-24-stunden-pflege-verzoegern;https://www.derstandard.at/story/2000117394795/24-stunden-betreuerin-im-sonderzug-jetzt-wird-allen-klar-wie.

3 https://www.dvz.de/rubriken/land/detail/news/ueberblick-was-corona-mit-dem-strassengueterverkehr-in-europa-macht.html.

4 https://www.etf-europe.org/eu-road-freight-sector-needs-investments-in-a-socially-sustainable-innovative-fair-and-better-future/.

5 We refer to persons working in the road transport sector as truck drivers although they do not only drive a truck. So does live-in caregivers’ work not only comprise care.

6 Partly also referred to as capacity or ability.

7 See only recently C-815/18 and Mobility Package. It was controversial because the habitual place of work of international truck drivers is often difficult to assess (Windisch-Graetz 2013).

8 With the Mobility Package, bilateral rides are excluded from the posting rules. Some other changes were introduced, see Directive 2020/1057 laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector.

9 Austria: § 1 (5) 7 Wage and Social Dumping Combating Act, since 2017; Germany: Minimum Wage Act, since 2015.

10 https://www.wko.at/service/kollektivvertrag/kv-gueterbefoerderungsgewerbe-arbeiter-2022.html.

11 https://www.gesetze-im-internet.de/milov3/__1.html.

12 https://www.faire-mobilitaet.de/faelle/++co++c5aef03e-7403-11e8-a1e9-52540088cada.

13 This is rather the case for trucks < 3.5t (AT_6; AT_7).

14 https://www.arbeiterkammer.at/lkw-fahrer.

15 See also data on controls: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52018SC0439&from=en.

16 See also: https://www.investigate-europe.eu/en/2018/sweatshops-on-wheels/?portfolioCats=41.

17 https://ec.europa.eu/transport/sites/transport/files/driver-attestations-in-road-freight-transport.pdf.

18 Still, trade unions, especially in the form of the pan-European association of trade unions, the European Transport Workers’ Federation, push for the rights of truck drivers at EU level.

19 See also: https://www.tagesschau.de/wirtschaft/pflegekraefte-ausland-mindestlohn-urteil-101.html.

20 https://www.ots.at/presseaussendung/OTS_20181029_OTS0144/wkoe-herz-24h-betreuung-gewaehrleistet-unterstuetzung-betreuungsbeduerftiger-menschen-in-den-eigenen-vier-waenden.

21 The legalization included an amendment to the Act Governing the Employment of Foreign Nationals in 2006 and the newly drafted Home Care Act in 2007. In addition, since 2015 the Act on Trade, Commerce and Industry Regulation defines the tasks of live-in care workers.

22 Austrian Nationalrat, 13135/AB, 26 September 2017.

23 Regional court Berlin-Brandenburg, judgment 21 Sa 1900/19, 17 August 2020; https://www.faire-mobilitaet.de/faelle/++co++81136230-dbd5-11e9-9a06-52540088cada.

24 Interessengemeinschaft der 24-h-Betreuerinnen, IG24.

25 We thank reviewer 2 for pushing us to highlight this point.

26 For example, in Germany: Lieferkettensorgfaltspflichtengesetz; in Austria: Initiative Lieferkettengesetz; https://www.lieferkettengesetz.at, https://www.nesove.at/menschenrechte-brauchen-gesetze/.