Fines all round! EU blames everybody for illegal employment

As Bismark didn't quite point out, both sausages and laws are desirable and necessary things (mmm, sausages!), but you don't particularly want to be there when they're made. Recent experience inside the Brussels saucisson factory rather brought this home to me. To set the scene: they're trying to get EU-wide laws covering …

[Pete]

tomato chains

Taking the example about an illegal tomato grower. My (IANAL) reading of this clause makes it sound like they are addressing sub-contracting chains only. If company A employs an illegal and then sells it's produce to company B, I can't see that there's a sub-contracting chain there - only a commercial buy/sell relationship.

However, if company A is subcontracted to company B to provide it's tiomatos, then there IS a subcontracting chain.

No doubt some lawyers will get very rich on this one.

[Anonymous Coward]

(a title is required to post)

Why would the local greengrocer considered to be part of a sub-contract chain if all he does is buy produce from a wholesaler? Same goes for the tractor manufacturer if all they did was sell tractors to the farm.

Is there some definition of "sub-contract" that translates as "buys/sells goods to/from"? If so, then you would seem to be implying that every consumer of every product everywhere is responsible for the activities of every company that was involved in the provision of that product, no matter how remote or insignificant the contribution to the final item!

[Paul Murphy]

Sounds fair to me

After all we have all got to be guilty of something, so why not just get it over and done with?

Lock us all up and throw away the key - that's what I say! the last one in the cell can push the key back through the bars.

I wonder where the end of a chain really is though:

the supermarket, the consumers, the dustbin men, the people that sort our rubbish, the microbes that break it back down again?

conversely on the supply side I would blame the parents of the illegal worker, since they are obviously culpable, as are the heads of all the businesses that are involved - even the ones selling diesel to the lorries that take goods around the place.

I think I'll go for my lie-down now, this obviously isn't good for me.

ttfn

[Stephen Lindsey]

And you're surprised

The Netherlands had a law (may still have - i got out) in '91 for it contractors where everybody, contractor, agency, principle was held responsible if the contractor wasn't set-up correctly. It was called the ketting-wet or chain law.

[Chris]

I must be dim

If, say, "Besco", have a contract with Evil Gangmasters Ltd. to buy tasty foods, and Besco also have a contract with Innocent Hauliers Inc. to transport said foods, how are IHI involved in the same "subcontracting chain"?

It's not like Besco have subcontracted IHI to "grow, pick and deliver tasty foods" and IHI have then subcontracted the picking and the growing to EGL who have then subcontracted the growing to someone else.

One of us doesn't understand what a subcontracting chain is, and I don't think it's me.

[Albert Gonzalez]

Mistake in the rant

I think that you've made a big mistake in reading the law.

When you buy from a supplier you dont "subcontract", so the law don't apply.

The law is intended to disallow 'paper' companies, wich don't have structure to execute works, but subcontract them to the best price when they win the contracts.

This is usually the case in public works, and usully there is a chain of subcontracting that starts with a big company, and ends with bunches of extremely small, short lived companies, that are created just for one job, and dissolved as soon as it is cahed. So no taxes, no responsibilities, no job security, and so on.

This will make the heads of the chain stop from degrading the workforce by disallowing unlawfull competition ( se above ).

Obvoiusly, if the supermarket is the owner of the land, it will be responsible of the wages and taxes of the tomato recollectors, but not the supermarket's customer.

So, yes, i'm for that law.

[DR]

kinda missed the point somewhat

if the article was sarcastic, then I didn't see it.

if the article was serious, then you've just missed the point entirely...

the haulier is not a part of the subcontracted chain, it's a branch. and wouldn't be held liable, neither would BP, and only an idiot would think otherwise.

it's simple.

1, farmer employs cheap illegal work force. and thus enjoys the benefits of being able to grow cheap produce, that's still making him a large enough profit.

2, whole seller buys extraordinarily cheap produce. (and should know it's cheap for a reason)

3, Tesco buys really cheap produce, and likewise should question just why it's so cheap.

the guy who sells the seeds to the farmer in the first place can't be responsible, they are a part of the chain if events, but not a complicit part, and not really directly responsible.

neither is the guy who makes the tractor, tyres or fuel for the farmer/haulier.

and the haulier transports goods from a-b, they aren't responsible for the illegal labour or directly profiting from the results of that...

the point is clearly that those who get something extraordinarily cheap and don't stop to question how or why this is are the ones funding and supporting this, and if that means that Tesco should pay better attention to their chain of supply then so be it, and if joe from down the road with his tomato shop also needs to pay better attention to his chain of supply then also, so be it.

It amazes me that we can trace from field to shelf produce that is grown organically, you can be told exactly who or what has touched it, if you buy meat in Tesco from their finest range there is often a little picture of the farmer that actually reared the life stock.

it's not that the chain of supply can't be traced, because it can, and already is. and if there are people in that chain who are selling something that takes an hour to produce for less than the hourly rate of wage, then it's obvious that something strange is going on somewhere. and people should ask questions.

by you logic you should be arrested for funding terrorism. (you go to the cinema pay for film, money filters through to pay actor wages, who buy drugs, originally provided by the Taliban).

[Norfolk Enchants Paris]

Ummm... not quite

Jointly and severally liable means that the plaintiff (in this case the EU) can seek to claim costs from anyone in the 'chain' - so in the analogy used, they could seek the full repatriation money and so on from Tesco, the 'gangmasters', or anyone else associated with the employment of the illegal workers, irrespective of their share of the blame. It's then up to that party to get money out of the other parties involved. So... if (for argumant's sake) the EU went after Tesco for £1000 to get Abodeyah back to Nigeria, Tesco would go after the gangmasters for the money. It is, in fact, a brilliant way of making it easy for the authorities to enforce this sort of law and not have to shag around figuring out who is responsible for the illegal worker - as those involved in the employment have to duke it out among themselves (with the aid of the courts of needed) but the plaintiff doesn't have to spend unneccessary time proving the percentage of each parties' liability.

The author of the article also went on a strange rant about diesel providers and so on. This frothing at the mouth is better suited to The Sun. Clearly, a court of law is going to look at the chain of employment in this instance, not the logistics chain. Tesco - yes, it has a direct relationship with the distributors and/or farmers, who have a direct relationship with the gangmasters, who have a direct relationship with the sources of the labour, and so on. It will not seek to involve the man who made the machine that graded that gravel that was laid upon the road that the Tesco trucks drove down, and to imply that is utterly ridiculous.

It is most likely that the EU would go after the farmers, or perhaps the retailer, who would then seek redress from the gangmasters. Ultimately, it will be the people at the suopply end of the chain that will wear the cost. This law simply obviates the EU of the need to prove liability for the illegal worker. Now all it has to do is prove the illegality of the worker.

Before the author fires off again he should understand what jointly and severally liable means and undertake an objective assessment of its usefulness in this sort of case. It's the same type of legislation that ensures you get paid out if you are in a 10-car pileup.

ALSO.... IMHO it's not IT so what is it doing on The Reg?

Paris, as she knows all about chains.

[Anonymous Coward]

You can't fly without a visa to the UK

If you are a national from a country that needs a visa, but legally resident in the EU, with EU residence card, the UK explains that you usually *don't* (do *NOT*) need a visa to transit via the UK airports. You can use your residence card, fly from say, Paris to Hamburg via a connection in London and you don't need a visa. This is EU law and UK 'accepts' this, sort of.

However you can never make use of this, because the UK has a law that *can* make airlines liable if it turns out that you do need a visa as judged by the UK border officer on arrival. The airline can't risk it, so they don't let you fly, even if you have that right.

They made the airline a proxy guilty party in place of the person without the visa. The airline is easier to prosecute and less able to prove that you don't need a visa, hence they are less able to defend themselves.

This is the same problem here, how would someone down the supply chain prove they are innocent of a crime committed by a person way down at the end of the supply chain? It's to simply blame Peter for Paul's offense and then expect Peter to be able to prove Paul didn't do it!?

Imagine I'm a produce seller, I go to a supermarket with my produce and it's good and cheap, but they can't buy it, because they don't deal with me, and don't know if I employ illegal labour. To buy from me they would have to inspect my company, and that costs *big_money*, so my produce is automatically *big_money* more expensive that their existing supplier.

Likewise if I hire a supplier from another EU country. That's very expensive for me to go and check the legal status in another EU country, far easier for me to check a local supplier. So this creates a commercial advantage to me, to deal only with local suppliers that I can check.

It's a barrier to trade.

The whole current EU leadership is just a nightmare, it's been like 2 terms of jackasses in power, removing the EU rights, making everyone prove innocence, preemptive surveillance, doing the USA bidding without questioning. No wonder the core EU countries voted against expanding their powers, it's a wonder they don't get together and for EU v2.0, second attempt.

[Anonymous Coward]

It is prefectly right to fine companies employing illegal aliens

In Re

"There were a couple of odd amendments proposed (that employers should pay the cost of repatriation....eh? It's the State that has failed by letting them in, not the company) but in the"

the comment is completely wrong - the company is FULLY LIABLE to register the employer

according to current labor laws and of course an illegal alien is not able to produce

a single proper document to be registered, if the company still employs him/her

then it is the company which is breaking the law hence the company must be punished.

That on top of the fact that companies which act like this usually pay the illegal aliens just peanuts - so maybe they could be charged for 1) employing illegal aliens 2) using what is

basically equivalent to slave labor

[Anonymous Coward]

Tescos should be telepathic

@kinda missed the point somewhat.

No Tescos would not know their subcontracted tescos own brand lasagne is so cheap ergo illegal labour must be being used. Why would they? They don't know what each person in the supply chain is paying?

@ Albert Gonzalez,

No he hit it on the head. It means that you can't contract out to companies you don't know because you can't be sure if they employ illegal labour. There is also no way a big subcontractor would let you investigate them is you are a small buyer.

So this will block trade, if I contract it out to John down the road, I can visit his factory and see his workforce on a regular basis. If I contract it out to Juan in Spain, I have no idea and it would be expensive to determine if they were employing illegals.

Fooking stupid.

[Simpson]

eew

Why did you guys invent the EU anyway?

It seemed like many Euro countries were already heavily "governed". Why would you guy have wanted to add another layer?

I would think that the roll of the EU would be to take down borders. But it sounds like it is used to put them up. It sounds like it is used to level the playing field for countries by raising costs, not lowering them.

If bicycles are produced at a lower cost in Spain than Germany, then raise the cost of making bicycles in Spain, until they match the costs in Germany.

[Anonymous Coward]

Punish Peter for offence of Paul

Where the employer is a subcontractor, Member States shall ensure that the main contractor and any intermediate subcontractor are liable to pay:

a) Any sanction imposed under article 6

b) And back payment under article 7

The main contractor and any intermediate contractors shall under paragraph 1 be liable and jointly and severally.....

http://www.europarl.europa.eu/document/activities/cont/200807/20080704ATT33374/20080704ATT33374EN.pdf

They're accepting the principle that you can punish Peter for the offense of Paul, without a separate offense and separate judicial process. Peter could be 100% innocent, having no knowledge of Pauls offense, or even no way of knowing Paul offense. It makes no difference.

This is so fooking nasty. Once they accept this principle it will be applied everywhere, they're accepting that being innocent doesn't protect you from punishment. Here's it's companies and self employed people but the principle is there.

Fook the EU.

[Anonymous Coward]

Surely...

Surely, you want that last sentence to say:

'... You're not, and cannot be, held responsible for what other legal or natural persons do that you've never asked them not to do nor that you want to know anything about.'

Right?

[Stephen Jenner]

Tribute to Peter Simple.

The EU is a solution in search of a problem. Whatever the question, the answer is always more EU.

It would be better to apply sanctions to the EC, than to pay any regard to their banal wittering. If the recent financial turmoil has anything to teach us, it is surely that, politicians’ and their bureaucratic grease monkeys have absolutely no concept of business or markets. There really is, no point to their existence.

As Dr. Kiosk used to say (at every opportunity)… “We are all guilty”. We are guilty because we let them get away with it. However as Kiosk also used to say, “There is light at the end of the tunnel”, this is because more and more people except apparently our politicians (who seem to have a totally different agenda to the rest of us) are waking up to this reality, and hopefully they will be voting accordingly at elections everywhere across the EU member states.

Ireland has already voted “NO” to further integration into the EU “project” (along with France and the Netherlands who were completely ignored) and next year there will be elections for the toothless EU parliament and maybe (just maybe), the people’s vote will be used as a great big NO to further integration, since the remaining 24 member states, have so far been ignored on this subject.

There is no such thing as a free lunch, and I think that they have sat at the table and gorged for fifty years too long. As the recession begins to bite, it should not take much of a leap of the imagination for us to realise that we have to cut costs or starve, and one of the best places to start would be to ignore (and then remove) the supranational layer of useless government and regulation that is currently known as the EU.

Jolly Roger, because this is the most appropriate flag for the EU.

[Anonymous Coward]

I think this is a bit of a point missing exercise

Whilst I personally am not a fan of laws like this I do not think it is the big evil the author makes it out to be.

To recap already made arguments:

-If Tesco etc were liable for things they bought from a disty then I would be liable for things I bought from Tesco. Clearly this is absurd.

-If someone is employing illegals then it is absurd to try to pin blame on the person who sold them the diesel to put in the van they are being taken to work in.

What this clearly seem to be is if company A subcontracts to B who subcontracts to C who subcontracts to D then the EU wants to make A, B, C and D liable should D use illegals.

It seems clear that in the above example, should C use illegals then the EU wants A, B and C to be liable but there will be no liability for D.

IT seems easy for A to police, given they are contracting to B so they hold the purse strings:

A: Here is the contract for supply of fruit pickers. Please note subsection 1 clause j that clearly states your confirmation that all workers employed by you directly, indirectly or through your subcontractor(s) or their agents,partners,subcontractor(s),affiliates or other groups are fully entitled to work in the capacity they are employed.

Please take special note of subsection 1 clause k which affirms that in the instance of illegals being employed by you or your subcontractors you agree to take full liability for any and all fines and liabilities that may arise to us through this, and indemnify us from any subsequent legal actions or penalties, along with a cover charge for any administration work required by us to clear this up which will be not less than 25% of the total value of the liabilities incurred.

[Glenn Charles]

Fines all Round!

It's you blighters at the supermarket!

--Glenn

Paris because she can't figure out why British and American governments have no brains?

[Colin Millar]

Way off the mark

Limited liability as a concept has nothing to do with this - that is to do with the financial liabilities of shareholders towards a company's debts.

Also, this may be drafted very badly but it is not a new or a bad concept to tell companies that they cannot escape their legal obligations simply by sub-contracting bits to a bunch of cowboys and then pleading ignorance of their working methods.

[Anonymous Coward]

@Lee, Is 'A' guilty? Of what? Doing business?

"What this clearly seem to be is if company A subcontracts to B who subcontracts to C who subcontracts to D then the EU wants to make A, B, C and D liable should D use illegals"

'A' is not guilty and has not been found guilty of anything and should not be prosecuted for anything. Saying the Tescos scenario is absurd misses the point, the wording of the law makes no distinction there. Tesco does subcontract the making of it's lasagne to an outside company, it is liable under this wording.

All 'A' did was sign a contract with a company to provide goods or services.

Saying 'A' holds the purse strings is not the same as saying 'A' has influence, control or knowledge of C's actions. You pay Microsoft for Windows, you hold the purse strings, do we prosecute you everytime Microsoft does something bad?

Do you imagine that if little a little buyer demands from a big supplier access to their staff records they will do it?

Perhaps we should fine every Microsoft customer who accepted their EULA, why? because it's easy? Because they're an easier target?

Why *SHOULD*they take the blame? The only way they can AVOID blame is to only deal with companies that they can ACTUALLY control and ACTUALLY monitor. Which means they won't deal with companies they don't influence monitor and control, damaging trade.

This sucks, A & B are not liable for anything and if they were they are entitled to a properly defined law against them and a judicial process for themselves and a reasonable chance of defending themselves.

You can't punish people for the law breaking of others, you can't do it without judicial process, you can't just spread the blame because it's easy to do.

EU is not Britain, keep that racists anti-business, anti-citizen shit in Britain and don't let it contaminate the rest of the EU.

[Anonymous Coward]

Another point

One more point.

Imagine I am a person 'B', I subcontract to a provider 'C' who employs a person 'D' who turns out not to have the right paperwork for country E.

The EU here is saying that country E is not able to properly check C is only employing legal employees, and needs this measure.... YET THEY EXPECT ME 'B' TO BE ABLE TO DO WHAT THEY COULD NOT. And from my own EU country too? The further the EU country the harder it is to do.

What next, am I, 'B', to be fined if they 'C' violate health and safety?

What if the employee 'D' makes a sexist remark, do you dump that shit on me simply because I subcontracted a project to them?

Morons, I'm appalled that an EU department would even suggest this shit.

[Seán]

Censoring comments

What the Americans is going on comments are posted and then deleted is this to suit the author of the piece or just random abuse of power?

[Anonymous Coward]

Daft...

"You're only responsible in law for those things which you do or cause to have done on your behalf."

Yes exactly! cause a subcontracter to act in such a way..

Dont think of a subcontracting chain as a piece of string, ie two ends, think of it as a chain of events, with only one End (a start, supremarket places order, and end, supplier fulfills order), IE Top Down responsibility, You are responsible for the actions you cause to be carried out, by a sub contractor.

[Ivan Headache]

tomatoes

I'm really confused. What is actually meant by subcontracting? Certainly not "buying tomatoes".

I go to Tesco and buy tomatoes. That's all I do. Or I might to to Mr Patel at the corner and buy some of his tomatoes.

Mr Patel gets up very early and goes to Covent Garden Market to buy his tomatoes from the Wholesaler.

During the night, the Wholesaler took delivery of 40 tonnes of tomatoes he had ordered from Mr Van Der Molen in Holland.

As Fluke would have it, Tesco buys its tomatoes directly from Mr Van Der Molen.

So far I can't see any 'subcontracting' going on. It's all BUYING goods.

Now Mr Van Der Molen has 400 Hectares of Glasshouse growing tomatoes and employs a staff of 80 permanent employees. As tomato harvesting is fairly labour intensive, one of his staff, Mr De Groot is responsible for organising the casual labour needed for the picking.

Mr De Groot has a regular group of casuals that he calls on as and when required and pays them directly. However, he also has a contract with an agency to supply pickers when he requires extra hands.

There is the first 'contract' where subcontracting can start.

As I understand it, this would be the A. B would be between the agency and whoever next and then on to the final casual D who would end up working in Mr Van Der Molen's greenhouses.

I cannot see how Tesco could be held responsible should D turn out to be an illegal.

Following the logic in the article, Mr Patel would also be responsible.

I only wish young Ivana was here at the moment. Contracts and contract law are her cheese and toma... sorry, bread and butter.

[Ivana Chagalot]

@Daft

"Dont think of a subcontracting chain as a piece of string, ie two ends, think of it as a chain of events, with only one End (a start, supremarket places order, and end, supplier fulfills order), IE Top Down responsibility, You are responsible for the actions you cause to be carried out, by a sub contractor."

Cause? My subcontract says nothing about employing illegal labour to make my own brand lasagne. This 'cause' thing you speak of, is it some sort of mind meld? Some sort of telepathy?

Ying ying ying....employ illegal labour.... ying ying ying.

I mock, subcontractors have free choice and you are not responsible for the acts of others. If there was some offence committed by the supermarket, there needs to be a law that addresses their part, and a judicial process against *them*.

If the contract said they were required to employ illegal labour it would be void, or the subcontractor could sue to recover any fine.

That clause should be removed, it is not compatible with the right to justice.

Secondly, the clause that says "this law does not apply to workers from the EU", this should have "and their families" added to it.

[RogueElement]

Contractor Nation

As a farmer, I want my tomatoes to be planted, tended and picked for a minimum outlay (if I can't keep my wages bill down, I'm uncompetitive and my purchaser will go elsewhere) and to add as much as possible to the final cost to enable me to maximise my profit. Tesco have made me an offer but expect a discount for bulk purchasers so my profit margin drops.

As a tomato supplier, I want to purchase my tomatoes at the lowest possible price and to sell them as high as possible without making my market go elsewhere, to enable me to maximise my profit. Tesco have stopped using me and now source their own tomatoes so my profit margin drops.

As a tomato seller I need to purchase from the supplier in such a way as to maximise my profit although this sometimes comes in the form of backhanders. However, market forces still apply and I am therefore required to source from the cheapest possible supplier. I am in competition with other sellers and, what with this credit crunch, we're all dropping our prices into lost leaders to entice people into the store so my profit margin drops.

1+1+1...

At every stage there is a benefit to the use of minimal (not even as high as minimum) wage, overworking without added benefits, long hours and short holidays, corner cutting, and fraud. How do the likes of Asda, Tesco, Safeway, Co-op, Morrisons, Sainsburies etc fill their shelves? Why do we have call centres in India, strawberries from Zambia and UK car factories in Asia? Why are we using Polish builders, Muslim nurses, Tiawanese silicon and Chinese plastic crap? Probably the same reason why we use British politicians.

More importantly, why has taken this long for the mainstream to realise that this is shit creek and we passed the last paddle shop miles back. We are a "contractor nation", we contract out everything.