Fair free movement of workers? The right to an effective remedy and to a fair trial? Respect for the private life of the worker? Not the case in the EU transport industry.

Weekly rest 1

Citește în RO

Dear Commissioners, Ministers and MEP’s,

I’m Lucian Mititelu and I’m writing to you a new OPEN LETTER. When I wrote my first open letter to you I had very good reasons to do it since there are to many years of confusion in transport industry (12 years if we are taking into the consideration only the Regulation 561/2006), while a worker is usually limited to only 3 years to understand the laws, to find funds and proofs and then to make a denounce against the company which brakes his rights. How is it possible for a driver to be much more successful and effective into figuring out which laws he should check and from which country while all the experts around Europe don’t manage to do it?

Back to my previous open letter:

I got few answers until now: From the Commissioner Violeta Bulc, From the Romanian Transport Ministry and from the Romanian Labour Inspection institution (the answers can be found into the galery bellow or full size at the end of the letter). Nobody answered to my questions regarding the minimum living conditions for drivers. In Romania during the last year over 4000 convicts were liberated earlier with the reason of improper living conditions like a to smaller living space than required by EU and improper hygiene facilities which are also inadequate for drivers. The Romanian Ministry of justice is thinking to offer financial compensation to the convicts which already finished their sentences. Recently in Romania a strong message was: compensate the victims not the criminals and I’ll complete it with: compensate those who are working and pay taxes, not the thieves.

Lower you will find my views and even when I’m addressing an answer to a certain institution it is for all the others since everything is connected and has consequences which address to the others.

  1. Quoting from the answer offered by Ms. Violeta Bulc:

“I agree with you that truck drivers should be entitled to adequate accommodation during their regular weekly rest. This is why the Commission has suggested in its proposal adopted on 31 May 2017 to ban the regular weekly rest in the vehicle and require that drivers should have access to adequate accommodation with appropriate sleeping and hygiene facilities.”

I have to remember you that EC also proposed on 31 May 2017 the possibility for 2 reduced weekly breaks and 2 regular weekly rests on a period of 4 weeks, which leaves the possibility to the companies to offer 2 consecutive reduced weekly rests to the drivers, meaning that it can take up to almost 3 weeks (20 days) until a driver can get adequate accommodation with appropriate sleeping and hygiene facilities. Even with the actual rules it can be up to 2 weeks. This proposal it was the reason why I published on Facebook a note about the EC proposals regarding the mobility package (I call it the instability package with the actual proposals), noticed by ETF which is exposing it further.

I consider that drivers, as all the other workers, should have access to adequate accommodation with appropriate sleeping and hygiene facilities every single day, not only during the regular weekly rests. Even from the Regulation (EC) 561/2006 we can clearly understand that for the drivers to sleep into the vehicles it should be their second option and only if they choose it since it is clear to anyone that living into a vehicle it isn’t a proper way to live. I already proved into the previous open letter that the drivers don’t manage to fight for their right to accommodation during the regular weekly rests which allows us to raise serious questions about them freely choosing to sleep into the vehicles during the other shorter rests. This practice had lead the drivers to learn that to do this job they have to sleep into the vehicles. Many of them don’t even have any clue about the fact that they have the right to refuse it without to support consequences as loosing their jobs. The solution to this should be discussed, negotiated and it should be paid much more attention to the words from the Regulation (EC) 561/2006, Art. 8 (8): “Where a driver chooses…”.

The posted/delegated driver choices:

  1. should be between a first option offering adequate accommodation with appropriate sleeping, hygiene facilities and safety and just as a second option to sleep into the vehicle. The first option has to exist for real, not just as fiction.
  2. should not be between accepting the workplace where he will sleep into the vehicle and not accepting the workplace.

The (b) case is blackmail and unfortunately it is the general current practice especially into the eastern countries but used into the western ones also in the jobs where the drivers are posted or delegated. Almost all the posted/delegated drivers choosing to sleep into the vehicles looks so similar with the time when in Romania was Ceausescu and 99.99% of the population was voting for him. To be believable that the driver has chosen to sleep into the vehicle, he should have a reason for choosing to give up to his rights mentioned as being his first option at the point (a).

It isn’t acceptable that the law is offering this second option into which the drivers just loose while the employers are getting huge benefits by not having to pay the hotels, the transport to the hotels and the time spent traveling to and from the place of the accommodation. As a very important bonus the driver is available at whatever time the employer wishes without being informed in advance. Often the drivers which are sleeping into their vehicles are getting a message or a call which says that they should start NOW, in 10 minutes or similar situations leaving the worker without the chance to predict the start time of his work and in consequence without the chance to plan his own life. In Netherlands the Bring dispatchers were pretending from the drivers to inform them when we are leaving the truck while we were on rest because they may need us while the opposite should have happened: the company to inform us about our program.

This second option has become the only option for almost all the posted/delegated drivers. The lack of decent options from which to choose is actually forcing many drivers to “choose” to sleep into the vehicles and the fake advertising of wages are helping the transporters into this direction (I’ll talk about the fake wages and their consequences into another letter). The transporters (sustained also by their clients) are investing allot of time and money to convince politicians that the drivers are choosing this way. They are invoking also the argument of increased prices for transport but this last argument means that instead of dividing the costs to all the consumers which at the EU level means hundreds of millions of people, this costs are left on the shoulders of a small group of workers (including their families): the drivers.

Why not offering the drivers wages but if they choose it can be replaced with a hot meal per day. What do you think that the poorest drivers will get?

Lower I’ll answer to the Romanian institutions and based on that I’ll continue answering to EC on point 4.

2. The Romanian Transport Ministry answered to my question about of how the Romanian Labour law was enforced by directing me to read the ECJ ruling into the cause C-102/16 which clarify that the Regulation (EC) 561/2006 forbids that the regular weekly rest is taken into the vehicle (their answer can be found attached at the end of the document).

(a) First of all I see that my message wasn’t properly read. It is obvious that I was aware about the cause C-102/16 and I was asking about something else than what it was judged into that cause.

(b)The burden of proving that it is forbidden to take the regular weekly rests into the vehicle falls on the workers, trade unions and eventually on a foreign authority which tries to enforce its own laws. Instead, I was asking if the Romanian Labour law has been enforced (the obligation of the employer to offer accommodation to his posted/delegated driver) by Romania and respected by the Romanian companies, or a proof that there is any exception from this rule. This proof has to be presented by the Romanian authorities and Romanian companies. I consider that the Romanian Transport Ministry is forcing a switch of who has to bring the proof, something that is happening by to many years. This attitude gives (willingly or not) a good support to the companies into breaking the worker rights granted by law. There isn’t any exception regarding the regular weekly rest into the Regulation (CE) 561/2006. I quote article 8 from this regulation which is used as an excuse of breaking the Romanian labour law:

Where a driver chooses to do this, daily rest periods and reduced weekly rest periods away from base may be taken in a vehicle, as long as it has suitable sleeping facilities for each driver and the vehicle is stationary.

At this moment trying to avoid the answer to my question it is quite obvious because the lack of such proof it will accuse Romania of not enforcing the employment law and at the same time it will accuse all the transport companies which didn’t offered accommodation for the regular weekly rest during all this years.

  1. Answering to the Romanian Labour Inspection institution:

a) Your answer is informing me about a law from 2017 while I was asking about the last 11 years. The current labour law as you specify it is from 2003 and the obligation to offer accommodation to the posted/delegated employees it wasn’t introduced recently by a modification to this law. How the labour law was enforced during all this years?

b) You mention that other countries should enforce their laws regarding the rights of the posted workers, but who will take care about the delegated workers? Most of the drivers fall under this second category since the companies are trying to avoid the payment equivalent to the laws from the countries where they are sending the drivers to work.

Capital.ro published a list with the biggest transport companies and we find out that from the 9 companies with more than 300 trucks only 3 are Romanian. Starting with this companies, has the Labour Inspection institution a statistic to show how the drivers working for this companies have spent their weekly rest? They were delegated? If yes, did they spent their weekly rest into the truck or the companies offered them accommodation? (you may need some help from ISCTR to find out if the tachograph cards of the drivers were into the tachograph or not during the regular weekly rests). Did this companies respected the drivers right to accommodation during the regular weekly rest according to the Romanian labour law?

c) You are informing us that the drivers issues are well known by your institution, but I’m not convinced at all as I already showed to the points a and b. Even more: how can you explain that the director of the local agency from Arges, Mr. Nicolae Badescu, makes the next declaration to ro, page quoted by many other pages money.ro, ziarulromanesc.de, borceablog.ro and others while nobody noticed that there is something wrong into this declaration:

„Această criză de șoferi se datorează și faptului că munca, deși este una foarte bine plătită, nu este deloc ușoară. O cursă poate dura și o săptămână până la o lună, timp în care nu mai dă pe acasă. Din rațiuni economice, poate lua curse în comunitate fără să se mai întoarcă în țară. Oricum, înțeleg că sunt plătiți foarte bine, unii la kilometru, din păcate rămăne această această criză pe piață. În aceste condiții se pare că există un trend să fie aduși șoferi din India și Pakistan. Așa am informații că sunt astfel de situații și în Argeș, pentru că angajatorii ajung să apeleze la soluții de criză pentru a rezista pe piață” a declarat Nicolae Bădescu, director AJOFM Argeș.

Mr. Nicolae Badescu realizes that it isn’t easy to be away from home for very long times but he was informed that the drivers are very well paid and as a better argument he says that some of them are paid even per kilometre. To me it seems that your institution has no clue about the fact that the payment per kilometre is a major threat to the traffic safety and for this reason it is forbidden by law.

Into a petition that I addressed to ISCTR (the authority which is enforcing the driving rules) in June 2017 I informed them about the declaration of Mr. Nicolae Badescu and I asked them how it is possible that the representatives of the Romanian labour law enforcement institution to don’t be aware of this. I asked ISCTR to start an investigation regarding this situation. They answered that the inspectors were informed and have been asked to check that the companies are respecting the law regarding the payment per kilometre. Now, after 9 months I’m asking both institutions: it was started any investigation regarding this issue and if Mr. Badescu was asked what information he has since we would like to find out the companies about which he was talking. Who gave him the information that the drivers are well paid and even paid per kilometre?

The payment per kilometre is one of the reasons leading to the death of many innocent people on the roads. For example we have an article presented by tvneamt.ro from which we find out that a driver died into an incident and the fact that the truck tachograph was manipulated. Other people could have been collateral victims like in this case. Manipulating the tachograph is one of the methods used to help some of the drivers to driver further and longer than the laws allow, ignoring the tiredness, but helping them to earn more money since they are paid per kilometre (many of them only by km). Stopping the tachograph causes allot of errors into the truck systems since the speedometer is showing 0 km/h while the truck is running on the roads, cancelling in this way the speed limiter, affecting the ABS, ESP and other systems.

Because of some situations like the previous ones mentioned, some journalists are calling all the drivers criminals. I consider that there is also an imperative necessity to bring forward the moral killers. The drivers from the cases presented have their guilt and nobody can deny it, but there is a system built to push them to break the laws and their own rights regarding the rest. The ones responsible for this system are the companies which are paying per kilometre and the authorities which for whatever reason aren’t enforcing the laws as they should.

Considering all the facts presented until now I think that I have serious reasons to have doubts regarding the quality of the investigation into the case presented by tvneamt.ro (and all the other investigations) which concluded that there were just some minor errors of the company giving them just a fine of 4000 RON (about 860 euro).

d) The low enforcement of the laws encourages the transport industry into recruiting more irresponsible drivers (being much more profitable to do so), while the responsible drivers are leaving the industry or the country, being a major cause of the driver crisis about which the companies and Mr. Nicolae Badescu are complaining. Companies are militating to bring drivers from outside Europe to compensate the crisis with the real reason of getting weaker workers which for them means that will maintain or even increase the profits while for the workers it means exactly the opposite. If Romanian drivers don’t manage to have their rights respected, how the foreign workers will be able to get their rights respected in Romania? Obviously, this situation affects all the European workforce market and business competition.

Quoting again from Ms. Violeta Bulc answer:

On the enforcement of the Romanian law regarding accommodation for posted workers, the Commission has no competence as it lies solely with the Member State.

(a) I think that this is true, but only when the Romanian workers with Romanian contracts are on the territory of Romania and their work is affecting only the local economy, the local business competition and local workforce market. This isn’t the case when we talk about the international drivers. There are plenty of companies which aren’t just “shopping” for cheaper workforce markets and for weaker rules, but as I proved above, they may “shop” for countries where they can even break the existent laws and then sending their workers back into the countries with better laws and enforcement. This doesn’t affect only that specific country, but the entire European workforce market and European business competition. Weaker rules and defenceless workers are also playing a strong role into weaker safety in traffic resulting into an increased number of incidents and victims all around Europe.

(b) If at the point (a) it may seem that I’m defending the western European countries ( as UNTRR and other unions of transporters would like to accuse me ), I actually defend the worker rights and based on the European Treaties I also defend our right to fair free movement because the more companies are going into countries where they can break the rules and pay less, the less chances we (as workers) have to exercise our right to free movement and we have less chances to get a decent payment and many other rights respected ( this motivation applies even for the rules set by the Directive 96/71/CE but I will come back with details about it into another open letter). Based on this motivation I’m asking the EC (which is “the guardian of the European Treaties” as it often says into the press releases) to investigate and defend the workers right to free movement against the abuse of the freedom of services and to also defend their right to fair and just working conditions. I worked myself for more than 3 years into the western and northern Europe without ever doing any kind of work into any eastern country. I never drove a truck of my company in Slovakia where I had the contract. I was physically living into the trucks into the western Europe but I was paid according to the Slovak laws with a wage around 350 euro. Working on this wage it is like you are placed in financial chains restricting your freedom of movement and not only. To claim that the daily allowance is a wage or even a bonus it is a big lie and the transporters are using this lie everywhere and I have serious arguments against this lie.

To sustain my claim about the transporters moving from West to East I’m using an article published by capital.ro which shows that at the beginning of 2017 in Romania were 9 companies with more than 300 trucks (each of them) and 6 of them were with foreign capital (more details in the article). In Slovakia from my knowledge Bring Trucking A.S. is in the first 2 companies with Norwegian capital (The Group Posten/Bring is a Norwegian state owned company). This companies are mainly using their trucks into the western and northern European countries but the question is if they are sharing fairly the western tariffs with their eastern drivers and if they are fair with the western consumers, with the western workers and if this is fair competition between companies?

(c) Since the Romanian Transport Ministry finds the EC Regulation 561/2006 as an excuse to my questions, I think that EC should confirm that it was always very clear and obvious that there isn’t any exception for the regular weekly rests into the Regulation (EC) 561/2006 and that the ECJ cause C-102/16 it isn’t relevant as it gives the answer to another question. ECJ answered to the question of being forbidden or not to take regular weekly rests into the vehicle, not to the question if there is an exception from the obligation to offer the accommodation to the posted/delegated worker during the regular weekly rest.

(d) As I already mentioned many other countries should answer to the previous question, not only Romania. I just took the Romanian cause because I am Romanian and I can read the Romanian laws. Around Europe it may have happen the same even before that Romania became part of the EU. Solving this issue only in Romania won’t solve the EU issues and only the EC can take attitude at the EU level.

(e) Not offering the same protection to the drivers as to any other worker regarding the regular weekly rest (and not only) I consider it as being discriminatory based on the job that we are practicing and is breaching at least the articles 21 and 31 from the CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION giving me a reason to call for the help of the European Commission.

(f) All this confusion into which the transport sector is functioning is creating a huge breach of the Article 47 from the CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION, weakening the workers rights to an effective remedy and to a fair trial.

I am Romanian, I was hired in Slovakia by Bring Trucking A.S. but I was directed for about 2.5 years mainly by Bring Cargo BV from Zwijndrecht in Netherlands while I wasn’t able to join a trade union from Netherlands because I didn’t had a Dutch contract. For this companies I drove and worked in France, Belgium, Netherlands, Germany, Denmark, Sweden and Norway but never in Slovakia. As you can notice my freedom to association granted by Article 12 from the CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION it isn’t properly defended by the European laws.

Here I can introduce one of the OPTIONAL laws to be respected by the employers and about which I was talking into my previous open letter: REGULATION (EC) No 593/2008 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 June 2008 on the law applicable to contractual obligations (Rome I). It would have helped to have direct access to a trade union which could have helped me in Netherlands.

By writing this publicly I expose myself to the employers which will avoid to hire me in the future and I’ll be on the top of their blacklist, a reason for which all the other workers are afraid to talk about their difficulties. It is a fear which is well known by the companies and by the politicians which are sustaining the companies and in consequence is effectively exploited. I’m asking the European Commission and the adjacent institutions to offer me the legal support, financial support and advice into finding out if the practices of the Group Posten/Bring are following the laws because I strongly contest that they do. I want to proof in court the concepts about which I’m talking into this letters and which are affecting many drivers around Europe. I’m asking the help to get acces to an effective remedy and to a fair trial. (Bring was also paying per km if we drove more than about 9700 km/month). There are to many countries involved and to many laws to allow myself to defend my rights into an effective and fair way. There are issues regarding the labour laws, the European treaties, Human rights, The Fundamental Rights of the European Union and health and safety. At the same time I can’t possibly match my economic power with the one of the Group Posten/Bring and be able to get a fair level of defence, especially because I consider that they got huge unlawful and unfair advantage by using money which they should have paid to myself and to all the other colleagues which worked for them in similar conditions. An economy of at least 1000 euro per month (compared with a Norwegian or a Dutch driver) per 300 workers per 12 months gave them an advantage of at least 3.600.000 Euro into one single year, money which also can be used into legal fights against 1 or 2 workers launching such a fight.

I’m writing because I consider that the European transport sector (especially the international transport) has gone way to far into exploiting the workers and because I consider that the public should know about it. I invite anyone willing to help into this fight for fairness into the transport industry and also for safety on the roads, to ask the European Commissioners, the members of the European Parliament and the politicians from their own countries about the issues exposed into this open letters.

Helping the eastern workers to fight for their rights it also helps the western workers to conserve or to be able to improve their rights.

If anyone is willing to help the small but determined Romanian trade union SLT into their fight for fair transport please contact them or you can contact The European Transport Workers Federation (ETF) – The Road Transport Section for more information about SLT.

Lower you can find the answers which I mentioned into this open letter.

The answer of the European Commissioner Violeta Bulc:

The answer of the European Commissioner Violeta Bulc

The answer of the Romanian Transport Ministry page 1:

The answer of the Romanian Transport Ministry page 1:

The answer of the Romanian Transport Ministry page 2:

Ministerul Transporturilor answer - Page 2

The answer of the Romanian institution enforcing the labour law.

Page 1:

The answer of the Romanian institution enforcing the labour law ( Inspectia Muncii). Page 1

The answer of the Romanian institution enforcing the labour law.

Page 2:

The answer of the Romanian institution enforcing the labour law ( Inspectia Muncii). Page 2

Categories: English, Open Letter, Road Transport, Transport

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