Migration at the Intersection of State Policies and Public Tenders in Times of Economic Crisis

2011–2012

ERSTE Foundation Fellowship for Social Research Should we stay or should we go?

Migration and its effects on demographic and economic development in Central Eastern Europe

Migration at the Intersection of State Policies and Public Tenders in Times of Economic Crisis: The Case of Migrant Forest Workers in the Czech Republic Marek Čaněk

Migration at the Intersection of State Policies and Public Tenders in Times of Economic Crisis: The Case of Migrant Forest Workers in the Czech Republic

Marek Čaněk, Department of Political Science, Charles University in Prague

Research paper for the ERSTE Foundation Fellowship for Social Research

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Abstract This article focuses on a particular case of exploitation of hundreds of migrant workers from Vietnam, Romania, Slovakia and other countries who planted trees and did other work in forestry in 2009 and 2010 in the Czech Republic. The case is situated at the intersection of a number of state policies that interact with each other in complex ways. These include state forestry policies, rules of public tendering, migration policies and labour market policies.

During the economic crisis the state co-created a vulnerable ethnicised and criminalised migrant workforce, which fits the demand for cheap labour in forestry.

Subcontracting in forestry in the Czech Republic has distanced management from labour and allowed for an unequal distribution of profits among fractions of capital and labour. The public tender chain, a notion introduced in the article, points to the influence of conditions that govern public procurement. The main winning criterion is cost, which puts pressure on wages and working conditions at the bottom of the chain. The public tender chain is ridden with power hierarchies that are often hidden. However, there are certain moments and strategies, which can open the “black-box�.

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Introduction1 In this article I will explore a particular case of migrant workers´ exploitation in forestry in the Czech Republic. Among other factors, this case is at the intersection of a number of state policies that interact with each other, including: state forestry policies, rules of public tendering, migration policies and labour market policies. Increasing precarisation and commodification of labour in forestry is functional with the use of cheap migrant labour. The “cheapness”, however, does not necessarily need to be attained by the use of “illegal” migrant workers (cf. Overbeek 2003). The subcontractors involved in the particular Czech forestry case that I am examining gradually replaced the (“legal”, “illegal” and illegalised) nonEuropean workforce with workers from the European Union (thereafter as the EU) countries.

This is partly due to the growing immigration restrictiveness by Czech state migration control agencies. The diverse groups of EU workers, however, experienced similar exploitative and indecent working conditions as the non-EU workers before them. Thus, this case points to new, complex and dynamic divisions / segmentation of labour by ethnicity, citizenship and gender (McDowell et al. 2009).

I will argue that in Czech state forestry “power relations and value struggles at the point of production and reproduction, that is, around the quality and quantity of expenditure of labour, wages, entitlements, housing, health, education, environmental conditions” (De Angelis cited in Merk 2010) have been affected mostly by increasing competition and flexibilisation, which was in part induced by domestic forestry policy along with the European Union public procurement policy. These two policies have been negotiated domestically among the various political and social forces including the different fractions of capital, labour and civil society.

Due to the weakness of labour (in general and in forestry in particular) and growing competition between companies with higher and minimal number of core permanent workers, precariousness has grown in the forestry industry. Defined as double precariousness – that of “social situation” and of “subsistence” – this condition does not only mean low and inadequate incomes and unpredictability, but also a degraded social position (Offe 1997: 82).

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I am thankful for the generous support of the Erste fellowship. I would like to thank Luba Kobová for all her comments and suggestions. The paper was inspired by the Remeso Graduate School (Linköping University) November 2011 course “Migration and Labour in a Globalised Economy” and comments from its organisers, Charles Woolfson , Branka Likic-Brboric and Zoran Slavnic. I would also like to thank anonymous reviewers of this paper.

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The employment of migrant workers in forestry has become a contested issue in the Czech Republic especially given the context of high unemployment in the countryside where forestry has been an important employment sector that at least provides seasonal jobs for both men and women. The restructuring of the forestry industry, including deteriorating working conditions, stagnating and at times even lowering wages for “unqualified” jobs, changes in the labour process and processes of new segmentations and divisions of labour have made the employment of “local” workers harder. In addition, self-employed workers and small businessmen see themselves unable to compete in this very competitive market. Will there be a similar trend as for example in the U.S. where authors talk of “Latinization”2 of the forestry workers (e.g. Sarathy 2006)? In the Czech context are we seeing signs of an “Ukrainisation” or a “Romanisation” of especially lower positions in the forestry labour market?

Based on the study of the particular case of employment of migrant forest workers in the Czech Republic, only limited and general conclusions can be drawn in regards to the overall role of migrant workers in forestry. However, the interaction of the different policies presented in this article will show tendencies towards segmentation of the labour market and the need for cheap labour that migrants fulfil under certain conditions. At the same time, if we understand the labour market as a system of power relations (Peck 1992), there are various forces and counter forces. Capital, labour and the state play their roles in drawing the boundaries between “domestic” and “foreign” labour within specific contexts (Silver 2003). I will argue that the use of migrant labour in Czech forestry has followed a very dynamic development that cannot simply be described by the replacement of “domestic” with “migrant” labour. This question could be approached at different levels: the local level (Peck 1992), state, regional3 and global levels. All the aforementioned levels interfere in the 2

Sarathy means by “Latinization” the domination of Latino immigrants in forest work. This is a process that has been spanning over decades since the first entries of documented and undocumented temporary migrant workers in agriculture who later shifted to forestry. Sarathy describes the Latinization of the forestry work in terms of a number of federal policies as well as immigrant networks as they interrelated in “contingently specific ways” (2006: 364), which is an approach that is close to the analysis taken in this article. Opportunities were created by the 1986 Immigration and Reform Control Act for undocumented migrants who then legalised their stay and became contractors. The segmentation of the labour force was mainly based on legality so that the contractors were “legal”, while most of the employees were undocumented. The federal contracts´ program also played a role in that it set aside 10% of the contracts to “minority owned and disadvantaged businesses”. Another – also a later - factor were kinship networks available in the 1980s. They were instrumental in keeping costs down as recruitment of workers was cheaper as well due to specificities in labour control. According to the author the kinship networks prevented workers from complaining about working and living conditions. The last factor that Sarathy mentioned was that there was no other “viable” labour force available than the Latino workforce in the 1990s when there was a change in forest management from wood harvesting to ecosystem management (2006: 364).

3 Understood as the European Union level.

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boundaries between domestic and migrant labour. For example, some events such as the global economic crisis and the European Union integration crisis may even bring radical changes in the reconfigurations of migration policies as has happened historically with some (but not all) economic crises in the 20th century (Castles 2011).

These are, however, not separate levels for they are part of the capitalist “transnational social system whose dynamic is not (or no longer) primarily determined by (sub)national factors and processes, but rather by transnational ones” (Overbeek 2003). There has been a concentration of transnational capital in forestry and the wood sector. In the current era of globalisation, consequences for labour are mainly twofold: first, there has been a movement of jobs in between regions and second, “outsourcing of operations at the bottom of the chain (for example, forest harvesting and transport to numerous and mostly small contractors), has become a characteristic feature of the industry” (Khazri 2009: 61). Global sourcing of wood may shift depending on profitability. Even though possibilities for delocalisation abound4, there have been limits to the moving of forestry production. In the Czech Republic the forestry industry has restructured “in situ” – in place (Peck 1992), which corresponds to the state ownership of the forests where firms compete for access to wood and other contracts in forests situated on the state’s territory.

In this paper I argue that the labour market in the forestry sector in the Czech Republic has become global/regional, which is according to Overbeek characterised by a deepening commodification of labour in globalisation (2003). Eastern European and Asian migrant workers have been drawn into the labour market in forestry in the Czech Republic. Thus capitalists can achieve “an optimal mix of their capital and labour” (Robinson 2006). This does, however, allow for a simplistic argument that migration control is determined by its function in the accumulation of capital. The citizenship boundaries set up by the state, which help institute the category of a “migrant worker”, have been changing their significance in the European Union. The EU migrant labour from eastern Europe has been able to function as a contingent labour force with only limited state involvement in the regulation.

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China has thus become an important node in the global commodity chain with raw material being imported and plywood, furniture, paper and other products are being exported (Sun et al. 2008).

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In this article I rely on data that I collected with regards to the concrete case of exploitation5 of hundreds of migrant workers from Vietnam, Slovakia, Romania and other countries who worked for a number of related subcontractors in Czech state forests and national parks on public tenders won by one of the biggest forestry companies in the Czech Republic. I conducted interviews with migrant workers, work coordinators, forestry company owners, labour unions and state representatives not only about the case itself but also more generally about the developments of forestry and migration policies. I also collected and analysed the documents on these policies. The interviews were conducted especially in 2011 but also partially in 2010 in a number of areas in the Czech Republic, Slovakia and Romania. In total, thirteen interviews with migrant workers were carried out, some of them with individuals and some with groups of workers from particular localities. I have been also involved in the campaign to support the case, which allowed me to do participant observation and gain access to the workers.

Precarisation and flexibilisation of work in the state forestry In this part I will present selected elements of the state forestry policies after 1989 and their relation to the precarisation of jobs and working conditions that then explain to a great extent the growth of self-employment and migrant labour in Czech forestry in the last few years.

After 1989 principles of a self-regulating market (Polanyi 1957) were introduced in the forestry industry, which, however, have been amongst others limited by opposition from the public and forestry experts who in turn were opposed to the privatisation of the state forests as such. The state especially, with its public tendering approach in forestry and deregulatory labour market policies, has substantially impacted upon various dimensions of precariousness such as: degree of certainty in continuing employment, degree of regulatory effectiveness, control over the labour process and adequacy of the income package (Vosko 2010: 3).

Evolution of state forestry after 1989

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Exploitation in this case refers to the non-payment or only partial payment of wages to the migrant forest workers as well as sharing of profits within the public tender chain in forestry (see below).

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At the beginning of this short and selective description of the evolution of state forestry since the 1990s it should be noted that there have been different readings/writings of the formal and informal history of state forestry policies and economy after 19896. This points to ongoing struggles over the role of the state in the forestry economy7 and the level of commodification or decommodification of nature. A new model of administration of state forests was established in 1992, which has been based on the outsourcing of planting and woodcutting services. The machinery and other production facilities of the state forestry companies were mostly privatised and the Forests of the Czech Republic contracted the newly formed private companies. As mentioned already the state maintained its ownership of the forests8. The new system provided economic stability without having to demand state subsidies for state forestry and a gradual and “socially sensitive” decrease in the number of employees in forestry9.

1990

1993

1996

1999

2002

2005

2007

2010

57 700

44 758

41 549

33 314

25 702

21 835

19 398

15 150

57 700

10 019

9 195

7 664

6 290

5 830

5 783

5 130

private

*

33 815

29 414

22 860

16 984

13 614

11 320

8 015

communal

*

924

2 940

2 790

2 428

2 391

2 295

2 005

Total forestry sector

state of which

Table 1. Development of employment in forestry in the Czech Republic from 1990 to 2010 (selected years) * Data unavailable.

Source: Czech Statistical Office in Reports on Forestry in the Czech Republic (http://www.uhul.cz/zelenazprava/) 6

In the 2011 “Concept of the Ministry of Agriculture on the Economic Policy of the Forests of the Czech Republic of the Czech Republic from the Year 2012” there is for example an important part devoted to the history of the transition of state forestry after 1989. The transition of the state forestry transition in the 1990s was described as a rather formal, rational and democratic process. Its informality was largely omitted (see Böröcz 2000). For example, most of the main persons involved in the preparation of the privatisation of state forestry property knew each other from university studies of forestry where they also played together in a music band (Bláha 2010). As for the 2000s some conflicted parts were omitted such as the important 2004 decision of the Supreme Audit Office of the Czech Republic, which criticised lack of oversight and control in the Forests of the Czech Republic and the methods of selling wood that have caused major losses for the state.

7 For example a danger of “nationalisation” has been invoked by fractions of the capital on a multiple occasions when the profits from wood sales were to be restructured among the companies and/or between the companies and the state.

8 This is true at least for the parts that were not given back to their former owners in the process of property restitution.

9 Evaluation of some of the positive sides of restructuring of state forestry by Jaroslav Palas, Social Democratic Minister for Agriculture in 2003 (Palas 2003).

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The official employment in forestry has been dropped down from about 57 000 to about 15 000 employees in 2010. The development of overall employment as well in accordance with the different (state, private and communal) sectors can be seen in table 1 above.

Some of the employees of the former seven state companies that existed in the socialist times were transferred to privatised companies, some became subsequently (or even before the privatisation) self-employed and some left forestry altogether. Self-employed status became common for timbermen and other positions (e.g. coachmen). It is estimated that today more then half of the total of about 5 000 timbermen could be self-employed10. As in other sectors of the Czech economy, numerical and wage flexibility became based to a large extent on selfemployed persons (Keune 2003). In the area of tree cultivation, mostly temporary contracts have been used11. “Traditionally” women carried out this kind of work. Today there are more men involved in the cultivation works than there used to be12; this has also been a growing sector in the use of migrant “agency workers”.

The period after 2003 could be described as a second wave of flexibilisation and deregulation.

It started in the period prior to the entry to the European Union (in 2004) amidst fears13 of globalisation and consequences of a growing politicisation14 of state forestry for the labour and parts of the capital15. The situation of some major employers in forestry (e.g. CE Wood) became unstable due to the ending of the long-term contracts by the Forests of the Czech Republic. The public tenders based on the European Union public procurement legislation were introduced in 2006. The transfer of the entrepreneurial risk onto the workers was marked by the shifts from employee status to that of self-employment (Supiot in Slavnic 2010). There has been a continuing decline in employment due to the use of technologies, instabilities induced by public tenders especially after 2005 and the mentioned transfer of risk on labour16.

The number of employees in standard employment relationships has been on the decline, too.

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Personal estimate by an employee at the Ministry of Agriculture, interview 10 January 2011.

Telephone interview with a former timberman who used to work also for Less & Forest, 6 December 2010.

12 Interview with an employee of the Forests of the Czech Republic, 21 April 2011.

13 The main forestry union Dřevo-Lesy-Voda organised a demonstration in front of the Ministry of Agriculture after the employers refused to prolong the sectoral collective agreement in the end of 2004 amidst fears of future developments in forestry policies of the state (e.g. fears by companies of a greater involvement of the state in the selling of wood). One of the slogans was “Czech wood for Czech sawmills” (Český rozhlas 25/1/2005).

14 This could tentatively be understood as the end of previous consolidated state exploitation (Grzymala-Busse 2007).

15 Especially the companies that have benefited from long-term contracts set up in the 1990s.

16 See for example the account of the regional branch of labour unions Dřevo lesy voda (Pecha 2007).

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The state has had an important role in the changes of employment relationships and the restructuring of many wood and forestry companies, as I will analyse below. Uncertainty of state contracts shared by the companies, as well as the stress put on price as the main winning criterion in the public bids and heightened competition have been two of the factors leading employers to cut on labour costs and subcontract labour on a temporary basis. The companies with less employees or almost no employees (e.g. manual labour) have been advantaged in the public tenders as compared to companies with larger numbers of their own employees17. The controversies over public bids have continued until today18. The last few years have been therefore marked by recurrent instability in supplies of wood and work contracts in stateowned forests, increasing competition and productivity as well as by changing and rising oligopolies (e.g. the company Less & Forest). The processes of concentration of capital have deepened the already unequal position of labour vis-à-vis capital.

The role of public tendering in the flexibilisation and precarisation Public tendering in state forestry in the Czech Republic is a mechanism of informalisation from above used by the state (Slavnic 2010) to subcontract forestry management services to private companies. Public tendering conditions the provision of subcontracted public services to the market logic and more specifically to the ideas of the neo-classical supply-side economics where wages and the fulfilment of economic and social rights of workers have come to be seen as a cost only (cf. Offe 1997). What is therefore at stake are workers’ wages and working conditions. The price competition induced by the public tendering in forestry drives wages down, and the working conditions of workers in the privatised industry risk worsening as well.

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These changes are visible for example in the case of a middle-sized forestry company, which during this process substantially decreased the number of its core employees: “I know of a company that has been doing the same amount of work [as now] but they used to have three hundred employees and now only forty”, Interview with the head of the Czech Association of Businessmen in Forestry Sector, 15 November 2011.

18 For example the “Concept of the Ministry of Agriculture on the Economic Policy of the Forests of the Czech Republic of the Czech Republic from the Year 2012” was not “approved” but “taken notice of” by the Government at the beginning of 2011. The government refused to officially “approve” it due to different positions of some ministers and one of the coalition parties, the Public Affairs Party. This kind of distancing, however, did not mean that the Ministry of Agriculture and the Forests of the Czech Republic would not go ahead with the proposed changes.

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These stakes are, however, different in the context of the less regulated labour market in the Czech Republic than in for example Sweden (Thörnqvist 2012 forthcoming). Woolfson and Thörnqvist have been concerned with the European Union public procurement legislation and their consequences for the highly regulated construction and other industries by collective bargaining in Sweden. The public tendering provisions interact with restrictions by the European Court of Justice on the use of secondary collective bargaining against “social dumping” by posted workers from other EU member states in Sweden (Thörnqvist 2012 forthcoming). However, the weak forestry labour unions in the Czech Republic have not been able to even maintain the threshold of at least minimum legal wage and working standards in the more peripheral parts of the segmented labour market.

The current management of the Forests of the Czech Republic company has prioritised the logic of efficiency and cutting down of costs. When presenting its successes, it usually does so in terms of the company’s yearly gains. The striving for efficiency and increasing productivity in the market economy is one of the possible ways “to co-ordinate social practices in situations marked by complex reciprocal interdependence” (Jessop 2003). Jessop calls it co-ordination through exchange. Its rationality is mainly formal and procedural; the allocation of limited resources should be effective. Another mode of co-ordination that is useful for describing Forests of the Czech Republic’ functioning is command. It is about hierarchical control and co-ordination; goals of the organisation are decided at the top of the hierarchy. Aside from that, Jessop refers to dialogue as another mode of co-ordination. Jessop defines it as “reflexive self-organization” and calls it governance as well. This mode includes striving for consensus, but e.g. the organisation’s goals are not decided or given in advance (in contrast to command) (Jessop 2003: 5). The third mode will not be relevant for the analysis of the public tenders at this point, I will introduce it later in the article when writing about forestry certifications; these can be likened to the governance mode (Arts 2009).

As was mentioned above, in the last few years the main competitive criteria in public tenders for services in state forestry has been price. Therefore, this mode of co-ordination can best be described as exchange. The companies, which have firstly fulfilled certain qualification criteria (e.g. technical, bank guarantees), are then ranked based on the cost of their operations.

Offers are made for each territorial unit in which there is a public tender. The cost (called “balance”) offered by the company is in itself calculated as the cost of the cultivation services minus the price for wood that the company will harvest on the respective territorial unit.

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There are a number of points, which can be made in relation to the exchange and its influence on the production chains that are linked to the Forests of the Czech Republic.

First, the fact that both cultivation and forest harvesting (which means access to wood) are treated as one (called a “complex order”) brings great competitive pressures for labour. For example, the workers doing the cultivation work are then more clearly tied to competition in the regional/global wood production chain. Cuts on labour costs in cultivation work have been used to cover the cost of wood paid to the Forests of the Czech Republic (Transparency International 2011a).

Second, the exchange is organised in such a way that it does not impose limits on capital, which can then allow for labour costs to not be fixed to the employing organisation but subcontracted in a flexible way (Robinson 2004: 18). In other words, the Forests of the Czech Republic has rejected several proposals from the forestry unions Dřevo-Lesy-Voda asking the company to introduce new criteria in the public tenders (e.g. on work being carried at least in part by one’s own employees, guaranteeing regional employment, putting great emphasis on security at work). The Forests of the Czech Republic claimed that these proposals were introducing discriminatory conditions for the bidders19. This is related to the discussion of the size of the core employees in forestry and wood companies and the (social construction of) “seasonality” and temporality of work in this industry. According to the employer association Czech Association of Businessmen in the Forestry Sector, which represents smaller and midsized companies in this economic sector, much of the work could be organised on a yearround basis, which could eventually lead to the increase of “local” workers in the countryside as opposed to migrant “agency workers”20.

Third, the exchange mode allows for treating the total cost as well as the costs of individual services rendered in the public tender as unconnected to wages, economic, social and even basic human rights of workers that are at the bottom of the public tender chain21. This is possible because they are “black-boxed” – to use a term from the actor-network-theory. If a part of a network of actors is “black-boxed” it means that it is considered as not having an effect on how the overall network functions. There are two kinds of enrolments in the 19

Interview with a representative of the Labour Unions Dřevo lesy voda, 4 January 2011.

Interview with the head of the Czech Association of Businessmen in Forestry Sector, 15 November 2011.

21 I will use the term “public tender chain” to show the connections between the different levels of the public tendering including the subcontractors, it is inspired by the global production chain concept.

20

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network: intermediaries who do not affect how the network functions, and mediators who do, and the result of their agency is supposed to be unclear (Mould 2009).

Two main positions – “black-boxing” and the breaking of down of the “black-box” – are useful to analyse the public tenders as can be illustrated in some examples. Some of Forests of the Czech Republic’s employees may question the too low bids in the tenders. A Forests of the Czech Republic employee working in a local district described it in the following way: “The main condition [in winning the tender] is the lowest price but nobody [in the headquarters] is interested if that’s a realistic price ... We may start to question the prices and ask if the company even came to see the local conditions. [But] the reply we get [from the headquarters] is that this is not our business and that it is the company that is responsible for the carrying out of the work, you are only supposed to control it”22. In this case the mode of co-ordination is command from the headquarters of the company. The command supplements the exchange mode so that the black-box stays intact (exchange of money for a product on the market) and does not break down. The control of the work carried out as mentioned in the citation is only over one moment when the Forests of the Czech Republic employee may meet physically the manual workers at the bottom of the public tender chain. However, this physical contact is part of another hierarchy – the hierarchy of the company that was subcontracted to work on the public tender and therefore separate from the hierarchy of the Forests of the Czech Republic. In case the employees of the Forests of the Czech Republic and the subcontracted company meet, they may be related more by the co-ordination through exchange. The following quote from the same Forests of the Czech Republic employee illustrates this: “I am not supposed to communicate with the workers. They have their own foreman. When I come there [to the place of work in the forest], I’ll say that I can’t pay this if they don’t repair the work. So, their boss may as well fire the workers” 23.

To conclude and expand on the control of work (from the point of view of the Forests of the Czech Republic employee), a few specificities should be noted: a) the quality of work has decreased in situations where the lowest-cost bidder won; b) the working conditions of the Forests of the Czech Republic have been precarised, too; c) there is multiple disciplining going on as the Forests of the Czech Republic employee is aware that the workers may not 22

Interview with a forester of the Forests of the Czech Republic, 7 December 2010.

One trick used by some employers is that they tell their employees that the work was not done properly and that they could not pay them their wages because the employer himself will not be paid (Interview with a forester of the Forests of the Czech Republic, 7 December 2010).

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receive pay if the work was not done properly, however, at the same time he knows that he cannot accept the work because otherwise he would have been sanctioned himself. These are all mechanisms of social distancing in the subcontracting chain (Merk 2011).

Fourth, the role of corruption and state exploitation24 (Grzymala-Busse 2007, Vachudova 2009) has been mentioned as one of the reasons behind the market instability in forestry and indeed behind blocking some conceptual changes in the labour standards25. From this perspective as I already mentioned in a note earlier, the period before 2003, which was relatively stable, could be described as consolidated state exploitation. The contemporaneous Minister of Agriculture prepared new tenders and publicised them as a way to introduce transparency in public tendering. It may have, however, been a trick to rearrange where the bribes go; the minister’s advisor was connected to companies that started winning in the public tenders (Bláha 2010). A number of people also mention that “the mess” in state-owned forests and public tenders could be an intended failure, which is in the interest of those who call for the privatisation of the state forests as such26.

Migration control policies in times of economic crisis Whereas the state forestry policies could be described as informalisation from above – understood here as creating pressures for the informalisation and precarisation of some occupations – the state migration policies could be described in terms of legalisations and illegalisations (Anderson 2010). It should be added that the processes of legalisations and illegalisations have come to be less theorised by migration scholars in terms of simple binary opposites between “legality” and “illegality”. Judy Fudge for example notes that “different migration statuses, some of which are highly precarious, … produce a differentiated supply of labour that [in turn] produces precarious workers and precarious employment norms” (2011: 6). However, the role of the state in creating vulnerable migrant workers is often neglected, Anderson claims when analysing the situation in the United Kingdom. This can be seen in the notion of the “evil employer”, which has been used by the authorities to blame these for 24

E.g. as a way for secret financing of political campaigns of main political parties such as the Civic Democratic Party and the Czech Social Democratic Party (see e.g. Bláha 2010).

25 Interview with a representative of the Labour Unions Dřevo lesy voda, 4 January 2011. He meant by conceptual changes “other than [those] concerning money”.

26 Interview with a forester of the Forests of the Czech Republic, 7 December 2010.

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violations of rights of migrant workers. In Anderson’s view this may be “a masterpiece of public misdirection” because “what merits attention are issues of job quality, job security, and low pay” (2010: 314). In the following part I will look into the creation and usage of different categories of migrants (e.g. “waif”, “vulnerable”, “lawless”, “illegal”), as well as variations of the “evil employer” label (“evil intermediary”) and their function with regards to migration policies prepared after the start of the economic crisis in the Czech Republic.

Responding to the economic crisis The externalisations of costs (Vosko 2010: 23) by both the employers and the state assume a new dynamic during the economic crisis. In this context, the separation of renewal and maintenance costs (Burawoy 1976) that was set up between the receiving and sending states breaks down. The receiving state now has to bear costs of unproductive labour in times of the crisis and thus, it prefers to pass these onto the sending state as has happened in the Czech Republic. At the same time however, there were differences with regards to two broad legal categories of unemployed migrant labour: European Union citizens were expected to follow a market logic and non-European Union citizens would be coerced to leave (Ciupijus 2010: 545). In the eyes of state bureaucrats and politicians the concern has been with the citizens of Vietnam, Mongolia, Central Asian and other countries some of whom have become heavily in debt27 because of having to cover the costs of arranging visas and work in the Czech Republic, and thus, they may decide to stay in the country in spite of being unemployed. The total number of employed migrants decreased from 2008 to 2009 by more than 43 000, which meant that over the same period the overall rate of employment of migrant workers in the population decreased from 6,4 to 5,6 per cent. However, the number of migrant workers registered by the Labour Offices declined even more – for example the number of migrant workers with a work permit decreased from 129 000 to 73 000; the number of registered EU workers declined only slightly from 100 000 to 98 000. Moreover, the number of officially registered unemployed migrants increased only from 5 535 (end of 2008) to 11 430 (end of 2009) (Horáková 2010). There was a partial transfer of non-EU migrant workers to the “selfemployed” status, where the state regulation seems to be less effective than with work permits (Leontiyeva 2011). As can be seen in the below graph, there was only a slight decline from 2008 to 2009 in the number of migrants in the Czech Republic.

27

From 7 to 13 thousand USD (Ministry of Interior 2009a).

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Figure 1. Foreigners by type of residence from 1985 to 2009.

Source: Czech Statistical Office, czso.cz.

The Czech Government received the first report28 on the consequences of the economic crisis on migrant workers already29 on 15 December 2008. Unemployment among migrant workers was rising and the co-ethnics30 and non-governmental organisations had only limited funds for supporting the unemployed31. At the same time the state was raising panic (cf. Geiger 2010) about their unemployment32. The unemployed migrants without any means to support themselves- becoming a “waif”- emerged as a major risk: “The indebtedness in the country of origin presents a major issue for almost all temporarily or permanently dismissed foreigners and creates an almost existential dependency on their residence in the Czech Republic … It is 28

It was entitled “Dismissing of migrant workers as a consequence of economic crisis – risks and possible consequences for the security situation in the Czech Republic”.

29 At the end of September 2008 governmental politicians still were denying that there could be a “deeper crisis” coming to the Czech Republic (Křížková 2010). In contrast the reaction of the main state authorities responsible for migration issues was relatively quick.

30 See the letter “Otevřený dopis vietnamské komunity” by representatives of different Vietnamese organisations to the Czech authorities, 12 January 2009. Available at http://www.amnesty.cz/events/event.php?id=141.

31 The problem was mainly if they became illegal.

32 For example the claims regarding the potential rise of criminality were criticised (Burdová-Hradečná 2009, Čižinský 2009). Indeed, the police did not report a rise of criminality a year later (Ministry of Interior 2009b).

The authors of the report warned about the potential rise of xenophobia and thus claim that the actions proposed might limit it. Claims to the opposite have been made in a media analysis (Šafránková Pavlíčková 2009).

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therefore necessary to find a way to solve the situation of the dismissed migrant workers so that they do not become a burden for the social security system or parts of criminal structures as well as quickly create conditions for the fast return of those for whom there are no prospects33 in the Czech legal labour market to [their] countries of origin.” (Ministry of Interior 2008). Here we can see clearly that the alleged threats or risks connected with the rising unemployment among migrant workers in the Czech Republic were identified as: criminality, propensity for forced labour and human trafficking, burden for the social state, increase in the number of asylum seekers, increased cross-border movements and rising xenophobia among ethnic Czechs (Ministry of Interior 2008). The Czech Government approved a second analysis along with tasks for various governmental bodies on 9 February 200934. It was expected that thousands of migrant workers would become unemployed. The main policy proposals included a “voluntary return” program, increased monitoring and regulation of both non-European Union migrants present in the Czech Republic as well as a temporary stoppage of labour migration from selected countries35 (Ministry of Interior 2009a). Equally important is the fact that an overhaul of migration policies was planned.

The migrant36 is “inseparably linked to work”37 claimed Abdelmalek Sayad when writing the position of migrants in a recession-ridden France in the second half of the 1970s (2006: 45). If citizens of a given nation-state lose employment, they are called unemployed. It is, however, not admissible that non-citizens are unemployed. They become “waif”38 as the Czech

33

In the sense of “whose presence is not advantageous”.

“Analysis of the security situation of the Czech Republic in connection with the dismissal of migrant workers as a consequence of the economic crisis”, 35 The first report proposed these solutions: “voluntary return”; finding jobs for those who lost them by cooperating with “selected work agencies”, forced return, increased controls by the police and regulating the coming in of new labour migrants to the Czech Republic. There was also a tentative suggestion at the end of the report about some measures as concerns future imports of migrant labour to the country (Ministry of Interior 2008). The second report approved the creation of a monitoring system including monitoring activities done by various ministries and the police to be managed by the Coordination Body to manage the protection of the state borders of the Czech Republic (further on as Coordination Body; more on this institution below). The Coordination Body was to also be responsible for the preparation of legislative proposals. A number of measures were planned in respect to reducing new arrivals, increasing controls of especially migrants with business visas/residence permits, increasing controls, creating reintegration programs in the countries of origin, etc. The most important of the proposals was the creation of a “voluntary return” program for legally resident migrants (note: in April 2009 an extension of the program was prepared this time for undocumented migrants), which would mean that the Czech Republic would pay the return journey as well as 500 euros as a “motivation fee” (Ministry of Interior 2009a).

36 I will mostly use here the term “migrant”, which refers to the official Czech migration policies and the temporariness induced during the economic crisis. Sayad rather uses the term “immigrant”.

37 Not any kind of work (Sayad 2006: 49) 38 “Bezprizorný” in Czech. According to a dictionary it is such a person who “does not have a shelter, home, lives in the street, is without surveillance; abandoned, neglected, wandering around, ill-mannered”, in Havránek, 34

16

governmental reports mentioned above suggest. In times of economic boom immigration may be “useful” for the economy and the state but based on this utilitarian logic the non-citizen becomes “useless” during the economic recession. According to Sayad: “an immigrant does not have any reason to be other than provisional and at the condition that he will conform to what we expect from him: he is not here and does not have any other reason to be here than through work, for work and in work; because we need him when we need him and for this reason we need him here when we need him” (2006: 51). Under this logic, the migrants who lost their employment therefore need to conform; there is no need to propose other arguments for the need to remove migrant workers “for whom there are no prospects” (Ministry of Interior 2008). The economic recession is a moment when the boundary between citizens and noncitizens gets sharpened. The migrant is reminded that his/her stay is only “provisional” and “tolerated” (Sayad 2006: 50).

The contradiction between the “migrant” and “unemployment” is made clear in the two governmental reports: rising unemployment is a risk for the domestic population; migrant workers are not called “unemployed” but “dismissed” (cf. Hofírek, Nekorjak 2009: 170).

They were released from employment, which means that the Czech nation-state is faced with another risk, that of migrant workers becoming “a burden for the social system”. Access to the social security system is not considered a prevention of migrants becoming “waif”. Thus migrants´ social and other rights are denied. Interestingly, in the first governmental report on the economic crisis and migrant workers the only place where “unemployed migrants” are mentioned is in the parts about the situation of migrant workers in other countries in the EU such as Spain; however, in Spain, although migrants were encouraged to leave the country, they still had social rights. The report mentioned that they could transfer their unemployment benefits to their countries of origin (Ministry of Interior 2008).

Where is the state?

How is the period preceding the economic crisis described in the two already mentioned governmental reports on the consequences of the crisis on international migration in the Czech Republic? First, the role of the state was made largely invisible39. This is true for the state’s political economy (support of foreign direct investment), its role in the low regulation B. et al. (1989). Slovník spisovného jazyka českého – I.díl A-G, Československá akademie věd, Ústav pro jazyk český. Praha: Academia.

39 See also Šafránková Pavlíčková (2010).

17

of labour market standards (for agency and other workers on the secondary labour market) as well as in the productive role of the law and migration policies (in creating cheap migrant labour by limiting migrant workers´ rights). The 2009 governmental report stressed an imbalance of different state interests in the Czech Republic’s migration policy. It suggested that business interests were prioritised over other interests during the preceding economic boom: “In trying to meet the needs of the business sector, the security aspects and the need to increase control mechanisms have not been duly considered”40 (Ministry of Interior 2009a).

Blaming the “too” liberal migration policies of the preceding period substantially narrowed a debate on the role of the state in migration control.

Second, it was the employment agencies and “intermediaries” that were to be blamed for the import of migrant workers. For example, the question of corruption at the Czech embassies was not addressed in the reports, which in turn has implications for how the intermediaries and the nature of the “debt” are understood. The debt is presented as either individualised (as a question of an individual or a family decision in Vietnam and other countries of origin) or tied to the “organisers” or “intermediaries” (as a question of their economic profit)41. Such a description of the role of intermediaries and the nature of the debt was questioned for example through the corruption42 at the embassy of the Czech Republic in Hanoi, Vietnam. A witness to the situation at the Czech embassy suggested shifting the debate on the intermediaries by introducing the state administration’s role: “It would be wrong to imagine that these people [in this case – people in front of the embassy who offer services with regards to visa applications – note of the author] are the extended arm of the employment agencies or any mafia. These people either in Hanoi or the Czech Republic have the same role – to collect bribes for Czech officials and the police. It's not that the front of the embassy is always swarmed by a gang that determines who will go in and who will not. The gang is sitting

40

In a similar vein and with a relief, an employee of the Ministry of Labour and Social Affairs described the change in migration policies from the time of pre-2008 economic boom to the ensuing economic crisis in the following way: “The Government started to be eventually more concerned with not only the economic perspective, such as the inflow of migrant labour force at any cost, focus on economic competitiveness, but also social, security and other issues”, Interview with an employee of the Ministry of Labour and Social Affairs, 14 June 2011.

41 In this sense the “theory” of migration processes is limited. It seems from the documents that migration is described as a global phenomenon that “happens” between states. This can be contrasted with Sayad who set the post-war migration to France very clearly in the context of unequal colonial relations (“[c]olonisation, which migration prolongates”) and the demands of the capitalist economy (2006: 78-79). Interestingly the difference gets sometimes noted by state bureaucrats as happened e.g. at the conference Regularizace nelegální migrace, 12 April 2011.

42 Investigations were made but to no avail. See also (Lidové noviny 30/10/2008).

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behind the walls of the Czech Embassy in Hanoi, and those agents are only collectors, because no Vietnamese has any influence about who will go to the Czech Republic”43.

The “voluntary return” program was a solution44 proposed by the Czech Government to the unemployed migrants. For those who would lose their jobs, but would not make use of the “voluntary return” option and become illegal in the Czech Republic there was a threat: “foreigners should be aware of the fact that the alternative to the voluntary return is only an enforced return, which includes detention”45. According to this citation the “waif” migrant would turn into a criminal and an illegal migrant. Those migrants who would stay on might be abused for e.g. forced labour, which means that an image of a vulnerable migrant appeared in the governmental reports (Ministry of Interior 2008, 2009a). This vulnerability served to legitimate restrictions vis-à-vis the intermediaries.

From labour market to police logic The two governmental reports (Ministry of Interior 2008, 2009a) hint at the power shifts among the main logics in the bureaucratic field as elaborated by Spire (2005)46. While the labour market logic – driven mainly by the interests of fractions of capital – was prevalent before the economic crisis started, the police (security) logic became more widespread and clearly more dominant after the economic crisis hit the country. At the same time, the labour market logic became more complementary to the police logic when aiming at the protection 43

“Komentář k popisu migrační situace v zemi Vietnam”, unpublished review of the publication Trlifajová, L. (ed.) (2011). Jaké cesty vedou do Česka? Ceská vízová politika a praxe v Mongolsku, Vietnamu a na Ukrajině mezi lety 2007 a 2010 Multikulturní centrum Praha: Praha.

44 A “regularisation” of undocumented migrant workers was proposed as another possible policy by the Ministry of Industry and Trade (Ministry of Interior 2009a). However, this was not regarded by the Ministry of Interior as one of the alternatives on which the government should make a decision as the alternatives were e.g. in terms of whether the “voluntary return” should be organised by the government and if there should be a “motivation fee”.

The Ministry of Interior used this point (which was introduced by non-governmental organisations involved in the promotion of different forms of regularisations, see http://www.migraceonline.cz/temata/regularizace/ and especially the press release “Green Cards for the Undocumented Migrants” from 15 September 2008 at http://www.uprchlici.cz/cs/aktualne/clanky/zelene-karty-i-cizincum-bez-papiru_0176.html) to render illegitimate the demands for a less restrictive approach in migration policies (Ministry of Interior 2009a).

45 Non-governmental organisations criticised this phrase as not respecting the law (Burdová-Hradečná 2009).

46 Spire studied especially the bureaucratic field (Bourdieu 2000) in France from 1945 to 1975 as an area where different logics (those of the police, labour market and population) contribute to the creation of the state migration policy/policies and where there is a struggle among the different logics. The bureaucrats all have notions of the “national interest” but have different ideas of it based on the logic that is prevalent in their ministry. The logics may be at times compatible or complementary with each other and at times not. For example the logic of the labour market may happen to be incompatible with other administrative logics. Certain issues may move between the bureaucratic and the political fields, some actors may strategise in between these different fields (Spire 2005). I will use the three logics of the police, labour market, population and will add a human rights logic due to the influence of the international human rights norms.

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of the domestic labour market. The Ministry of Trade and Industry was the most critical within the official inter-ministerial negotiations of the second analysis (Ministry of Interior 2009a). The Ministry was criticising the analysis of the contemporaneous situation of migrant workers on ideological grounds (e.g. “state regulation”47). It preferred more “prevention” and control rather than greater transformations of the migration policies, and was against imposing some limitations on work agencies. It was also against contemporaneous deliberations of the Green Cards (a migration policy consisting of single work and residence permit approved in 2008) at a meeting of the Czech Government. Such a deliberation at the governmental level was proposed by the Ministry of Interior, which wished to prevent liberalising changes of the Green Cards policy in the near future. The Ministry of Interior moved the debate skilfully to the political field and asked the government to agree to the following statement: “[The Government] agrees to the current setting of the conditions in the realisation of the project of the Green cards”.

Another example, which illustrates the power shifts between the main ministries dealing with migration issues, involved the monitoring of the demand for migrant workers in the Czech labour market. These negotiations took place in the bureaucratic field48. The Ministry of Trade and Industry was against the determining of the needs of businesses and the labour market as this “should not be subject to planning in the market economy”. To this the Ministry of Interior replied that there should be information made available about the needs of businesses in order to not allow for security criteria to prevail. Once again this case points to the security and (protection of) the domestic labour market logic becoming more important in determining current migration policies.

A third operating logic in this case is that of the population49, which can be understood as the hierarchisation of migrants (e.g. in terms of ethnicity, race, class, gender, age) shared by the bureaucrats and politicians. It manifested itself by e.g. the selection of countries whose citizens are available for the application of the Green Card (Klvaňová 2008). White skilled

47

In the final version the adjective “state” was deleted in front of the word “regulation” (Ministry of Interior 2009a).

48 It could also be described as a “micro-political struggle” (Peck 2001).

49 Unlike in Spire’s account where in France there was the Minister of Population, there is not one ministry that would represent this logic in the Czech Republic. In general, clear lines between ministries and logics cannot be so easily drawn.

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migrants from “culturally and civilisationally different areas”50 (Nečas 2009) have been a preferred choice although this has not always been stated clearly51.

The changes in migration policies in times of economic crisis cannot be understood as simply changes within the bureaucratic field as they have been connected to more general power shifts among the political and social forces. The bureaucratic field has, however, been altered with the rise of migration management52 as illustrated by the Analytical Centre for the Protection of State Borders (further as “ANACEN”). This is an analytical and a strategic body connected to the political field by the Coordination Body. The concept of migration management and its institutional setting have been important53 for explaining the changes to migration policies after the economic crisis started, as well as for explaining the subsequent intensification of inter-agency cooperation in migration control (Čaněk 2010).

To sum up, in this part I demonstrated that the role of the state in the precarisation of migrant labour in times of the economic crisis was made invisible by using the “waif”, “lawless” and “vulnerable” migrants categories. This vulnerability has been constructed against the “evil intermediary”, a variation of the “evil employer” (Anderson 2010). Although such a conceptualisation of migrants makes for a limited notion of rights, it has allowed for a partial co-optation of the civil society organisations in the state’s efforts to fight against the intermediaries and illegal migration (Čaněk 2010). While the state may have been partly successful in reducing the number of migrants during the economic crisis, EU migrant workers have taken some of the lesser skilled jobs previously done by non-EU migrant workers. This shows that the state has different approaches to each of the two migrant groups.

The partial substitution of non-EU by EU migrant workers in “bad” jobs has (with ensuing concerns over violations of their human and workers´ rights), however, not prompted a more general debate on the precarisation of certain professions. This is understandable though as

50

The at that time Minister of Labour and Social Affairs, Petr Nečas used this phrase to denote some current problems of migration in an opening speech at a conference in Prague as part of the Czech Presidency of the European Union.

51 In a liberal democratic country or because of foreign policy considerations.

52 Geiger and Pécoud identified some traits of migration management accordingly: “comprehensive and holistic”, depoliticised and technocratic, “multi-level and multi-actor”, favouring informal norms (e.g. best practices rather than international human rights norms) (2010).

53 The ANACEN was created based on the Governmental Decree No. 933 of 22 August 2007. It was founded in the context of entry of the Czech Republic into the Schengen Area (Ministry of Interior 2007). The Coordination Body supervises ANACEN. The Coordination Body is composed of high-level bureaucrats, while the ANACEN is composed of several working groups, which include representatives of ministries and other state institutions.

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these debates on migration policies have been embedded in a neo-liberal discourse54, one that favours flexibilisation, deregulation, cuts in social welfare55 but not necessarily less administration in the area of controlling undocumented migration (Peck 2001).

The “Treeworkers” Case At this point we are turning our attention to the specific case of several hundred migrant workers from Vietnam, Romania, Slovakia and other countries, who over 2009 and 2010 did not get paid any or only small parts of their wages and were exposed to indecent working conditions in forestry in the Czech Republic. It seems that in some variations, the same companies or individuals continued to recruit workers in 2011. Several inter-related companies were providing workers (either as subcontractors or as a work agencies) to the forest giant Less & Forest. Not only were labour costs externalised, but also the everyday maintenance was not covered for some of the workers (Burawoy 1976), in other words these workers were left to literally starve in the forests. Three lawyers in Prague have been representing more than eighty former workers who were employed by subcontractors for Less & Forest. The police has been investigating the case since autumn 2010. Several organisations have also been involved in a “Campaign for the Treeworkers”56, which seeks justice for the exploited migrants working in forestry (Křížková 2011).

As discussed in the beginning of the article, global and regional labour markets operate in parallel with the globalisation of production and commodification of labour (Overbeek 2003).

Since possible relocation of production in forestry is limited, the inclusion of global / regional workforce in forestry in the Czech Republic takes place through labour migration mainly from central, eastern and south-eastern Europe. The migrants, who worked for the subcontractors of Less & Forest were in an unequal position in relation to the company in the upper parts of the production or public tender chain (see Ngai 2010: 150). Uncertainties in the market and in public procurement in forestry have been transmitted onto them.

54

See e.g. Buch-Hansen (2011) for the enumeration of different discourses within the European Union. He and his co-author Wigger study the evolution of competition regulation.

55 See e.g. the speech of Nečas (2009).

56 See http://english.zastromkare.cz/.

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The labour force employed by the companies Affumicata, a.s., Wood Servis Praha s.r.o. and other subcontractors57 has been highly segmented especially by ethnicity, race, citizenship, legal status and gender. These companies have been (or were58) tapping certain kinds of labour pools in particular areas59 in different countries. Each year new labour pools were looked for. In 2009 the companies targeted mostly workers from Vietnam and Slovakia; in 2010 from Romania or Slovakia; in 2011 recruitment was taking place in Romania, Lithuania and Hungary. This capacity to hire amongst diverse pools each year, which amongst others was made possible by having established local partners and recruiters who spoke the language of the country or the area, confirms the argument about the centrality of such transnational labour subcontracts60 or employment agencies to the entire operation (see e.g. Pijpers 2010).

The seasonal nature of work in forestry as well as the cost of visas and the restricting of legal labour migration to the Czech Republic in the times of crisis made the Eastern European migrant workers a privileged group of flexible workers. The intensification of production (Rogaly 2008) and the relocation of workers according to the needs of Less & Forest from one part of the country to the other have made this kind of work less accessible to “local” workers. What may have also played a role was a substantial decrease in labour costs for cultivation work, which reportedly happened in 2009. A former employee of the Less & Forest remembered how at the beginning of 2009 the local workers who used to do the work the year before at his place of work were told that the piece rate for planting trees would go down by 40% compared to the year before: “People started to get agitated but [the Less & Forest] didn’t care … they thought that saved the company a lot of money”61 (see also Čaněk 2011).

In the first half of the year 2009 the recruitment for forestry work targeted especially Vietnamese workers. As was discussed in previous parts of this article, these workers were dismissed mainly from peripheral agency jobs in the industry, or even arrived to the Czech Republic only to find out that the work that was promised to them no longer existed. The former head of the Affumicata recruiting agency presented the agency’s recruitment efforts as 57

To see the entire public tender chain and the names of companies go to figure 1 below.

Not all of them are active today. They tended to succeed each other. E.g. after the company Affumicata ceased its hiring activities in mid-2010 most probably due to having been fined by the Labour Offices in the Czech Republic; its partner in Romania was found to be involved in a regional scandal after workers returned from their jobs in the Czech Republic and publicised their case in the media (Guga 2011).

59 E.g. in regions with a tradition of work in forestry, however, this was not always the case.

60 As mentioned already not all of the companies employing these migrant forest workers functioned as an employment agency (only one did officially – Affumicata).

61 Telephone interview with a former timberman who used to work also for Less & Forest, 6 December 2010.

58

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giving a helping hand to the Czech state by offering work opportunities to the “waif” migrant workers: “We knew that in 2009 the economic crisis came and there were hundreds to thousands unemployed Vietnamese … It was a problem that the Czech Republic was worried about, [they] were committing crimes”. The ethnicised Vietnamese were according to him a “disappointment”62. He described their experience this way: “Vietnamese don’t want to work in forests, they don’t work and are lazy” and continued to describe other labour sources they tried: “Then there were mostly Slovaks. But if they’re supposed to plant three hundred trees and plant only fifty, everybody fails to profit

... Of those who came [by replying to

advertisements] twenty of them were useful, the rest were homeless people and alcoholics”.

The best were according to him “Romanians” whom they planned to recruit in 2011.63 Such a depiction contrasts with the experience of the Vietnamese and “ethnic” groups of workers. For example an unemployed Vietnamese migrant T. described the beginning of the economic crisis and the cultivation work for the company Affumicata in this way: “Before we drove into the forest, we had to wait for five days in Sapa64 where we went to a Buddhist shrine to beg for food. There was no heating, hot water, nothing. It was terrible. ... Then we drove to the forest tree nursery. There we got 6 200 Czech crowns for the first month. For the three hundred hours of work in the next month we never got a penny … Although it was raining or snowing heavily and we were very cold, we still had to work. Stuck in my head is a memory. She was a girl, now she is 19 and just graduated from a high school in Vietnam. We endured those conditions but she cried and cried until we finally had to call the interpreter to take her away”. Then this group of workers tried to get the unpaid wages from the company.

They tried to come several times to the office of the company in Prague. They were persistent and the company called the police on them. A woman from the working group A. recalled: “The police arrived, they wanted to give me handcuffs. I told them that I did nothing wrong, that I worked for this company and didn’t get my money. I showed them the evidence (documents on the number of hours worked), contract, etc. But they took it and tore it apart.

Fortunately I have a copy. The police then eventually led us out. Terrible day”65.

62

In contrast to the stereotype of Vietnamese as hard-working.

Interview with a former head of the Affumicata company, 6 January 2011. He is still one of the organisers of migrant forest work for Less & Forest albeit under the name of a different company (e.g. Madera servicio s.r.o.).

64 A big mostly wholesale Vietnamese market in Prague. It functions also as a social and cultural center for Vietnamese migrants.

65 Interview with two Vietnamese workers, T. and A., 26 March 2011.

63

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Migrants from Vietnam found themselves in between an “evil employer” and the state, which offered to the indebted unemployed non-EU migrant workers either a “voluntary” return or “voluntary” exploitation66. Under this rhetoric, both the employer and the state presented themselves as being generous to migrants by offering them assistance in the economic crisis.

However, as the Czech state predicted, most Vietnamese migrants did not make use of the “voluntary return”67 offers and thus, the migrant workers’ susceptibility to labour exploitation increased (Ministry of Interior 2009a).

Tree planting and other forest work were in fact not considered as official “employment”. The Vietnamese workers had a “trainee contract”. Although the migrants, T. and A., knew or learnt who their employer was, many of the workers did not know it. This recalls the experience in the Chinese construction industry, where non-payment of wages in the long chain of subcontractors is regular and deliberate. Ngai and Huilin quoted in their article one worker in China: “We're not even workers. Workers sell their labour to the boss and receive payment for it” (Ngai 2010: 151). One of the companies, which was “training” the Vietnamese workers in 2009, received a fine for employing “illegal” migrants from two Labour Offices in northern Bohemia. The “trainee contract” was eventually qualified as work and therefore as “illegal” employment (dependent work without a work permit).

While for the Ministry of Labour and Social Affairs, the case has become one of “illegal employment” and thus (for other state agencies) one of potentially “illegal” residence, the Treeworkers campaign has aimed at recognising these workers as subjects with economic and other rights and therefore as entitled to a fair remuneration. At the same time, when “illegality” is made visible in such campaigns it creates dilemmas (Chauvin 2009). This issue seems to have been attenuated due to the recruitment of mostly EU citizens by the aforementioned subcontractors since the second half of 2009.

In the case of the migrant forest workers who posses EU citizenship, the state has played a minor role in terms of setting boundaries between domestic and foreign labour. European Union citizens have the right to freedom of movement in the EU. Therefore, the state does not play the (same) role in creating a temporary and flexible migrant workforce. Workers from Romania and Slovakia had different kinds of contracts (mostly temporary work contracts).

66 67

See also e.g. Jelínková (2010) for the effects of the state on migrant workers during the economic crisis.

283 citizens of Vietnam took part in the “voluntary returns” in 2009.

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However, in the context of deregulated forestry, weak labour and given the limited state regulation of labour standards, the situation some of these workers ended up in was similar to that of the non-EU migrant workers in terms of not receiving the promised wages and suffering through demeaning conditions.

Breaking of the black-box?

This part will follow on the previous analysis of the public tender chain and the processes of black-boxing (making some parts of the network invisible) as well as the breaking of the black-box (opening the parts of the network that were hidden). One of the strategies that the campaign organised by migrants´ rights initiatives adopted was to render visible the relations within the public tender chain, which means to break the black-box, as can be seen in figure 2.

The aim here is to counter the diffusion of responsibility in the complex production chains (Young 2006: 110).

Figure 2. The public tender chain of the Tree-Workers case. At the top are the state companies – Forests of the Czech Republic, the Šumava National Park, the Krkonoše National Park, the Headquarters of Roads and Highways; in the middle is the company Less & Forest that won the public tenders; at the lowest level are the companies that acted as work agencies or subcontractors supplying workers to work on the public contracts.

Source: www.zastromkare.cz

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In contrast to the global textile production chain that Young wrote about, the public tender chain presented here is much less complicated and is based in the context of a nation-state (European Union) and its legislation. By preparing the picture of the public tender chain the migrants´ rights initiatives have not respected the distinctions between exchange and command as distinct ways of co-coordinating social practices (Jessop 2003). The command and exchange modes are thus interconnected in the chain. In turn this means that the effects of decisions at the top of the chain are seen as having consequences for the bottom of the chain, for the workers themselves as well as for the relation between the worker and the official employer. The workers interviewed realised that this multiple disciplining is part of the chain.

Some of the workers were making a connection between the wage theft they incurred and the work for a public body (space). For example, a worker from Slovakia who worked in the Krkonoše National Park in the summer of 2010 was surprised that he was not paid “in the Krkonoše National Park, that is after all [a respected national park] like our TANAP68”69. He had regarded work in this national park as a guarantee that he would be paid.

There were different reactions from the public institutions that organised the tenders where the forest workers were employed. I will focus on two institutions whose reaction was amongst others triggered by two events: the coverage of the case in the national media,70 and by the aftermath of a week of actions organised by the migrants´ rights initiatives at the end of March 201171. First, the company Forests of the Czech Republic has been mostly able to keep at a distance the question of the working conditions and (non)payment of workers on public tenders on the territory it administers. In its press release72 it stated that it is not “indifferent to the stories in the media according to which migrant workers conduct work in forests allegedly not receiving proper and legally guaranteed wage.” The company continued with arguments about the responsibility of its contracting partners because it claimed not to employ any foreign workers in the forests. The exchange mode is the only one, which was valid according to its opinion. It claimed not to be a part of the command and hierarchy of a different company: “The real culprits are the employers and intermediaries who violate the employment regulations. The Forests of the Czech Republic is definitely not such an

68

The High Tatras National Park in Slovakia.

Interview with a former forest worker from Slovakia.

70 Nový Prostor, Lidové noviny, Radiožurnál, etc.

71 It was called “The Week for the Treeworkers”. It took place at the end of March 2011 and included a march of about one hundred people from the Ministry of Agriculture to the Ministry of Interior in Prague.

72 “Stanovisko Lesů ČR k problematice zaměstnávání zahraničních pracovníků”, tisková zpráva, 23 March 2011.

69

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employer as the company fulfils all its legal obligations in the area of employment”73. The company stated that the wage policy of its contractors was their “internal issue”, and that it could neither influence nor control employment relations in the forests.

The Ministry of Interior, which prepared a report about the Treeworkers case74, included the Ministry of Agriculture in the discussion on the involvement of the Forests of the Czech Republic in the case. This points to the creation of new links and relations in the bureaucratic field – between the area of migration and human trafficking (coordinated mainly by the Ministry of Interior) and the state forests´ policy (coordinated by the Ministry of Agriculture).

Content wise, the report included information on a meeting between Forests of the Czech Republic and its contracting partners where the issue of agency work was discussed.

What seems to have been more important thus far in threatening the breaking of the company’s neat separation from the conditions at the bottom of the public tender chain is the involvement of Transparency International’s Czech chapter. This non-governmental organisation became interested in the Treeworkers case in its capacity as an advisor on public tenders for the Ministry of Agriculture. It sees the case as an example of the practice of undercutting labour costs by subcontractors, which is advantageous to a company like Less & Forest. The link to the public tender chain was established by the demand to re-introduce75 an indicative list of prices for forestry work, which could then lead to the elimination of speculative bids in public tenders (Transparency International 2011a, 2011b). These statements cannot be ignored in the same way as could be done with “media stories”.

The approach of the second institution, the Krkonoše National Park, can be contrasted with that of the Forests of the Czech Republic. As a national park it is not mainly an area of forestry exploitation and therefore economic gain is not a priority. The park first reacted in an exchange mode in that it did not see any possibility to get involved in the checking of labour standards. An employee of the national park said accordingly: “How much our contracting 73

See, however, the ITUC Annual Survey of the Violations of the Trade Union Rights 2011: “A serious and persistent problem was registered at Lesy České republiky (Forests of the Czech Republic) by the Trade Union of Workers in the Woodworking Industry, Forestry and Management of Water Supplies. There have been repeated complaints regarding violation of trade union rights, including absence of information and consultation, as well as obstruction during the collective bargaining process”. Accessible at: http://survey.ituccsi.org/?lang=en.

74 The “summary report” was prepared by the Department of Security Policy of the Ministry of Interior (this department is the seat of the Czech Republic’s anti-trafficking coordinator).

75 It existed before.

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party pays [to the workers], we really can’t deal with this”76. The park is, however, covered by one of the international certification standards, Forest Stewardship Council (FSC) certification, which covers social aspects of forest management. These standards may give leverage to the labour unions, workers´ rights and community groups, but the certification schemes have limitations (Khazri 2009). For example, the improvements made after checks in certified forests (e.g. the wearing of hard hats) by external auditors of the certification schemes were criticised as elementary (Cashore et al. 2006 in Khazri 2009). In 2010, forestry work was interrupted in the Krkonoše National Park for a short time by the parks’ administration before the workers received proper protective clothes and helmets77. Although considered by Cashore et al. as elementary, the protective trousers were welcome by a former forest worker from Romania who worked in the Czech Republic78; he said that otherwise there would have been more injuries because many of the workers “didn’t hold a chainsaw in their hands before”79.

In 2011 the Krkonoše National Park the Treeworkers case became an issue in the FSC audit.

The audit found “a deficiency with regards to the treatment of workers, which should be remedied until the next audit”80. The national park claimed that the company Less & Forest had not informed them that they themselves had subcontracted another company to carry out the work. Although the coordination mode of command does not extend to the workers as the national park cannot control their contracts, etc., the national park decided to enter into a more direct contact with the migrant workers and to report any possible violations to the Labour Inspectorate81. Multilingual information leaflets were created for the migrant workers.

According to a representative of one the initiatives involved in the Treeworkers case the Krkonoše National Park administration made an effort to eliminate cases of workers´ rights abuses in 2011 in spite of its authority in this area being limited by the public procurement legislation. At least one serious injury was reported in 2011, in which a migrant worker was not brought to a hospital to be treated there. It remains to be seen what the effects of the national park’s actions will be in the long run82. The situation in this park, however, is an 76

Interview with an employee of the Krkonoše National Park, 5 January 2011.

Interview with an employee of the Krkonoše National Park, 5 January 2011.

78 This worker worked in the Šumava National Park in southern Bohemia in the 2010 season.

79 Interview with B., a former forest workers from Romania, 5 July 2011.

80 Statement from the auditor about the public part of the FSC audit in the Krkonoše National Park communicated to the author of this paper by e-mail, 17 February 2012.

81 In 2011 the Police and the Labour Inspectorate carried out checks in the Krkonoše National Park (Jelínková 2011).

82 Information by e-mail from a member of the Initiative for Migrant Workers’ Rights, 24 February 2012.

77

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example of the breaking of the black-box of the working conditions in the public tender chain.

The certification and also these kinds of non-hierarchical contacts83 have been part of a governance mode.

Conclusion In this article I have shown how subcontracting in the Czech Republic distances management from labour, and how gains have been unequally distributed among fractions of capital and labour. The notion of a public tender chain was introduced. It demonstrates the influence of public procurement and the focus on price for wages and working conditions at the bottom of the chain. The public tender chain is ridden with power hierarchies that are often hidden.

However, there are certain moments and strategies which can open the “black-box”.

As this article showed, even a minimal threshold for labour standards has been missing in the public tenders in state forestry. This fact, in combination with increased competition in forestry in the Czech Republic has contributed to a growing precariousness and the emergence of a case like that of the Treeworkers. Hundreds of workers from Vietnam, Romania, Slovakia and other countries planted trees and did other work in forestry in 2009 and 2010 without being paid their promised wages and having to work in indecent conditions. It proved useful to treat the different positions of migrant workers in the context of interactions with various state policies in the areas of state forestry, public tendering and migration control.

The state co-created a vulnerable, ethnicised and criminalised migrant workforce during the economic crisis, which fit the demand for cheap labour in forestry. Increasing migration control, illegalisations and reduced access to a pool of migrants from non-European Union countries were important factors in the change in some employers’ and intermediaries’ employment strategies, who started to tap (more) labour pools in several eastern European countries. In the Treeworkers case, the migrant workers from Romania and Slovakia faced similar experiences of exploitation as those from Vietnam before them, which points to structural problems in the labour market and the public procurement in the forestry sector.

Lastly, the high flexibilisation and instability of employment also have consequences for the

83

In the sense of not being in the hierarchy of one institution (the Krkonoše National Park).

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availability and development of certain skills for example, and therefore pose the question of long-term reproducibility of such a labour market – especially as there have been limits on the introduction of new technologies in some areas of forestry work (Peck 1992).

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