The story of an illegal Ukrainian worker whose body was found in the woods rocked Poland and Ukraine at the end of June.
Vasyl Chorney, a 35-year-old native of Sniatyn in western Ukraine, lost consciousness while working at a carpentry shop in the Greater Poland Voivodeship. Because the man was employed illegally, the owner of the sawmill, instead of calling an ambulance, together with another worker, brought Chorney to the woods. On the way there, the Ukrainian died, but his body was found only a few days later. He is survived by three children.
The tragedy reignited a discussion in the Polish media about how local employers treat foreign workers and how often they are offered work without the necessary paperwork.
Polish discussions about migration often mention that over one million Ukrainians work in the country, with half of those illegally. Last year, Ukrainian citizens received more than 250,000 work permits in Poland that allow them to work legally in the country for up to three years, and more than a million declarations of intention to employ a foreigner who can work for up to six months during the year. So where does this figure of 50% “illegals" come from?
What the Law Says
Non-E.U. nationals wishing to work in the European Union must have documents that allow them to cross the border legally, stay in their chosen country, and obtain a work permit.
Poland struggled with unemployment in the 1990s and early 2000s, and thus restricted the employment of foreigners in every possible way. After joining the E.U. in 2004, when nearly a million Poles left for the U.K. and Ireland, the Polish agricultural sector was faced with the problem of no manpower to harvest.
At the request of business, in 2007 the government introduced a facilitated employment procedure for citizens of five Eastern Partnership countries – Belarus, Armenia, Georgia, Moldova, and Ukraine, as well as for Russia. Thus came about the legendary oswiadczenie (from the Polish “oświadczenie” – declaration) – a declaration of intention to employ a foreigner. Unlike classic work permits, which require the consent of the local government, this declaration is a statement from an employer who simply registers it in labor administration and which is valid for up to six months.
Already in the first year, over 200,000 such declarations were registered, and in the record 2017 – as many as two million, among them 95% for citizens of Ukraine. At the same time, a declaration for up to 90 days can be issued even to those who arrived under the visa-free regime.
Ideally, everything looks simple: a Polish employer finds an employee in Ukraine through an intermediary, registers the declaration for him, the Ukrainian comes with a biometric passport or with a visa. Then he signs a labor contract, and if there is a desire to cooperate with the same firm – he further submits documents for work and residence permits.
However, in practice, difficulties arise at every step of the process.
Not Just Work Without Permission
Firstly, Polish employers are willing to issue invitations, but they are less willing to sign employment contracts. But if it does come to the signing of the agreement, it often won’t be on the terms that were stated in the invitation.
Instead of a full-fledged employment contract, which deducts contributions to the Social Insurance Fund and health insurance, short-term civil agreements are proposed. There is also a more insidious scheme – the contract is signed, but Social Insurance authorities are not informed.
Secondly, there is bureaucracy. Even if the employer is honest and wants to have a permanent collaboration with a Ukrainian migrant – it can take six months to receive a work permit and almost a year for a residence permit. And if the previous permission has expired and the new one has not yet been received, in most cases the foreigner cannot work legally.
Thirdly, work without registration of labor relations is sometimes initiated by Ukrainian workers themselves. Those who come for several months and receive an hourly wage are interested in working 10-12 hours a day for 6-7 days a week, which is against the Polish Labor Code.
In addition, taxes and deductions from the Polish employment contract account for about 35%, and for many, this is too expensive an insurance against checks, which may not even happen.
On top of that, the Polish law is impractical in this respect – a work permit is issued for a specific position at a specific firm.
Therefore, every change of employer, even just after receiving a fresh set of documents, requires that all procedures be started from scratch. And this is again the six- to twelve-month wait that Ukrainians prefer to spend working illegally.
Another popular practice is for Ukrainians to prepare the paperwork for one employer but then to switch to another, or to work simultaneously for several, albeit illegally.
Therefore, the modern definition of an "illegal" in Poland is no longer a middle-aged woman who comes on a short-stay tourist visa, and then takes care of the elderly or works as a cleaner for several years in a row without having any work permits at all. That was the case in the 1990s.
Gdansk, Poland. Photo: courtesy
It is now a 20- to 30-year-old man who has a visa or arrived thanks to the visa-free regime Ukraine has with the E.U. He works in the field of construction or catering, but not for the company that sent the invitation, but for two to three others. It is likely that this employee did start the procedure of legalization of work and stay, but he generally did not wait for it to end.
It is difficult to determine to what percentage of Ukrainian workers in Poland the above practices apply. A 2017 study by the International Organization for Migration found that 20% of Ukrainians worked without any agreement, 22% were victims of exploitation and fraud.
In 2018, trade union experts talked about 40% of "illegals", economists ‒ about 50%.
When EWL group asked Ukrainian migrants last year about their experience of illegal work, almost 26% admitted to it. At the same time, 42% rejected the opportunity altogether, and 23% would risk it if they were given a chance to earn more.
This year's survey "Ukrainians on the Polish labor market – experience, challenges, perspectives" found that 30% had already worked off-the-books, and the number of those who are prepared to work without documents increased to 38%. At the same time, 50% of Ukrainians in Poland would not work illegally under any circumstances.
In June 2019, contributions to Poland’s Social Insurance Fund were paid for 644,000 foreigners, including 470,000 citizens of Ukraine, which means they had full-time employment contracts. This is six times more than in 2014, but still low compared to the total volume of Ukrainian migrants – its permanent share in the Polish labor market is estimated by the National Bank at 800,000 to 900,000.
Dr. Marta Kindler of Warsaw University notes that there is no culture of condemning illegal labor in Polish society: people do not see it as a crime but rather as another way of “getting by”. On the other hand, migrants are beginning to understand why it is important to work legally:
"These changes are due to the fact that migrants understand that migration is not a temporary phenomenon in their lives and, also, to changes in the nature of migration from Ukraine to Poland. More and more migrants are working in the services and large firms, where working off-the-books is not a popular practice. The role of mediation agencies is increasing, more and more people want to stay in Poland for longer, and long-term legalization is impossible without an official contract."
The legality of employment of foreigners is controlled by the Polish Border Guard and the State Labor Inspectorate. Border guards can inspect households, firms, and individuals employing migrants, while inspections can be carried out at those enterprises whose workers have signed employment contracts.
In 2017, the State Labor Inspectorate conducted 7,200 checks on the legality of employment of nearly 46,000 foreigners, among them 86% were citizens of Ukraine. More than 4,000 worked without a work permit, 1,700 in a position different from the permit, 800 had a permit but did not have a signed agreement.
Most often, such cases were reported in small firms with fewer than nine employees, in industrial processing, security agencies, cleaning companies, and construction.
Penalties for offenders are severe: the employer, who recruits foreigners illegally, faces a fine of 3,000 to 30,000 zlotys (about $760-7,600), the worker has to pay a fine of 1,000 zlotys ($250), and in some cases may be deported and added to the list of persons whose stay is undesirable in Poland and the Schengen area.
Who Is to Blame and What Can Be Done
The Polish government recognizes the problem and inscribes the need to strengthen control over the legality of employment across all migration strategies.
For example, the latest draft migration policy, released in June, focuses on expanding the competencies of control bodies and expanding their staff.
However, this path seems unpromising: border guards and labor inspectors are unlikely to control even 10% of foreign workers, and the severity of punishment can persuade employers not so much to seek legal employment as to take more care to conceal illegal employees better.
And tragedies similar to the death of Vasyl Chorney can follow.
According to a study by the Warsaw Foundation "Our Choice", Ukrainians are happy to work illegally as long as they are paid on time. Therefore, along with the control, there should be an educational campaign about the threats of working without an agreement and health insurance.
Moreover, illegal work not only threatens financial stability, life and health – it isolates people from the rest of society, argues Kindler:
“Ukrainian migrants maintain contacts mainly with persons of similar socio-economic and legal status. In practice, this means that a Ukrainian who works illegally is likely to have an environment that also works illegally. And since the change of work is often due to information from friends the likelihood is that the next job will also be without a formal agreement. This is how ‘negative social capital’ emerges: people are locked in a social environment that leads them to marginalization."
In 2018, the State Labor Inspectorate launched a "Work Legally" information campaign to distribute informational materials and provide advice to migrants in Ukrainian.
However, this initiative, as well as the activities of non-governmental organizations, is aimed mainly at residents of large cities. The remaining migrants are left without help and information. For them, no additional measures can be found in the new Polish migration policy strategy.
/By Olena Babakova