1 Research into the specificities of employment of foreigners in the fruit farm sector brings into question the compatibility of freedoms and rights inherent in the free movement of workers and freedom to provide services and the struggle against discrimination at the intra and extra-European Union (EU) frontiers. Seasonal work in fruit farming (as in agriculture and viticulture) is covered by the co-presence of foreign workers on seasonal contracts organized by the Office national de l’immigration (ONI) since 1945, [1] and of workers on posted mission contracts from temporary employment enterprises, known as ETTs, in Spain. Employment of foreign workers is a long-established practice in French agriculture: according to ONI statistics, 350,000 foreign workers were hired in agriculture and forestry between 1946 and 1973, predominantly Italians until 1958, Spaniards from 1960 to 1965 and Portuguese between 1966 and 1971 (Bune, 1975: 49). Following bilateral agreements with Morocco (1 June 1963) and Tunisia (9 August 1963), contracts issued by the Office des migrations internationales (OMI) were issued principally for Maghrebin labourers working on Provençal farms.
2 In 1996, posted workers were the main focus of a European Directive [2] aiming to reconcile the supply of transnational services [3] and fair treatment by guaranteeing a series of “hard core” [4] rights in the Member State where they are posted. Later, reinforcement of the free offer of services by the 2006 “Bolkenstein” Directive [5] encouraged companies to provide services in the European Economic Space, by posting workers from another Member State without having to be registered in that country. Given the penury of local workforce in the agricultural sector, these EETs offered “user enterprises a solution for reducing uncertainty by adapting to fluctuating needs” (Guégnard et al., 2008: 41) through the provision of “groups of atypical employees which made it easier for them to adjust to cyclical fluctuations” (Galois and Lacroux, 2012: 51).
3 Statutory segmentation in agricultural enterprises, which grouped together workers under contract to the Office français de l’immigration et de l’intégration (OFII) and posted workers from ETTs, allowed flexibility in the internal and functional management of the workforce by taking advantage of diversity of skills, allocation of specialized tasks, and work intensification (Décosse and Mésini, 2018). During the same period, the national agricultural sector was experiencing considerable difficulties, since 756,000 farm employees were hired on precarious contracts in 2016 (short-term and/or seasonal contracts, apprentices): fruit farming registered the highest levels of precarity where “90% of employees had temporary contracts” (Depeyrot et al., 2019: 19). This article will concentrate on fruit farming as a case study on the deep social and salary changes in an ultra-competitive sector for Southern European producers. We will analyse the advantages gained from the combination of two different recruitment patterns: a Maghreb workforce hired on seasonal contracts provided by the French government, and posted foreign workers on mission contracts supplied by Spanish EETs and individual user enterprises since the 2000s.
4 We will begin with a brief history of fruit farming on the La Crau plateau based on two biographies: the story of a La Crau farmer with a small number of parcels in the 1960s, and that of a Drome farmer with substantial orchards in the 1980s. In order to understand the socio-economic behaviour of farmers in terms of their organization and relationships, we have taken into consideration the concept of familiarism, that is, “the successful overlapping of two forms of social capital, family and enterprise” (Arrègle et al., 2004: 14). We will see how older and younger generations have opted for diversification of production and economic assets, by optimizing property assets, extending into other activities, improving fruit quality, and broadening their distribution network.
5 We will then review more recent data on the deployment of foreigners in the fruit farming sector through a dual qualitative/quantitative analysis of the introduction of seasonal contracts by OFII and of mission contracts for posted workers in orchards in the Department of Bouches-du-Rhône. We will see how annual employment on fruit farms, of intra and extra-EU seasonal workers originally from North and West Africa and Latin America, relies on labour intensification, increased productivity, and reduced conflicts. Our analysis shows that political-economic adjustments have had an impact on incremental costs and workers’ rights because of the need to adapt to distortions caused by competition in production costs in the Mediterranean Basin.
6 When discussing interim work, we immediately think of flexibility, statutory precarity and uncertainty (Lacroux, 2008: 59), but also inequality in terms of employment, pay and working conditions. In this regard, OFII’s foreign workers hired on short-term contracts (two to six months) or “posted” on open-ended contracts by European service providers are doubly discriminated against, compared to national workers in countries of recruitment and those of assignment. In fine, seasonal and temporary employment in fruit farming operates at the very edge of legality and accumulates illegalities in terms of social and economic rights of imported and posted workers.
Performance and Competition in Fruit Farming on the La Crau Plain
7 With the domestic circle and the agricultural production unit so closely interwoven, family agriculture “mobilizes simultaneously three primary factors that are necessary for production: work, capital and property” (Courleux et al., 2017: 88). Nevertheless, is the family enterprise the most performant, when compared with other business structures, given its particularities such as “family control of capital”, “active participation in business management”, and “transmission and desire to hand over to the next generation” (Bughin and Colot, 2008: 2). The response to this question will emerge from an analysis of two ideal-typical biographies which bear witness to developments and changes in fruit farming on the La Crau Plain.
Familiarisme in La Crau Fruit Farming
8 The impetus for the development of 5,000 hectares of land in the lower La Crau plain was initiated by the Vichy Government (1940-44) as it sought to enhance the country’s “nutritional” role and promote “agricultural expansion in territories with potential for high levels of productivity” (Giandou, 2000: 3). Fifty years later, farmers, often from the department of Drôme had begun to cultivate the area around Coussouls and to plant large adjacent orchards which seriously modified the Durance’s ancient river bed.
9 Of the 800 enterprises in the Bouches-du-Rhône “stone and pome fruit” sector, twenty-five specialized in peaches, nectarines and apricots in the La Crau plain. In general, these orchards covered more than seventy-five hectares with a total of 4,700 hectares cultivated in the local area (Wolff et al., 2015).
Map 1: Location of the Fruit Farming Basin in La Crau
Map 1: Location of the Fruit Farming Basin in La Crau
10 The two biographical stories collected in 2008 and 2014 provide an opportunity for understanding two distinct approaches to establishing orchard farms: the first was a small farm with land bought and rented between 1960 and 1987, while the second farm planned its expansion through the acquisition of additional land and by concentration and intensification of its harvests (1980-2018). My first interview was with Guy B., from whom I had rented an old shepherd’s house for fifteen years, during which I learned about the various phases of the farm’s diversification (fruit farming, market gardening, horticulture, and even rice-growing in La Crau’s south-west corner) financed by bank loans in the 1960s (Beltrando, 2015).
11 Thanks to his wife’s tobacconist shop and his labour in the fields, the farm was able to survive and acquire additional land between 1954 and 1974. After his daughter’s marriage, the two couples joined forces in order to cultivate thirteen hectares of rented land and their own ten hectares:
“Each winter, everything I earned was spent on preparing the land, clearing it. It was a sacrifice. The first year, I grew tomatoes, the second, melons and I also planted trees for pears, apple and peaches. After that, we focused solely on fruit and we planted 1,500 olive trees on the hill and I had another 800 peach trees (Springtime and Franciscan) which mature from July to late August.” (Interview with Guy B., in his home, 13 March 2008)
13 Mutualization of investments in property, equipment and labour allowed the family to make good profits by selling their produce in local markets: “I made my living in the markets. My children were happy, we shared everything, income and expenses”. [6] The property and equipment were co-owned with his daughter and son-in-law:
“We bought one calibrator for peaches and another for apricots. We owned six-bar ladders, compression shears, a tractor and trailer, a 1000-litre atomiser and a rotary slasher for making fertilizer […]. Later, around 1975, we bought a forty-ton refrigerator for the fruit, because otherwise we could no longer sell them.” (Interview with Guy B., op. cit.)
15 Simultaneously, there was an acceleration in the development of orchards on Gard and La Crau plains in the 1980s, which coincided with several other factors: a strong technical rupture, introduction of new socio-professional options, and emergence of large farms that “extended production cycles” (Lamine et al., 2015: 9). Guy B. described the aggressive competition from his neighbours in Gard who converted their farms into very large orchards: “In the end, I was still selling in the markets, but it was becoming very difficult. While I arrived with 250 or 300 crates, the Gard farmers would bring 1,200, or even 2,000 crates. If they didn’t sell, they would cut prices, and so it was all over”. [7] It was a relief for him to retire in 1987, despite the modest return for his hard-working life: 470 euros a month from the agricultural pension fund, 500 euros a quarter from his commercial activities, and 130 euros a quarter from the complementary artisanal fund. [8]
16 In the second biography, a farming family owned several large fruit-tree properties which had strongly changed the shape of the La Crau plain (Wolff et al., 2015: 9). I met Antoine R. by chance in 2014 in a bar in an Alpilles village because I was intrigued by the presence of foreign seasonal workers in the agricultural sector. Positioning his family’s background within a long “line” of farmers, he described his parents’ lifetime of labour on their sixteen hectares in Drôme. It was, he said, a heritage that no one wanted, except his brother who “wanted to be a farmer since he was a child”. Surrounded and squeezed in by small fifteen-hectare farms, “the younger generation left to live elsewhere, for pastures new.” This situation was triggered by the arrival of French citizens repatriated from Algeria who “came with a wide range of different techniques and motivations”. [9]
17 Now an international expert in seeds for large corporations (Sigma, Verneuil), Antoine R. was proud of his brother’s professional success as a charismatic orchard farmer who “has earned the respect of his profession”. In order to buy time for establishing his farm with new capital in the late 1970s, Antoine R.’s brother and sister-in-law obtained a large loan from the bank for a 160-hectare orchard of peach trees in the La Crau plain. The couple lived in a caravan and “spent five years working like slaves and worrying about repaying the loan. They had their first good harvest four years later and the following year the farm achieved 100% productivity”. [10]
18 This second case study describes a hybrid situation — family farm/commercial enterprise — with its capacity for innovation, management of labourers and degree of insertion in its local territory (Nguyen and Purseigle, 2012: 104). This fruit farmer gradually diversified by creating an “agricultural property group” (Groupe foncier Agricole, GFA) and two agricultural enterprises with limited responsibility (EARLs): one for “stone and pome fruit production” and the other for “cereal, legume and oil seed production”. Highlighting its links with the “local terroir” on its web site, the farm produces three types of peaches, an early maturing variety harvested from mid-May to early September (900 tons) and two late maturing varieties harvested from June to September (9,000 to 11,000 tons, depending on the year). By planting different peach varieties, it can stagger its picking seasons in response to the different periods of fruition and thus guarantee a constant supply for major distribution circuits and export markets (Lamine et al., 2015: 11).
19 The first step in becoming a farmer is “to inherit land, a profession, an entrepreneurial ethos as part of a farming family” (Bessière et al., 2014: 15). It is also necessary to develop “a speciation strategy for one’s assets within the territory” through a network of interpersonal relationships embedded in a territory (Pecqueur and Granovetter, cited in Verbeck et al., 2011: 377). In this case study, succession is guaranteed by all the couple’s children being partners in the EARLs, the property companies, and the agricultural enterprise. The EARL legal structure creates a clear separation between personal assets and company capital and defines transmission of the assets through share transfers. In addition, the property companies make it possible for the family to own and manage the land and buildings and thus ensure the future added value for these assets for the benefit of all family members. The companies’ structure and statutes thus protect the family patrimony and its future transmission (Rémy, 2011: 172).
20 Certainly, the establishment of this joint capital “partnership” was driven by a patrimonial strategy (Nguyen and Purseigle, 2012: 105): in this case, all the family generations work together on the 380 hectares of orchards (peaches, nectarines, apricots) and a further 220 hectares (of which 200 produce flat peaches) and produce 1,000 tons of apricots with the whole family involved in the marketing. [11] Though now farming on the La Crau plain, the R. family initially transported, sorted and packaged their fruit in Drôme prior to setting up local packing stations. This family enterprise has thus created its own production sorting, packing and packaging lines in a plant covering 10,000 square metres and established a totally integrated commercial chain from packaging to shipping. Thirty percent of the family farm’s production is exported to Germany, Switzerland and Belgium. Distribution networks for their produce target essentially large- and medium-sized supermarkets (71% for the early maturing fruits and 76% for other varieties), wholesalers (27% and 15%) and discount companies (1 to 8%).
21 Thanks to my long discussions with local farmers in my village over thirty years, I was able to obtain and transcribe these two biographical stories in order to illustrate the passage from a farm based on family and village labour (regular or occasional) to an agricultural business run by multi-generational partners capable of finding “timely and compatible responses while maintaining family leadership” (Legagneux and Olivier-Salvagnac, 2017). Communications between family members allow the development of business confidence, mutualization of resources, economies of scale and other advantages linked to the socio-economic environment (trading relationships with clients, suppliers, financial partners, and labourers) (Arrègle et al., 2004: 14). Several forms of proximity — interpersonal, geographical, organizational — have encouraged intra-familial and inter-business cooperation, while maximizing investment and mutualizing labour needs.
Fair and Unfair Competition in the Peach Sector
22 In 2019, the Provence-Alpes-Côte d’Azur (PACA) region produced 58,534 tons of peaches [12] and nectarines, in France second only to the Occitanie region (94,892 tons). Nation-wide, the department of Bouches-du-Rhône was the leading producer of peaches with 800 hectares under cultivation and harvests of 25,874 tons in 2019, [13] in a national fruit market valued at €310 million (excluding subsidies). [14]
23 In terms of the European market, France was the fourth largest producer of peaches and nectarines with 210,000 tons in 2019, after Spain, Italy and Greece. [15] With regard to internal EC trade, France exports most of its produce to Switzerland, Belgium, Luxembourg, Germany and the United Kingdom, while it imports substantial volumes from Spain (147,965 tons), Morocco (2,041 tons) and Italy (2,025 tons). [16] This has led to a sizeable trade deficit of 144,334 tons between France’s exports and its imports of Spanish peaches in 2019 (Cf. Chart 1).
Chart 1: Exports of Peaches in Tons, 2019 (Incl. Nectarines)
Chart 1: Exports of Peaches in Tons, 2019 (Incl. Nectarines)
24 With Spain’s entry into the Common Market in 1986, competition increased at both the local and national level as producers found themselves challenged by the arrival of fruit imports (Lamine et al., 2015: 9). The system was so aberrant that, according to Antoine R., some producers wondered whether it would not be better to buy peaches from Spain and process (“Frenchify”) them: “A certain number of farmers are really struggling with the idea of Frenchifying Spanish imports and have counter-attacked by informing the Fraud Squad which has done nothing about the situation”. [18] This lack of response to their appeals from the appropriate authorities is indicative, in his opinion, of “the failure of the system”.
25 In addition, it bears witness to the continuous improvements made by producers in the quality of their fruit: for example, Antoine R.’s brother regularly visits Spain to finance testing, check out varietal selections, and add value to his produce:
“Technically speaking, it’s incredible, they don’t sell peaches, they sell aroma! There must be no defects, the fruit must be red, large, with high sugar content, because there is no margin on Category B or higher peaches, [19] they find themselves in competition with Spain and will be out of business in a year’s time.” (Interview with Antoine R., author’s home, 17 July 2014)
27 In addition, he blames the standardization of Category I fruit, [20] because they have to reject “between 15 and 25% of their harvest [during packaging] in order to meet clients’ standards...”. He deplores the amount of waste this generates: “for peaches, you have to expect 20-30% of wastage in the orchard before packaging, because the market is completely saturated”. [21] As a result, his family now process and sell their fruit themselves on the farm.
28 From an economic perspective, the strength of the Spanish peach/nectarine market relies initially on growth in volume and seasonal diversity with early varieties that sell better in the export market than its competitors. The other strongpoint for Spanish farmers is “the low and very competitive cost of labour”, according to the chairman of the Peaches and Apricot AOP, and their concentration on strong intensive farming which has led to an “industrialization of orchards and packaging plants”. [22] For example, the minimum monthly wage in Spain was €858.55 compared with €1498.47 in France in 2018.
29 La Crau’s fruit farms have mobilized their natural resources (land, climate, water resources) and fixed (financial, accounting and technical) and variable (labour) capital costs. In order to combat competition in the fruit sector, they need to achieve improvements through produce intensification (i.e., creating competition between teams) and reduction of labour costs by hiring foreigners.
Segregated Markets for Extra and Intra-EU Workers
30 The extension of the European market in services in 2006 led to diversification in the recruitment of foreign workers for the agricultural sector through the European EETs recruiting labourers from Latin America and North and West Africa for farms in the South of France (Mésini, 2013; Décosse and Desalvo, 2017).
Deployment of Labour in Orchard Farms
31 When the EU frontiers were closed to labour immigration in 1974, farmers in Bouches-du-Rhône were hiring, on average, 4,000 Moroccan and Tunisian workers annually from OFII on two- to eight-month contracts (Mésini, 2008; Décosse, 2011). France’s Law of 24 July 2006 on Immigration and Integration introduced new provisions for seasonal agricultural workers. It launched a renewable temporary permit for “seasonal workers” for a maximum period of three years and for a season of no more than six months within twelve consecutive months. [23]
32 In the 1970s, farm work on Guy B.’s parcels was carried out by a group of temporary women labourers on short-term contracts and employees on OMI contracts, all working full-time:
“I have two Moroccans from March onwards and three women from the village who work for us, in the morning we pick and in the afternoon we pack. I have always worked a lot, on Sundays and public holidays.” (Interview with Guy B., op. cit.)
34 With its economical use of land and recourse to family labour, this type of small family farm has survived, thanks to the gradual integration of young farmers in the crops, orchard and livestock sectors in the Alpilles and La Crau areas.
35 At another level, the manager of the large La Crau domain is a major player employing up to 260 workers locally in the high season, including 130 in the packaging station. In an interview with a professional journal, he explained why recruitment agencies had reduced uncertainty and administrative burdens for producers: “the Moroccans have now been joined by workers from Ecuador, Colombia, Romania and Poland … supplied by agencies specializing in this market. These agencies make life easier for farmers by taking on tasks such as recruitment and pay slips and easing the burden for employers in France where the legal situation becomes more perilous with each passing day”. [24] As we have seen, this sector has gone through a process of disconnection in terms of salary/productivity and of replacement of full-time employees by seasonal labourers (Cochet, 2017).
36 The reason why foreigners have become so important for these farms lies in their range of skills and ability to work hard and autonomously at the various tasks. In the village of Saint-Martin-de-Crau, a fruit farmer producing 1,500 tons of peaches and 300 tons of apricots employs fifty foreign seasonal workers in the orchards and another forty in the packaging station who are re-hired year after year: “This is how we have worked for ages. These people can work independently. I do not have to be on their backs and I just ask them to be efficient”. [25] In addition, these temporary workers have “a good knowledge of farming practices and you don’t find that at the Job Centre” and, for the farmers, this justifies “the employment of foreigners and has become the rule in orchard farming”. [26]
37 For the three EARLs mentioned above, workers hired on OMI/OFII contracts between 2006 and 2019 were exclusively Moroccan and male, apart from twelve Romanian workers hired in 2009 — of whom, interestingly, seven were women. Antoine R’s brother was one of the first farmers to recruit Romanian women (on OFII contracts) and South American women (posted by EETs).
Chart 2: Number of OFII Contracts and Country of Origin: Workers Employed by the Three EARLs (2008-2019)
Chart 2: Number of OFII Contracts and Country of Origin: Workers Employed by the Three EARLs (2008-2019)
38 Chart 2 confirms the uneven supply of workers on OFII contracts after 2007 (EARLs A and B) and 2009 (EARL C), though a small group of Maghrebin seasonal labourers continued to work regularly on the R family’s farms. A new element affecting this situation was indications from this data that the number of contracts were rising again in 2018-2019, possibly due to an increase in the number of investigations and proceedings against Spanish temporary work agencies and French user companies.
39 Several factors have contributed to the replacement of OFII-contract workers by labourers provided by the EETs (Mésini, 2014): the first was a strike in July 2005 by 240 Moroccan and Tunisian seasonal workers on a large peach orchard in La Crau (1,700 hectares, 11% of the national market) who demanded overtime pay and decent lodgings (Décosse, 2011). The second factor was reduced uncertainty, thanks to ultra-flexible mission contracts that could be adapted to changing circumstances and the day-to-day needs of the farms. Finally, increased fluctuations in the cost of raw materials and agricultural inputs led to reductions in labour costs and increased productivity through greater competition between teams of workers.
40 With regard to posted workers, French legislation introduced different forms of services: performance of services, intra-group mobility, self-employment and provision of temporary workers. [27] In 2018, the number of seasonal workers on OFII contracts was reduced to 2,057 in Bouches-du-Rhône, partially replaced by 4,219 temporary workers posted by ETTs from Spain and, to a lesser extent, Romania. [28] Hiring temporary male and female workers on mission contracts allowed French farmers to outsource managerial obligations for at least part of their workforce and also to reduce time spent on administrative tasks, as they no longer had to worry about pay slips, transport, and the provision of food and medical services for their workers.
41 In France, using posted workers has become much more common in agriculture, especially in Provence-Alpes-Côte d’Azur, with a rate of 9.7% (Boughazi and Parent, 2021: 3). Statistics on the supply of “missioned” temporary workers for agriculture in Bouches-du-Rhône refer not only to the posting of multi-tasking workers but also to services that are an “extension of agricultural activity”: setting up greenhouses, rehabilitating agricultural buildings, supplying machinery, erecting metal structures, installing plumbing and heating, providing transport, etc. After reviewing the objectives of agencies registered in Spain, we set aside fourteen of the thirty-three companies identified in 2017 and sixteen of the thirty-one companies in 2018 and concentrated on those which supply workers. Chart 3 shows how the number of jobs, in terms of employees and contracts, has barely increased in 2017 and 2018.
Chart 3: Distribution of Posted Employees and Contracts for Spanish ETTs for the Agricultural Sector in Bouches-du-Rhône, 2017 and 2018
Chart 3: Distribution of Posted Employees and Contracts for Spanish ETTs for the Agricultural Sector in Bouches-du-Rhône, 2017 and 2018
42 Regulated by the Spanish law governing capital companies, [29] the legal regime for these commercial temporary employment agencies is particularly flexible, as there are few restrictions and as it gives a central place to the objectives of the parties in the company statutes and in contracts. The agencies identified on our list of Spanish ETTs supplying labourers to Bouches-du-Rhône (Cf. Table 1) have a variety of different structures: some have a single shareholder (S.L.U.), [30] while others have several partners with limited liability (S.R.L. or S.L.). [31] Table 1 shows substantial differences in the number of posted workers deployed in Bouches-du-Rhône by Spanish ETTs with more than 100 temporary workers: several thousand for the longest-established company in the market which uses a large fleet of buses to transport thousands of temporary workers to the South of France, while more recently registered companies hire several hundred.
Table 1: Total of Postings and Number of Posted Employees Supplied by Spanish ETTs (>100), 2018
Table 1: Total of Postings and Number of Posted Employees Supplied by Spanish ETTs (>100), 2018
43 In addition, there has been a real turnover in these ETTs: seven began operating in Bouches-du-Rhône in 2018, and three of these have since left the market, two in Spain and one in Romania. The posting of Romanian workers is somewhat surprising, since transitional provisions ended on 1 January 2014 in France and they now can be employed without work permits or other official papers. Usually hired for pruning, viticulture and harvests, these Romanians are paid task rates covered by a series of short-term contracts, on average seven a year, whereas a seasonal farm labourer in France averages 1.7 (Limon, 2019).
44 Finally, another major change is in the nationality of labourers supplied by Spanish agencies. According to initial observations since 2004, they were almost exclusively Latin American (Ecuador, Colombia, Bolivia and Peru), but now posted workers mostly come from Africa (Morocco, Algeria, Senegal, Mali, Guinea, Gambia) and Romania, as can be seen in these 2018 statistics (Chart 4).
Chart 4: Monthly Figures for Posted Agricultural Workers, Bouches-du-Rhône (2018)
Chart 4: Monthly Figures for Posted Agricultural Workers, Bouches-du-Rhône (2018)
45 This statistical analysis reveals substantial monthly variations in farming activities and a strong increase in the number of posted employees, ranging from 900 to 2,900 during peak harvesting periods from May to September in Bouches-du-Rhône in 2018. Surprisingly, this stacked graph showing the nationalities of workers posted from Spain indicates a proportional relationship since the quota of each nationality varies month to month. It also reveals that Romanian labourers were slightly over-represented in February, March and September, periods dedicated to pruning and grape-picking, tasks for which they are particularly well qualified. The quantitative analysis also highlights the arrival of Indian workers among the new recruits.
46 Some Spanish workers and naturalized foreigners opted for transnational temporary work, while others settled with their families in the departments of Bouches-du-Rhône, Vaucluse and Gard (Castracani et al., 2021), due to the 2008 economic crisis during which Spain’s rate of unemployment for foreigners rose to 36% (Pellistrandi, 2015). Immigrants from Spain’s ex-colonies have taken advantage of new naturalization procedures which require candidates to be registered for two years on the civil municipal registry (padrón) before submitting their application, while North and West Africans must wait ten years.
47 Having mixed teams of labourers with different nationalities has facilitated the introduction of both intensification and specialization in agriculture. At the time of our interview, Antoine R. was hired by his brother to carry out a survey of parasites, following the discovery of plum pox. [32] This investigation involved inspecting and numbering nearly 600 trees per hectare. For these tasks, he was assisted by four Romanian and two Latin American women, recognizing their distinctive qualities:
“I speak to them in French with lots of gestures, but I don’t want any more Ecuadorians because of the language barrier. The vocabulary is too technical, there are too many nuances […]. The Romanian women, on the other hand, have been to school, they are look after their appearance and it works […]. They are not farm labourers, they are academics! They can even become checkers themselves.” (Interview with Antoine R., op. cit.)
49 Questioned on the preponderance of women in the production cycle (Hellio and Moreno, 2018), Antoine R. thought it was not a question of gender, but rather of their ability to concentrate and their training. Paradoxically, there is no qualification coefficient for posted female workers who take responsibility for prophylaxis treatment in the orchards normally carried out by specialist agencies. [33] In addition to externalization of administrative and logistical management, he was pleased that conflicts with the government departments and inspection agencies had been reduced:
“The farmers have tight schedules and are frightened. They don’t want to continue like this, they are exhausted and in permanent conflict with the Mutualité sociale agricole [Agricultural Welfare Service], and have to cope with administrative procedures for laying off workers, etc. Therefore, their only option is to take on posted labourers. It costs a bit more, but there are fewer procedures.” (Interview with Antoine R., op. cit.)
51 His brother’s enterprise has been certified by GlobalGap®, [34] and he has also signed up for the “Vergers écoresponsables” (Eco-responsible Orchards) label, [35] two programmes promoted by the Ministry of Agriculture as offering “genuine competitive advantages”. [36] In addition to certification for the qualitative and gustative characteristics of his produce, these labels pay close attention to the question of social rights: “an eco-responsible orchard is a farm that respects its male and female workers. The fruit is picked by hand by qualified employees who enjoy all the benefits of France’s social protection regime”. [37] And yet, reality may be somewhat different.
Deployment of Seasonal and Posted Contacts for Foreign Workers
52 The array of statutes on the employment of foreigners, whether hired for agricultural work via France’s OFII initiative or posted by Spanish agencies (socios comerciales) evokes Weber’s distinction between slave labour and free labour (Coutu, 2021). Recently six seasonal workers from Morocco successfully sued the R. family farm, claiming that, while working on OFII contracts, “they had in fact been employed in the normal and permanent activities of the farm for annual periods of eight months over exceptionally long periods of fifteen to thirty years”, one of them having worked there since 1979. [38] Their claim for a long-service bonus [39] and conversion of their short-term contracts into long-term contracts having been rejected by the Court of Appeal in Aix-en-Provence, they decided to appeal. The judges of the Labour Chamber of the Court of Cassation recognized the claim of discrimination due to “a departure from the objectives of OMI contracts” and ordered that they be redefined as long-term contracts, stating “that it is a constant that a short-term contract cannot have the objective or intention of providing long-term employment as part of the permanent activity of the enterprise […] and that the regular extension of contracts over such a long period demonstrates without contest that use of this labour corresponds to a permanent position related to the long-term activities of the enterprise”. [40] Paradoxically, this uninterrupted series of contracts from the same employers took into account of the ”skills” and “talents” of the Moroccan workers who were rehired for eight months each year until 2006, when the multi-annual card reduced the seasonal contract to six months. [41]
53 In parallel to the infractions committed by the R. family fruit farmer with regard to his workers on OFII contracts in La Crau, there were numerous criminal investigations into the Spanish ETTs’ activities. In fact, their posted labourers were “collateral victims of dishonest companies keen to increase their profits while ignoring fundamental social standards” (Morsa, 2016: 85). The largest agency operating in Bouches-du-Rhône since 2002 with more than 6,000 employees in the high season, ETT Terra Fecundis (ETT-TF) was prosecuted several times in France [42] for “employment of foreigners without work permits”, “illicit work by organized groups of workers” (2014), “involuntary homicide”, “VAT and company tax fraud” and “unworthy and indecent housing”. [43] With almost all its business focusing on the supply of posted workers to France, ETT-TF had a shortfall of “more than €100 million to the government agencies responsible for collecting social contributions” [44] for the period 2011-2015.
54 During the hearing on 17-21 May 2021, the Marseilles Commercial Court reviewed ETT-TF’s contra legem practices in their country of registration and recruitment (Spain) and their client country (France). The case presented by the Procureur of the Republic was indisputable: “Hannah Arendt would have referred to the ‘banality of fraud’, I prefer the term ‘industrialization of fraud’ […]. This company, champion of posted farm workers, is a ‘clandestine free-loader in the European economy’ that takes advantage of the free market to manipulate the applicable regulations in order to make savings”. [45] Found guilty of infractions relating to illicit work practices (by concealment of activities and employees) and illegal subcontracting of labour, [46] aggravated by the fact that these infractions were “committed in collusion with others”, both the French logisticians and the Spanish posted worker agencies were fined and given suspended prison sentences, but they have since appealed these decisions.
Conclusion
55 Under the provisions for freedom to establish an enterprise and freedom to offer services, the supply of posted workers in the fruit farming, agricultural and wine-growing sectors has allowed employers and contractors to take advantage of differences in socio-economic rights in European countries. With the liberalization of agricultural markets and greater competition amongst Mediterranean producer countries (with regard to social, economic, fiscal, environmental issues, etc.), the hiring of foreign labourers has emerged as a key variable, in terms of production costs, in a tight competitive market for fruit and vegetables in Europe.
56 More than twenty years after the adoption of the 1996 Directive, it is obvious that it did not provide “a high level of protection” for posted workers, seen at the time as “vulnerable” because of their foreign origin, “the difficulties in obtaining proper representation” and an “inadequate knowledge of the legislation, institutions and language of the country”. On the one hand, foreign service providers made use of Spanish laws to contravene the rights of employees in both source [47] and destination countries while, on the other, French enterprises have denied all responsibility for the infractions committed, on the grounds that an employer/employee relationship does not exist for these workers.
57 The new 2018 European Directive on the employment of posted workers laid down the basis for “equal treatment” and came into effect in July 2020. This text proposed that Member States “shall ensure, irrespective of which law applies to [the employment relationship, user undertakings and temporary employment undertakings] guarantee, on the basis of equality of treatment workers who are posted to their territory the terms and conditions of employment covering the […] matters which are laid down in the Member State where the work is carried out by law, regulation or administrative provision, working conditions and employment covering the fixed matters by the legislative, regulatory and administrative provisions, and collective conventions”. [48]
58 On the other hand, this is obviously a failure of the “free market for services”, if one takes into consideration the objective promoted by the authors of the Treaty on the Functioning of the European Union which contains rules for preventing restrictions on, and distortions of, competition in the internal market. [49] For the lawyer representing Prism’emploi, [50] this was clearly a case of distortion of competition and, on 20 May 2021, he criticized it as “aberrant competition and prejudicial in terms of image” [51] for the 600 French ETTs grouped together under this umbrella organization. Recent judgements against the ETTs and their managers [52] have confirmed that freedom to offer services and create an enterprise was not the only issue in the supply of posted workers. The posted workers scheme includes a “speculative purpose” for managers of service providers and user companies due to lower rates for salaries, [53] services, qualifications and skills than for national workers, while disregarding socio-economic rights imposed by the European Member States (working conditions, health, unemployment, pensions, housing, decent lodgings, etc.).
59 De facto, workers recruited on seasonal and mission contracts are sent to work in the difficult EU agricultural industry (market gardening, arboriculture, viticulture, abattoirs, etc.), with illegal contracts and as victims of fraudulent practices. Their vulnerability is all the more critical given their dependence on clients, intermediaries and contractors, all of whom had the power to punish, penalize and dismiss.
60 While the number of European agricultural service providers has increased over the last twenty years, recent data on posted workers in France indicates that the number of user-enterprises has fallen significantly: from 539 in 2017 to 385 in 2018 in Bouches-du-Rhône [54] and from 216 in 2015 to forty-five in 2020 in Gard. [55] One explanation might be the widespread media coverage of court cases and harsh sentences handed down by the various tribunals (including labour and penal tribunals). Furthermore, the introduction of new legislation establishing preventive and repressive provisions on social dumping, unfair competition and abuse of sub-contracts.Another reason for this downturn lies in tighter requirements on hiring enterprises, in particular greater emphasis on “vigilance” and “diligence” and harsher penalties for repeat offenders “operating in collusion”. In addition, DIRECCTE [56] launched an information campaign and contacted all hiring enterprises in Gard (and also some enterprises with land in Bouches-du-Rhône) with details on the penalties for knowingly and voluntarily engaging in “illegal employment” and “employment of undocumented foreigners”. Designed to avoid errors in legal and factual situations, this brochure provided administrative and judicial authorities with tools for assessing intentionality, with regard to morality, and the penal responsibility of perpetrators when ruling on these infractions.
Notes
-
[1]
The Decree of 2 November 1945 created the Office national d’immigration (ONI), which became the Office des migrations internationales (OMI) in 1988, then the Agence nationale de l’accueil des étrangers (ANAEM) in 2005, when it lost its monopoly for recruitment programmes. Since 2009, the Office français de l’immigration et de l’intégration (OFII) has taken on the responsibilities of ANAEM and some programmes run by the Agence nationale pour la cohésion sociale et l’égalité des chances.
-
[2]
Directive 96/71/CE of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services.
-
[3]
As laid down by Article 56 of the Treaty establishing the European Economic Community.
-
[4]
This list of “hard core” rights includes maximum periods of work and minimum periods of rest; minimum amount of paid annual leave; minimum salaries, including overtime pay; conditions for the supply of workers, specifically by temporary employment agencies; health, safety and hygiene in the workplace; protection of working conditions for pregnant women, women who have recently given birth, children and young people; equal treatment of men and women and other provisions relating to non-discrimination.
-
[5]
Directive 2006/123/CE of the European Parliament and of the Council of 12 December.
-
[6]
Interview with Antoine R., in author’s home, 17 July 2014.
-
[7]
Interview with Antoine R., op. cit.
-
[8]
The couple made a lifetime transfer of the fruit and olive orchards and assets to their daughter and grandchildren (Interview with Guy B., in his home, 13 March 2008).
-
[9]
Interview with Antoine R., op. cit.
-
[10]
Interview with Antoine R., op. cit.
-
[11]
Végétable. L’écho de la planète fruits et légumes, 313, juillet-août 2014, p. 13.
-
[12]
FranceAgriMer (2021) La pêche et la nectarine en 2020, Bilan de campagne, sources Eurostat et SSP Agreste, données provisoires pour 2020, p. 3.
-
[13]
Agreste PACA (2018) Étude n° 101, Département des Bouches-du-Rhône, novembre, p. 4.
-
[14]
Direction régionale de l’Alimentation, de l’Agriculture et de la Forêt (2019) Agreste, Insee, Comptes de l’agriculture 2018 provisoires, Mémento de la statistique agricole, p. 34.
-
[15]
FranceAgriMer, op. cit., p. 3.
-
[16]
FranceAgriMer, op. cit.
-
[17]
Charts and table in this article prepared by Béatrice Mésini.
-
[18]
Interview with Antoine R. op. cit.
-
[19]
Sixty-one to sixty-seven millimetres in diameter.
-
[20]
Specific quality standards have defined three categories for fruits: extra (superior quality, no defects), category I (good quality with minor defects) and category II (market quality with more serious defects).
-
[21]
Interview with Antoine R., op. cit.
-
[22]
During the publication of harvest predictions in 2018 at Alcarras (Leerida). Éric Hostalnou (2019) Europêch’ 2019, France, synthèse de la récolte 2018, prévisions de récolte 2019 (Pêche, Nectarine, Pavie), Chambre d’Agriculture des Pyrénées-Orientales, p. 6.
-
[23]
Article L. 313-10 of the French Code on the entry and stay of foreigners and on the right to asylum.
-
[24]
Dossier Pêche. Filière française : que faire d’un échec ?, Végétable. L’écho de la planète fruits et légumes, 322, mai 2015, p. 32.
-
[25]
Coralie Bonnefoy (2020) La pénurie de main-d’œuvre menace la récolte des fruits d’été, La Croix, 4 mai.
-
[26]
Végétable. L’écho de la planète fruits et légumes, 322, op. cit., p. 32.
-
[27]
Art. L. 1262-2: a temporary employment company established in a foreign country can supply posted employees to a user-enterprise in France.
-
[28]
Database established by Frédéric Décosse (CNRS), Research & Statistics Department, Office français d’immigration et de l’intégration.
-
[29]
Royal Legislative Decree 1/2010, of 2 July, approving amendments to the Capital Companies Act.
-
[30]
Sociedad limitada unipersonales.
-
[31]
Sociedad de responsabilidad limitada et sociedad limitada.
-
[32]
The Plum pox virus is transmitted by aphids and is particularly devastating for the prunus genus (peaches, nectarines, apricots, plums, etc.).
-
[33]
Inspections of orchards are carried out by the Fédération régionale de défense contre les organismes nuisibles (FREDON), while plant nurseries and their environment are the responsibility of the Direction Régionale de l’Alimentation, de l’Agriculture et de la Forêt (DRAAF) and the Service Régional de l’Alimentation (SRAL), see La sharka, Plum pox virus. Surveillance en santé des végétaux, Bilan sanitaire 2019, p. 4.
-
[34]
Conditions for obtaining the GlobalGap label include: good agricultural practices, traceability, analysis and control of contamination risks, and health protection. GRASP, the complementary module, has thirteen control points and compliance criteria (cf. https://www.globalgap.org/uk_en/documents/?fq=gg.standard.ga:(grasp)&fq=gg.document.type:(rules)&fq=gg.version:(V1.3-1-i%20Ed1.2)).
-
[35]
Preservation of biodiversity in orchards, limited use of synthetic products, limited impact on water and soil pollution (cf. https://www.vergers-ecoresponsables.fr/fr/).
-
[36]
Végétable. L’écho de la planète fruits et légumes, 356 supp., juin 2018, p. 3.
- [37]
-
[38]
Légifrance, Appeal Case n° 13-21525 of 30 September 2014 and Appeal Cases n° 13-27592, n° 13-27593, n° 13-27594, n° 13-27595, n° 13-27596 of 13 June 2015.
-
[39]
Owed to employees on long-term and short-term contracts, after three years of real presence on the farm, Article 36 of the Collective Agreement on agricultural enterprise in Bouches-du-Rhône, dated 12 February 1986.
-
[40]
Civil Court of Cassation, Labour Chamber, Appeal Case No. 13-21.525 of 30 September 2014 and Appeal Cases of 3 June 15, No. 13-27.592, No. 13-27593, No. 13-27.594, No. 13-27.595, No. 13-27.596.
-
[41]
Law No. 2006-911 of 24 July 2006 on Immigration.
-
[42]
National Commission to Combat Illegal Employment (2019) Plan national de lutte contre le travail illégal 2016-2018, p. 22.
-
[43]
As stated in the formal notice (to carry out conformity measures) and the partial administrative closure of sites affected by collective accommodation by DIRECCTE PACA, with regard to mobile homes on the farm included in this study, 10 June 2020.
-
[44]
Mutualité sociale agricole and Union de recouvrement des cotisations de Sécurité sociale et d’allocations familiales.
-
[45]
Xavier Léonetti (author’s typed notes from the ETT-TF trial, Commercial Court of Marseille, May 17-20 2021, p. 119).
-
[46]
Which, in effect, creates a prejudice for the employee, by circumventing the Labour Code or avoiding application of collective agreements.
-
[47]
For example, by declaring fewer days worked in the work contract.
-
[48]
Directive UE 2018/957 of the European Parliament and the Council of 28 June 2018.
-
[49]
Article 56 of the Treaty of Rome provides for “restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended”.
-
[50]
Prism’emploi is a professional business organization representing posting and employment agencies.
-
[51]
Maître Margulis Sorin (author’s typed notes from the ETT-TF trial, Commercial Court of Marseille, May 17-20 2021, p. 115).
-
[52]
Two enterprises were recently found guilty by the Correctional Tribunal of Avignon: on 8 April 2020, the manager of ETT Safor Temporis received an eighteen-month suspended prison sentence, was fined €75,000 and ordered to pay €6,3 million to the Mutualité sociale agricole (MSA); on 30 June 2021, the two managing directors of ETT Laboral Terra SL were sentenced to a five-year prison sentence (with three years suspended), a fine of €10,000 each and payment of €3.8 million to MSA.
-
[53]
By not paying more for overtime and public holidays, nor holiday leave, allowances and bonuses.
-
[54]
Data provided by the PACA Labour Inspectorate PACA, 1 August 2019.
-
[55]
Evidence from Paul Ramackers, Director of Labour, Gard Departmental Unit, DIRECCTE Occitanie (author’s typed notes from the ETT-TF trial, Commercial Court of Marseille, May 17-20 2021, p. 89).
-
[56]
Direction Régionale des Entreprises, de la Concurrence, de la Consommation, du Travail et de l’Emploi.
