Recent studies on labour migration governance in Europe (Betts 2011; Guild and Mantu 2011; Caviedes 2010; Balch 2010; Menz and Caviedes 2010; De Lange 2007) show that labour migration policy is to a large extent a sectoral affair. However the role of temporary staffing agencies goes beyond these sectoral schemes and is often overlooked in these studies, although touched upon by some (Hatzopoulos in Menz & Caviedes, 2010; Pool 2011). Recent discussions at the Dutch Research Council for Government policy (Wetenschappelijke Raad voor Regeringsbeleid, WRR) also resulted in the conclusion that there is a lack of academic knowledge on the role of payrolling companies in labour migration. In this paper I will continue where others have left off and fill the void of knowledge on legal and practical aspects of migrant labour and temporary staffing agencies in the EU.
In this paper I will start with a description of the legal position according to EU migration law of migrant workers employed by a temporary agency in the Netherlands. This discussion will include the position of undocumented workers as well as union citizens from the new EU member states whom up to date cannot enjoy the freedom of movement as a worker in the Netherlands. It will take us from the implementation of the EU Directive on Employer Sanctions and the draft Seasonal Workers Directive to the EU Directive on Temporary Agency Work. Next, based on a detailed analysis of almost seven years of published Dutch case law on employer sanctions for the illegal employment of undocumented migrant workers, the practice of temporary staffing agencies and their involvement in the facilitating of (irregular) work done by migrants, is discussed. This research provides an overview of arguments and practical ‘constructions’ used by employers using the services of temporary staffing agents. This case law shows a reality of mismatches and misunderstandings on the labour market, migration realities and migration law. This will bring me to the final section of the paper where I will answer the central question: What is the relationship between labour market and migration policies and how do they combine to create, reinforce or weaken the expansion of agency and temporary employment?
