The General Agreement on Trade in Services (GATS) is the first binding multilateral trade agreement to explicitly address the movement of persons. While the scope for GATS mode 4 commitments to facilitate the orderly movement of persons remains uncertain, it is vital for migration policy makers to understand the nature of the agreement and its possible implications for migration policy making.
GATS is a binding multilateral framework agreement for trade in services, which applies to all 148 members of the World Trade Organization (WTO). Developed during the Uruguay Round of negotiations within the WTO and now a focal point of the Doha Round, it has three main objectives:
- to progressively liberalize trade in services through successive rounds of negotiations that will promote the interests of all members of the WTO and achieve an overall balance of rights and obligations
- to encourage economic growth and development through liberalization of trade in services, as the General Agreement on Tariffs and Trade (GATT) does through the liberalization of trade in goods
- to increase the participation of developing countries in world trade in services and expand their services exports by developing their export capacity and by securing export opportunities in sectors of export interest to them.
The agreement has a wide scope and applies to all services supplied on a commercial basis. It excludes non-commercial services, such as services supplied in the exercise of governmental authority.
The GATS is divided into two parts. The first part consists of general obligations, as well as some obligations that apply only where commitments for particular sectors are made. An example of a general obligation is the “Most Favored Nation” or MFN requirement, which requires WTO Members to treat all other WTO Members as well as they treat their most favored nation. There are 38 MFN exemptions relevant to mode 4, of which 32 are preferential agreements and the rest are reciprocal (or, in two cases, preferential and reciprocal). Where measures have been specified in detail, they relate, for example, to granting of work permits, waiving of ENTs, or improving access for certain activities. Beneficiary countries covered are not always identified, but factors listed include traditional sources of supply, geographical zones, regional organizations, and language.
The second part of the GATS sets out the framework and conditions for countries to identify the service sectors in their markets that they want foreign suppliers to enter. The commitments made under this framework are referred to as “specific commitments”.
Important Points
- The GATS sets out four possible modes, or ways, in which services can be supplied between WTO Members.1 Mode 4 - the mode with the most direct implications for migration policy makers - is defined in Article I.2 (d) of GATS as being “the supply of a service... by a service supplier of one Member, through presence of natural persons of a Member in the territory of another Member”. This definition applies to nationals as well as, in certain circumstances, permanent residents of WTO Members seeking to supply services abroad.
Generally, GATS mode 4 is seen as covering:
- persons providing services where a foreign service supplier obtains a contract to supply services to the host country company and sends its employees to provide the services
- independent service providers abroad: an individual selling services to a host country company or to an individual
- persons employed abroad by foreign companies established in the host country (but excluding nationals of the host country).
Duration and purpose of stay can be used to distinguish mode 4 movement from other forms of temporary labour migration. Mode 4 service suppliers:
- gain entry for a specific purpose (to fulfill a service contract as self-employed or an employee of a foreign service supplier)
- are normally confined to one sector (as opposed to workers who enter under general migration or asylum programmes who can move between sectors)
- are temporary (i.e., they are neither migrating on a permanent basis nor seeking entry to the labour market).
- There is no standard definition on what classifies as “temporary” movement. Only about one-third of commitments include any specified duration of stay and these are mostly for intra-corporate transferees (generally two to five years) and business visitors (generally three months).
- Commitments on mode 4 generally apply the same conditions to all service sectors, with no greater access given in sectors of particular relevance to mode 4 (e.g., professional services). Most of these horizontal4 commitments generally take the form of “unbound except for…” and then state special access conditions for particular types of labour (level of skill, type of occupation) and purpose of their movement (e.g., establishing a commercial presence).
- Economic needs or labour market tests are mostly scheduled as part of horizontal commitments (sector-specific ENTs appear in medical, dental and hospital, entertaining and financial services) and generally apply to specialist personnel, or highly qualified professionals, managers and executives. Few countries comply with the requirement for information as to ENT criteria. These tests are found in 50 cases. Twenty-three countries have made commitments that, for certain categories of natural persons, ENTs will not apply (generally those related to mode 3 establishment and to persons holding management positions or experts with specialized knowledge of the company).
What You Need To Know About...
Mode 4 Outcomes
Little progress has been made in the liberalization of the movement of service suppliers under mode 4. Even by the modest standards of services trade liberalization in the Uruguay Round, where GATS commitments are guaranteed to a minimum level of treatment, the result was that countries tended to be conservative, with most committing to temporary labour migration frameworks that were even more restrictive than those they were already employing.
Commitments have been generally limited to the higher skilled categories (managers, executives, specialists) with approximately one-half relating explicitly to intra-corporate transferees. While mode 4 technically covers all skill levels, only 17 per cent of all horizontal entries cover low skilled personnel (e.g., “business sellers”) and only ten countries have allowed some form of restricted entry to “other level” personnel. Further, general terms used in commitments such as “managers” or “business visitors” are not defined, leaving considerable scope for interpretation and discretionary action by officials.
A number of developing countries see their main opportunity to participate in the global provision of services through the movement of unskilled and semi-skilled workers, however, GATS mode 4 commitments remain largely restricted to high-skilled movement (inter-corporate transferees (40 per cent of commitments) and executives, managers, specialists, business visitors (50 per cent of commitments).
Fewer commitments have been made in mode 4 than for other modes of supply, by both developed and developing countries. There are very few cases of full commitments, and fewer cases of partial commitments than for other modes of supply. While overall, developed countries have scheduled commitments in 50 per cent of service sectors and developing countries in 11 per cent of service sectors, sectors where mode 4 is important (e.g., professional and health services) tend to have fewer commitments.
Restrictions include:
- quotas on the number of foreign suppliers
- the proportion of total employment met by foreigners or the proportion of senior staff (80 cases)
- pre-employment requirements (i.e., person must already be employed, over 100 cases)
- technology transfer requirements (i.e., training of local staff, mainly included by developing countries, 32 cases)
- restrictions on geographic and sectoral mobility or mobility between firms (10 cases).
Fifty countries have scheduled conditions relating to domestic wage legislation, working hours, and social security (this does not include general references to domestic legislation, and there may be more Members with such requirements in practice). In 22 cases, countries have reserved the right to suspend commitments in the event of a labour dispute (this seems to apply mainly to intra-corporate transferees at senior levels).
1 The four modes of service delivery are: 1. Cross-border delivery; 2. Consumption abroad; 3. Supply via commercial presence; 4. Supply via presence of natural persons.
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a charter for exploitation
Mode 4 -
a charter for exploitation
The German TUC (DGB) warned recently that a draft European Union law will allow big business to bring in cheap labour from poor countries to carry out skilled work for very low wages, the process known associal dumping.
The new directive will allow transnational companies (TNCs) to temporarily transfer their third-country employees, or ‘intra-corporate transferees’ (ICTs) into the EU on low wages.
"This is a huge problem for us," warned DGB’s Brussels office spokesperson Gloria Mueller.
The UK has opted out of this EU directive, but an EU Free Trade Agreement (FTA) with India, that the Commission says is almost entirely a UK deal, has similar provision for cheap labour entry.
In the EU/India FTA, ‘Mode 4’ labour access for transnationals to bring in their own ICTs, as well as to supply labour for any other firm, is the single demand that India is making. In preparation, the UK government has recently exempted the Tier 2 ICT labour migration category from any limits, while the ‘international agreement’ category in Tier 5 has no limits either.
In return for the Mode 4 opening, western TNCs will gain public procurement rights and investment opportunities in India. This will impact on banking, insurance, public procurement, transport, retail and the production of generic medicines there. Widespread Indian protests, including by Indian unions, contrast with the dearth of information on Mode 4 effects on workers here.
A recent, restricted Commission report on the EU-India Free Trade Agreement negotiations states “the full ambition of the FTA can not be achieved without Mode 4 - which currently faces a range of barriers like wage-parity conditions”.
So while the rest of the EU gets the ‘benefit’ of unlimited cheap labour via the directive, the UK is willing to allow transnational corporations to undermine UK workers in Mode 4 arrangements, confirmed in leaked EU documents.
German unions warn the proposed EU directive will allow a German transnational company with a branch in India to import skilled Indian workers to German factories on minimum wages, massively undermining current pay rates for German workers.
And if the industry lacks a minimum wage, the employer could pay even less.
The German TUC is further concerned the possibility of shunting low wage country workers to a firm’s subsidiary in, for example, Bulgaria, at the even lower Bulgarian wage, will encourage the shifting of work from Germany to cheaper Eastern European countries.
The EU directive will have a fast-track entry procedure for ‘managers’, ‘specialists’ and ‘graduate trainees', but there are big questions about how people qualify for these categories.
European TUC general secretary John Monks warns that vague categories such as "manager" and "specialist” are virtually meaningless. According to Frank Schmidt-Hull from the German union IG Bau "the only requirement for recognition as a specialist is the evidence of a witness”. He assesses that the move would "overturn the minimum wage system within the EU" and massively drive down wages.
The social dumping process is already happening within the EU as a result of the EU’s ‘four freedoms’ - of capital, goods, services and labour, a corrupted neoliberal version of the four freedoms that Roosevelt proposed - of speech and expression, of worship, from want, and from fear.
Employers have been using these so-called EU ‘freedoms’ to move workers from eastern Member States to drive down wage levels in western EU states. European Court of Justice rulings have backed business rights and undermined the rights of workers to protect wages and conditions in cases such as Laval, Viking and Ruffert.
.
Having introduced the mechanism of the ‘free movement’ within the EU to undermine pay rates, national agreements and effective trade union representation,
Brussels is now negotiating the temporary ‘free movement’ of labour from outside the EU to impose even lower rates of pay.
"We need a European approach on labour migration that allows our economies to receive the migrants they need," according to Cecilia Malmström, European Commissioner for Home Affairs, but not the Commissioner dealing with employment and the labour market.
Ironically Ms Malmström claims her proudest moment was bringing legislation against human trafficking.
These new measures will further diminish the skills base and training opportunities in Britain and other member states if transnational capital can simply tap into an inexhaustible, reserve army of migrant labour.
The directive and the Mode 4 provision are in a similar direction. Mode 4 is in all the EU trade agreements, but the Indian deal is crucial for workers because in this, Mode 4 is the main aim of the Indian government.
The directive includes manufacturing, hence the concern of the German manufacturing union, and does not require that there is any trade agreement with the labour source country. Mode 4 is for ‘service workers’, though almost all workers can now be made to fit that, especially if supplied to another company.
Combined, these legalised structures take social dumping up the skills ladder and across sectors such as manufacturing, as well as IT and other white collar industries.
While the directive has vague skills categories, undermined anyway by the additional category of ‘trainee’, the EU stipulates that Mode 4 workers should be ‘graduates or equivalent’. But India has millions of graduates and graduate unemployment here is very high.
Wages for lower skilled work is already undermined by EU free movement of workers and services.
While an EU directive will be very hard to reverse, Mode 4 commitments, made at the level of international trade law, beyond the EU, will be effectively irreversible,
Neither the EU directive, nor any EU Mode 4 commitments, including in the UK-focused EU/India deal, have any number limits.
An important difference, though, is that while there is a very public reaction against the directive on the part of German unions, here there is no reaction to the huge Mode 4 component of the EU/India FTA.
In a letter to the Trade Commissioner, the European TUC has expressed concern about the parallels between Mode 4 commitments and recent ECJ judgments. The International TUC has rejected the inclusion of Mode 4 in trade agreements.
Surely it is the role of the TUC to counteract the very deliberate official secrecy on Mode 4, the remote intricacies of EU directives, and the real nature of changes to UK labour migration regulations, for its union affiliates? A TUC information seminar on these massive assaults on labour is urgently needed.
http://no2eu.com/hp-article2.html
British domestic policy is unsurprisingly being formulated to fit with the EU's external international trade agenda. This broader policy affects people's lives here, particularly their employment and that of their children and grandchildren in the future. Yet information on this broader picture, the parts of EU trade policy that will affect people most, is kept from them.
A very relevant and major feature of EU trade policy is the concession that allows transnational corporations to bring workers into the EU. In tradespeak this is called 'Mode 4'.
The EU is including Mode 4 concessions (moving workers across borders) in all of the deals it is currently negotiating. In fact Mode 4 is the carrot, to obtain, in exchange, investment opportunity access into trading partner countries for transnational financial services corporations, which are for the most part based in London.
Although these are EU deals, the UK is the main and willing
target for the Mode 4 concessions. Thus it is UK workers who will
pay the price.
A very important trade deal in this regard is the EU/India Free Trade Agreement (FTA) that has been under negotiation for four years. It has been discovered that Mode 4 concessions are the one thing that the Indian government is demanding. In addition, leaked documentation shows that the liberalised UK will be taking the bulk of the EU's Mode 4 commitment.
In fact Trade Commission staff have admitted that the EU/India FTA is, in effect , 85% a UK deal. That's the percentage of the gains which will accrue to the UK (well, the international financial firms based in London, anyway) while the UK (UK workers, this time) will get that percentage of the pain.
Financial services investment opportunities overseas will not produce jobs here. But workers will be displaced via Mode 4, especially in a time of cuts. Transnational firms will be able to offer cheap onshore outsourcing, using cheaper temporary migrant labour and will also be able to supply labour into other firms allowing them to offload all employer responsibilities.
Within the supposedly 'capped' UK points based system for labour migration, the government has ensured that the categories relevant to trade commitments have no numerical limits. There are no such limits on the 'intra-corporate transferees (ICTs) category in Tier 2 or on the 'international agreements' category in Tier 5. Neither is there any resident labour market test, which would stipulate that jobs have to be offered here first.
German unions warn the proposed EU directive will allow a German transnational company with a branch in India to import skilled Indian workers to German factories on minimum wages, massively undermining current pay rates for German workers.
And if the industry lacks a minimum wage, the employer could pay even less.
The German TUC is further concerned the possibility of shunting low wage country workers to a firm’s subsidiary in, for example, Bulgaria, at the even lower Bulgarian wage, will encourage the shifting of work from Germany to cheaper Eastern European countries.
The EU directive will have a fast-track entry procedure for ‘managers’, ‘specialists’ and ‘graduate trainees', but there are big questions about how people qualify for these categories.
European TUC general secretary John Monks warns that vague categories such as "manager" and "specialist” are virtually meaningless. According to Frank Schmidt-Hull from the German union IG Bau "the only requirement for recognition as a specialist is the evidence of a witness”. He assesses that the move would "overturn the minimum wage system within the EU" and massively drive down wages.
The social dumping process is already happening within the EU as a result of the EU’s ‘four freedoms’ - of capital, goods, services and labour, a corrupted neoliberal version of the four freedoms that Roosevelt proposed - of speech and expression, of worship, from want, and from fear.
Employers have been using these so-called EU ‘freedoms’ to move workers from eastern Member States to drive down wage levels in western EU states. European Court of Justice rulings have backed business rights and undermined the rights of workers to protect wages and conditions in cases such as Laval, Viking and Ruffert.
.
Having introduced the mechanism of the ‘free movement’ within the EU to undermine pay rates, national agreements and effective trade union representation, Brussels is now negotiating the temporary ‘free movement’ of labour from outside the EU to impose even lower rates of pay.
"We need a European approach on labour migration that allows our economies to receive the migrants they need," according to Cecilia Malmström, European Commissioner for Home Affairs, but not the Commissioner dealing with employment and the labour market.
Ironically Ms Malmström claims her proudest moment was bringing legislation against human trafficking.
These new measures will further diminish the skills base and training opportunities in Britain and other member states if transnational capital can simply tap into an inexhaustible, reserve army of migrant labour.
The directive and the Mode 4 provision are in a similar direction. Mode 4 is in all the EU trade agreements, but the Indian deal is crucial for workers because in this, Mode 4 is the main aim of the Indian government.
The directive includes manufacturing, hence the concern of the German manufacturing union, and does not require that there is any trade agreement with the labour source country. Mode 4 is for ‘service workers’, though almost all workers can now be made to fit that, especially if supplied to another company.
Combined, these legalised structures take social dumping up the skills ladder and across sectors such as manufacturing, as well as IT and other white collar industries.
While the directive has vague skills categories, undermined anyway by the additional category of ‘trainee’, the EU stipulates that Mode 4 workers should be ‘graduates or equivalent’. But India has millions of graduates and graduate unemployment here is very high.
Wages for lower skilled work is already undermined by EU free movement of workers and services.
While an EU directive will be very hard to reverse, Mode 4 commitments, made at the level of international trade law, beyond the EU, will be effectively irreversible, enforced by the threat of corporations suing governments that do not keep to commitments.
Neither the EU directive, nor any EU Mode 4 commitments, including in the UK-focused EU/India deal, have any number limits.
An important difference, though, is that while there is a very public reaction against the directive on the part of German unions, here there is no reaction to the huge Mode 4 component of the EU/India FTA.
In a letter to the Trade Commissioner, the European TUC has expressed concern about the parallels between Mode 4 commitments and recent ECJ judgments. The International TUC has rejected the inclusion of Mode 4 in trade agreements.
Surely it is the role of the TUC to counteract the very deliberate official secrecy on Mode 4, the remote intricacies of EU directives, and the real nature of changes to UK labour migration regulations, for its union affiliates? A TUC information seminar on these massive assaults on labour is urgently needed.
http://no2eu.com/hp-article2.html
British domestic policy is unsurprisingly being formulated to fit with the EU's external international trade agenda. This broader policy affects people's lives here, particularly their employment and that of their children and grandchildren in the future. Yet information on this broader picture, the parts of EU trade policy that will affect people most, is kept from them.
A very relevant and major feature of EU trade policy is the concession that allows transnational corporations to bring workers into the EU. In tradespeak this is called 'Mode 4'.
The EU is including Mode 4 concessions (moving workers across borders) in all of the deals it is currently negotiating. In fact Mode 4 is the carrot, to obtain, in exchange, investment opportunity access into trading partner countries for transnational financial services corporations, which are for the most part based in London.
Although these are EU deals, the UK is the main and willing target for the Mode 4 concessions. Thus it is UK workers who will pay the price.
A very important trade deal in this regard is the EU/India Free Trade Agreement (FTA) that has been under negotiation for four years. It has been discovered that Mode 4 concessions are the one thing that the Indian government is demanding. In addition, leaked documentation shows that the liberalised UK will be taking the bulk of the EU's Mode 4 commitment.
In fact Trade Commission staff have admitted that the EU/India FTA is, in effect , 85% a UK deal. That's the percentage of the gains which will accrue to the UK (well, the international financial firms based in London, anyway) while the UK (UK workers, this time) will get that percentage of the pain.
Financial services investment opportunities overseas will not produce jobs here. But workers will be displaced via Mode 4, especially in a time of cuts. Transnational firms will be able to offer cheap onshore outsourcing, using cheaper temporary migrant labour and will also be able to supply labour into other firms allowing them to offload all employer responsibilities.
Within the supposedly 'capped' UK points based system for labour migration, the government has ensured that the categories relevant to trade commitments have no numerical limits. There are no such limits on the 'intra-corporate transferees (ICTs) category in Tier 2 or on the 'international agreements' category in Tier 5. Neither is there any resident labour market test, which would stipulate that jobs have to be offered here first