On 12 November 2020, the Danish Ministry of Immigration and Integration introduced a bill amending the Danish Aliens Act (udlændingeloven). The bill includes, among other things, a proposal for increased supervision of foreign labour and a tightening of the requirements of work and residence permits pursuant to the work schemes.
The purpose of the bill is to make it more difficult to break and circumvent the rules on foreign labour, just as the bill is also to prevent social dumping (already last year, the penalty for undertakings hiring foreign labour without a right to work was doubled.)
Tightening of the rules on payment of wages into a
Danish bank account
As for both the Pay Limit Scheme and the pay limit track of the Fast-Track Scheme, the present rule is that the annual minimum wage must be paid into a Danish bank account. However, no similar requirements are made in respect of the other work schemes. The bill proposes that the requirement for payment of wages into a Danish bank account must apply to all work schemes. The proposal will increase SIRI's supervisory powers as to whether an employee is actually paid the wages appearing from the individual employment contract.
The grant of a Danish residence and work permit is subject to the fundamental condition that customary pay and employment terms are offered. According to applicable practice, wages paid in Denmark and in the country of origin of the employee as well as pay in the form of, for example, housing, transportation, etc., may be included in the assessment of wage levels when SIRI is to decide whether employment takes place on customary pay and employment terms. The bill implies that only pay which actually constitutes cash and cash equivalents may be included in the assessment of wage levels when a future decision is to be made on whether employment takes place on customary pay and employment terms. Consequently, the wage statement may not include the value of, for example, board and lodging, per diem allowances, company car, company phone, Internet access, payment in kind, subscriptions or other benefits offered to the employee by the employer. Accordingly, this will be a tightening of the rule presently applicable for the Pay Limit Scheme and the pay limit track of the Fast-Track Scheme, since the current requirement for pay in the form of cash and cash equivalents applies only to pay components up to the pay limit according to the Pay Limit Scheme.
Requirement for separate work permit
The current rule is that relatives accompanying foreign employees are exempt from the requirement for a work permit. This means that, as from the grant of a residence permit, accompanying relatives may take on work without having to apply for a separate work permit in that respect.
According to the bill, any accompanying relatives will still be exempt from having to apply for a work permit, unless the relative in question intends to work for the same undertaking as that to which the foreign employee's residence and work permit is attached or for an undertaking which is closely connected with this undertaking.
In such events, the accompanying relative will, according to the bill, have to apply to SIRI for a work permit. No fee will, however, be payable when filing an application for such work permit.
Rejections based on presumptions
According to current practice, an application for a residence permit with a view to employment with a specific employer will be rejected if, following specific and individual assessment, SIRI finds that specific reasons exist for assuming that the employment offer forming the basis of the application for a residence permit is not genuine.
The bill therefore proposes that no residence permit may be granted with a view to employment if a certain presumption exists:
- that the actual employment does not correspond to what appears from the application
- that the actual employment will not fulfil the conditions for a residence permit
- that the essential purpose of the employment agreement or offer of employment is for the foreign employee to be granted residence, which would not be possible otherwise.
The bill proposes that it is no longer to be a requirement that specific reasons exist for assuming that the employment offer forming the basis of the application for a residence permit is not genuine, but that it suffices that a certain presumption in that respect exists.
This implies, among other things, that it will be possible to reject an application for a work and residence permit if the foreign employee has been offered a pay which is only just above the pay limit, but which is also more than 20% higher than the median wage in the industry in question. Based on the bill, the general presumption in such a situation will be that the employment is not genuine, unless the foreign employee's skills may be used as a basis for the opposite.
Increased supervision of foreign labour
The object of the bill is to improve SIRI's possibilities of ensuring compliance with the conditions for the grant of a residence and work permit. It is therefore proposed that, if deemed necessary, SIRI must at all times, upon presentation of proper proof of identity and without any court order, be granted access to undertakings employing foreign labour with a residence or work permit issued by SIRI with a view to verifying the information on the foreign employee's pay and employment conditions required to assess whether the conditions for the grant of the residence and work permit are complied with. This may, for example, include control of foreigners with a residence permit with a view to being granted a work permit.
The bill proposes that SIRI must be granted access for supervisory purposes to the property and the premises from which the undertaking is operated, meaning the operator's business, factory, office premises and storage facilities as well as sites away from the premises of the undertaking. The bill suggests that such access will generally be in the form of control visits without prior notification. The foreign employee and the employer will be obliged to answer any questions posed by SIRI during such control visits.
It is also proposed that SIRI must be entitled to order an employer to register information digitally on a daily basis (in a logbook) on the employees working for the relevant employer. The order of keeping a logbook corresponds to the order which the Danish tax administration, the Danish Agency for Labour Market and Recruitment and the municipalities may presently impose on employers. An order to keep a logbook may be imposed for a period of 12 months at a time. An order to keep a logbook may, for example, be imposed if:
- the employer is not able to present a work schedule, and no permanent system seems to exist as to when the employees work
- foreign employees have been employed at wages higher than what is customary for employees in similar positions
- there are signs of inappropriate overnight stays in the workplace
- unlawful, unpaid overtime work is suspected
- it is suspected that the actual number of working hours of a foreign employee is not reported to the online income register (E-Indkomst), etc.
To read the bill in its entirety, click here. Text in Danish only.
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