I. Ending forced labour and human trafficking,1 and all forms of child labour, by 2025 is an explicit target of the UN 2030 Agenda for Sustainable Development (target 8.7). Such a goal would promote inclusive and sustainable economic growth, employment and decent work for all (SDG 8) and may also contribute to ending hunger, achieving food security and improving nutrition while promoting sustainable agriculture (SDG 2).
Violence, deception, fraud and abuse have always been commonplace occurrences for migrants, not only in their final country of destination but also in their countries of origin and countries of transit. In todayâs world, the link between mobility and security issues is ever increasing. Acknowledging this, how can we work to protect and improve migrant workersâ rights? Is the protection for migrants offered by the European Union (EU) sufficient, or is a more integrated approach required? What role can the private sector play?
II. Migrant workers frequently experience various forms of exploitation, even severe abuse and trafficking.2 This situation risks jeopardising the rights of all workers in diverse labour sectors3 and leading to a decline in labour rights.
Today the majority of exploited migrant workers are not undocumented but migrants with a residence permit, refugees, asylum-seekers or simply poor migrants.4 Indeed, in recent years the composition of migration movements has changed; contemporary migrations involve refugees due to the increasing number of conflicts and wars, as well as internal migrants, who have been âforcedâ to leave their country of origin because of the gap between the rising cost of living and average wages. Furthermore, current migratory movements are characterised by the high number of women.5
In order to effectively tackle cases of labour exploitation and trafficking, it is necessary to develop measures based on an integrated and comprehensive approach. This approach should rely on the idea that trafficking and labour exploitation in labour sectors are complex and evolving phenomena in which diverse issues are at stake and, accordingly, interventions cannot be developed solely through instruments of criminal law, but require the implementation of concerted measures of different nature aimed at tackling the root causes of such phenomena, including decisive actions against users of services. At the same time, attention should be dedicated to the vulnerability of victims, where persons have no real or acceptable alternative other than submitting to the abuse involved.
On one hand, it includes long-term actions facing the deep economic disparities among people and among countries. On the other hand, it requires development and implementation of diverse actions aimed at addressing national conditions that produce and foster migrantsâ vulnerability to exploitation and lead people to take advantage of this condition of vulnerability.
Gross global economic disparities and increasing global mobility drive labour exploitation in many economic sectors, affecting diverse groups of workers; often it remains invisible and not limited to foreign workers, affecting both EU citizens and third-country nationals.6
Pushed by the economic situation at home, growing numbers of people work abroad, often ready to accept working conditions far below local legal standards, but still better than the poverty and unemployment they fled. Moving to another country generally creates or exacerbates situations of social and economic vulnerability. Furthermore, social isolation resulting from not knowing the language, not having contacts outside the workplace and being unaware of local legal standards or where to turn for help increases the risk of exploitation.
The Charter of Fundamental Rights of the European Union, in particular Art. 31, extends to both EU citizens and third-country nationals the right to fair and just working conditions, irrespective of their status: workers have a right to working conditions that respect their health, safety and dignity. âSevere labour exploitationâ also covers situations referred to in Art. 9.1 of the Employer Sanctions Directive7: the employment of a worker in an irregular situation under âparticularly exploitative working conditionsâ. According to Art. 2, these are conditions âwhere there is a striking disproportion compared with the terms of employment of legally employed workers which, for example, affects workersâ health and safety, and which offends against human dignityâ.
In other words, âsevere labour exploitationâ denotes work situations that deviate significantly from standardâfair and justâworking conditions as defined by labour laws and other legal regulations concerning, in particular, remuneration, working hours, leave, health and safety, and decent, respectful treatment of workers. However (unfortunately), researches and studies pointed out an attitude among the general population in European societies of tolerating labour exploitation of workers from other countries.8
The importance of information to protect migrant workersâ rights has to be highlighted. Lack of transparency of employment relationships is a factor adding to the risk of exploitation. Workers often do not have a contract written in a language they understand, do not have a written contract at all or lose count of the wages owed to them because of the complex legal situation involvedâfor instance involving labour brokers or subcontractingâor because of employer practices that obscure the situation.
The EU legal framework includes different legal provisions to give information to the workers and to enable consumers to make informed decisions.
Art. 11 of the Seasonal Workers Directive9 make it compulsory for Member States when issuing third-country nationals with an authorisation for the purpose of seasonal work to provide them with information in writing about their rights and obligations under this directive, including complaint procedures. Meanwhile, under Art. 5 of the Consumer Rights Directive,10 consumers should be provided with information concerning the main characteristics of the goods or services they purchase or use. The idea is that consumers who are concerned about humane working conditions should have a right to know when they buy a product that comes with a serious risk of having been produced in exploitative conditions. However, while many believe that enabling consumers to make informed decisions is a means of effectively preventing labour exploitation, others emphasised that labelling is not always trustworthy and needs to be improved.11
One important step towards improving the transparency of companiesâ ânon-financial informationâ is the amendments to the Disclosure Directive,12 which Member States were required to transpose by 6 December 2016. Large companies and groups are now obliged to report on âemployee mattersâ, including a description of policies pursued and their outcomes, risks and risk management, and relevant key performance indicators.
A lack of monitoring is still an important risk factor. The categories of individuals protected by criminal law provisions against severe exploitation in employment relationships vary widely among Member States, ranging from only third-country nationals in an irregular situation to all individuals. What is decisive from a human rights perspective is that the right to fair and just working conditions requires workersâ effective protection against severe violations. According to Art. 5 of the Anti-Trafficking Directive,13 penalties for legal persons should be effective and dissuasive; however, the sanctions imposed in practice on enterprises (as legal persons) do not reflect the severity of the rights violations involved.
What is more, victims of severe labour exploitation who are in an irregular situation of residence are discouraged by their status from reporting to any public authority; fear of having to leave the country is the primary reason why victims do not report their exploitation to the police. At the same time, there is a general lack of comprehensive support service systems for victims of severe forms of labour exploitation, and many existing services exclude particular groups. Not all victims are treated equally: while some groups of victims are prioritised, others, such as migrants in an irregular situation, are in a disadvantaged position regarding access to effective support services and protection in criminal proceedings.14
The risk to have labour protection undermined still exists. With huge differences in standards of living and increasing mobility pushing workers to accept substandard working conditions, the issue cannot be left to globalised labour marketsâit requires stringent monitoring and control, including through criminal law provisions for particularly severe violations.
The legal framework against labour exploitation is not complete without addressing trafficking in human beings, which consists of committing certain actions, using illicit means, for the purpose of exploitation. Some of victims of such exploitation are not necessarily coerced into working; they become victims because their work experience encompasses conditions that fall far below what can be considered acceptable in law15 or by abusing their position of vulnerability. Even if the anti-trafficking directive envisages sanctions against traffickers and legal entities, Member States have a legal obligation only to consider the criminalisation of users of victimsâ services stemming from Art. 18.4: it means that the criminalisation of the users of services of victims of trafficking in human beings is not homogeneous.16 The fight against trafficking in human beings requires a complete legal framework, appropriate in targeting all the dimensi...