Studie der Grundrechteagentur der Europäischen Union, 2.6.2015 (engl. Originalfassung)
What this report is about
A number of Lithuanian citizens worked on farms as pickers in the Lincolnshire area of the United Kingdom, a region well known for its agriculture. They were subjected to very poor living and working conditions by a Latvian gangmaster, including living in ‘sheds’ with limited access to hygiene facilities and limited contact with the outside world. The victims came from severely impoverished backgrounds. The situation was being monitored by the Gangmasters Licensing Authority (GLA), as it was clear that exploi‐ tation was being carried out. No criminal charges were, however, brought against the offenders and there was no redress for the victims, as they were not found to have been trafficked and so had no access to justice or support through the National Referral Mechanism.
In 2007, a group of 68 men and women from China were recruited through a Finnish recruitment com‐ pany on behalf of a Finnish cleaning business. A Chinese recruitment company was also involved in the process, which collected €8,300–€13,000 in recruitment fees. The workers did not speak Finnish or English and so did not understand the contracts they signed. The perpetrators were finally prosecuted on extortionate work discrimination and aggravated usury. Charges were, nevertheless, dropped as there was a lack of evidence and the recruitment company was found not to have acted on behalf of the employer. The victims did not receive any com‐ pensation and had to pay part of the legal fees.
A Bulgarian couple worked on a farm in France picking fruit and vegetables. They were posted by a Bulgarian employer, lawfully employed by means of a labour contract in their native language, and had a lawful residence and employment status in the receiving country. Nonetheless, they were subject to extremely exploitative conditions of work and living. Although they worked for five months, they were paid for only six weeks. They worked for 15–16 hours daily. They were made to pick vegetables in the cold rain; they did not have the means to buy warmer clothes to suit the weather, and were not given any. The price of their return flight tickets was deducted from their salaries. On their return to Bulgaria, the victims reported their case to the National Commission for Combating Trafficking in Human Beings, which wrote to the local branch of the Bulgarian Min‐ istry of the Interior’s Central Office for Combating Organised Crime in Sliven, asking it to investigate the case further and prevent future cases of labour exploitation by the same Bulgarian employer.
A third‐country migrant of eastern European origin came to Belgium in 2013 to work in construction in an irregular situation of residence. He had to endure poor working conditions, such as long working hours and significant underpayment. With little knowledge of the local language and Belgian institutions, he refrained from reporting his employer for fear of losing his job and his income, and getting into trouble with the authorities because of his irregular status. Social workers were aware of his situation but for reasons of confidentiality they did not report to the police without his consent. Victim support is, how‐ ever, only available for recognised victims of trafficking in human beings who assist the investigation.
These are only four of the 217 case studies identified as part of the European Union Agency for Fundamental Rights (FRA) project on severe labour exploitation of workers moving within or into the European Union (EU), indicating the many faces and forms of severe labour exploitation.
This FRA report is about the human dignity of workers moving to another country in the hope of making a living, but ending up in situations of severe exploitation. It is often about workers who are ready to accept working conditions that are far below legal standards in the country where they work but still better than the situation of poverty and unemployment from which they fled. It is about workers who have moved to a different country – both EU citizens and third‐country nationals – who are severely exploited in the EU in many sectors of the economy, such as citizens from Romania gathering potatoes in Hungary; women from sub‐Saharan countries exploited as au‐pairs in France; Portuguese men recruited for road construction projects in the Nether‐ lands; North Korean men working as unskilled labourers at a shipyard in Poland; and fruit pickers from Bangla‐ desh and Pakistan working in southern Greece. What these workers in different geographical locations and sectors of the economy often have in common is a combination of factors: being paid €1 or much less per hour, working 12 hours or more a day for six or seven days a week, being housed in harsh conditions, and not being allowed to go on holiday or take sick leave.
Severe labour exploitation of workers who have moved within or into the EU is common, although it often remains invisible to the public. In most cases, consumers are not aware that the oranges, wine, meat or pota‐ toes they purchase in a supermarket, the shirt or shoes they buy in a shop, or the services they receive when in a hotel or restaurant may be produced by workers who have been or are being exploited.
Despite its pervasiveness in everyday life, severe labour exploitation and its adverse effects on third‐country nationals and EU citizens – as workers, but also as consumers – have to date received little attention from researchers, except for specific forms of exploitation that involve a high level of coercion by the offenders.
Trafficking consists in taking certain actions (recruitment, transportation, transfer, harbouring, reception) using illicit means (such as threat or use of force, abduction, deception, abuse of power) for the purpose of exploitation. However, while severe labour exploitation may be the result of trafficking, this is not always the case. Nor have victims of severe labour exploitation necessarily been coerced into working; they are victims of severe labour exploitation because their experience of work encompasses working conditions that extend far below what can be considered acceptable in law.
Public awareness of the phenomena discussed in this report results from incidents that attract media attention, for a short period of time. Such attention does, however, not usually lead to a wider discussion of what would need to be changed to prevent severe labour exploitation from penetrating labour markets and to ensure a level playing field in terms of labour costs in sectors affected by labour exploitation.
Severe labour exploitation affects both EU and non‐EU citizens, regardless of their legal residence status. Article 31 of the EU Charter of Fundamental Rights recognises a worker’s right to fair and just working conditions regardless of his or her status as an EU citizen or a third‐country national and of whether the worker is in a regular or an irregular situation of residence.
This report focuses on the severe labour exploitation of workers moving within or into the EU, as moving country – generally – creates or exacerbates a situation of social and economic vulnerability. Social isolation resulting from not knowing the language of the coun‐ try of destination, not having contacts among people outside the workplace and not being aware of local legal standards or where to turn when help is needed increases the risk of labour exploitation.
What at a macro level drives the severe labour exploi‐ tation of those who have moved to a new country for work is the combination of gross global economic dis‐ parities on the one hand and increasing global mobility on the other. As a result, growing numbers of people work abroad, driven by the economic situation in their home country. Sometimes, these workers feel that if they accept conditions that are exploitative, judged by the standards of their country of destination, they and their families may still be better off compared with the living conditions in their country of origin. Thus global disparities impact on local labour markets.
Severe labour exploitation and the law
The term ‘severe labour exploitation’ refers to all forms of labour exploitation that are criminal under the legis‐ lation of the EU Member State where the exploitation occurs. Hence, what constitutes severe labour exploita‐ tion in one EU Member State may not in another.
The various forms of labour exploitation form a continuum of severity of abuses spanning from slavery to relatively less serious forms of exploitation which fall short of constituting severe labour exploitation and a criminal offence. The term ‘severe labour exploitation’ also covers situations referred to by Article 9 (1) of the Employer Sanctions Directive – the employment of a worker in an irregular situation under ‘particularly exploitative working conditions’. This means – according to Article 2 of the directive – working conditions ‘where there is a striking disproportion compared with the terms of employment of legally employed work‐ ers which, for example, affects workers’ health and safety, and which offends against human dignity’. This wording reflects Article 31 of the EU Charter of Fundamental Rights, according to which workers have a right to working conditions which respect their health, safety and dignity. In other words, the term ‘severe labour exploitation’ denotes work situations that deviate significantly from standard – fair and just – working conditions as defined by labour laws and other binding legal regulations concerning, in particular, remuneration, working hours, leave entitlements, health and safety standards, and decent, respectful treatment of workers. Hence, they violate a worker’s right under Article 31 of the EU Charter of Fundamental Rights to fair and just working conditions, and they are thus criminalised.
Research objectives: focusing on risk factors
This report aims to support EU institutions and Member States in preventing severe labour exploitation, monitoring situations where severe labour exploitation occurs and making victims’ right to have access to jus‐ tice a reality. More specifically, it aims to identify:
• factors that put workers who have moved within or into the EU at risk of severe labour exploitation in the country where they work (risk factors);
• how EU institutions and Member States respond to these risk factors by measures of prevention or monitoring, including the legal and institutional framework in place to trace cases of labour exploitation, in particular through workplace inspections carried out by labour inspectors or other public authorities;
• measures enabling, once an incidence of severe labour exploitation has been detected, victims to access justice, such as targeted support services, the provision of information about the case and victims’ rights, effective investigations and prosecution, and dissuasive sanctions.
One focus of this report is risk factors and EU Member States’ obligations to take these factors seriously. The report aims to comprehensively assess and analyse var‐ ious risk factors, which are grouped as relating to the legal and institutional framework, to the situation of the worker, to specificities of the workplace or to employ‐ ers’ behaviour (see figure on next page).
Risk factors relating to the legal and institutional frame‐ work include:
• deficiencies in the structures established to monitor working conditions of workers who have moved within or into the EU;
• a lack of effective investigations resulting in a situation of widespread impunity for exploiters;
• legislation rendering the situation of workers from third countries irregular and hence making them more vulnerable to severe exploitation.
Risk factors concerning workers’ personal situations include:
• difficulties in communication;
• a low level of education;
• extreme poverty experienced by workers in their country of origin.
Risk factors relating to workplaces include:
• working in a sector of the economy that is particu‐ larly prone to severe labour exploitation;
• working in isolation, with little contact with custom‐ ers or the outside world;
• precarious situations of employment, such as bogus self‐employment.
Risk factors created by employers include:
• workers not having a contract written in a language they understand or not having a written contract at all; workers not being informed of their entitlements; employers exacerbating the dependency of workers, for example by providing accommodation or trans‐ port or by employing other family members.
Given the dangers of exploitative working conditions, EU Member States have obligations of due diligence. This means that if workers from another country face a serious risk of being severely exploited – as a result of an accumulation of risk factors – they are entitled to protection measures adopted by the competent authorities. Hence, where risk factors accumulate, Member States have duties, stemming from EU law, to carry out inspections aimed at identifying cases of labour exploitation, to protect victims, to establish redress mechanisms and to avoid impunity. This report is therefore based on the assumption that EU institutions and Member States have to apply due diligence in preventing and monitoring the severe exploitation of workers, and that in cases where such exploitation is suspected they must ensure that victims are provided with access to justice.
The report does not aim to estimate numbers of victims of severe labour exploitation. It should be recalled, however, that what triggers Member States’ obligations of due diligence is not a certain number of cases but risk factors concerning labour exploitation, to which they are obliged to react. Therefore, an in‐depth analysis of risk factors as highlighted by experts in interviews and focus group discussions, and which surfaced again in the case studies, forms a central part of the research presented here.
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