A Worker is a Worker

Everyone has a right to be paid for the work they do, have a limit on the hours they work, and be safe at work. These rights are essential for individuals and their families, and for all workers and employers. It means we can all rely on the same minimum standards.

Although undocumented workers have these rights, they are often far from grasp. Who can stand up for their rights if they risk not only losing their only source of income, but being uprooted from their lives, detained and deported?

It is essential that the systems in place to monitor and enforce labour standards work for all workers. That every worker can stand up for their rights without risking immigration detention or deportation.

Find out how this can be done below.

What can I do?

As a policy maker

Take a series of legal and practical measures to address gaps in labour law and implement effective complaints mechanisms for all workers, without any risk of immigration enforcement as a consequence, in policy and practice.

Specific recommendations to labour, justice, immigration and police authorities, as well as to the EU institutions, are detailed here. A Worker is a Worker: How to ensure that undocumented migrant workers can access justice (see section on Recommendations).

Cooperate with civil society and trade union organisations in your country, including PICUM and the organisations that contributed to the report, to discuss how to implement these recommendations in your national context. Please get in touch, if we haven’t reached out to you yet.

As a labour inspector

Don’t report an undocumented worker for immigration purposes. If you have a legal obligation to do so, or a cooperation agreement, challenge this with your hierarchy. The ILO Convention on Labour inspection is clear that your primary role is to enforce legal provisions relating to conditions of work and the protection of workers, and that you should not be tasked with other duties which interfere with this and break your relationship of trust with workers. The ILO Committee of Experts has repeatedly recognised that duties to enforce immigration law do interfere.

Work with civil society and trade union organisations to find ways to keep complaints from undocumented workers confidential and support undocumented workers to make complaints.

If you identify a migrant worker in an inspection, be sure to inform them of their rights, check if they have a complaint to make, and take their complaint. EU law establishes an assumption that the worker should have been paid the minimum wage or wage set by collective bargaining agreements, and that they have been employed for at least three months, unless the employer can prove otherwise. They have a right to access effective complaints mechanisms to recuperate unpaid wages. Also refer them to civil society or trade union organisations who can help them with specialist advice and support.

Please get in touch with PICUM and the organisations that contributed to this report to discuss further what measures you could take in your daily work.

As an employer

Your role in both ensuring standards are respected within your own organisation and supply chain, and in pushing for necessary reforms is crucial.

Internally, establish or improve – in consultation with workers’ representatives – confidential complaints mechanisms within your organisation, so that workers can alert management to any issues. Investigate any complaints you receive and take appropriate measures to remedy any rights violations occurring. This should apply to any subsidiaries, sub-contractors and recruitment agencies you use.

Empower workers to use complaints mechanisms. Ensure there are no barriers to or retaliation against workers that seek to use dispute resolution and complaints mechanisms both within and outside of your organisation. Communicate clearly to workers about how your complaints mechanisms work, and that they should report violations of standards, including in the supply chain, without fear of sanctions, even if reporting a complaint might result in work delays. Ensure that your employees can join trade unions and organise freely.

Increase transparency by publishing information about your supply chain, and sub-contractors and recruitment agencies that you use. Check and implement your responsibilities as per the ILO general principles and operational guidelines for fair recruitment (see section on Responsibilities of Enterprises and Public Employment Services).

Your voice as a social partner is also needed to support policy change. Cooperate with trade unions and other organisations led by or supporting migrant workers to promote the necessary reforms in the legal and operational environment to ensure basic standards on pay and working conditions are implemented by all employers.

Please get in touch with PICUM and the organisations that contributed to this report to discuss further what measures you could take in your daily work.

As a trade union

Advocate for undocumented migrant workers’ rights. Raise awareness that protecting their rights is an essential component of the trade union agendas to advance human rights, equality and labour standards for all workers, as well as to fight racism and xenophobia.

Provide information and advice services to all workers, regardless of status and union membership, and take action to increase trade union membership of migrant workers, including specific measures to enable their membership when undocumented. Support workers with mediation, collective action and formal complaints, the support of the union can make all the difference. Work in partnership with migrant support and community organisations.

For more, see the European Trade Union Confederation (ETUC) and PICUM leaflet that suggests ten ways that unions can promote undocumented workers’ labour rights. It is available in 21 languages: : Arabic, Bulgarian, Croatian, Czech, Dutch, English, Estonian, French, German, Greek, Hungarian, Italian, Polish, Portuguese, Romanian, Russian, Slovak, Slovenian, Spanish, Swedish and Turkish.

Some examples of trade union actions for undocumented workers can also be found in ETUC’s brochure Defending undocumented workers – means defending all workers and PICUM’s report Ten Ways to Protect Undocumented Migrant Workers.

Please get in touch with PICUM, ETUC and the organisations that contributed to this report to discuss further what measures you could take in your daily work.

Would you like to know more?

Why are some workers undocumented?

Many people who live in the European Union (EU) who come from countries outside of the EU are not officially supposed to work. They might have recently claimed, or been have had their application refused for, international protection. They may have a visa that means they are supposed to rely on a family member, or be undocumented. Someone is ‘undocumented’ when they do not have a current authorisation to be in the country, even if they have been living and working in the country for many years. Many have had a work permit that has expired because they lost their job or their employer didn’t renew it.

Even if someone has a job or job offer, in most EU countries, the authorities will not give them or their employer permission for them to do the job if they don’t have the right paperwork to begin with. These are jobs that need doing and are essential parts of the economy. But the rules on work permits and red tape block people from outside of the EU from doing those jobs formally.

Read our latest report

What are the impacts on working conditions?

People without authorisation to work can only get jobs that are undeclared. This means that you are not covered by social security protections, for example, that ensure a minimum income if you are unemployed or unable to work. In some countries, health insurance is also linked to employment, and can therefore be difficult to access if your work is undeclared.

In addition to these challenges which impact on all workers whose work is undeclared, migrant workers working irregularly often face discrimination in terms of working conditions and pay. Wages are often under the minimum wage or barely paid at all. Working hours can be extremely long, with little or no rest and overtime unpaid. People are not paid if they are sick or need to take a day off. Basic safety equipment and training is often not provided.

Why do people accept these conditions?

Migrant workers often have little choice but to accept these conditions because they cannot risk losing their job and have very little bargaining power with their employer. We all have to work to pay the rent and put food on the table. But, many of those without authorisation to work also cannot access state support for people not in work, so there is no safety net while they look for another job. And no guarantee that the next job will pay any better. Workers who have a residence permit also cannot risk losing their job, because their permit depends on their job. If they lose the job, they are required to leave the country.

It is very difficult to negotiate with your employer on pay and working conditions when you have few or no other options. Undocumented workers have labour rights, but risk apprehension, detention and deportation if there is a labour inspection at the place they work. Only in a few European countries can you safely file a complaint with labour authorities. There are significant barriers to make complaints, participate in proceedings and receive due wages and compensation through the courts. Exploitative employers manipulate this situation to threaten undocumented workers, and fire them without pay or notice if they complain.

When workers have good information and support, and possibilities to organise, they try to stand up for their rights. But the system needs to change, so they can be sure that they will not effectively be punished for doing so.

Aren’t abusive employers punished?

Ensuring that all employers pay fair wages and respect minimum working conditions is in the interests of authorities, employers and workers. But labour authorities have very limited resources. And when labour inspections or workplace inspections to find undeclared work are carried out, in the end, it is usually the undocumented workers who are punished. While the goal is usually to punish the employer, the risks for the employer are small compared to the profits they can make through exploitation. If workers face immigration enforcement, it is very difficult for criminal or labour authorities to build a case against an abusive employer and actually impose a sanction. This means that the employer risks a lot less than the worker, for whom the impacts could be life-changing.

Workers need to be able to negotiate directly with employers for better conditions. If negotiation doesn’t work, workers should be able to safely file a complaint to the authorities. This would mean authorities can target their efforts and workers can cooperate and provide evidence. Only when complaints mechanisms are accessible and effective will abusive employers actually be forced to pay wages, taxes and social security contributions they owe.

How can undocumented workers exercise their rights?

There are a number of formal complaints procedures that undocumented workers may be able to use. In many countries, civil courts and labour tribunals do or would consider undocumented workers’ claims equally to other workers. They usually check identity, but do not check work permits. In practice, they do not report undocumented workers for immigration enforcement purposes if the irregular status of the worker is known. There are still several significant barriers for undocumented workers to make complaints and access justice through the courts. For example, proving that they worked for a particular company is not always straightforward. Documented workers can ask the labour inspection to carry out an inspection to prove this, but undocumented workers usually can’t, because they might risk immigration enforcement if they do. Undocumented workers can gather other forms of proof, such as messages, photos, uniforms, and witness statements. Another major challenge is that workers worry their employer might report them to the immigration authorities. Changes are needed to protect workers from this kind of retaliation.

There is also often an inspection body which will take complaints from workers. These are easier to access, for example, you don’t need a lawyer. In many countries, labour inspections report personal information on undocumented workers to immigration authorities. But, there are a number of important examples where this is not the case. We are working together with labour inspectors to expand these.

To find a way to try to exercise your rights, you need reliable information and advice. Support organisations, migrant worker and community organisations and trade unions play a crucial role. Organising together, to have strength in numbers and the support of trade unions can make all the difference in negotiating with an employer or taking a formal complaint.

Find out more about these complaints’ mechanisms in A Worker is a Worker: How to ensure that undocumented migrant workers can access justice.

Find out more about these complaints’ mechanisms in