International Labour Day: Employers’ Sanctions do not Protect Undocumented Workers from Exploitation

On the occasion of International Labour Day, the Platform for International Cooperation on Undocumented Migrants (PICUM) calls for political commitment to effectively address the persistent and systematic exploitation of undocumented migrant workers.

PICUM’s new position paper analyses the practical impacts of the European Union Employers’ Sanctions Directive (DIRECTIVE 2009/52/EC*). Adopted in 2009, the directive is as a central component of the EU’s migration policy to prevent irregular migration by establishing sanctions for employers who hire undocumented workers. While the directive aims at sanctioning employers, it also includes specific provisions aimed at protecting undocumented migrant workers’ rights. Undocumented migrants are entitled to file complaints to labor inspectors if they have been exploited, and are eligible to claim up to 6 months outstanding wages. In some cases, undocumented workers who have experienced severe labor exploitation can get a temporary residence permit.

The position paper examines how the new EU law has been applied in Belgium, Czech Republic, Italy and the Netherlands, finding that in these four countries, the new legislation on employers’ sanctions has not improved and in some cases has even degraded the situation of undocumented workers. Although the directive foresees mechanisms to protect and enforce the labour rights of undocumented workers, they have proved to be ineffective or are nonexistent. Many procedural, financial and administrative barriers remain in the application of specific provisions related to undocumented workers’ rights.

Jan Knockaert of the Organisation of Undocumented Migrant Workers (OR.C.A. vzw) in Belgium highlighted how governments at national level fail to implement these safeguards for undocumented workers:

Although Belgium ratified the Employer Sanctions’ Directive in 2013, we don’t see any change in the informal labour market. Employers continue exploiting undocumented migrant workers in the same manner as before the sanctions’ directive. However, while we do see the intention of the labour inspectorate to try to do more to help undocumented workers claim their unpaid wages, until now there has been no effective claim mechanism in place. OR.C.A. hopes that in the coming year, Belgium will succeed in creating an effective claim mechanism that will result in undocumented migrant workers receiving the wages they are entitled to.”

Based on the information collected from the four countries, it is doubtful that the aim of the directive – to reduce the demand for irregular work – is being achieved, as repercussions for employers remain very limited and facilitation of complaints insufficient. PICUM member organisations report that the sanctions foreseen in the directive do not prevent employers from hiring irregular migrants, as the risk of being inspected combined with the financial sanction is in most cases much lower than the costs associated with fully declared and formalised work contracts.

Policy makers should consider if adequate regular employment and residence opportunities for migrant workers would be more effective policy tools to reduce irregular employment. To this end, the brief includes recommendations for the EU to establish a more adequate labour migration policy through the creation of more entry and stay opportunities in the EU for third country migrant workers across skill levels and labour sectors.

It also recommends the establishment of a ‘firewall’ between immigration law enforcement and labour inspections, who should not be required to report undocumented migrants to immigration authorities to ensure safe reporting of exploitation and access to justice.

Moreover, there is a clear need for the EU to improve data collection mechanisms linked to the enforcement of labour rights in the directive by urging member states to collect comparative data on numbers of complaints lodged by workers, number and amount of unpaid wages recuperated and number and amount of sanctions imposed on employers.

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