As workers around the globe gather to celebrate hard won labour rights and continue the struggle, we need to both acknowledge pioneering work at EU level and challenge all stakeholders to defend all workers, regardless of status.
Domestic worker Farida worked 15-hour days, seven days a week, and was only paid €150 a month, for two and a half years. The only time off she got was when she was eating – she never had a day off, she did not have permission to leave the house and had no access to a phone. With the support of the Migrant Rights Centre Ireland, she was granted €67,794 in unpaid wages by the employment tribunal in Ireland in 2017.
Said worked for ten years as a gardener for the same employer and was never paid the minimum wage. Last year, he received €24.680,25 in unpaid wages. With the support of FAIRWORK Belgium he contacted the labour inspection, who negotiated a settlement representing the difference between the minimum wage and the wage he received for the last five years of work. The Belgian government also received €63.881,91 in back tax and social security contributions.
These are some of the few positive stories which have emerged thanks to the tireless work of civil society organisations and trade unions, but many more cases go unreported because undocumented workers risk detention and deportation if they denounce their employer.
On 16 April 2019, the European Parliament adopted two new instruments to uphold EU rules on labour mobility and fight against labour exploitation: the European Labour Authority and the Directive on transparent and predictable working conditions. Despite the best intentions, these instruments will fail to ensure fair working conditions and tackle social dumping if they will not help undocumented migrant workers denounce abusive employers.
The European Labour Authority is meant to support national authorities to correctly apply EU rules on free movement of workers, posting of workers and social security coordination, including by facilitating cooperation and exchange of information between national labour authorities.
The Directive on transparent and predictable working conditions strengthens protections for workers in precarious jobs. For instance, workers will have a right to get information on the essential aspects of their work in writing; to know when work will take place with reasonable notice; to receive mandatory training for free.
Both instruments could potentially help undocumented migrant workers report abusive employers to labour authorities and fight exploitation.
The European Labour Authority should provide a space for open conversation and exchange of promising practices regarding mechanisms for labour standards enforcement, in particular labour mobility rules. From the perspective of the work-floor, one cannot practically enforce fair wages and conditions without considering all workers, particularly undocumented migrant workers who are employed in key sectors with high levels of undeclared work and cross-border labour mobility. We only have to look – for example – at the recent case of truck drivers, largely from the Philippines, working in extremely exploitative conditions across Western Europe. Some of the workers were undocumented.
The Directive on transparent and predictable working conditions should apply to undocumented migrant workers, according to the case law of the European Court of Justice. This has the potential to strengthen protections for migrant workers, who often find themselves in employment relationships where it is not clear who their employer is, or what their conditions of work will be, particularly when hired through recruitment agencies. It could also help undocumented workers in proving their labour relationship if suing their employer for unpaid wages. For example, in a survey of 400 female migrants carrying out domestic work in the Czech Republic, 53% said they did not have any employment contract.
However, these instruments will mean little to undocumented workers if they cannot address labour authorities without being reported to immigration enforcement and risking arrests, detention and ultimately deportation.
A clear separation between labour justice and immigration enforcement is crucial to enforce the rights of migrant workers without permits or whose permits depend on a particular job, and for labour inspectors to carry out their job of enforcing fair conditions of work. A “firewall” allows undocumented workers to safely file a complaint against abusive employers without fear of being detained and deported by the immigration authorities. By holding all employers accountable to the same standards for all workers, the firewall further promotes fair business practices and fair competition.
As the President of the Commission Jean-Claude Juncker himself said in his State of the Union Address in 2017, “in a Union of equals, there can be no second-class workers”. If the European Union wants to promote fair working conditions and fight social dumping, it will need to enforce workers’ rights for all workers, including those who are undocumented.