ELAINE DEWHURSTDUBLIN CITY UNIVERSITY

The Protection of the Health and Safety of Undocumented Workers in

the EU

Introduction

Who? Undocumented Immigrants

How? Response of states

What and Why? Current approach New EU Directive Way Forward

Conclusion

Who? Definition of undocumented workers

Persons who do not have the requisite permission to work in the State “illegal workers” / “illegal aliens” / “undocumented

workers” / “irregular workers”EU Sanctions Directive

‘illegally staying third-country national’ means a third-country national present on the territory of a Member State, who does not fulfil, or no longer fulfils, the conditions for stay or residence in that Member State

‘illegal employment’ means the employment of an illegally staying third-country national

Wide category of persons – enter illegally (whether by fraud / deception or by trafficking) / enter legally – subsequently lose permission to remain in the State (whether through a fault of their own or otherwise)

Who? The statistics

Between 4.5 – 8 million undocumented workers in the EU

Sectors: Primary Secondary Tertiary

How? Response of States

Criminal penalties e.g. Gangmaster Legislation (UK) / Immigration Acts (Ireland) Penalise employers for hiring undocumented workers Penalise employees for being undocumented workers

Three D’s – Detection, Detention, Deportation Increased border controls / inspection mechanisms Detention facilities for undocumented workers Deportation of undocumented workers

Has it been successful? Still have 4.5 – 8 million undocumented workers in the

EU

How? Addressing the Pull Factor

Pull factors are those factors that entice undocumented workers to a State An employer that is willing to hire an undocumented worker Question of mathematics

If risk of getting caught < profit gained from hiring an undocumented worker => worth taking the risk (pull factor)

If risk of getting caught >/ = profit gained from hiring an undocumented worker => not worth taking the risk (no pull factor)

How do we create greater risk / lower profit? Increase the criminal penalties Make undocumented workers as expensive as documented

workers Giving them employment rights

What? Current Approaches

Non-protection Approach

Undocumented workers are not entitled to any employment rights

The enforcement of employment rights (e.g. health and safety rights) dependent on existence of a valid contract of employment

Illegal contracts (e.g. Working in contravention of statute) renders the contract void ab initio (unenforceable)

No employment rights accrueDenies undocumented workers

Rights in employment Access to a complaints mechanism

Reasons for non-protection approach

Two policy justifications Protection

The courts believe that by depriving illegally created agreements, and in particular contracts of employment, of their legal effect, they are in fact protecting the sanctity of the judicial process, as well as protecting regular employees and the State from a lowering of standards in the terms and conditions of employment

Deterrence both the courts and the legislature feel that such a policy

is the only way in which to deter irregular workers from taking up employment on the black market and threatening the security, both economic and national, of the state. In effect the rule ensures that the parties to an illegal agreement will never profit from their actions.

Illegal Aliens

“The only good foreigner is Rod Stewart!”

Usage of the Non- Protection Approach

For example, this is the current approach in: Ireland United Kingdom Slovenia Austria Denmark Finland Luxembourg Portugal Sweden

Critique

Does not take into account the moral culpability of the parties

Allows for unjust enrichment of the employer

Effect of Non-Protection Approach

Protection with Consequences Approach

Some states have limited protection which allows the undocumented immigrants to claim for certain rights (such as equal pay)

This does not prevent the inevitable consequences i.e. that the state can detect, detain and deport the immigrant. States normally either protect only remuneration

rights or all rights States allow access to complaints procedures so that

undocumented workers can enforce their rights

Rationale for Protection with Consequences Approach

The rationale behind this approach would appear to be based on a recognition that such workers are entitled to the protections of the law – unjust enrichment

Should not be immune from the consequences of working illegally in a state

Usage of the Protection with Consequences Approach

France – protects remuneration rights and provides for a complaints mechanism

Germany – protects remuneration rights and provides for a complaints mechanism

Greece – protects remuneration rights and provides for a complaints mechanism

Netherlands / Greece Spain - full employment rights protection and

provision of a complaints mechanism Italy – full entitlement to remuneration and social

rights and provision of a complaints mechanism

Critique

Recognises unjust enrichment If an irregular immigrant knows there are

consequences, they will be very unlikely to complain.

Protection with Consequences Approach

The New EU Approach

EU Sanctions Directive (2009/52 EC)

A. Policy Shift

The EU Directive represents a policy shift from criminalisation and deportation policies - pull factor approach

Recognised in second paragraph of Preamble “ A key pull factor for illegal immigration into the EU is the possibility of obtaining work in the EU without the required legal status. Action against illegal immigration and illegal stay should therefore include measures to counter that pull force”.

b. Approach

Protection with Consequences Only protects remuneration rights (illegal workers can

claim for back pay, taxes and social security contributions and costs arising from claiming back pay). Does not protect other employment rights

Remedies – Directive states that illegal workers should have access to an effective remedy – this is a breakthrough Directly – the worker can take a claim on their own behalf

– recognises the consequences that the worker will face as a result

Indirectly – the Directive makes provision (Article 13) for another body to act “on behalf of” or “in support of” an undocumented worker – is this a full protection approach? – no mention of confidentiality.

c. Particularly Exploitative Working Conditions

The Directive states that (Article 9) that it would be a criminal offence to employ illegal workers in “particularly exploitative working conditions”

Definition has a number of elements:"particularly exploitative working conditions"

means working conditions, including those resulting from gender based or other discrimination, where there is a striking disproportion compared with the terms of employment of legally employed workers which, for example, affects workers’ health and safety, and which offends against human dignity

Elements of the Definition

Striking Disproportion No clear indication - £2 v. £10

Comparator Legal worker v. Illegal worker Best possible comparator

Affects Health and Safety of Workers Only mention in the Directive (specifically aimed at

reducing exploitation!) Takes it seriously – criminal offence Very high level of care

Offends Human Dignity Raises bar very high

The way Forward? Full Protection Approach

The Utopia!This is an approach (currently not operating in any

EU Member State) that allows protection but where such protection does not incur the consequences of detection, detention and deportation.

This can be achieved by the establishment of a confidential complaints mechanism - (attempts at this have been tried in France and Italy) Change our complaints systems – adopt new procedures

Reduces pull factor – more irregular immigrants complain and get rights, the more expensive they become

Rationale for the Protection Approach

The rationale behind this particular approach appears to be twofold: It is unfair to allow an employer to profit at the

expense of an employee Such an approach can reduce the “pull” of irregular

immigrants as it makes them a risky and expensive option for an employer.

Full Protection Approach

Conclusion

Academics / States / EU Differ – Migrants suffer

Economic approach – only deals with remuneration – some criminal penalties for serious breaches of health and safety legislation

May not have the desired effect – migrants will not use this system unless they get caught

Health and safety rights untouched and protection undeveloped