Precarious and irregular work situations of migrant seasonal and domestic workers
- Author(s):
- Parliamentary Assembly
- Origin
- Text
adopted by the Standing Committee, acting on behalf of
the Assembly, on 7 March 2024 (see Doc. 15930, report of the Committee on Migration, Refugees and
Displaced Persons, rapporteur: Ms Diana Stoica; and Doc. 15931, opinion of the Committee on Social Affairs, Health
and Sustainable Development, rapporteur: Mr Pedro Cegonho).
1. The precarious and irregular work
situations of migrant seasonal and domestic workers (hereafter “migrant
workers”) have increased over the years, facilitated by poverty
or poor economic conditions in countries of origin on the one hand
and, on the other, by the increasing dependence of the European agricultural
and domestic work sectors on an abundant foreign workforce. Furthermore,
migratory trends, bilateral agreements and historical, but also
geographical and cultural, factors have favoured migratory movements.
Finally, false promises by recruitment agencies and employers, such
as higher remuneration, social security coverage or access to social
services, may also have led migrant workers to accept offers for seasonal
work.
2. The situation of migrant workers is aggravated by cumulative
factors, especially by the temporary nature of seasonal employment
contracts, linguistic barriers and lengthy and cumbersome procedures
for obtaining work permits. Such factors often lead to recruitment
of undocumented workers, who are in an irregular situation and more
vulnerable to organised crime. The situation is worse for domestic
migrant workers: labour inspections are difficult to carry out in
the domestic work sector and employers are often reluctant to pay employment-related
taxes and social security contributions. This results in increased
vulnerability for migrant workers, who have almost no access to
social rights.
3. Female workers are particularly vulnerable in both the domestic
and seasonal work sectors, due to their high degree of dependence
on employers. In the domestic work sector, many female migrant workers, especially
those who are in an irregular situation, end up living in the house
of their employers. This situation and the frequency of undeclared
domestic work increase the risk of exploitation and, sometimes,
of sexual harassment and abuse.
4. These root causes have led to a high degree of precarious
and irregular working conditions among migrant workers, such as
low or no remuneration, excessive workloads, harassment, lack of
social security coverage and social rights, degrading and isolated
accommodation, lack of safety, obstacles to trade union membership
and limited access to justice, leading to situations of modern slavery.
5. This precarious situation affects several types of migrant
workers, including those from eastern Europe. Some of them are victims
of exploitation and human trafficking networks, via external channels
or means, such as personal networks, recruitment agencies, pick-up
spots and online recruitment. Moreover, there is increasing criminal
use of social media and the internet to recruit migrant workers,
but also use of intermediaries, leading to a higher degree of control
over migrant workers regarding their working conditions, their transportation
or access to their bank accounts. More recently, the mass arrival
of Ukrainian refugees in many European countries has increased the
risks of labour exploitation and human trafficking.
6. The Covid-19 pandemic demonstrated the vital contribution
of migrant workers to national economies, to the extent that they
were considered to be “essential workers”. However, as essential
workers, they were more exposed to the virus than other workers,
and more of them were infected.
7. To tackle such intolerable situations, the Parliamentary Assembly
underlines the importance of complying with the existing international
legal framework aimed at fighting precariousness and irregular working
conditions.
8. Primarily, the Assembly underlines the importance of the European
Convention on Human Rights (ETS No. 5) which, in Article 4, prohibits
slavery, servitude and forced or compulsory labour. The Assembly
also recalls the case law of the European Court of Human Rights,
which extended the scope of this provision to include protection
against trafficking for labour exploitation (Chowdury
and Others v. Greece, 30 March 2017) and “domestic slavery”
(Siliadin v. France, 26 July 2005).
9. Furthermore, it underscores the relevance of the European
Convention on the Legal Status of Migrant Workers (ETS No. 93),
aimed at defining common general conditions for the entry and stay
of migrant domestic workers, and ensuring a treatment not less favourable
than that accorded to nationals.
10. The Assembly also recalls Recommendation CM/Rec(2022)21 of
the Committee of Ministers to member States on preventing and combating
trafficking in human beings for the purpose of labour exploitation,
which calls on member States to adopt national laws, policies and
strategies, following a human rights-based and victim-centred approach,
and to strengthen regulation of the labour market.
11. The Assembly underlines the importance of the Council of Europe
Convention on Action against Trafficking in Human Beings (CETS No. 197)
and the monitoring work and guidance of the Group of Experts on
Action against Trafficking in Human Beings (GRETA), which is responsible
for monitoring the implementation of that convention and pays particular
attention to human trafficking for the purpose of labour exploitation
in this context.
12. The Assembly also underlines the importance of the European
Social Charter (revised) (ETS No. 163, the Charter) and the conclusions
and decisions of the European Committee of Social Rights. The Charter proscribes
forced labour and two of its provisions (Articles 18 and 19) address
in particular the situation of migrant workers, enshrining the rights
to engage in a gainful occupation in host countries, to protection
and assistance for migrant workers and their families, and to treatment
not less favourable than that of nationals concerning, inter alia, remuneration and working
conditions.
13. The Assembly recalls that restrictions on the rights laid
down in the Charter can be imposed only if they are “necessary in
a democratic society for the protection of the rights and freedoms
of others or for the protection of public interest, national security,
public health, or morals”, and stresses that no other reason can be
invoked to limit the enjoyment of the rights enshrined in the Charter.
14. The Assembly also recalls its
Resolutions 1922 (2013) “Trafficking
of migrant workers for forced labour” and
2323 (2020) “Concerted action against
human trafficking and the smuggling of migrants”, which both consider
human trafficking as the most severe form of exploitation.
15. The Assembly likewise recalls the importance of the International
Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families of the United Nations.
16. The Assembly also highlights the relevant conventions of the
International Labour Organization, namely: the Migration for Employment
Convention (Revised) (No. 97), which requires equality of treatment
between national and migrant workers in matters of employment, remuneration
and other working conditions; the Migrant Workers (Supplementary
Provisions) Convention (No. 143), aimed at tackling illegal employment
of migrants; and the Domestic Workers Convention (No. 189), which
recognises freedom of association for all domestic workers and promotes
the elimination of all forms of forced or compulsory labour, the
effective abolition of child labour and the elimination of employment
discrimination.
17. Regarding the European Union’s texts, the Assembly takes note
that while migrant seasonal workers coming from a European Union
member State are covered by Article 45 of the Treaty on the Functioning
of the European Union on the freedom of movement for workers and
by Directive 2014/54/EU on measures facilitating the exercise of
rights conferred on workers in the context of freedom of movement
for workers, third-country nationals are covered by Directive 2014/36/EU
on the conditions of entry and stay of third-country nationals for
the purpose of employment as seasonal workers.
18. The Assembly also takes note of Directive 2009/52/EC providing
for minimum standards on sanctions and measures against employers
of illegally staying third-country nationals, which was drawn up
to prevent abuses and labour exploitation of third-country migrant
workers, grant protection measures as regards access to justice
and ensure the implementation of adequate and effective labour inspections.
19. Beyond these texts, the Assembly underlines the necessity
to also address the social aspects of precarious seasonal work on
the basis of the initial motion for a resolution entitled “Precarious
status of cross-border and seasonal workers in Europe”
(Doc. 15274).
20. The Assembly therefore calls on member States to comply with
the existing international treaties, norms and recommendations,
improve their laws, starting with migration and labour laws, and
effectively implement these texts in order to fight precariousness
and improve the social aspects of seasonal and domestic work in Europe.
21. The Assembly thus asks member States to:
21.1 consider signing and ratifying
the European Convention on the Legal Status of Migrant Workers;
21.2 fully comply with the provisions of the Convention on
Action against Trafficking in Human Beings and implement the relevant
recommendations issued by GRETA and the Committee of the Parties
to the convention;
21.3 effectively implement the European Social Charter, especially
the provisions on the enhancement of working and living conditions
for migrant workers, and those aimed at eliminating all legal and de facto discrimination in access
to public and private housing;
21.4 extend the Charter’s legal scope to cover everyone
de facto residing in Council of
Europe member States, irrespective of their status and place of
origin, as requested in
Resolution 2504
(2023) and
Recommendation 2255
(2023) “Health and social protection of undocumented
workers or those in an irregular situation”.
22. The Assembly welcomes the determination of member States to
strengthen social justice, democratic stability and commitment to
the protection of social rights, as reaffirmed in the Reykjavik
Declaration. It notes that a High-Level Conference on the European
Social Charter is being convened on 3 and 4 July 2024 in Vilnius (Lithuania),
which is a unique opportunity for member States to affirm their
ambitions in terms of safeguarding and enhancing social rights.
In this context, the Assembly calls on member States to join forces
to achieve substantive improvements in the implementation of social
rights, add new provisions to the European Social Charter to enhance
the protection of workers in atypical forms of employment and remove
the limitation on the personal scope of application of the Charter.
23. The Assembly welcomes the report “Protection of the labour
and human rights of migrant workers” by the United Nations Special
Rapporteur on the human rights of migrants, Mr Felipe González Morales,
and calls on member States to closely consider its recommendations.
24. As regards improving legislation and practices, the Assembly
asks member States to:
24.1 define
and criminalise “forced labour” and “precarious and irregular working
conditions” in legislation; establish anti-trafficking legislation
and mechanisms to prevent and tackle the illegal practices of criminal
organisations; and better detect undeclared work;
24.2 adopt structural policies to protect the rights of migrant
workers and their families concerning wages, workload, social security
coverage, working and living conditions, safety measures at the workplace
and social services, including by giving migrant workers the possibility
to change employers in order to escape from exploitative situations;
24.3 establish legal and practical measures for effective labour
inspections, including for domestic work; increase financial and
human resources dedicated to inspectorates and better train inspectors;
24.4 carry out regularisation programmes for undocumented workers;
promote simple and inexpensive procedures; and support undocumented
migrants’ organisations, among other measures and best practices
as recommended in
Resolution 2504
(2023) and
Recommendation 2255
(2023);
24.5 facilitate family reunion by lifting obstacles, such as
unduly restrictive residency or income requirements;
24.6 put in place awareness-raising campaigns regarding migrant
workers’ labour and social rights and the risks of human trafficking
for labour exploitation, including in the mother tongue of migrant workers;
provide the latter with referral mechanisms and ensure confidential
treatment of their claims;
24.7 collect data and information with a view to sharing, among
themselves, best practices for the prevention of precarious working
and living conditions.
25. The Assembly notes that access to justice and appropriate
sanctions are crucial to guarantee legal assistance and protection
for migrant workers, including the granting of a temporary residence
permit in the context of legal proceedings and the rights to appeal
to an independent body, obtain adequate compensation and not to
be the subject of retaliation. Third parties should be able to file
complaints against exploitative employers, particularly in situations
of modern slavery or bans on the right to unionise. Moreover, the competent
public authorities should do more to prevent illegal recruitment
and, failing that, ensure the effective implementation of sanctions
against exploitative employers or their intermediaries. Finally,
provisions should be put in place in order to make back payments
to migrant workers, establish State compensation funds and freeze
the assets of exploitative employers.
