B Explanatory memorandum
by Ms Diana Stoica, rapporteur
1 Introduction
1. Over the years, Europe’s agricultural
and domestic work sectors have become increasingly dependent on
a migrant workforce from both European and non-European countries,
making labour migration a key feature of these sectors. It is clear
from the evidence, however, that there is a high prevalence of precarious and
irregular working conditions among migrant workers, such as low
pay, excessive workload, lack of social security coverage, unsanitary
accommodation, lack of safety measures in the workplace and limited
access to justice. High levels of undeclared work further exacerbated
these exploitative conditions.
2. This precarious status is not peculiar to any one group of
people, but affects several types of migrant workers, regardless
of their country of origin. In the wake of the eastern enlargement
of the European Union, many eastern Europeans, including a large
number of female workers, migrated westwards in search of work and
some became victims of exploitation and human trafficking networks.
3. With the outbreak of the Covid-19 pandemic, migrant workers
found themselves in an even more precarious position. There were
cases of migrant workers becoming infected in unsanitary dormitories
or workplaces, while others lost their contracts and thus their
source of income. Thousands of seasonal migrants, some of them in
an irregular situation, especially in the agricultural sector, found
themselves stranded on the streets of Europe. It thus became apparent
that there were systemic problems associated with precarious work contracts
for migrants.
4. More recently, the huge influx of Ukrainian refugees into
many European countries since the start of the Russian Federation’s
aggression against Ukraine has exposed these refugees to heightened
risks of labour exploitation and human trafficking. They may frequently
find themselves in a precarious situation due to short-term contracts
or irregular work.
5. The Parliamentary Assembly adopted Resolution 1922 (2013)
“Trafficking of migrant workers for forced labour”, as well as Resolution
2323 (2020) “Concerted action against human trafficking and the
smuggling of migrants”, based on reports of the Committee on Migration,
Refugees and Displaced Persons presented by Annette Groth (Germany,
UEL) and Vernon Coaker (United Kingdom, SOC), respectively. Both
resolutions analysed human trafficking for the purpose of multiple
forms of exploitation, including labour exploitation. It is important,
however, to also address the social aspects of precarious and seasonal
work in Europe. Together with other colleagues, therefore, I signed
the
motion for a resolution entitled “Precarious status of cross-border and seasonal
workers in Europe”.
2 Definitions
6. For the purposes of this report,
the notion of “migrant seasonal workers” is defined in accordance
with Article 2.2.b of the International Convention on the Protection
of the Rights of All Migrant Workers and Members of Their Families,
Note according to which “the term ‘seasonal
worker’ refers to a migrant worker whose work by its character is
dependent on seasonal conditions and is performed only during part
of the year”. A characteristic feature of migrant seasonal labour,
therefore, is the temporary nature of work contracts and the fact
that work is carried out according to the seasons and the weather.
7. Additionally, Article 1.a of the Domestic Workers Convention
of the International Labour Organization (ILO)
Note indicates that “the term ‘domestic
work’ means work performed in or for a household or households”. This
concept is commonly used to identify workers employed in Personal
and Household Services (PHS), whose main tasks may range from personal
assistance, such as taking care of children and elderly people,
to household services, such as cleaning, ironing or gardening.
Note
8. Lastly, although there is no universal consensus on the meaning
of “precarious working conditions”, the European Parliament has
provided its own legal definition in a 2017 resolution on working
conditions and precarious employment.
Note According to the
resolution, precarious employment is “employment which does not comply
with EU, international and national standards and laws and/or does
not provide sufficient resources for a decent life or adequate social
protection” (Section I.3). Furthermore, in paragraph 6, it mentions
specific factors that usually contribute to precarious working conditions,
such as “rudimentary protection from dismissal and lack of sufficient
social protection in case of dismissal; insufficient remuneration
for a decent living; no or limited social protection rights or benefits;
no or limited protection against any form of discrimination” and
“low level of collective rights”. The ILO has reiterated that “precarious
work is typically understood as work that is low paid, especially
if associated with earnings that are at or below the poverty level
and variable; insecure, meaning that there is uncertainty regarding
the continuity of employment and the risk of job loss is high; with minimal
worker control, such that the worker, either individually or collectively,
has no say about their working conditions, wages or the pace of
work; and unprotected, meaning that the work is not protected by
law or collective agreements with respect to occupational safety
and health, social protection, discrimination or other rights normally
provided to workers in an employment relationship”.
Note The
concept of precarious working conditions therefore refers to the
exploitative treatment of migrant workers within a State.
3 The
legal framework
3.1 United
Nations Migrant Workers Convention
9. The United Nations International
Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families, known as the Migrant Workers Convention,
constitutes a milestone in the protection of migrant workers. It
was adopted by the UN General Assembly Resolution 45/158 of 18 December 1990
and entered into force on 1 July 2003. The Convention is relevant
at international level, as not only does it provide vitally important
social protection to migrant workers, but it also extends it to
their family members during the “entire migration process” (Article 1.2
of the Convention), namely from the preparation for migration to
the period of stay, and their return to the State of origin. In
particular, Article 25 places an obligation on signatories to ensure
“treatment not less favourable than that which applies to nationals
of the State of employment in respect of remuneration” and other
working conditions such as “overtime, hours of work, weekly rest,
holidays with pay, safety, health, termination of the employment
relationship and any other conditions of work which, according to
national law and practice, are covered by these terms”. Article
25.3, furthermore, extends recognition of the same rights to migrant
workers in an irregular situation with respect to their stay or employment.
10. While migrant workers who are present or employed irregularly
enjoy the rights enshrined in Article 25 of the Convention, those
who are in a regular situation (including migrant seasonal workers
in accordance with Article 59), as well as their families, enjoy
further rights laid down in Part IV of the Convention. For instance, Article
43 ensures equality of treatment with nationals of the State of
employment in relation to, inter alia, access
to education, to housing and to social and health services.
11. The Migrant Workers Convention, however, has found only limited
support among European countries. Of the 58 signatories, only 4
Council of Europe member States (Albania, Azerbaijan, Bosnia and
Herzegovina and Türkiye) have ratified it, while Armenia, Montenegro
and Serbia have signed but not ratified the instrument.
3.2 International
Labour Organization instruments
12. The ILO has produced several
conventions relating to the rights of migrant workers, namely: the Migration
for Employment Convention (Revised) (No. 97); the Migrant Workers
(Supplementary Provisions) Convention (No. 143); and the Domestic
Workers Convention (No. 189).
Note
13. As regards the Migration for Employment Convention (No. 97)
(hereafter Co97), 18 Council of Europe member States have ratified
this instrument. Frontier workers, short-term entry of members of
the liberal professions and artistes, and seamen are not covered
by Co97 (Article 11). Migrant seasonal and domestic workers, who
are covered by the term “migrant for employment”, benefit from the
provisions of the Co97. The latter entails a series of commitments
for signatories, starting with equality of treatment between national
and migrant workers in matters of employment, remuneration and other
working conditions (Article 6, mainly). The Co97 also invites States
to take all appropriate measures to facilitate the departure, journey
and reception of migrant workers (Article 4), including simplifying
administrative formalities, providing interpretation if needed, and
assisting them and their families during an initial period in their
settlement (Annex I, Article 6). States Parties have to provide
migrants with assistance for employment and related accurate information
(Article 2; under certain conditions as specified by Annex II, Article
3) and, under Annex III to the Co97, signatories undertake to facilitate
the circulation of the personal effects of migrant workers as well.
14. As regards the ILO’s Migrant Workers Convention No. 143 (hereafter
C143), 13 Council of Europe member States have ratified the instrument.
Frontier workers, short-term entries (liberal professions, artistes,
specific and limited assignments by employers), seamen, persons
staying for educational or training purposes are not covered by
C143 (Article 11). Migrant workers benefit from the provisions of
the Convention.
Note C143 is concerned
with the means to tackle illegal employment of migrants. It states
inter alia that the migration of
workers “should take place under the responsibility of official
agencies for employment” (Preamble, ninth paragraph) and refers
to equality of treatment between national and migrant workers with
regard to social security, among other standards (Preamble, thirteenth
paragraph).
15. The C143 also and primarily stipulates that each signatory
“undertakes to respect the basic human rights of all migrant workers”
(Article 1). As regards the means to tackle illegal employment of
migrants, C143 sets out several commitments for signatories, for
instance employing appropriate means to determine whether there are
illegally employed migrant workers on their territory (Article 2),
suppressing clandestine movements of migrants (including taking
measures against the organisers of such movements and employers,
where applicable (Article 3). C143 also reiterates the importance
of tackling abuses vis-à-vis illegal employment of migrant workers
and the necessary involvement of representative organisations of
employers (Article 7). Importantly, it guarantees equality of treatment
between national and migrant workers in the case of migrant workers
legally residing in the host country who lose their job (Article 8).
C143 also guarantees equality of treatment between national and
migrant workers when the latter are illegally residing or working
in the host country, including the right to defend their case, either
themselves or through a representative (Article 9). A policy to
secure such equal treatment of migrant workers and their families
is to be pursued (in co-operation with employers’ and workers’ organisations,
Article 12), using “methods appropriate to national conditions and practice”
“in respect of employment and occupation, of social security, of
trade union and cultural rights and of individual and collective
freedoms” (Article 10) as well as with regard to working conditions
for migrant workers (Article 12.g). C143 recommends that States
Parties “take measures, encourage educational programmes and develop
other activities aimed at acquainting migrant workers as fully as
possible with the policy, with their rights and obligations and
with activities designed to give effective assistance to migrant
workers in the exercise of their rights and for their protection”
(Article 12.c), without preventing migrant workers and their families
from preserving “their national and ethnic identity and their cultural
ties” (Article 12.f) and, in Article 13, calls on States Parties
to “facilitate the reunification of the families of all migrant
workers legally residing in [their] territory”. C143 also deals
with the critical issue of the “recognition of occupational qualifications
acquired outside [the signatory’s] territory, including certificates
and diplomas” (Article 14.b).
16. As regards the Domestic Workers Convention (No. 189) (hereafter
C189), 10 Council of Europe member States have ratified this instrument.
C189 guarantees to all domestic workers, whether migrant or other, “(a) freedom
of association […]; (b) the elimination of all forms of forced or
compulsory labour; (c) the effective abolition of child labour;
(d) the elimination of discrimination in respect of employment and
occupation” (Article 3.2). In particular, States Parties to the
Convention are to ensure that all domestic workers enjoy fair terms
of employment, decent working and living conditions (Article 6),
as well as to establish effective complaint mechanisms (Article 15.1.b;
Article 17). In addition, States Parties are called on to “provide
adequate protection for and prevent abuses of domestic workers”
(Article 15.1.c).
17. C189 is accompanied by the
ILO
Domestic Workers Recommendation No. 201 (hereafter R201), which puts forward concrete solutions
States should consider when deciding which policies to adopt. In
particular, in paragraph 20, R201 encourages States to sign international
and/or regional agreements granting equal treatment to migrant domestic
workers regarding social security access and entitlements. Paragraph 21, furthermore,
recommends that States consider additional measures to protect migrant
domestic workers by providing translation and information services,
organising pre-placement visits to the households where migrant
workers are to be employed, developing a network of emergency housing
and securing access to complaint mechanisms.
18. Many European countries, however, have still not acceded to
the above-mentioned conventions, with some claiming that existing
national legislation already offers sufficient protection for domestic
workers and their families, where applicable.
Note
19. Unlike in the case of migrant domestic workers, no international
treaty or convention specifically addresses protection of migrant
seasonal workers, although several UN instruments do apply to them, including
notably the ones cited above.
3.3 Council
of Europe instruments
20. The Council of Europe is active
in this field and has introduced relevant norms and standards. Article
4 of the European Convention on Human Rights (ETS No. 5) prohibits
slavery, servitude and forced or compulsory labour. Through its
case law, the European Court of Human Rights has made it clear that
Article 4 also protects against trafficking for labour exploitation.
Note
21. The main Council of Europe instrument in this field, however,
is the
European
Social Charter (revised) (ETS No. 163). The Charter’s employment-related rights
are applicable to migrant workers from other States Parties who
are lawfully resident or working regularly within the territory
of the Party concerned, but two provisions in particular address
the situation of migrant workers. According to Article 18 of the
Charter, migrant workers and their family members enjoy the right
to engage in a gainful occupation in the territory of other States
Parties.
Note In concrete terms, signatories
undertake to recognise their citizens’ right to leave the country in
order to find a gainful occupation in other States Parties, to streamline
and liberalise recruitment procedures for foreign workers, and to
reduce charges payable by foreign workers.
22. Article 19 of the Charter recognises the right of migrant
workers and their families to protection and assistance. Specifically,
States undertake to set up services to assist migrant workers, particularly
in obtaining information, and to adopt measures to facilitate their
departure, journey and reception, and to provide services for health,
medical attention and good hygienic conditions during their journey.
In addition, the Parties are to secure for migrant workers and their
families treatment not less favourable than that of nationals in
respect of remuneration, working conditions, trade union membership
and enjoyment of the benefits of collective bargaining, accommodation,
taxes and the right to lodge complaints concerning the application
of Article 19. Finally, States Parties to the Charter undertake
to promote the teaching of their national language(s) to migrant workers
and their families, and to facilitate the teaching of the migrant
worker’s mother tongue to the children of the migrant worker.
23. According to Article G of the Charter, restrictions on rights
laid down in the Charter, including Articles 18 and 19, 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”. No other reason
can be invoked to limit the enjoyment of the rights enshrined in
the Charter. Drawing on other approaches to the personal scope of
the rights of migrant workers and their families, such as that of
the ILO conventions mentioned above, consideration could be given
to the personal scope and related restrictions as contained in Article G
of the Charter with a view to limiting such restrictions.
24. There is, however, a significant limitation on the scope of
the Charter in this respect since, according to Article 1 of its
Appendix, subject to the provisions (Part II) of Article 12.4, and
Article 13.4, the persons referred to in Articles 1 to 17 and 20
to 31 are to include foreigners only insofar as they are nationals
of other contracting Parties lawfully resident or working regularly
within the territory of the contracting Party concerned, it being understood
that the above-mentioned articles are to be interpreted in the light
of the provisions of Articles 18 and 19. This does not preclude
the extension of similar rights to other persons by any Party. Within
the framework of the Charter reform process, the States Parties
to the Charter/Council of Europe member States are unwilling to
engage with the issue of personal scope for the time being.
Note The crucial importance, however, of
ensuring that the guarantees of one of the Council of Europe’s most
fundamental treaties can be extended to all persons lawfully within
the territories of the member States, irrespective of their nationality,
in accordance with contemporary notions of human rights, militates
in favour of taking immediate steps to re-examine the Charter’s
personal scope.
25. Aside from the European Social Charter, the Council of Europe
has called on States to sign the
European
Convention on the Legal Status of Migrant Workers (ETS No. 93), which was opened for signature in 1977
and entered into force on 1 May 1983. This treaty seeks to define
common general conditions for the entry and stay of migrant workers
and to ensure treatment not less favourable than that accorded to
nationals in respect of,
inter alia,
housing, working conditions, social security, medical assistance
and access to the courts. Although Article 1.2.e explicitly excludes
migrant seasonal workers from the enjoyment of rights set forth
in the Convention, no provision limits the application of the Convention
to migrant domestic workers. Only 11 Council of Europe member States
have ratified it, however (namely Albania, France, Italy, Republic
of Moldova, the Netherlands, Norway, Portugal, Spain, Sweden, Türkiye
and Ukraine), while Belgium, Germany, Greece and Luxembourg have
signed but not ratified it.
26. In recent decades, the Council of Europe has taken major steps
to combat human trafficking. Firstly, the
Council of Europe’s Convention
on Action against Trafficking in Human Beings (CETS No. 197) paved the way for the creation of the
Group of Experts on Action against Trafficking in Human Beings (GRETA),
which monitors the implementation of the Convention and pays particular
attention to human trafficking for the purpose of labour exploitation.
Note According
to Article 4.a, of the Convention, “trafficking in human beings” refers
to “the recruitment, transportation, transfer, harbouring or receipt
of persons, by means of the threat or use of force or other forms
of coercion, of abduction, of fraud, of deception, of the abuse
of power or of a position of vulnerability or of the giving or receiving
of payments or benefits to achieve the consent of a person having
control over another person, for the purpose of exploitation. Exploitation
shall include, at a minimum, the exploitation of the prostitution
of others or other forms of sexual exploitation, forced labour or
services, slavery or practices similar to slavery, servitude or
the removal of organs”. Recently, GRETA issued a
Guidance
Note on addressing the risks of human trafficking related
to the war in Ukraine. During its country monitoring visits, in
the course of the second evaluation round, GRETA noted the living
and working conditions of undocumented agricultural workers in the
village of Nea Manolada in western Peloponnese,
Greece, in the area of Huelva in Andalusia,
Spain, and in Borgo Mezzanone, Puglia,
Italy.
27. Secondly, in April 2021, the Committee of Ministers adopted
the
terms of
reference of the Drafting Committee on Trafficking for the Purpose
of Labour Exploitation (
DH-TET) under the authority of the Steering Committee on Human
Rights (CDDH), its mandate being to “prepare a draft recommendation
of the Committee of Ministers on preventing and combating trafficking
in human beings for the purpose of labour exploitation, based notably
on the Compendium of Good Practices and the Guidance Note on Preventing
and Combating Trafficking in Human Beings for the Purpose of Labour
Exploitation developed by GRETA, as well as on the case law of the
European Court of Human Rights”. Accordingly, on 27 September 2022,
the Committee of Ministers adopted a Recommendation to member States
on preventing and combating trafficking in human beings for the
purpose of labour exploitation (
CM/Rec(2022)21).
3.4 The
European Union
28. Mention should be made, firstly,
of Council
Directive 2000/78/EC of 27 November 2000 establishing a general framework
for equal treatment in employment and occupation and
Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002
amending Council Directive 76/207/EEC on the implementation of the
principle of equal treatment for men and women as regards access
to employment, vocational training and promotion, and working conditions.
29. Depending on the country of origin, the rights guaranteed
to migrant seasonal workers may differ. For the EU legal framework
distinguishes between migrant seasonal workers coming from an EU
member State and third-country nationals. Migrant seasonal workers
coming from an EU member State are covered by Article 45 of the
Treaty on the Functioning of the European Union (TFEU), which
deals with freedom of movement for workers, and by
Directive 2014/54/UE of the European Parliament and of the Council of 16 April 2014
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 of the European Parliament and of the Council of 26 February
2014 on the conditions of entry and stay of third-country nationals
for the purpose of employment as seasonal workers (known as the
Seasonal Workers Directive), which covers third-country migrant
seasonal workers’ conditions of employment. Both EU and non-EU seasonal
workers who legally work and reside in one EU member State but are
sent by their employer to work in another EU country are considered
“posted seasonal workers”,
Note according
to
Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996
concerning the posting of workers in the framework of the provision
of services; they are also covered by
Directive 2018/957 of the European Parliament and of the Council of 28 June 2018,
known as the Posting of Workers Directive, amending Directive 96/71/EC.
30. In concrete terms, one of the main differences between migrant
seasonal workers coming from an EU member State and third-country
nationals concerns the entry requirements to the territory of an
EU member State: EU citizens can move freely across the European
Union by virtue of their right of movement, while non-EU migrant
seasonal workers residing in an EU member State usually need to
apply for visas or residence and work permits.
31. The first-ever example of EU harmonised legislation on entry
requirements for third-country seasonal workers, the Seasonal Workers
Directive 2014/36/EU was the result of a compromise between States’
need to effectively manage seasonal migration movements and their
concerns about migrant workers’ precarious working conditions.
Note Accordingly the
directive allows the migration of seasonal workers only for a limited length
of time, with Article 14.1 stipulating that “Member States shall
determine a maximum period of stay for seasonal workers which shall
be not less than five months and not more than nine months in any
12-month period.” The Directive thus avoids any automatic permanent
migration, which could create uneasiness within the receiving State,
unless the seasonal workers manage to obtain a residence permit
in the host country. At the same time, the Directive theoretically
requires member States to ensure decent living and working conditions
for migrant seasonal workers. Article 23 ultimately recognises the
right of migrant seasonal workers to equal treatment with nationals
of the receiving State inasmuch as it relates,
inter alia, to the terms of employment
(for instance pay, minimum working age, working hours, holidays,
health and safety requirements at the workplace), the right to strike
and to be a member of a trade union, back payments, as well as social security
benefits as defined in
Regulation
No. 883/2004. Migrant workers are also allowed to switch employers during
their stay, thus enabling them to escape exploitative working conditions
without the risk of reprisals from their employers (paragraph 31).
Note Lastly, Article
25 of the Directive calls on States to provide migrant seasonal workers
with effective complaint mechanisms against possible violations
of the provisions, while Article 24 provides for monitoring and
sanctions.
32. Another important piece of legislation where the protection
of migrants’ working conditions is concerned is
Directive 2009/52/EC of the European Parliament and of the Council of 18
June 2009 providing for minimum standards on sanctions and measures
against employers of illegally staying third-country nationals (known
as the Employers Sanctions Directive). Enacted to prevent employers’
abuses and labour exploitation of third-country migrant workers,
it facilitates access to justice for migrant workers and requires
States to ensure that effective and adequate labour inspections
are carried out (Article 14). In the case of violations of Article 3
of the Directive, which prohibits “the employment of illegally staying
third-country nationals”, sanctions are imposed on the employer
and the migrant workers are entitled to back payments of any outstanding remuneration
or social security benefits (Article 6). Where an infringement is
accompanied by “particularly exploitative working conditions”, Article
9.1.c calls for criminal proceedings to be brought against the employer. According
to Article 13.4 of the Directive, States “may grant, on a case-by-case
basis, permits of limited duration, linked to the length of the
relevant national proceedings”.
33. The EU has also adopted
Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011
on preventing and combating trafficking in human beings and protecting
its victims. This directive is currently being revised.
Note
34. The outbreak of the Covid-19 pandemic had a detrimental effect
on the working and living conditions of seasonal migrants, thus
requiring an effective and immediate response from the EU authorities.
In June 2020, the European Parliament, in a resolution “on European
protection of cross-border and seasonal workers in the context of
the Covid-19 crisis,” called on States to effectively implement
existing EU legislation and urged the European Commission “to propose
long-term solutions to deal with abusive subcontracting practices
and safeguard seasonal and cross-border workers employed all along
the subcontracting and supply chain”.
Note The following month,
pursuant to the EP resolution, the European Commission published
the new Guidelines on seasonal workers in the EU in the context
of the Covid-19 outbreak.
Note These guidelines
reiterate the need to provide decent living and working conditions,
including physical distancing and hygiene measures, and address
several issues concerning transport, occupational safety and social
security.
3.5 Promising
practices in EU member States
35. Even in the case of EU legal
instruments member States enjoy a certain margin of appreciation
in determining their own policies. Not only are they responsible
for determining in law the maximum length of seasonal workers’ employment
contracts (within the parameters set by the Seasonal Workers Directive)
and the overall number of seasonal workers to be admitted each year,
but they can also choose which sectors to include in their seasonal
work programmes.
Note For this reason, national legislation
on migrant workers may differ from one EU member State to another.
36. In this context, some States’ policies on seasonal and domestic
work look promising and appear to be effective, and their example
may help other countries to find practical solutions in this area.
37. For instance, in order to avoid labour shortages, France and
other European countries have introduced circular migration mechanisms,
whereby States sending and receiving migrant workers sign bilateral agreements
to facilitate recruitment on the basis of multi-annual work permits.
Note
38. As regards labour inspections, the Netherlands allows migrant
workers in an irregular situation to report crimes to the police
without fear of immediate arrest or detention. French labour inspectorates
treat migrants’ complaints in confidence, in accordance with Article
15.c of the ILO Labour Inspection Convention (
No.
81) of 1947, thus preventing sensitive data from being
transferred to the immigration enforcement authorities. And Belgian
labour inspectorates may request that employers pay their employees
on the spot if there is evidence of non-payment.
Note
4 The
situation of migrant seasonal and domestic workers
4.1 The
main drivers of seasonal and domestic labour migration
39. The primary driver of seasonal
and domestic labour migration is poverty or adverse economic conditions. At
a structural level, therefore, there are “push” and “pull” factors,
corresponding to demand and supply: there is a demand for labour
in the richer countries and, at the same time, a supply of cheaper
labour from poorer countries. Not only do workers from the least
developed countries migrate for economic reasons, but the prospect
of earning more money with which to support their families induces
many eastern European citizens to search for temporary jobs abroad.
In this context, the possibility of higher wages and sending remittances
to the countries of origin may explain labour migration in seasonal
and domestic work. Such seasonal and domestic work migration affects
European citizens, but also citizens beyond Europe, since there
is seasonal migration from North African and Asian countries, too
(for instance from Morocco to Spain or Italy,
Note or from Bangladesh to Greece
Note).
40. Another important driver of seasonal and domestic labour migration
is illiteracy. Because migrant workers sometimes find themselves
in a vulnerable position in their own countries due inter alia to
illiteracy, the absence of any requirement to be educated or highly
skilled in these sectors represents an incentive to migrate.
41. In addition, national labour shortages lead to an abundant
foreign workforce moving in search of work. In the agricultural
and domestic work sectors in particular, the improvement in living
standards in western European countries has pushed the national
workforce into higher-paid sectors of the economy, drastically decreasing
the number of nationals employed in those industries.
Note The large numbers
of eastern European and third-country migrant workers have thus
served to offset the lack of domestic workforce.
42. These migration movements are further influenced by migratory
trends and bilateral agreements, and fostered by a mixture of historical,
geographical, cultural and economic factors. For instance, in the
past decades, France and Spain have had close ties with Morocco,
Note and Sweden with Thai migrants,
Note while Germany has been receiving
mainly eastern Europeans (for instance Polish and Romanians).
Note As a result, migrant
workers may choose their country of destination based on the national
communities already living there and the presence of relatives who
can help them into employment.
43. Lastly, migrant workers may not have any desire or need to
migrate to other countries for labour reasons but are lured into
accepting offers of seasonal work by false promises from recruitment
agencies and employers (for instance higher pay, social security
coverage or access to social services). Under Article 3.2 (safety
and health at work) of the European Social Charter, interim, temporary,
seasonal workers and those on fixed-term contracts must be afforded
adequate protection, including against risks resulting from a succession of
accumulated periods spent working for a variety of employers during
which they may be exposed to dangerous substances, in order to avoid
any discrimination in respect of occupational safety and health
in the workplace (
Conclusions
2009, Andorra, Article 3.2). If necessary, regulations
must prohibit the hiring of temporary workers for some particularly
dangerous activities (
Conclusions
2013, Bulgaria, Article 3.2).
44. While all these factors may lead workers to migrate to European
countries in search of work in agriculture and domestic sectors,
they may also increase the risk for migrant workers to become victims
of trafficking and labour exploitation. Migrant workers’ economic
needs have the potential to develop into a bond of dependence on
their employers and the fear of losing their job, and hence their
means of subsistence, which may lead them to accept inadequate working
and living conditions.
Note At the same
time, unfulfilled promises by employers to secure work permits may
induce migrant workers to accept exploitative conditions, for fear
of being returned to their countries of origin.
4.2 The
risks of trafficking
45. In the context of labour exploitation,
recent years have seen an increase in human trafficking in all European
countries, including in the agricultural and domestic work sectors.
Note Migrant workers usually fall victim to
human trafficking for labour exploitation via external factors or
means, such as personal networks, recruitment agencies – including
temporary work agencies –, intermediaries, pick-up spots and online recruitment.
Current trends reveals an increase in the criminal use of social
media and internet for recruiting migrant workers in the agricultural
and domestic work sectors.
Note
46. Personal networks are the principal channel through which
migrant workers fall victim to trafficking for the purpose of labour
exploitation.
Note Trust bonds may be a
practical barrier to awareness of the risks of human trafficking.
In addition, sham marriages between an EU citizen and a third-country
national have the potential to further aggravate exploitation, as
the migrant’s regular status is dependent on them being married
to the European citizen.
47. As regards recruitment methods, a 2019 report by the European
Union Agency for Fundamental Rights found that almost two thirds
of the surveyed migrant workers recruited via employment agencies
eventually fell victim to trafficking for labour exploitation.
Note Also, whether located in EU member States
or in third countries, these recruitment agencies appear to be particularly
involved in the agricultural and domestic work sectors.
48. Several factors may explain the way recruitment agencies and
intermediaries create human trafficking networks for labour exploitation.
First of all, false promises made by recruiters to migrant workers
about pay, working and housing conditions, as well as visa issuance,
end up creating bonds that render migrant workers dependent on the
exploitative system. Furthermore, recruitment agencies usually demand
hefty fees, in some cases amounting to thousands of euros, despite
international norms prohibiting such practices.
Note In
this way, recruiters are able to create debt bondages which further
increase migrant workers’ dependence on human trafficking mechanisms.
These intermediaries may also be part of larger networks of outsourced
and subcontract recruitment agencies, thus reducing the degree of
transparency and the possibility of holding them accountable.
49. Apart from recruitment agencies, many migrant workers may
find jobs in agricultural and domestic work sectors through “gangmasters”,
who act as intermediaries between migrant workers and employers.
Compared with recruitment agencies, gangmasters usually retain a
higher degree of control over migrant workers, for instance by managing
their working conditions, arranging their transport to the workplace,
having access to their bank accounts or having the migrants’ wages
paid into their own accounts. In Italy, in particular, the practice
of “
caporalato” (the Italian
equivalent for “gangmaster”) is widespread in the agricultural sector.
Note
50. Therefore effective labour inspections and anti-trafficking
legislation are of paramount importance, in preventing and tackling
these illegal practices. As Diane Schmitt, Anti-Trafficking Co-ordinator
of the European Commission, pointed out, not only is the European
Union revising Directive 2011/36/EU (mentioned above) in an effort
to better address the issue, but also member States of origin and
destination of migrant workers are called on to contribute to the
fight against human trafficking.
Note
51. As regards the situation of particularly vulnerable groups,
special mention should be made of children. In the context of the
Council of Europe’s instruments, in addition to Article 4 of the
European Convention on Human Rights on “Prohibition of slavery and
forced labour”,
Note forced
labour is proscribed by the
European Social
Charter which provides that “Everyone shall have the opportunity
to earn his living in an occupation freely entered upon” (Part I,
1) and the related undertaking of the Parties “to protect effectively”
this right (Part II, Article 1.2). Further, the European Committee
of Social Rights (ECSR) has stated that “States must prohibit the
use of children in other forms of exploitation such as domestic/labour
exploitation, including trafficking for the purposes of labour exploitation
and begging.”
Note
52. The issue of the prohibition of labour exploitation underlies
many provisions of the Social Charter (such as just conditions,
fair pay or health and safety, among other examples) and is monitored
by the ECSR. Within the monitoring process, the ECSR regularly determines
whether or not situations are in conformity with the Charter. According
to Article 7.10 of the Social Charter, States Parties undertake
“to ensure special protection against physical and moral dangers
to which children and young persons are exposed, and particularly
against those resulting directly or indirectly from their work”.
This provision is likewise regularly monitored by the ECSR.
4.3 Work
situations and related social rights
53. According to the Seasonal Workers
Directive and the TFEU, member States are responsible for determining
the number of migrant seasonal workers admitted every year. Although
these quotas usually appear very low compared with the sectoral
needs for labour, available data show that only a small percentage of
the number of work permits available are actually issued.
Note There are two main
reasons for this discrepancy. Firstly, the legal procedures for
applying for a temporary work permit can be lengthy and cumbersome. Secondly,
the short duration of seasonal work, together with the heavy dependence
on weather conditions for agricultural activities, often lead employers
to recruit migrant workers who are already residing in the relevant country
or living there irregularly. This last group of migrant workers
are the ones who suffer most from precarious working and living
conditions, as their irregular status exacerbates their existing
vulnerabilities and limits enjoyment of their rights. It is nevertheless
worth mentioning that in May 2023 the Italian Government published
the 2023 quota of work permits for non-EU citizens. “Of the 82 705 work
permits to be issued this year, 44 000 are reserved for seasonal
work, such as fruit picking.”
Note
54. Difficulties in carrying out inspections in domestic households,
as well as the reluctance of employers of domestic workers to pay
employment-related taxes and social security contributions, increase
the likelihood of migrant domestic workers not being declared.
Note According to estimates,
70% of domestic work is carried out by undeclared workers under
informal employment arrangements, thus effectively preventing them
from enjoying the rights enshrined in international conventions
and national legislation.
Note
55. Despite EU efforts to harmonise procedures for admitting migrant
workers and granting them employment and social rights, the sectors
concerned by seasonal work are heavily dependent on migrant workers
with irregular status or third-country nationals already residing
in the country of employment, but suffering from harsh working and
precarious living conditions. In various Council of Europe member
States, the temporary nature of seasonal work contracts combined
with language barriers further aggravate their vulnerability, including
to modern slavery, a multifaceted phenomenon that leads to cumulative
abuses and violations of migrant seasonal workers’ fundamental rights.
Often, for example, they suffer racism and are threatened with being
sent back home if they fail to meet their targets. Migrant seasonal
workers frequently experience substandard living conditions, with
cramped, unsanitary accommodation and no privacy. Some do not have
adequate food and drinking water. Often their working hours are
not paid or not fully paid, and they can be pressured to do extra
hours, sometimes with few or no breaks and unrealistic targets.
Too often they do not receive proper medical assistance, yet the
harsh conditions in which they live and work frequently lead to
medical issues. Migrant seasonal workers are also liable to be pressured,
harassed and threatened by the farmers who hire them.
Note Recent years, moreover, have shown
how climate change is having knock-on effects on the working conditions
of migrant seasonal workers, with, for example, exposure to increasingly
high temperatures during summer seasonal jobs, leading in some cases
to death.
Note
56. As regards teaching the national language of the receiving
State, the Charter stipulates in Article 19.11 that States undertake
to promote and facilitate the teaching of the national language
of the receiving State to migrant workers and their families. The
ECSR has concluded (
Conclusions 2019, Armenia,
Article 19.11) that the teaching of the national language is the main
means by which migrant workers and their families can integrate
into the world of work and society at large.
Note According
to the ECSR, States are required to provide national language courses
free of charge, as otherwise such courses would not be accessible
for many workers.
Note
57. The Charter underlines, in Article 19.4.a, that States undertake
to eliminate discrimination against migrant workers vis-à-vis national
workers in matters relating to remuneration. According to the case
law of the European Court of Human Rights, this includes legal and
de facto discrimination with respect
to remuneration and other employment and working conditions, including
in-service training, promotion and vocational training.
Note
58. Obstacles to trade union membership among migrant workers
are another form of abuse that increases their vulnerability. Article 19.4.b
of the Charter stipulates that States Parties undertake to secure
for migrant workers treatment not less favourable than that of their
own nationals in respect of “membership of trade unions and enjoyment
of the benefits of collective bargaining”. According to the ECSR,
this includes the right to be founding members of, and to have access
to administrative and managerial posts in, trade unions.
Note States have
to ensure that migrant workers enjoy equal treatment when it comes
to benefiting from collective agreements on equal pay, or from legitimate
collective action in support of such an agreement.
Note Excluding or limiting the right
to collective bargaining or action with respect to foreign companies,
for the sake of enhancing free cross-border movement of services
and advantages in terms of competition within a common market zone, constitutes
discriminatory treatment on the ground of nationality.
Note
59. As regards the right to “family reunion”, the Charter stipulates
in Article 19.6 that the Parties undertake “to facilitate as far
as possible the reunion of the family of a foreign worker permitted
to establish himself in the territory”, with a view to ensuring
the effective exercise of the right of migrant workers and their
families to protection and assistance in the territory of any other
Party. In the context of seasonal workers for instance, States may
require migrants to have been resident for a certain length of time
before their family can join them. According to case law, however,
although a period of one year is acceptable, longer periods are
considered excessive.
Note For
example, a period of 18 months is not in conformity with Article 19.6.
Also, the requirement to have sufficient or suitable accommodation
to house the family should not be so restrictive as to prevent any family
reunion. States are entitled to impose such accommodation requirements
in a proportionate manner, but they should not apply those requirements
in a blanket manner which precludes the possibility for exemptions to
be made in respect of particular categories of cases, such as migrant
workers.
60. In addition, migrant seasonal workers often live together
in degrading and isolated places, referred to
inter
alia, and depending on the place, as “ghettos”, “camps”
or “informal settlements”, consisting of tents, containers or makeshift
shacks. These informal settlements often lack essential services,
such as electricity or access to drinking water and sanitation,
and are usually located in the countryside, near to workplaces,
where poor health and housing conditions are aggravated by social
isolation.
Note As
a consequence, migrant seasonal workers are unable to integrate
with local communities and are restricted in their access to public
services, such as hospitals, schools and trade union support.
Note
61. Notwithstanding extensive evidence of inhumane conditions,
these informal settlements continue to exist.
Note Their
persistence can be explained by two main reasons. Firstly, authorities
often do not consider seasonal workers as a structural element of
the national economy. As a result, they tend to address related issues
only through an emergency approach, without providing permanent
solutions. Secondly, the intrinsic characteristics of seasonal work
(for instance temporary nature of contracts, irregular status of
many migrant workers, workplace often located in the countryside),
and related economic forces, contribute to the perpetuation of ghettos,
thus creating a vicious circle of precarious living and working
conditions.
62. As regards obstacles to accessing social and private housing,
the Charter requires in Article 19.4.c that States undertake to
eliminate all legal and
de facto discrimination
concerning access to public and private housing.
Note Consequently,
there must be no legal or
de facto restrictions
on home-buying, access to subsidised housing or housing aids, such
as loans or other allowances.
Note In this context, there
must be an effective right of appeal before an independent body
against the relevant administrative decisions.
Note Economic obstacles
to achieving provision of social housing for those eligible are
not a valid reason to discriminate against nationals of non-EU States.
Note
63. According to testimonies, cases of harassment and physical
or emotional abuse by employers are common among migrant domestic
workers.
Note Many of
them have reported working between ten and eighteen hours per day,
including on tasks not related to their job, and some have highlighted
issues with wages, be they underpaid or not properly paid for all
the hours they have worked.
64. These exploitative conditions are exacerbated by precarious
and irregular working conditions. Firstly, migrant domestic workers
depend heavily on their employers.
Note They
need money for day-to-day expenses and remittances, and sometimes
they live in the same place where they work. As a result, the fear
of reprisals from their employer (for instance losing their job,
being subjected to physical violence, or losing their housing) may
drive them to accept degrading working and human conditions. At
the same time, their irregular status and, in some cases, the need
for an employment contract in order to apply for residence permits
may deter them from reporting abuses, for fear of being deported
or detained.
65. Secondly, many migrant domestic workers have reported that
there are few, if any, labour inspections
Note at their workplace, because
of the legal and practical challenges involved in inspecting employers’
private properties.
Note Consequently, migrant
workers are effectively unable to report possible violations of
their rights to the competent authorities and impunity among employers
increases the likelihood of further infringements of workers’ rights.
Note
66. Lastly, migrant domestic workers are often not aware of their
rights and language barriers merely compound the problem.
Note Even when employers are aware of their
employees’ rights, they may pretend otherwise in order to engage
in abusive behaviours.
67. Despite European and national legal provisions entitling migrant
workers to file claims against their employers, several studies
Note show
that scant use is made of these rights. This can be explained both
by migrant workers’ lack of awareness of their rights and by the
fact that there is little incentive for them to pursue their employers
in court due to the length and cost of civil and criminal proceedings.
Often, too, there are no
ex officio investigations
in cases of labour exploitation, and not all countries allow trade
unions to lodge complaints on behalf of migrant workers; furthermore,
many migrant workers are not unionised in the first place and trade unions
do not protect their rights. All these shortcomings mean that the
onus is on victims to initiate proceedings and gather evidence of
abuse,
Note making it harder for migrant
workers to effectively enjoy their rights.
68. Another explanation for migrant workers’ reluctance to lodge
complaints against abusive employers, particularly in cases where
the worker is in an irregular situation, is the fear of losing their
job, or even of being deported to their country of origin.
Note The ECSR has held, albeit in a different
context, that the inspection system should be adapted to the features
of the target population. Migrant workers might not be aware of
their rights or might not want to take legal action against an abuser
for fear that it could affect their future employment prospects.
Given this powerful disincentive, the relevant authorities may need
to adopt a proactive approach, besides ensuring an efficient inspection
service.
Note Firstly,
temporary residence permits to enable individuals to remain in the
country and pursue civil claims against their employers are hardly
ever granted.
Note This reduces the chances
of migrant workers initiating legal proceedings, due to the impossibility
of remaining in the country. A second major factor in the reluctance
to lodge complaints is the fear of joint inspections by labour and immigration
authorities.
Note In some
cases, immigration inspectorates may issue expulsion orders or detain irregular
migrant workers, without considering the abuses committed by the
employer with respect to working conditions.
Note In other cases, inspections are conducted
solely by labour inspectorates, but national legislation or practice
requires them to report to the immigration enforcement authorities,
who may eventually return migrant workers found to be in an irregular
situation to their country of origin.
Note
69. In addition, labour inspectorates are often understaffed and
underfunded, making inspections less frequent and less effective.
Note In
the domestic work sector, it is even harder to carry out inspections,
due to the privacy that surrounds households. Indeed, it was the
concern to protect privacy that led the United Kingdom and other
countries not to sign the ILO’s Co189.
Note
4.4 The
plight of female migrant workers
70. Female workers appear to be
particularly vulnerable in both domestic and seasonal work environments, due
to their high degree of dependence on employers. As female migrant
workers often have children to support, the “work or lose your income
dilemma” becomes even more fraught, forcing them to accept harsher working
conditions in order not to lose their sole means of sustaining themselves
and their families. As of May 2022, female workers accounted for
more than 90% of total domestic workers in the EU,
Note and the number
of female migrant seasonal workers has increased in recent years
due to eastern European migration.
71. In the domestic work sector, many female migrant workers,
especially those with irregular status, end up living in their employers’
home. This situation and the frequency of undeclared domestic work
increase the risk of exploitative conditions, in the form of low
or no pay, lack of social security benefits and excessive workload. In
some cases, all these factors may lead to a form of “domestic slavery”,
as the European Court of Human Rights underlined in
Siliadin
v. France.
72. Female migrant seasonal workers seem to be particularly vulnerable
to precarious working and living conditions. Not only do women work
for ten to twelve hours per day in precarious conditions and with
low pay, but in some cases they are also sexually harassed and abused.
Article 26 of the Social Charter stipulates that, in order to achieve
effective protection against harassment, there should be a general
anti-discrimination act or a specific law against harassment in
place.
Note The protection
should include the right to appeal to an independent body, the right
to obtain adequate compensation and the right not to be retaliated
against. According to a European Parliament study,
Note such abuses are
carried out by employers both on non-EU migrant workers and on EU
citizens, especially Romanian women working in Spain and Italy,
the EU countries that admit the largest number of migrant seasonal
workers.
4.5 The impact of the Covid-19 pandemic
on migrant seasonal and domestic workers
73. In 2020, the closure of borders
and disruptions to global value chains highlighted the paramount
role of migrant workers, especially those employed in agriculture.
In that context, they were considered as “essential workers”, namely
employees whose economic activities are of vital importance to the
country. They were accordingly exempted from lockdown measures and
travel bans, putting them at greater risk of infection.
Note
74. States adopted a set of measures to allow migrant seasonal
workers to enter the country, despite restrictive provisions. They
organised charter flights for a large number of migrant essential
workers and extended visas and residence permits for those who were
already inside the country. In addition, many countries adopted
a general policy aimed at regularising the status of migrants and
asylum seekers already within their territory.
Note
75. The recognition States gave to the work of migrant seasonal
workers was not, however, matched by decent working and housing
conditions. Indeed, the lack of social distancing in the workplace,
the sharing of transport and being in overcrowded, unsanitary accommodation
together with the practice of employing migrant seasonal workers
from countries with higher incidences of infection from Covid-19
increased migrant workers’ exposure to the virus.
Note At the same time,
pressure from employers to extend the working hours of migrant seasonal
workers and the lack of protective equipment had a further detrimental
effect on the health status of those workers.
Note
76. Migrant domestic workers also saw a deterioration in their
already inadequate working and living conditions during the pandemic.
When they were considered “essential workers”, they were sometimes
unable to take leave.
Note And in those States which did not take
steps to regularise domestic workers, they were particularly hard
hit by the economic downturn and their inability to access social
security benefits.
77. The Covid-19 pandemic clearly highlighted the gap between
considering such persons as “essential workers” and granting them
decent working and living conditions. More broadly, it drew attention
to the inadequate recognition accorded to their work, given its
fundamental contribution to the national economy.
5 Recommended actions
78. In light of the harsh working
and living conditions experienced by many migrant workers in the
seasonal and domestic work sectors, solutions need to be sought
at national and international levels. The shortcomings mentioned
above highlight several possible areas of intervention.
79. In order to protect migrant workers’ rights, greater attention
should be devoted to the observance of existing international treaties,
norms and recommendations. In the context of the Council of Europe,
member States are firstly called on to effectively and adequately
apply the relevant provisions enshrined in the European Social Charter.
In addition, steps should be taken to remove the limitations on
the Charter’s personal scope and bring it into line with a contemporary
human rights approach, for example by setting up a task force of
international experts to provide advice on the matter.
80. Member States should also consider signing the European Convention
on the Legal Status of Migrant Workers. In addition, full compliance
by all member States with the provisions of the Council of Europe Convention
on Action against Trafficking in Human Beings and implementation
of the recommendations issued by GRETA and the Committee of the
Parties to the Convention should be pursued.
81. The Covid-19 pandemic has demonstrated the vital contribution
made by migrant seasonal and domestic workers to the national economies
of our member States. It is therefore essential that decent and adequate
working and living conditions be granted to every migrant worker
employed in Council of Europe member States, on an equal footing
with nationals. For this to happen, States should commit to adopting structural
policies, rather than emergency measures, in order to find permanent
solutions to these problems.
82. Proactive inspections should be conducted in order to prevent
and sanction illegal recruitment practices, such as charging migrant
workers recruitment fees. This would also enable member States to
better detect undeclared work and criminal networks of human trafficking
for labour exploitation.
Note
83. In terms of social rights protection, member States should
abide by European and international norms, in particular the European
Social Charter, for the enhancement of decent working and living
conditions for migrant workers, such as adequate wages and working
time, proper social security coverage, hygienic working and living
conditions, safety measures in the workplace and social services
for all migrant workers, regular or irregular. Member States should
properly define “precarious and irregular working conditions” in
their legislation and criminalise them. Employees should be provided
with referral mechanisms and their claims dealt with in confidence
so that labour authorities can inspect workplaces without migrant
workers fearing that they might be detained or deported. In addition,
States could grant migrant workers the possibility of switching employers
to enable them to escape exploitative conditions and reduce their
dependence on employers.
84. Migrant workers’ lack of knowledge of their social rights
has been highlighted as a contributory factor in labour exploitation.
It is essential therefore that States take concrete steps to overcome
this problem. In particular, they could develop campaigns to raise
awareness of the employment and social rights of regular and irregular
migrant workers and the risks of human trafficking for labour exploitation
via employment agencies, online recruitment or other means. It is
important that language not be an obstacle to the full comprehension
of migrant workers’ rights. For this reason, migrant workers should
be provided with information and services in their own languages.
85. The report has highlighted deficiencies in migrant workers’
ability to effectively access avenues for the enforcement of their
rights. Inspection mechanisms should therefore be strengthened and
more support made available to migrant workers. Firstly, member
States could increase funding for labour inspectorates, in order to
ensure more frequent and effective inspections. These additional
funds should lead to an increase in the human resources devoted
to labour inspections, more frequent, unannounced inspections in
sectors at risk, and better training to detect precarious and irregular
working conditions. Secondly, further legal and practical measures
to avoid impunity in workplaces should be adopted and employers
should never be informed in advance of labour inspections; this
includes domestic work for which law and practice should make it
possible for effective labour inspections to be carried out. Thirdly,
member States should adopt laws that guarantee effective access
to information and legal assistance for migrant workers as well
as the possibility for third parties to file complaints against
exploitative employers on behalf of migrant workers; migrant workers
should have the right to unionise.
Note In
this way, migrant workers would not have to cover the high costs
of legal proceedings on their own. Lastly, given the lengthy nature
of court proceedings, migrant workers should be granted a temporary
residence permit for as long as they need to legally pursue the
protection of their own rights.
86. Effective sanctioning mechanisms vis-à-vis employers or intermediaries,
namely corporate liability, should also be put in place. Provisions
granting back payments to migrant workers, State compensation funds and
the freezing of exploitative employers’ assets are possible examples.
87. Furthermore, as mentioned in the explanatory memorandum to
the Committee of Ministers Recommendation
CM/Rec(2022)21, “Member States should also strengthen the framework
for corporate liability, including around several and joint liability
across supply chains, and ensure that such legislation is effectively
applied in practice in cases of trafficking in human beings for
the purpose of labour exploitation.” (Section V of the memorandum).
88. The last report on “Protection of the labour and human rights
of migrant workers” by the UN Special Rapporteur on the human rights
of migrants, Mr Felipe González Morales, is also relevant and should
be given close consideration by member States. It recommends
inter alia that migrant workers
“be able to access decent work in safe environments free from discrimination
and exploitation and have their labour and human rights protected
wherever they are living and working”. The report also refers to
“the responsibility and obligation of States to institutionalize
rights-based migration governance, guided by the principle of non-discrimination
for all workers (in areas such as pay, deductions for housing or
transportation, access to rights, social protection and health-care
insurance)”. In the report, the Special Rapporteur also lists a
series of recommendations to States aimed at improving for all migrant
workers,
inter alia, domestic
labour protection – including recruitment policies, inspection systems,
bargaining rights – and access to education, ensuring equal access
to justice, equal opportunities for migrant women on the labour
market, and action against gender-based violence and trafficking.
Note
89. Additionally, data collection and information sharing among
member States should be pursued to effectively fight transnational
networks of human trafficking for labour exploitation. At the same
time, sharing promising national practices in the prevention of
precarious working and living conditions can be a valuable tool for
developing effective and adequate policies to protect migrant workers’
rights.
90. Finally, as the Covid-19 period demonstrated in the States
concerned, enacting general policies to regularise the status of
migrants and asylum seekers already present in the country, and
especially in sectors facing labour shortages (such as agriculture,
construction, care work or the service industry), is beneficial
to States’ economies and strongly encouraged, without, however,
creating any pull effect.
Note
6 Conclusion
91. The contribution made by migrant
workers to the seasonal and domestic work sectors is acknowledged. Over
the years, many international and European instruments have been
developed to ensure the protection of the labour and social rights
of migrant workers and to prevent human trafficking for labour exploitation.
In this context, the Council of Europe has once again played a crucial
role by enshrining migrant workers’ rights in the European Social
Charter, by promoting the signature of the European Convention on
the Legal Status of Migrant Workers and by adopting the Convention
on Action against Trafficking in Human Beings.
92. Despite these international efforts, human trafficking networks
and precarious working and living conditions, especially in seasonal
and domestic work, still persist. The task of preventing these illegal
practices is not helped by the high levels of undeclared work and
the inadequacies of States’ inspection mechanisms. Lastly, the outbreak
of the Covid-19 pandemic further reinforced migrant workers’ dependence
on their employers and heightened the risks of labour exploitation.
93. The persistence of impunity may induce exploitative employers
to flout the human rights of migrant workers. This vicious circle
has to be stopped. The swift adoption of structural policies and
measures to ensure effective complaint mechanisms and labour inspections
are essential, therefore, if migrant workers are to enjoy decent
and adequate working and living conditions, especially in the seasonal
and domestic work sectors.
