Sunday

24th Sep 2023

Opinion

How law encourages exploitation of migrant workers

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The EU's working population is both aging and shrinking and the labour market is experiencing shortages in numerous sectors. This stark reality has however not led to an enhanced appreciation of the work done by short-term workers from third countries, and the European Commission itself has stated that they are (still) not sufficiently protected from exploitation.

This is illustrated by a few examples from a recent ETUI study covering 23 EU and EEA countries that comprehensively mapped how rules on immigration and social security for short-term migrant workers interact with their labour market status.

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  • Indian rural migrant workers in Pontine, Italy. (Photo: Marco Omizzolo)

For example, immigrant domestic (household) workers in Cyprus are tied to a controversial contract and receive wages at about a third of the national minimum; short-term seasonal workers in Germany are not covered by social security; and workers in Finland on work contracts less than three months long (often with migration backgrounds) are not covered by collective agreements.

In fact, it seems that the ways in which social security, immigration and employment law interact with each other can put migrant workers in vulnerable situations, exposed to exploitation. This effect is especially apparent during certain points in such workers' trajectory, namely arrival, stay and return to their country of origin.

Arrival

Entry is the first juncture at which migration and employment status can potentially be very closely interlinked.

For a migrant worker to even be allowed to enter, EU Member States often require an already signed employment contract. In some countries this requirement does not apply to all entry regimes (for example, Austria and Belgium), while in others it concerns all instances of immigration for the purpose of work (for example, Croatia and Cyprus).

This requirement creates a certain dependence on a specific employer and employment relationship from the outset and also a potential risk; for example, a worker might have signed an employment contract without full knowledge of local conditions of work and accommodation, as well as local work practices, and now feels bound by that contract after arrival despite difficult or even exploitative employment conditions.

Social security frameworks can also have a chilling effect on workers' entry. Seasonal workers in Germany who work for fewer than 70 days are excluded from social security. They thus remain unprotected in the face of risks, such as accidents at work.

An additional, more indirect issue is the transferability of social security entitlements already accumulated in the third country. If there are no special bilateral agreements in place, workers — even short-term workers — find that any accumulated contributions and also eligibility fall right back to zero. Possible exceptions are posted workers from third countries, who typically remain covered in their country of origin.

Working life

During their working life in the host country, third-country national workers typically enjoy equal treatment with native workers.

For example in Italy, Legislative Decree 286/1998 requires equal treatment between Italian workers and all foreigners regularly residing on Italian territory. Irregular migrants who work do not benefit from equal treatment, however, and both irregular and regular migrants are still exposed to infringements of workers' rights, social benefits and their rights to decent accommodation. They are also afraid to complain about mistreatment because that might mean losing their job and being blacklisted by employers.

Despite this formal equality enjoyed by third-country national workers, in the vast majority of countries their working conditions and wage-setting are reported to be beneath those of the local workforce. Part of the reason could be that such workers are often dependent on their employer for their residence permit, which inevitably makes them wary of asserting their rights.

Moreover, they also often fall through the cracks of the social security system. While social security contributions have to be paid, they only become eligible for actual benefits after a set period (typically around six months of work). If their contracts are shorter, they might never actually benefit from this type of protection.

Return

If the employment relationship is terminated, short-term workers typically lose their residence permit and have to return to their country of origin.

As the figure below illustrates, in most European countries immigration status depends directly on specific employment relationships. Meaningful grace periods for finding another job (while still complying with the initial time period for which the visa or residence permit was issued) and transitional mechanisms allowing a change of jobs and transitioning to other immigration statuses are rare.

(Photo: Rasnača and Bogoeski)

Moreover, it is an open question what happens to workers' social security entitlements after they leave EU territory. If there are no bilateral agreements, then entitlements might not be transferred and also access to any benefits is typically impossible, at least in practical terms, from abroad.

Where do we go from here?

While the working world is pretty bleak for short-term migrant workers in Europe, there are some bright spots and some good practices that could be propagated across Europe (such as reforms in Austria, Czechia and Denmark during the Covid-19 pandemic).

They include 'untying' employment status from the immigration period, transferability of social entitlements and also the possibility of accessing them after leaving the EU.

Some of these good practices are proposed in the revision of the Single Permit Directive. At the same time, we need a comprehensive rethink of how workers from third countries are employed in Europe and how national rules on immigration and social security affect them, at both national and EU level.

Otherwise, they might remain structurally vulnerable in our labour markets forever.

Author bio

Zane Rasnača (ETUI Senior Researcher) and Vladimir Bogoeski (assistant professor in European Private Law at the University of Amsterdam).

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

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