Addressing labour exploitation connected to the recruitment of workers

Preventing labour exploitation by acting on recruitment and employment agencies

Article 5 (1) of the Directive on Temporary Agency Work (2008/104/EC) establishes the principle of equal treatment and equal pay between agency workers and the regular workforce. Article 6 (3) prohibits charging workers fees in exchange for arranging recruitment or for concluding a contract of employment.

ILO Convention No. 181, concerning private employment agencies, dates from 1997 and has been ratified by 13 EU Member States. It establishes the general parameters for regulation of recruitment, placement and employment of workers engaged by private employment agencies, prohibits charging workers a fee and guarantees the protection of fundamental rights at work, such as freedom of association, collective bargaining, equality of opportunity and treatment for migrant workers recruited or placed in host countries, as well as a system of penalties for fraudulent agencies.

The European Commission offers practical guidance in the sector guide relating to employment and recruitment agencies, which implements the UN Guiding Principles on Business and Human Rights. It acknowledges that the lack of effective regulation of employment and recruitment agencies, and low barriers to entry into the business allow unscrupulous companies to proliferate. Such companies range from those that knowingly profit from poor labour practices to criminal organisations involved in human trafficking and other serious human rights abuses.

Several channels led the workers interviewed for this research to end up in situations of severe labour exploitation. The main recruitment channels were the following:

• more than half through personal networks, e.g. through friends, acquaintances, family members and, to a lesser extent, former employers;
• 17 % through recruitment agencies, gangmasters and labour market intermediaries;
• 10 % through their own initiative, e.g. distributing their CVs;
• 6 % through internet searches and social networks;
• 4 % through pick-up spots for recruitment of daily labour;
• 10 % through other means.

Certain trends can be observed across the eight Member States that this research covers. First, the majority of foreign workers used personal contacts, often people with the same ethnic background, to find jobs where they ended up being exploited. Second, there seems to be no clear link between the recruitment channel and the severity of the labour exploitation experienced, in other words similar exploitative labour conditions are experienced when a job is suggested by a friend or by an employer. The only exception is employment obtained through recruitment agencies,gangmasters and labour market intermediaries, which increases the risk of labour exploitation. While some are legally compliant organisations, others are involved in deceptive recruitment practices and severe forms of labour exploitation.

They were also reported to charge high and illegal recruitment fees. Fighting the practice of levying illegal recruitment fees from migrant workers before they migrate for work is particularly important, as abuse in the workplace is often possible because migrant workers have a heavy debt to reimburse before being able to provide for the well-being of their family. Migrant workers often need to borrow money from family members, but also from loan sharks in their country of origin, in order to pay the illegal recruitment fees and other migration costs.

They also deceive workers by promising either jobs that do not exist or conditions (e.g. legal residence) that are later not fulfilled, and they replace contracts signed in the country of origin with new contracts in the country of work with a lower salary and worse working conditions (called ‘contract substitution’).

They often operate a complicated system of subcontracting and intermediaries, to the detriment of workers’ rights. Recruitment agencies are more active in agriculture and domestic work. Posted and seasonal workers were also commonly recruited via recruitment agencies. The workers’ testimonies in this research confirm what professionals told FRA in 2015, that the risks of labour exploitation are further amplified when workers are dependent on recruitment agencies for services including visas, transport, accommodation and information about the nature of the work. Almost two thirds of the interviewees recruited via agencies were later recognised as victims of trafficking in human beings, which further underlines the impact of unscrupulous recruitment agencies on labour exploitation in the EU.

Preventing online recruitment

Some victims found work through the internet, and they were deceived because working conditions turned out to be different from those advertised. In some areas of serious organised crime, Europol supports Member States with intelligence about suspicious websites. An enhanced use of the capabilities Europol has could help Member States to take measures against persons running deceptive recruitment sites, particularly when there is a suspicion of trafficking in human beings.

Improving working and living conditions

According to Article 31 of the Charter, every worker has the right to working conditions which respect his or her health, safety and dignity, and the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.

This report finds that exploitation exists on a continuum ranging from less severe forms of exploitation to forced labour, trafficking and a couple of cases in which interviewees had experienced severe labour exploitation when they were children (teenagers).

Exploitative employers and intermediaries such as recruitment agencies and gangmasters utilised a broad range of practices to exploit workers who had been desperately seeking a job and were in a weak bargaining position. This weak position is aggravated when workers are in an irregular situation, or their residence permit is tied to one specific employer, or they have a heavy debt to reimburse due to illegal recruitment fees. FRA’s evidence shows that the majority of the exploited workers interviewed for this research experienced the following types of exploitation:

• very little or no pay for very long working hours;
• working conditions that violate labour standards and compromise (especially irregular) migrant workers’ health and safety, with access to medical care often denied by employers to avoid detection by authorities;
• lack of a contract or a contract provided in a language that the worker did not understand;
• being given tasks that had not been agreed upon initially (e.g. domestic workers being requested to work not only for the employer but also for his or her family members) and were in some cases illegal (e.g. being requested to steal or to cultivate drugs);
• accommodation provided by the employer in unsanitary or degrading conditions.

In line with the views of professionals that FRA interviewed for its 2015 report on severe labour exploitation, to foster the rights awareness of workers and to facilitate monitoring, standards and measures are needed to enhance the transparency and documentation of employment situations.

Improving standards for working conditions for all workers

According to Article 153 of the Treaty on the Functioning of the European Union (TFEU), the EU must support and complement the activities of EU Member States in, among other fields, the improvement of working conditions, in particular the working environment, to protect workers’ health and safety, and conditions of “employment for third-country nationals legally residing in Union territory” (Article 153 (1) (g) of the TFEU).

In 2014, in Tümer, the Court of Justice of the European Union (CJEU) clarified that safeguards established by EU law apply to all workers, including third-country nationals in an irregular situation. The rights of workers are an expression of societies’ solidarity and the resolve to grant decent working conditions to every individual employed on EU territory. The worker’s residence status does not affect them. It is particularly important that, for the purpose of implementing labour and health and safety standards, migrant workers be considered ‘workers’, whatever residence status they may have or lack. Immigration considerations should never interfere with the equal treatment of all workers for the purpose of implementing labour law. Only when this has been made absolutely clear in law and practice will abused migrant workers be empowered to use complaint mechanisms and other official channels against abusive employers or recruiters, without fear of such action triggering consequences for their residence status (or lack thereof).

Under EU secondary law, Article 12 (1) (a) of the Single Permit Directive (2011/98/EU) grants third-country workers equal treatment with nationals of the Member State in which they reside with regard to working conditions, including pay and dismissal as well as health and safety in the workplace. A similar provision can be found in Article 23 of the Seasonal Workers Directive (2014/36/EU), which guarantees seasonal workers the right to equal treatment concerning terms of employment including the minimum working age, pay and working conditions including dismissal, working hours, leave, and health and safety requirements. Under the revised Posted Workers Directive (173/18/EC), posted workers are also guaranteed equal treatment with relation to working hours and rest periods, leave, pay, and health and safety.

According to the proposed EU Directive on transparent and predictable working conditions, EU Member States should ensure that employers inform workers of the essential aspects of the employment relationship in writing. Written information provided to workers should include, among other things, information on the place of work, type of work, working time, remuneration, amount of paid leave, institution receiving the social security contributions, training entitlement and procedure for terminating employment. The adoption of this directive would increase workers’ knowledge of their working conditions and of their rights.

In 2018, the European Commission proposed the establishment of a European Labour Authority. One of its proposed objectives is to strengthen operational cooperation between authorities in the cross-border enforcement of EU law, including facilitating joint inspections, and another is to improve individuals’ and employers’ access to information about their rights and obligations in the areas of labour mobility and social security coordination, and about access to relevant services.

Preventing and detecting labour exploitation in the domestic sector

In its Report on the implementation by EU Member States of the Working Time Directive, the European Commission noted that in five Member States (Belgium, Greece, Luxembourg, Sweden and the United Kingdom) domestic workers have been entirely or partially excluded from the legislation transposing the directive.

The findings of this research point to domestic workers as particularly at risk of labour exploitation because of a range of factors, including:

• their increased dependence on employers for food and accommodation, as they usually work and live in their employer’s home;
• third-country national domestic workers’ visas often being tied to one specific employer, so domestic workers often endure exploitative working conditions in order to keep the job which allows them to legally reside in the country of work;
• legislation in some EU Member States providing domestic workers with less protection than other categories of workers;
• lack of labour inspections in the domestic work sector;
• heightened social isolation due to domestic workers residing in private homes and the absence of co-workers;
• specific gender-related risks, i.e. sexual and gender-based violence.

Ensuring an adequate standard of living

Respect for human dignity is at the core of the EU Charter of Fundamental Rights. According to Article 1, human dignity is inviolable. It must be respected and protected. Over half of the exploited workers that FRA interviewed depended on their employers for accommodation during the period of labour exploitation. Most living at the workplace in extremely poor circumstances (especially those working in agriculture, domestic work and construction). These workers experienced particularly degrading living conditions including lack of bedding, inadequate food, lack of running water and poor sanitary conditions. Workers were often obliged to stay in employer-provided accommodation, with employers providing no alternatives.

Workers would often have accommodation costs deducted from their wages, with no rental contract provided. For those who were not provided with accommodation by the employer, low pay and withholding of wages had detrimental effects on their living conditions, as workers could not afford decent accommodation.

Under Article 79 of the Treaty on the Functioning of the EU, the Union has the power to adopt measure to define the rights of third-country nationals residing legally in an EU Member State. EU law regulates workers’ accommodation in Article 20 (2) of the Seasonal Workers Directive, if it is provided by or through the employer. The directive requires that the rent must not be excessive compared with the remuneration and the quality. The rent shall not be automatically deducted from the wage of the seasonal worker. There has to be a rental contract and the accommodation must meet relevant health and safety standards. Article 3 (1) (h) of the revised Posted Workers Directive requires that Member States shall ensure equal treatment of nationals and posted workers in relation to accommodation provided by the employer.

Enhancing health and safety of workers

Improving enforcement of health and safety regulations in sectors at high risk of labour exploitation

The Framework Directive on Safety and Health at Work (Directive 89/391) establishes an equal level of safety and health for the benefit of all workers, and obliges employers to take appropriate preventive measures to make work healthier and safer. A number of more specific directives address specific economic sectors or groups of workers. EU secondary law also protects specific groups of third-country nationals working in the EU.

More specifically, the Single Permit Directive (Article 12 (1) (a)) and the Seasonal Workers Directive (Article 23 (1) (a)) guarantee equal treatment with nationals as regards health and safety requirements for third-country workers. The revised Posted Workers Directive (Article 3 (1)) establishes equal treatment of third-country nationals and posted workers in health and safety at work.

The findings of this research point to violations of health and safety regulations as a common aspect of situations of labour exploitation, especially in the agriculture and construction sectors. Lack of personal protection equipment and lack of safety instructions and training emerged as common breaches of health and safety regulations across all Member States, often resulting in work accidents and occupational health issues. This was compounded by discrimination, with third-country workers, especially those in an irregular situation, requested to perform the most hazardous tasks.

The EU Strategic Framework on Health and Safety at Work 2014-2020,5 which the European Commission adopted in 2014, lists three major challenges. One is to improve implementation of existing health and safety rules, in particular by enhancing the capacity of micro and small enterprises to put in place effective and efficient risk prevention strategies.

Extending health and safety regulations to domestic workers

The Framework Directive on Safety and Health at Work (Directive 89/391), establishing an equal level of safety and health for the benefit of all workers, excludes ‘domestic servants’ from the scope of the directive.

The International Labour Organization’s Convention concerning decent work for domestic workers (No. 189, 2011) which entered into force on 5 September 2013, states that every domestic worker has the right to a safe and healthy working environment and that this principle shall be implemented with due regard for the specific characteristics of domestic work (Article 13). To date, only six EU Member States have ratified the convention: Belgium, Germany, Finland, Ireland, Italy and Portugal.

Furthermore, according to the 2017 Commission Communication “Safer and healthier work for all – Modernisation of the EU occupational safety and health legislation and policy”,6 only around half of the EU Member States have occupational safety and health rules in place covering persons employed for household work in private households.

Dealing with employers’ strategies to prevent workers from leaving the situation of exploitation

Employers used a number of strategies to control workers and prevent them from leaving the situation of labour exploitation, with different gradations of coercion. Softer strategies included false promises to regularise workers’ status, or to pay amounts due, with workers enduring exploitation in the hope of receiving what was promised them. Threats (of not paying the wages, of dismissing the worker or of reporting migrant workers in an irregular situation to the authorities), psychological and verbal violence, and degrading treatment were used to intimidate workers and prevent them from reporting the exploitation to the authorities.

Strongly coercive strategies included resorting to physical or sexual violence, threats of violence, and establishing an inhuman and degrading environment for the workers, including sleep deprivation, poor nutrition and lack of food. Confiscation of personal documents was a strategy that exploitative employers used to prevent workers from seeking help or feeling free to go back to their country of origin.

The spatial, emotional and/or social isolation of many exploited workers, especially domestic and agricultural workers, was enhanced by employers’ actions to control them physically and spatially in order to prevent any communication with the outside world and the possibility of seeking help. In a few extreme cases, workers were completely deprived of their freedom of movement. All these strategies create a fearful and intimidating environment and increase employers’ control of the worker, and are ultimately meant to deter escape. Specific strategies were adopted to minimise the risk of detection during labour inspections, including requesting workers to hide or not show up during inspections, to lie about real work conditions or to pretend not to understand the language that labour inspectors spoke.

Countering employers’ exploitative strategies

Physical, psychological and sexual violence, discrimination, and psychological and sexual harassment in the workplace can sometimes be indicators of labour exploitation, as may be lack of access to medical care or untreated injuries. Such incidents may not be one-off events, but be part of an employer’s strategy aiming at labour exploitation. Closer cooperation of labour inspectors and police to deal with these cases helps counter employers’ exploitative strategies.

Addressing risk factors

FRA’s findings show that according to workers the most important factors that make it possible for labour exploitation to happen are, in order of relevance:

• vulnerability linked to residence status, including being in an irregular situation, or depending on the employer for regularising one’s status, or being on a single-employer third-country national workers’ visa;
• economic need, indebtedness and poverty in the home country as well as in the country of work (e.g. due to low pay and precarious working conditions); n lack of knowledge of legal provisions and workers’ rights;
• lack of knowledge of the language of the country of work;
• lack of inspections, checks and punishment by authorities;
• discrimination.

Addressing risks deriving from irregular residence status

According to workers, the key risk factor for severe labour exploitation is vulnerability linked to residence status – first and foremost, irregular residence status. Being a migrant worker in an irregular situation is an enabler of labour exploitation because it reduces alternative avenues of employment (hence increasing the worker’s dependency on the exploitative employer) and strengthens the position of the employer, who can easily use the threat of deportation to keep the victim in a situation of exploitation.

In this context, it is crucial that migrants in an irregular situation feel that they can safely report the abuse experienced to the police without fear of being returned to their country of origin.

As noted in FRA’s 2015 report, specialised police units experienced in trafficking and severe labour exploitation, such as those established in Spain and Belgium, are often more willing to treat the exploited workers as potential victims of crime, even in cases of irregular residence status, and can be considered to provide examples of promising practices.

Article 13 (4) of the Employers Sanctions Directive requires EU Member States to define in national law the conditions under which they may grant, on a caseby-case basis, permits of limited duration, linked to the length of the relevant national proceedings, to the third-country nationals who are under particularly exploitative working conditions.

Avoiding dependency on employers

Third-country nationals who are residing in the EU on the basis of a work permit may lose not only their work but also their right to stay, if they complain against their exploitative employer. Considering that they and their dependents at home have heavily invested in time, energy and money in their migration project, and that many have debts to repay before being able to provide for the well-being of their families, losing their right to stay is, for many of them, not an option, even when this means enduring exploitative labour conditions.

One key obstacle to migrant workers being empowered to fight for their rights is the fact that third-country national workers’ visas are often tied to one specific employer: such workers often endure exploitative working conditions in order to keep the job which allows them to legally reside in the country of work.

Ensuring that migrant workers can easily change employers is the best way of creating competition between employers on who provides the better working conditions, as a means of responding to their labour shortages and increasing their worker retention rate. This has worked for nationals in the past century and will contribute to reducing labour exploitation of migrant workers as well. Resident permits and visas should allow migrants to switch employers, clearly informing workers of this right.

To ensure that workers can effectively enjoy their fundamental right to fair and just working conditions and to prevent other fundamental rights abuses, in its 2015 report on severe labour exploitation FRA already encouraged EU Member States to prioritise measures to safeguard workers against dependency on a single employer.

Migration policies that tie the residence permit to the existence of an employment contract are another common risk factor. The same applies to regularisation schemes which require workers to spend a set amount of time in an employment relationship. These instances can lead to situations in which the worker will accept exploitative work conditions in order to acquire or renew legal residence or regularise his or her status. In line with what was expressed by professionals that FRA interviewed in 2015,7 these findings further reinforce the relevance of the institutional framework as a risk factor for labour exploitation.

Raising awareness of labour rights and labour exploitation

Lack of knowledge of legal provisions and workers’ rights was mentioned as another key risk factor for labour exploitation. Almost all interviewees reported not being aware of their rights when they arrived in the country where the exploitation took place. When workers do not know their rights and the legal standards employers have to comply with, it is more difficult for them to identify their employers’ practices as exploitative. Lack of language skills emerged as strongly interconnected with migrant status and as an obstacle to knowing workers’ rights. First and foremost, interviewees reported their inability to understand the work contract, when one was provided. Others referred to lack of language skills as deterring workers from challenging exploitative employers and reaching out for help.

Research participants suggested that information could be distributed in EU embassies in third countries where migrant workers apply for visas or at EU representations in third countries. They also suggested that dissemination strategies should take into account where the workers can be best reached, for instance by offering such information in TV adverts in the country of origin and destination; through posters and leaflets in public places that migrants are likely to attend, such as airports, bus stops, coach stations, train stations; at shops selling products targeting migrants; in churches, mosques, internet cafes; at international cash transfer points; and through social networks. Research participants suggested that strategies to raise awareness of labour exploitation should also target employers and the population at large.

Unions have been the single most important actor in allowing workers to know and fight for their rights since the industrial revolution. Under the Single Permit Directive (Article 12 (1) (b)) and the Seasonal Workers Directive (Article 23 (1) (b)), third-country workers enjoy freedom of association and affiliation and membership of an organisation representing workers to the same extent as nationals.

Stepping up language classes for migrants

Knowledge of the language(s) of a Member State is crucial to understand labour rights and the terms of a contract and to be able to communicate with employers and authorities, including monitoring bodies and law enforcement authorities. Research participants also identified access to language courses as a factor positively influencing willingness to report a case.

Enhance effectiveness of labour inspections

Lack of sufficient and effective inspections, checks, oversight and punishment of employers by authorities also emerged as a risk factor for labour exploitation and was primarily pointed out by interviewees in Germany, Italy, Poland, Portugal and the United Kingdom whose status at the time of the interview was regular. Interviewees pointed out that the ineffectiveness of the authorities in dealing with the exploitative situation resulted in a perception of impunity among exploitative employers. FRA opinions on the role of labour inspections were already included in past reports and are listed in Annex II.

Promoting access to justice

Effective access to justice

Migrants are, for the most part, resourceful and exercise considerable agency. Given their fear of retaliation or other negative consequences by people in power (employers, the police, complaint mechanisms, labour inspectors, etc.), informal channels such as friends, relatives, co-workers, acquaintances and members of ethnic communities play a key role in their entering the support system, with a subsidiary role for migrant organisations and victim support organisations. The majority of interviewees had received support and advice, as most of them were identified for interview through civil society organisations.

In terms of what enabled workers to seek assistance and leave their exploitative work situations, crucial factors mentioned were:

• knowing about workers’ rights and about organisations offering support in case these rights are violated;
• getting in touch with third parties who could refer workers to support organisations;
• having confidence that the organisation the worker turns to will be supportive;
• familiarity with the language of the worker as a factor which supports people to come forward.

Victim and migrant support organisations played a key role in supporting interviewees in deciding how they want to proceed with their case and in guiding them through the process of reporting a case.

Fewer than half of the interviewees stated that they had reported their case to the police or were in the process of doing so. Workers were more likely to report violence or threats of violence to the police than exploitative working conditions.

Factors linked to workers reporting to the police include:

• having the possibility of being recognised as a victim of trafficking in human beings;
• support organisations, trade unions or lawyers accompanying workers to the police;
• experiencing physical violence.

Interviewees in an irregular situation would not contact the police, fearing that, instead of treating them as victims of labour exploitation, the police would take action against them as migrants in an irregular situation.

Almost half of the interviewees indicated that their case ended in court proceedings. Experiences with court proceedings were diverse, with no clear pattern. Exploited workers decided to take cases to court to:

• receive payments owed by the employer;
• obtain a regular residence status when pressing criminal charges;
• deter other employers from exploiting their employees.

Barriers to taking a case to court include being a migrant in an irregular situation, costs (e.g. for lawyers, translation, travel, trade union support), having to leave the country where the court proceedings take place, and lacking language skills.

Labour courts often decided in favour of workers who took part in civil proceedings before labour courts. However, the complainants did not did not consider the sanctions imposed by such courts appropriate. Similarly, those (the majority) who were involved in criminal proceedings considered that restitution from the offender was an important element of what criminal justice should entail. Even those interviewees who had been able to leave the exploitative work relationship were to a large extent not satisfied with their current situation. Many remained discontent, given that they were still unable to receive back pay owed to them and their employers remained unpunished.