The Protection of the Health and Safety of Undocumented Workers in the EU

1. The Protection of the Health and Safety of Undocumented Workers in the EU Elaine Dewhurst Dublin City University

2. Introduction • Who? Undocumented Immigrants • How? Response of states • What and Why? • Current approach • New EU Directive • Way Forward • Conclusion

3. Who? Definition of undocumented workers • Persons who do not have the requisite permission to work in the State • “illegal workers” / “illegal aliens” / “undocumented workers” / “irregular workers” • EU Sanctions Directive • ‘illegally staying third-country national’ means a third-country national present on the territory of a Member State, who does not fulfil, or no longer fulfils, the conditions for stay or residence in that Member State • ‘illegal employment’ means the employment of an illegally staying third-country national • Wide category of persons – enter illegally (whether by fraud / deception or by trafficking) / enter legally – subsequently lose permission to remain in the State (whether through a fault of their own or otherwise)

4. Who? The statistics • Between 4.5 – 8 million undocumented workers in the EU • Sectors: • Primary • Secondary • Tertiary

5. How? Response of States • Criminal penalties e.g. Gangmaster Legislation (UK) / Immigration Acts (Ireland) • Penalise employers for hiring undocumented workers • Penalise employees for being undocumented workers • Three D’s – Detection, Detention, Deportation • Increased border controls / inspection mechanisms • Detention facilities for undocumented workers • Deportation of undocumented workers • Has it been successful? • Still have 4.5 – 8 million undocumented workers in the EU

6. How? Addressing the Pull Factor • Pull factors are those factors that entice undocumented workers to a State • An employer that is willing to hire an undocumented worker • Question of mathematics • If risk of getting caught < profit gained from hiring an undocumented worker => worth taking the risk (pull factor) • If risk of getting caught >/ = profit gained from hiring an undocumented worker => not worth taking the risk (no pull factor) • How do we create greater risk / lower profit? • Increase the criminal penalties • Make undocumented workers as expensive as documented workers • Giving them employment rights

7. What? Current Approaches

8. Non-protection Approach • Undocumented workers are not entitled to any employment rights • The enforcement of employment rights (e.g. health and safety rights) dependent on existence of a valid contract of employment • Illegal contracts (e.g. Working in contravention of statute) renders the contract void ab initio (unenforceable) • No employment rights accrue • Denies undocumented workers • Rights in employment • Access to a complaints mechanism

9. Reasons for non-protection approach • Two policy justifications • Protection • The courts believe that by depriving illegally created agreements, and in particular contracts of employment, of their legal effect, they are in fact protecting the sanctity of the judicial process, as well as protecting regular employees and the State from a lowering of standards in the terms and conditions of employment • Deterrence • both the courts and the legislature feel that such a policy is the only way in which to deter irregular workers from taking up employment on the black market and threatening the security, both economic and national, of the state. In effect the rule ensures that the parties to an illegal agreement will never profit from their actions.

10. Illegal Aliens • “The only good foreigner is Rod Stewart!”

11. Usage of the Non- Protection Approach • For example, this is the current approach in: • Ireland • United Kingdom • Slovenia • Austria • Denmark • Finland • Luxembourg • Portugal • Sweden

12. Critique • Does not take into account the moral culpability of the parties • Allows for unjust enrichment of the employer

13. Effect of Non-Protection Approach

14. Protection with Consequences Approach • Some states have limited protection which allows the undocumented immigrants to claim for certain rights (such as equal pay) • This does not prevent the inevitable consequences i.e. that the state can detect, detain and deport the immigrant. • States normally either protect only remuneration rights or all rights • States allow access to complaints procedures so that undocumented workers can enforce their rights

15. Rationale for Protection with Consequences Approach • The rationale behind this approach would appear to be based on a recognition that such workers are entitled to the protections of the law – unjust enrichment • Should not be immune from the consequences of working illegally in a state

16. Usage of the Protection with Consequences Approach • France – protects remuneration rights and provides for a complaints mechanism • Germany – protects remuneration rights and provides for a complaints mechanism • Greece – protects remuneration rights and provides for a complaints mechanism • Netherlands / Greece • Spain - full employment rights protection and provision of a complaints mechanism • Italy – full entitlement to remuneration and social rights and provision of a complaints mechanism

17. Critique • Recognises unjust enrichment • If an irregular immigrant knows there are consequences, they will be very unlikely to complain.

18. Protection with Consequences Approach

19. The New EU Approach • EU Sanctions Directive (2009/52 EC)

20. A. Policy Shift • The EU Directive represents a policy shift from criminalisation and deportation policies - pull factor approach • Recognised in second paragraph of Preamble “ A key pull factor for illegal immigration into the EU is the possibility of obtaining work in the EU without the required legal status. Action against illegal immigration and illegal stay should therefore include measures to counter that pull force”.

21. b. Approach • Protection with Consequences • Only protects remuneration rights (illegal workers can claim for back pay, taxes and social security contributions and costs arising from claiming back pay). Does not protect other employment rights • Remedies – Directive states that illegal workers should have access to an effective remedy – this is a breakthrough • Directly – the worker can take a claim on their own behalf – recognises the consequences that the worker will face as a result • Indirectly – the Directive makes provision (Article 13) for another body to act “on behalf of” or “in support of” an undocumented worker – is this a full protection approach? – no mention of confidentiality.

22. c. Particularly Exploitative Working Conditions • The Directive states that (Article 9) that it would be a criminal offence to employ illegal workers in “particularly exploitative working conditions” • Definition has a number of elements: • "particularly exploitative working conditions" means working conditions, including those resulting from gender based or other discrimination, where there is a striking disproportion compared with the terms of employment of legally employed workers which, for example, affects workers’ health and safety, and which offends against human dignity

23. Elements of the Definition • Striking Disproportion • No clear indication - £2 v. £10 • Comparator • Legal worker v. Illegal worker • Best possible comparator • Affects Health and Safety of Workers • Only mention in the Directive (specifically aimed at reducing exploitation!) • Takes it seriously – criminal offence • Very high level of care • Offends Human Dignity • Raises bar very high

24. The way Forward? Full Protection Approach • The Utopia! • This is an approach (currently not operating in any EU Member State) that allows protection but where such protection does not incur the consequences of detection, detention and deportation. • This can be achieved by the establishment of a confidential complaints mechanism - (attempts at this have been tried in France and Italy) • Change our complaints systems – adopt new procedures • Reduces pull factor – more irregular immigrants complain and get rights, the more expensive they become

25. Rationale for the Protection Approach • The rationale behind this particular approach appears to be twofold: • It is unfair to allow an employer to profit at the expense of an employee • Such an approach can reduce the “pull” of irregular immigrants as it makes them a risky and expensive option for an employer.

26. Full Protection Approach

27. Conclusion • Academics / States / EU Differ – Migrants suffer • Economic approach – only deals with remuneration – some criminal penalties for serious breaches of health and safety legislation • May not have the desired effect – migrants will not use this system unless they get caught • Health and safety rights untouched and protection undeveloped