Forced labour in Europe:Working time – a neglected indicator

Nick Clark

Senior Research Fellow

Working Lives Research Institute

http://workinglives.org/fms/MRSite/Research/wlri/WORKS/TaBE%20final%20report.pdf

Domestic workers(with Dr Leena Kumarappan)

• Interviews with 22 domestic workers• Examination of 92 documents from

individuals’ files at UK Border Agency• Unite (trade union) survey of 108

domestic workers’ pay & conditions

Joseph Rowntree Forced Labour programmehttp://www.jrf.org.uk/work/workarea/forced-labour

Forced labour in Europe

• nine countries: Fra, Ger, Ire, It, Lat, NL, Pol, Sp, Swe

• review of academic and grey literature; • analysis of available data on forced

labour and informal labour markets;• government, employer and media

perceptions of forced labour; • case study from each country.

What is forced labour?

Definition• ILO Forced Labour Convention, 1930 (No. 29): “all work

or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily” (Art. 2.1).

• Some exclusions – prisons, armed forces, civil emergencies

“Voluntarily”• a worker who cannot leave a job because of poverty or lack of

alternative jobs is not in a situation of forced labour... • unless their employer deliberately exploits this to impose worse

working conditions than would otherwise be possible, in which case this would amount to forced labour. (ILO 2012)

What is forced labour?

Indicators• deception• exploitation• coercion• abuse of vulnerability

(ILO/EU Commission “Delphi” indicators 2009)

“forced labour can not only be seen as a form of exploitation in the anti-trafficking discourse, but also as the extreme form of labour exploitation when compared to ‘lesser’ forms of exploitation (namely violation of labour laws). So, while sub-standard working conditions are not forced labour per se and neither is the lack of viable economic alternatives that make people stay in such situations, there is an evident need to include labour market regulation in enforcement strategies to combat forced labour.”

Houwerzjil & Rijken 2013

Barriers to detection• Hidden work (undeclared, illegal activity,

immigration status, physically isolated)• Reluctance to report

– Fear of authorities– Lack of faith in means of restitution– Debt bondage, threats

• No single definitive indicator– Low or unpaid wages, document withholding,

excessive hours, threats of denunciation, physical threats or restraint

• Enforcement & inspection

Why working time?

• EU competence – unlike pay, documents, bullying, contract enforcement

• Health & safety (therefore inspected)• Applies to (nearly) all workers • Key “Delphi” indicator for forced labour• Breaches commonly found in cases of

forced labour

Domestic workers’ employment rights in UK (in theory)

“like other workers, most domestic workers benefit from the national minimum wage, statutory sick pay, paid annual leave and protection from discrimination and unfair dismissal, as well as other protections.”

Ed Davey MP, Government Minister, Westminster Hall 29-6-11

Employment rights in UK (in reality)

• Visa requirements: employed, receiving minimum wage, employer to provide statement of employment terms

• Working time: – 48 hours does not apply– Daily & weekly breaks, paid holidays

• Health & Safety: – no inspections of private households

• National Minimum Wage: – “family worker exception”

UKBA’s diligence

Hours & breaks

• FS, Female, 30-39, Nigerian

never got a day off, worked from 7am to 1am, cooking, cleaning, looking after children, got paid £250 per month. No payslips etc. “My employment rights – for long hours and low pay... yeah?”• JV, Filipina, Female, 40-49

“sometimes we are tired as well, we are not slaves that we can work 24 hours.” Employment rights: “I don’t know, I don’t want to know. They already take what is mine.” Was shocked to hear about the 11 hour break that she has a right to. • NT, Filipina woman, 30-39.

“As long as I am happy with them – it is a give and take.” Hours of work: 11 hours a day, 5 ½ days a week = 60.5 hours a week. Contract says 40 hours. “I don't have any choice.”

Europe’s record on forced labour

• “Conscious of its spiritual and moral heritage, the Union is founded on the indivisible universal values of human dignity, freedom, equality and solidarity” (Preamble to the European Union Charter of Fundamental Rights)

• ILO estimates 880,000 workers in Europe subject to forced labour (20% sexual exploitation, 70% labour exploitation) (ILO 2012)

Forced labour: European context - back then or over there

Locations

china

Domestic serviceConstructionAgricultureHospitalityCleaningFood processingTextiles & clothing

Detection of forced labour

• “Forced labour is extremely difficult to measure with acceptable precision.” “The share of workers with excessive hours is a useful indicator of several aspects of decent work.” (Anker et al 2002)

• Enforcement focus found in JRF reports: immigration, social security fraud, tax avoidance, minimum wage, housing, health & safety: but rarely (if ever) working time.

Examples from national reports

• Siliadin domestic worker case (France): – 7.30 am to 10.30 pm (but judges in one appeal say no

more than a mother would do)

• Polish agricultural workers in Netherlands:– after 12 hours told to work extra 3, provoking strike

• Berry pickers in Sweden: – may start day at 2.00 am, return at 9.00 pm

• WEI case in Spain (textile workers): – excessive hours identified by police

UK food processing (Scott, Geddes & Craig, 2012)

UK food processing (Scott, Geddes & Craig, 2012)

Working time offences

• No breaks: on a daily basis, workers are denied basic breaks and are even docked pay for going to the toilet. ..especially…on the intensive and tightly managed production lines of the food packing/ processing sector.

• Bulgarian farm worker: “The hours depended on how much work there was. In the beginning, we worked very little, the hours were not enough. When the season was in peak we started to work seven days a week without rest. For a whole month we didn’t had a rest and we worked for 12 hours and even 15 hours well into the evenings.”

(Scott, Craig & Geddes 2012)

Regulating working time

• “it is striking that overall, national reports from eleven Member States expressed strong concerns about the effectiveness of monitoring and enforcement at national level.” (European Commission staff working paper on Working Time 2010)

• Inspection Travail in France 2011: over 94,000 references which found offences related to working time (40% of all references). (Ministere du Travail 2012)

• UK: 33 improvement notices have been issued under the working time regulations since 2001. (Clark, 2013 – forthcoming)

Some findings

• European governments approach forced labour primarily as element of trafficking. Focus on immigration controls and punishing perpetrators

• Criminal sanctions may be deployed, but workers may decline to participate in proceedings

• Lack of purposeful detection - perhaps related to reduction of labour market regulation

• Effective working time inspection could offer improved detection of forced labour