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«EXPLOITED LABOUR TWO YEARS ON THE ‘ROSARNO LAW’ FAILS TO PROTECT MIGRANTS EXPLOITED IN THE AGRICULTURAL SECTOR IN ITALY Amnesty International ...»

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In June 2009, ‘in order to fight illegal immigration’, the European Union adopted a Directive prohibiting the employment of non-EU migrant workers in an irregular situation and indicating minimum standards on sanctions and other measures against their employers (the Employers’ Sanctions Directive, 2009/52/EC). 15 Overall, the Directive assumes that ‘the ‘possibility of obtaining work in the EU without the required legal status’ is a key pull factor of irregular migration into the EU, and that therefore action against irregular migration should include measures to counter that pull factor.16 The Directive obliges EU member states to prohibit the employment of non-EU irregular migrant workers under their domestic legislation 17 and to impose on the employer of irregular migrants a range of financial, administrative and, in some cases, criminal sanctions and measures. Administrative sanctions and other measures include: the exclusion from public subsidies, including EU funding; the exclusion from participation in public contracts; the closure of the work establishments or the withdrawal of necessary licenses.18 The employer who is found having employed irregular migrants must make back payments of any outstanding salary (at least at minimum wage level), taxes and social security contributions.19 To this end, EU member states must enact mechanism to ensure that migrant workers are able to file a civil claim against their employer - and eventually enforce a judgment and receive the back payments - even in cases in which they have (or have been) returned to their country of origin. 20 More generally, EU member States must ensure that there are safe channels for migrant workers to lodge complaints against their employers, directly or through a third party (such as trade unions or civil society organizations). 21 Under the Directive, criminal sanctions must be imposed in specific circumstances, including when: a significant number of irregular migrants are employed simultaneously; the migrant worker is a victim of trafficking or an illegally employed ‘minor’; or the migrants work in ‘particularly exploitative working conditions’.22 ‘Particularly exploitative working conditions under the EU Employers’ Sanctions Directive’ The Directive provides a broad definition of ‘particularly exploitative working conditions’, which occur ‘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 [sic]’.23 ‘Particularly exploitative working conditions’ would include, for example, those resulting from gender-based or other discrimination.24 ‘Minor’ migrant workers and migrants who work in particularly exploitative conditions may be granted temporary residence permits, linked to the duration of the criminal proceedings, under arrangements comparable to those applicable to

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victims of trafficking.25 These permits could be renewed and extended until the migrant worker has received any back payments due. 26 Despite these protective provisions, the Directive focuses on the irregular status of migrant workers rather than their labour rights and the possible abuses of these rights by the employer.27 Article 14 is of particular concern, as it imposes on EU member states an obligation to conduct inspections to control the employment of irregular migrants. Migration control actions by labour inspectors are contrary to international labour standards.28

THE ROSARNO LAW

Like the Employers’ Sanctions Directive, the Rosarno Law prioritizes the enforcement of immigration laws over the duty to identify and effectively address even serious forms of labour exploitation.

Before the adoption of the Rosarno Law, Italian legislation already prohibited the employment of irregular migrants, sanctioning employers with imprisonment (from six months up to three years) and a fine of 5.000 euros per irregular migrant worker employed.29 Pursuant to the Directive, the Rosarno Law added to these sanctions the obligation for the employer to pay for the worker’s repatriation. 30 The Law also introduced three cases of ‘particularly exploitative working conditions’ (condizioni lavorative di particolare sfruttamento) as aggravating factors to the crime of employing irregular migrant workers (as examined below).31 In these cases, it provides for the granting of a residence permit for ‘humanitarian reason’ to irregular migrant workers who have reported their employer and cooperate in the criminal proceedings against him/her.32 The new regime of residence permits for humanitarian reasons, the most important protection measure under the Law, will be discussed in detail below.

In a number of areas, the Rosarno Law either omitted to implement key provisions of the Employers’ Sanction Directive, or significantly limited the scope of their application. These serious shortcomings, adding to the shortcomings of the Directive itself, fundamentally undermine the Law’s effectiveness in providing protection to migrant workers who suffer labour exploitation.

First, the Rosarno Law failed to adopt effective procedures and mechanisms to ensure that migrant workers receive back payment of any outstanding salary from their employer - even when they have (or have been) returned to their country of origin.33 In this respect, the Rosarno Law failed to establish ‘safe channels’ to allow irregular migrant workers to lodge complaints against their employers, either directly or through third parties such as trade unions or other civil society organisations. 34 Second, the Rosarno Law failed to introduce certain additional administrative sanctions against employers of irregular migrant workers, such as the exclusion from public subsidies, including EU funding; the exclusion from participation in a public

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contract; the recovery of some or all public benefits; the temporary or permanent closure of the work establishments; or the withdrawal of necessary business licences.35 Finally, the Rosarno Law gave labour inspectors the responsibility to detect ‘the employment of illegally staying third-country nationals’,36 increasing their role in migration enforcement in the workplace, a measure contrary to international labour standards.37

RESIDENCE PERMITS FOR HUMANITARIAN REASONS UNDER THE ROSARNO LAW

Under the Rosarno Law, residence permits for humanitarian reasons can be granted

to irregular migrant workers under the following circumstances:

1) The migrant worker is subjected to ‘particularly exploitative working conditions’ (condizioni lavorative di particolare sfruttamento) (see below); and

2) The migrant worker reports her/his abusive employer to the authorities; and

3) The migrant worker cooperates in the criminal proceedings against the employer; and

4) The Prosecutor responsible for the criminal proceedings agrees with the granting of a residence permit.38

THE NOTION OF ‘PARTICULARLY EXPLOITATIVE WORKING CONDITIONS’

The Rosarno Law defines ‘particularly exploitative working conditions’ as one of the

following three circumstances:

(a) The employment of more than three irregular migrant workers;

(b) The employment of ‘minors below working age’;

(c) Other particularly exploitative working conditions, as described in paragraph 3 of Article 603-bis of the Criminal Code. That provision adds to the first two cases the fact of ‘exposing the workers to situations of grave danger, having regard to the characteristics of the work performed and the working conditions’.39 The notion of ‘particularly exploitative working conditions’ under Italian legislation is narrower than the one under the Employers’ Sanction Directive, as the Rosarno Law failed to include both the cases of labour exploitation on the ground of discrimination and the hypothesis of “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” as indicated

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by the directive in its article 2, letter i.

Additionally, the notion of ‘particularly exploitative working conditions’ under the Rosarno Law does not seem to be harmonised with the notion of ‘labour exploitation’ in paragraph 2 of Article 603-bis of the Criminal Code (crime of unlawful gang-mastering and labour exploitation, intermediazione illecita e

sfruttamento del lavoro), which refers to the following four factors:

‘1) Systematically paying the workers in a way clearly not in line with national collective agreements, or in any case disproportionate to the quantity and quality of the work done;

2) Systematically violating laws and regulations on working hours, weekly rest days, compulsory and annual leave;

3) Violating laws and regulations on safety and hygiene in the workplace, in such a way as to expose the worker to danger to his/her health, safety or personal integrity;

4) Subjecting the worker to particularly degrading working conditions, supervision methods, or housing conditions.’ 40 Amnesty International notes with concern that the restrictive definition of ‘particularly exploitative working conditions’ under the Rosarno Law risks jeopardizing the whole protection system designed by the Directive, as it unduly excludes from the possibility of being granted a residence permit migrant workers who would be entitled to a permit under the Directive.

ADDITIONAL REQUIREMENTS

In order to be granted a residence permit for humanitarian reasons, the migrant workers victim of exploitation are required under the Rosarno Law to: (a) report their employer to the authorities; and (b) cooperate in the criminal proceedings against them.41 These conditions are not included in the Directive, which requires only that the migrant workers be ‘involved’ in the criminal proceedings. What is more, these conditions are not in line with the Directive’s requirement that the residence permit be granted ‘under arrangements comparable to’ those applicable to victims of trafficking.42 It is a widely accepted principle, recognised inter alia in EU Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings and the Council of Europe Convention against Trafficking in Human Beings, ratified by Italy, that assistance and support for victims of trafficking should not be conditional on their cooperation in criminal proceedings. 43 The Italian government itself admitted that the new residence permits under the Rosarno Law would be granted in a limited number of cases, as their criteria are

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even more restrictive than the criteria for the granting of residence permits to victims of trafficking.44 Amnesty International expresses concern that restrictive requirements for the granting of a residence permit fundamentally undermine the effectiveness of the Rosarno Law in ensuring protection and justice for victims of labour exploitation.

Because of such restrictive requirements, many migrant victims of labour exploitation may not be eligible for residence permits for humanitarian reasons and would as such be unable to stay in the country to benefit from available remedies.

THE ROSARNO LAW AND THE CRIME OF IRREGULAR MIGRATION

‘The legislation creates marginality, breeding ground for labour exploitation’ Mario Palazzi, Vice-Prosecutor, Office of the Public Prosecutor, Rome. 45 In May 2008 the Italian government announced several emergency legislative measures, known as the Security Package (pacchetto sicurezza), which, the government stated, were intended to fight ‘widespread illegality linked to illegal migration and organized crime’.46 Among other measures, the Security Package introduced the criminal offence of ‘illegal entry and stay within the territory of the state’, capable of attracting a monetary penalty of 5,000-10,000 euros for those found guilty.47 Given that ‘illegal entry and stay’ is a crime, irregular migration status automatically triggers the requirement for any public officer (including all civil servants, local authority employees, teachers and any other person in charge of a public service) to report all suspected criminal acts to the police or judicial authorities. 48 Any irregular migrant wanting to report abuse, including labour exploitation, faces the risk of exposing himself or herself to the real danger of being reported, charged with the offence of ‘irregular entry or stay’, and even detained and ultimately expelled. Many irregular migrants told Amnesty International in 2012 that they were afraid to contact the authorities and avoided seeking legal remedies, even where they were entitled to them.49 This situation does not seem to have changed after the adoption of the Rosarno Law. In 2013, NGOs and union representatives continued reporting that the identification as irregular migrants of the few workers who decide to go to the police and file a complaint against their employers is a common occurrence.50 The difficulties posed by the current system significantly affect access to justice for migrant workers. The 2013 UNAR statistical report flags workers’ unwillingness to

file complaints against their employer when it comes to labour exploitation:

according to the statistical data gathered by UNAR, the percentage of direct reports

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(filed by the workers), concerning violations of their rights is lower than the indirect ones (filed by law enforcement officials, but also by civil society organizations providing assistance to migrants).51.



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