Silvia Carta (PICUM): ‘Simply banning a product from the market doesn’t address the drivers of forced labour’

Silvia Carta works as Advocacy Officer for the non-governmental organisation PICUM. In the past, she has worked for multiple organisations and groups, including the European Parliament. Based in Brussels, PICUM advocates for social justice and respect of human rights for undocumented people in Europe. PICUM acts as an umbrella organisation bringing more than a 100 other organisations working on the same issues.

Voxeurop : What is the situation in the EU regarding forced labour and migrant workers?

Silvia Carta: Migrant workers with precarious, dependent or irregular status frequently experience conditions below those required by minimum labour standards and collective bargaining agreements, in terms of pay, working time, rest periods, sick leave, holiday, and health and safety. Such risks of labour rights violations may amount to or turn into forced labour, through a combination of factors such as wage theft, excessive working hours, accumulation of debt, confiscation of documents, threats, dependence on the employer for housing and residence status, physical and sexual violence and restricted mobility.

The definition of forced labour implies that work or services are extracted from a person under the threat of punishment and without the person’s consent. However, in the case of undocumented migrants, the specific situation of dependence and vulnerability can have a specific impact on the definition of voluntariness.

In the Chowdury case, the European Court of Human Rights (ECtHR) issued a landmark ruling on this matter. The case concerned 42 migrant workers on a strawberry farm in Greece who had been denied wages after several months of working in substandard conditions. The ECtHR found that this amounted to both “forced or compulsory labour” and “trafficking”.

This case was groundbreaking, both because the workers had initially consented to the arrangement, and because they could move freely, and had the opportunity to leave. Although the workers could theoretically have left the strawberry farm, they did not, in part because they knew that if they did, they would never receive the wages they were owed. In finding “forced labour,” the Court emphasised the fact that the workers were undocumented, noting that the workers’ irregular status put them at increased risk of being removed from Greece if they left the farm. The Court considered that their vulnerability and fear of being arrested, detained or deported meant that their work could not be characterised as voluntary.

Can you explain the political context that led to the new legislation?

This legislation was seen as a way of sanctioning countries such as China or Turkmenistan, where there is reported evidence of systematic state-sponsored forced labour. Within the EU, it was presented as a way of complimenting the existing legislative framework on forced labour, including the anti-trafficking directive and the directive on sanctions against employers of migrants in an irregular situation. However, both the proposal and the final regulation partly miss their purpose, as they disregard the impact the product ban might have on the workers forced into exploitation, both within the EU and the rest of the world.

It has been criticised that this regulation targets the “products of forced labour” and not forced labour itself. Why is this a problem?

Simply banning a product from the market doesn’t address the drivers of forced labour or improve conditions for workers per se. Without investment in remediation to address ongoing impacts and an approach centred around workers’ rights, product bans risk simply leaving workers without a – however precarious – income with no real possibility to get justice and compensation.

Overall, this regulation has also been criticised for not taking into account the realities of vulnerable people and the dangers they face. In what way? Could this hinder the proper functioning of this regulation?

The adopted regulation does not include systematic consultation or engagement with the workers involved, nor does it provide for remediation or access to better conditions for the victims of forced labour who made the products. The risk is that workers experiencing forced labour may simply lose their source of livelihood without having the chance to get justice and remedy. In addition, workers whose residency status depends on the employer or undocumented workers would risk being detained and deported due to their immigration status if they try to enforce their rights or cooperate with the authorities during the investigations around cases of forced labour.

For this regulation to work and to have a real impact on the eradication of forced labour, measures should focus on access to remedy for workers, including specific measures to mitigate and provide remedy for the negative impacts of any product ban on workers, developed through engagement with affected workers and representative stakeholders.

It was argued that one of the EU's explanations for the fact that this regulation is only partly focused on victims is that other regulations already exist. Can you explain this argument? Are they really sufficient?

When faced with the issue of remediation and support for workers, the Commission and co-legislators have used existing EU legislation such as the  EU anti-trafficking framework as a stopgap to fill the gaps in this regulation. However, legislation to protect victims of forced labour, trafficking and exploitation is insufficient for victims who are undocumented or have a precarious residence status. Only in some cases can people obtain a temporary residence permit while there are criminal proceedings in which they can cooperate. But access to remedies, including secure residence permits and compensation, remains seriously lacking.

Also, none of the EU legislation will apply to violations committed outside the EU.

Forced labour is a concept that in reality is very broad and sometimes difficult to define. Can this regulation effectively contribute to a better understanding of the problem? In many cases, the line between forced labour and other forms of employment is very thin.

As shown in the example of the Chowdury jurisprudence, what can be considered forced labour depends on different factors, including the specific situation of the workers. Again, whether this regulation will contribute to a better understanding of the problem will depend on whether the implementation of the regulation puts workers at the centre, for example by consulting them during the investigations, understanding their needs, and protecting them from adverse effects.

Even in cases where the severity of the situation does not lead to a product ban, investigations should be used as an opportunity to achieve better conditions for the workers. It is fundamental that the appropriate remedial and preventive measures are discussed and agreed upon with relevant stakeholders, communities, workers and their representatives, including trade unions, to ensure that they respond to the actual needs of those affected. Such measures should also be linked to the lifting of any product bans.

In your opinion, where does this new regulation fit in the new framework that the EU is building regarding migration? In recent years, we've seen the multiplication of work agreements with third countries, the new Pact for migration and asylum, etc.

Decent working conditions for people working in the EU should be the primary consideration when thinking about labour mobility. But this is often not the case, as this regulation shows. This is in line with other policies that privilege a migration control and enforcement approach, while regularisation, regular pathways and labour rights are often sidelined.

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‘Without investment in remediation to address ongoing impacts and an approach centred around workers’ rights, product bans risk simply leaving workers without a – however precarious – income’

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Forced labour is an integral part of a system where the market actively seeks the cheapest labour for the best outcome. Can we effectively tackle forced labour without challenging this system in the first place?

Forced labour and exploitation will be very difficult to eradicate if we continue to operate in a system where companies can profit from cheap labour. Labour migration policies also have a role to play here too, particularly in ensuring that workers can obtain decent permits and are not tied to their employer.

We have talked a lot about the problems of this regulation, but what can be done to improve this text and hopefully help people who are victims of forced labour?

When implementing this regulation, EU member states must clearly separate investigations from immigration enforcement, so that investigating authorities do not report undocumented people to immigration enforcement. They must also provide for systematic consultation with affected workers and their representatives throughout the investigation and banning process, and ensure that they are safe for them to do so.

Decriminalise victims of forced labour and provide opportunities for those with precarious residence status or undocumented status to regularise their status and find new employment, as well as other support to access remedies and rights, such as payment of back wages and compensation.

Moreover, beyond the lack of remediation for affected workers, the regulation also fails to address the root causes of forced labour. A set of accompanying measures would be required to support workers, trade unions, civil society, human rights defenders, small and medium enterprises, smallholders and local communities – wherever forced labour occurs.