Workers without papers. Cheap labour

‘Can you see the plant over there? It’s as old as my official existence here. I bought it in 2007, the day I was recognized a victim of human trafficking. Before that moment I didn’t exist.’ On his coffee table lies, in a French translation, The city of the Blind by the Portuguese writer José Saramago. B. Abderrahim slides a cup of Moroccan tea towards me, and then carefully drops down into his seat. Every once in a while he shifts around to provide his muscles with some breathing space. The longer we talk, the deeper he sinks into his seat and the more often he will rub his head. ‘I recognize myself in the main character that suddenly turns blind. His world stopped spinning around, just like mine after I made that nasty fall.’
Abderrahim (45) came to Belgium from Morocco in 2001, with a university diploma in his pocket but without a visa. His goal: to work, to send home money and in the long term to start an official life. But the way towards official documents went a lot more cynical than he had anticipated. ‘The first months for ‘sans-papiers’ are terribly difficult. I knew no one, barely had any money on me and moved around from station to porch. Finding work was very hard. My first job earned me 10 euro a day, in the catering industry. After they noticed I spoke French and could answer the phone, my pay was raised to 25 euro.’
Abderrahim scoured the moonlighting scene hopping from job to job, some of which earning him less than others, with unemployment intervals of days, weeks, sometimes months. Flexibility and dirt-cheap work force after all make up the engine that keeps the black economy going. Whoever complains is free to leave, because plenty of other unemployed sans-papiers stand in line to replace them. Abderrahim moved into an apartment, shared with four illegal colleagues, and discovered the invisible flexible working hours in the abattoir of Anderlecht, ‘guaranteeing an illegal daily wage of 25 to 30 euro a day’.
‘Here you work one month, the next one you don’t.’ He worked for Moroccans and Turks, and Flemings too make full use of sans-papier labour. From the slaughterhouse he moved once again to the catering industry – pizzeria’s this time. In his last – well paid – job he managed the business almost single handedly at a given time, from cook to waiter.

An irregular occupational injury

One evening in December 2009 Abderrahim made a nasty fall down the stairs. It happened while he was cleaning up after a long workday. At first he and his boss decided not to go to a hospital, even though he had lost consciousness and blood poured out of his ears. The fear of being turned in was greater than the fear of missing out on crucial medical help. Until pain and unrest gained the upper hand. With a set of broken teeth, dislocated shoulders and a painful hip he went to the hospital after all.
Since then he claims to have seen every hospital in Brussels. After a few months a brain scan brought to light he had contracted a skull fracture. Until this day this causes severe radiating and neuropathic pain. The manager with whom he thought he had a good relation dropped him like a hot brick. He still owes Abderrahim three months of outstanding wages.
‘After I realized I’d never see the money, I decided to tell my story to my social assistant, who referred me to PAG-ASA (one of the three Belgian relief centres for victims of human trafficking). They in turn brought me into contact with the Organisation for Clandestine labour immigrants (Orca), and so I ended up at the union. I have received tremendous social and legal help from all of these services.’ Of all the money his former employer owes him to cover the costs of the accident – at least 2100 euro – Abderrahim has thus far not even seen a penny.

Wage theft

83.870 euro. That is the total amount of overdue wages seventeen clandestine workers are yet to receive from their boss. ‘Wage theft is the key problem among clandestine labour migrants,’ says Sabine Craenen of Orca, ‘employers not paying their employees for a few months.’
Since January of this year Orca keeps track of wage theft figures. ‘The 83.870 euro constitutes the total count of seventies files, in which the duped workers themselves stated the amount of unpaid wages’, Jan Knockaert of Orca specifies. ‘And that’s merely the tip of the iceberg. These are the people who were able to reach us, many others don’t even know we exist.’
The majority of workers residing in our country illegally don’t dare complain for fear of being apprehended. The amounts registered by Orca take into account the wage agreed upon by employer and illegal worker. ‘And that’s more often than not below minimum wage,’ Knockaert clarifies. Sans-papiers too are entitled to the standard minimum wage of 8,50 euro per hour. In the construction industry this even rises up to 12,20 euro, in cleaning 10,34 euro. It is a fundamental right that few employers of illegal workers feel inclined to be aware of, including the private individuals among us hiring illegal workers from time to time to carry out cleaning or construction chores in the house.

Sale: Latvian plumbers

‘We all abandon our principles as soon as we want to have our walls plastered quickly and cheaply’, says a volunteer social worker working on a daily basis with sans papiers. ‘We consume people in order to keep a tight hand on our purse as much as possible, which indicates an enormous lack of respect’, agrees Heidi De Pauw, director of PAG-ASA. ‘And exactly that attitude is perhaps the key obstacle to combat exploitation and to revalue labour rights of vulnerable workers.
Statistics on illegal employment and economic exploitation assembled by the federal police, social inspection services, the three centres specialized in human trafficking and organizations such as Orca reveal similar trends. Illegal employment – and therefore the chance of being subjected to economic exploitation – continue to exist in the traditional sectors (textile, construction, horticulture, meat processing, catering) and in households. In addition, exploitation by small and middle sized businesses such as bakeries, hamams, grocers, massage salons is on the rise.
In Belgian legislation, economic exploitation falls under the category of human trafficking. Wim Bontinck, chief of the human trafficking department of the federal police: ‘The concept “economic exploitation” is very broad. We dispose of a good list of indicators in order to check whether or not exploitation can be invoked. The case needs to be about employment in degrading working conditions which are not in line with our western norms and values – insufficient protection or hygiene, withholding identity cards, lack of nutrition…’ If the public prosecutor, the Immigrant Affairs department (DVZ) and the specialized shelters suspect a case of human trafficking, a special procedure is started and the victim is given a protection statute for 45 days. Then it is up to the magistrate working for the public prosecutor to judge if the person is indeed victim of human trafficking and is to be considered for possible regularization. 
However, not every victim wants to join in on the procedure, social workers say. ‘You need to be terribly confident about your case to go for the protection statute,’ De Pauw says. ‘Not only are the conditions very rigorous, it’s not a waterproof guarantee in obtaining legal security and people have no income. Some of them give up and retreat into illegality again. Our system is severe but righteous. We are no Mister Cash in papers, but we avoid abuse.’

Open to interpretation

Of the 311 requests for help passed on to Orca, only 1 file was labeled human trafficking by the labour auditor. However, 53 requests for help were a matter of wage theft. What then, is the reason that not every file concerning wage theft among paperless workers is automatically considered a case of human trafficking? The question is easier than the answer. ‘We see that whenever there is talk of economic exploitation, people are simply forwarded to us by the departments authorized for human trafficking’, Jan Knockaert of Orca says.
On April 2006 a company that restores ships was convicted by the court of Bruges because of human trafficking. According to the court of justice enough evidence pointed towards employment in violation of human dignity. The case dates from the year 2000 and related to the employment of no less than 66 Lithuanians without a legal residence permit, working more than eleven hours per day at a wage of 5 euro per hour. Some employees had had to pay 500 euro to get the job in Belgium. They received nothing of the salary they were promised beforehand.
The court of appeal in Ghent nullified the sentence of human trafficking in February 2009. The judge considered that the working conditions were after all not such as to deserve the label “degrading”. Moreover, according to the court, after the repatriation of the Lithuanians they were replaced by Belgians. That could never have happened if the working conditions were indeed degrading, so the argument ran.
‘What could have been the first big case concerning human trafficking turned out to be a bitter disappointment. A missed opportunity’, wrote Jan Buelens and Hadiel Holail, both lawyers at the Progress Lawyers Network, in the Jurist Journal. The appeal sentence reveals in particular that working rights of foreign workers without papers are far from a priority. ‘Legislation on human trafficking in Belgium came about in the context of sexual exploitation, at a time when enormous public outrage was expressed on the subject’, Orca chairman Didier Vander Slycke explains. ‘In the course of that legislative process, the legislator didn’t use the protection of labour rights as his main starting point.’

‘I continue to have the feeling that the word ‘illegal’ is written on my forehead. It’s a lonely feeling and it is difficult to shake off.’

Chance of success versus chance of detention

Workers without papers have fundamental rights engraved in our legislation. In practice however, relief organizations notice the difficulty in helping people to actually exercise those rights. Not only is there the problem of burden of proof but also the risk of being apprehended after reporting a complaint.
Hassan Zahri entered our country in 2004 without any papers, and worked for years as a clandestine welder. Early in 2010 he was repatriated to Morocco, after he had filed a complaint at the police. It began in 2009, in the context of the recent regularization campaign. Zahri would be perfectly eligible for regularization, his boss assured him. He would provide Zahri with an employment contract, one of the temporary criteria for provisional residence permits. The contract was long in the coming, just like three full months of salary. As the deadline for submission of a regularization file approached, Zahri grew impatient.
One day in December the situation led to a heated dispute. Zahri had enough of it. Convinced of his rights as he was, Zahri notified the police. They noted Zahri’s complaint but also alarmed the Immigration Affairs department. Zahri was rounded up and then stayed in the closed centre of Bruges for a period of two months, after which he was placed in Vottem for two months. The regularization campaign had terminated in the meantime. From Morocco, Zahri meanwhile has declared his desire to continue the case, because ‘first of all he wants to receive his salary, and secondly he wants to create a precedent for other duped workers’.   

On police legislation

‘It’s not right’, a social worker says, ‘the law stipulates that clandestine employees have rights, but if someone wants to lodge a complaint against violations of those rights that person is apprehended?’
‘The fact is there are regulations with regard to the law on the office of policeman’, Wim Bontick says. Article 21 of that law lays down that the police is obligated to inform the DVZ about people residing illegally on our territory. ‘The law also prescribes that the police must inform the victims about their rights’, Bontick adds.
MO* inquired with the DVZ about the existence of guidelines for files in which wage theft is brought up. The answer was very short. When the human trafficking procedure is initiated, the judicial police, the specialized centers and the office of the public prosecutor take matters into hand. If no procedure is started, then the person concerned is given the order to leave the country or the person is repatriated, according to the DVZ.
When exploitation is suspected of a person that doesn’t want to be taken care of in the certified centers, we often agree with the DVZ to lock that person up temporarily, with the aim of repatriation[3]’, Wim Bontinck adds.  ‘Not with the intention to genuinely repatriate, rather to investigate the matter further. If there’s no case of human trafficking, then an interpellation doesn’t necessarily lead to repatriation. Usually someone illegally residing here is given the order the leave our territory at the first interpellation. Only after a second or third apprehension will the DVZ choose temporary incarceration with a view to repatriate.’
What happened to Zahri is not at all common practice, a lawyer says. The DVZ does show consideration for similar files in which charges were made after an official complaint was reported. Why Zahri was repatriated is a complete mystery. It’s true however that there’s no legal regulation banning the repatriation of someone who has filed a complaint.

Social inspection services

Sans-papiers who get into trouble better refrain from lodging a complaint with the police. A safer way to lay claim on labour rights are social inspection services - albeit without a guarantee for success. After he noticed his complaint remained untreated, a Brazilian called Fernando gave up and disappeared into illegality once again. He was beaten up by his employer when he demanded his outstanding wage of approximately 4000 euro in exchange of the car keys of the company car.
Through Orca his file was transferred to social inspection services who would later call him up on the phone. After various inquiries it turned out they hadn’t yet called him because they had ‘too much work’. More than half a year later Fernando couldn’t be reached anymore. ‘Despite the gravity of his complaint and the large sum that was stolen from him, nothing pertaining to Fernando’s file had in the end been undertaken’, Orca lets us know. 
Orca as well as PAG-ASA, that refers too from time to time, do have excellent experience in Brussels with inspectors in charge of ‘Supervision of Social Laws (TSW). They’re the ones most qualified to deal with files regarding labour rights of employees. On the other hand, through the grapevine Orca found out that in several other districts these labour inspectors all too often act as migration controllers. MO* talked with inspectors who endorsed that claim, but are reluctant to be a whistle blower. They struggle with the fact that in the context of control operations residence papers have a distinct priority over labour rights.
We do indeed have a twofold jurisdiction’, advisor Philippe Vanden Broeck and TSW director-general Michel Aseglio explain. ‘Our core business consists of protecting the interests of employees, but we also need to be in line with policy priorities in the framework of the fight against corruption and the public interest. Sometimes these two conflict with each other, particularly when workers without papers are involved.’
Both spokespersons make no secret of the fact that some investigators have difficulties in coping with that. A social investigator has at his disposal the right to appraisal. That means he can regularize the file of a duped worker without papers, he can ensure the outstanding wages are paid out, or he may choose to report charges to the ministry of public prosecution.
‘In most cases workers without papers are encountered in the context of well-organized actions by the police and/or DVZ in the framework of government policy targeting social fraud and human trafficking. When that happens, investigators have little room to manoeuvre, and so the police and DVZ take over.’ In 2007 French labour investigators brought charges against the French state because they were forced to spend too much time on migration control instead of their actual jobs: to check whether there are violations of social labour regulations. The International Labour Organisation agreed with them. ‘We distance ourselves of that attitude’, Vanden Broeck and Aseglio say.
‘Labour rights need to be addressed and respected, but the public interest plays an equally important role. Social security needs to be protected, social dumping and unfair competition need to be challenged in order to prevent the disruption of the labour market. Tolerating foreigners here or even encouraging their presence while they can merely live on the edge of society here, is far more immoral than assisting their repatriation.

Swimming against the tide

In 2004 a decision was reached at the council of ministers in Gembloux that certain criminal offences at work should be criminally prosecuted. Employment of people without employment card and legal residence permit is one of them. Sanctions for that particular offence are heavy, ranging from heavy fines to banning the exploitation of the business to a shut-down and imprisonment.
In addition, a new European guideline calls for heavier sanctions for employers hiring sans-papiers. According to migrant organizations that guideline is motivated too much by migration policy. ‘It is correct that the goal of this guideline consists of pushing back migration, instead of addressing a social policy. But there’s another way of looking at it’, Frederic De Wispelaere, researcher at the Higher Institute of Labour (HIVA), says.
‘It’s possible to consider the guideline as a leverage tool for workers. A stronger European approach towards fraudulent employers protects vulnerable employees on the whole.’ Ever since Gembloux, Belgium is in line with the European viewpoint. ‘A European approach is necessary’, Vanden Broeck of TSW says. ‘Otherwise we’re swimming against the tide while the already strained labour markets are put to the test even more. The sanctioning guideline primarily introduces a number of positive impulses against organized networks by-passing joint liability, and it also offers better guarantees on protection for employers without papers. We also examine whether a temporary protection statute in addition to that of human trafficking can be introduced.’

Collective rights

Unions are another option, as they can regulate files for clandestine workers. Anyone can become a member, even those without papers. However, even the unions are having a difficult time in making the rights of employees without papers respected, because of the exact same reason: a lack of evidence. ‘That’s why enforcing one’s rights through a court of law becomes a rarity’, says Veronique Aps, diversity consultant at ACV-Antwerp. As a result of the Brasileuro case paperless workers took to the streets in June 2009 to stand up for their rights.
The case was about a group of duped workers in the employ of vzw Brasileiro by a priest who promised them a future with papers. For the first time ever in Belgium people took to the streets demanding their rights – supported by socialist and Christian unions. ‘That’s where we should be heading to’, Aps says. ‘We’re currently brainstorming about the ways in which we can empower paperless workers from the inside so they can enforce their rights collectively’.
A good way of doing that would be to draw more attention to labour rights of clandestine workers. After all it’s clear those rights are seldom a priority at all. ‘Having those rights enforced can be done in quite a few ways, but they rarely lead to a positive end result. A number of elements play a role: fear of apprehension, lack of evidence, duration of the numerous procedures…’, Jan Knockaert concludes.
Meanwhile being an illegal worker remains a lonely profession. They had warned him that heaven was not to be found in Europe, Abderrahim tells, but he didn’t truly believe that. ‘I continue to have the feeling that the word ‘illegal’ is written on my forehead. It’s a lonely feeling that’s difficult to shake off.’