Communication à un colloque
| Résumé : | Migrant workers working in low-skilled, low-paid jobs frequently fall victim to labour market abuses including unlawful deductions and/or non-payment of wages, no contract of employment, no annual leave or sick leave and verbal or physical abuse (LAWRS, 2019). Whilst such labour market abuses – on their own – do not amount to criminal forms of exploitation (i.e., slavery, forced labour, servitude or human trafficking), the importance of acknowledging them as the thin end of the wedge is imperative. According to the ILO Global Slavery Estimate 2017, 1/3 of victims of forced labour experienced coercion through the withholding of their wages (ILO, 2017). However, regulatory responses to the precarious work of migrant workers are overshadowed by a continued emphasis on a criminal justice response (predominantly) through the lens of human trafficking. This imbalance is reflected by limited research that pays ‘attention to “routine”, everyday, banal exploitation that does not meet these strict “criminal” thresholds’ and ‘risk being dismissed as trivial or irrelevant’ (Scott, 2019). Scholars have thus advocated the necessity of investing in a reconceptualisation of exploitation beyond criminal law (Mantouvalou, 2018) with a labour market perspective (Shamir, 2018). In this regard, the suitability of existing labour law mechanisms to tackle exploitation warrants further investigation. The paper will first outline how existing research on the effectiveness of labour law identifies a decent work deficit resulting from regulatory and enforcement gaps that fuels labour market abuses. We will demonstrate that additional challenges persist due to the proliferation of new forms of employment (also known as atypical work or non-standard forms of employment) that go beyond the traditional construct of a standard employment relationship (Mandl, 2020) and have created a regulatory deficit as law makers and judges scramble to keep apace (Countouris & Stefano, 2019). Critically, many new forms of employment such as casual work and platform work are prevalent in low-skilled, low paid sectors where migrant workers face a heightened risk of abuse and exploitation. Secondly, despite the obstacles identified in the first part, we posit that early intervention in less harmful forms of labour exploitation, such as underpayment of wages, prevents severe exploitation. However, such intervention will require effective enforcement mechanisms. This paper will draw upon the findings of a recent study conducted by the ILO to highlight the implications of the criminal threshold on the (in)ability to enforce labour rights. The study investigated the access to justice of victims of labour exploitation who are not granted human trafficking victim status and thus do not have enhanced access to protection and remedy (Weatherburn & Wintermayr, 2021). The paper will conclude with some suggested solutions and make preliminary remarks about how a reconceptualisation of labour exploitation beyond criminal law can be achieved in practice. |
