Committee on Employment and Social Affairs (EMPL)

Level working field: In light of the great reliance of European farmers on non-European migrant labour, with an estimated 405,000 immigrant workers in Italy’s agricultural sector alone, the 2014 Seasonal Workers Directive aims to guarantee their fair treatment. Considering that a large number of these workers enter the European labour market without proper documentation, thus being vulnerable to exploitation by their employers and by criminal organisations, what measures can the EU take to further support its migrant agricultural workers?

 

Key terms: seasonal work, migration, labour exploitation, agricultural sector

 

by Johann Davies (DE)


 

1.Background and relevance

‘A shantytown with far worse conditions than a refugee camp, without running water, electricity or sanitation.’ These are the words used by Philip Alston, UN Rapporteur on Extreme Poverty and Human Rights, to describe the current living conditions of many migrant workers in Spain. These workers have become Spain’s way of compensating for the decrease in domestic farm workers, who are increasingly unwilling to be employed for the often precarious seasonal work.

 

In fact, it is not just the Spanish, but the entire EU’s agricultural sector that relies on migrant labour. This dependence was further highlighted by pleas for help from farmers unable to harvest their crops due to the growing travel and immigration restrictions since 2020. The European Commission estimates that, by 2030, the EU’s agricultural workforce will have fallen to 7.7 million employees, with non-EU migrant workers filling a large part of the vacancies. Still, their exact number is unclear: in 2020, the EU’s statistical office, Eurostat, counted around 370,000 foreign seasonal workers in Italy alone. That, however, does not include potentially over 100,000 undocumented migrants living and working in Italy illegally, thus running the risk of exploitation.

 

This exploitation has many forms: It includes extremely poor working conditions, with long hours, low wages, frequent accidents, and even unprotected exposure to dangerous chemicals being the rule rather than the exception. Furthermore, workers are often forced to live in appalling conditions in isolated rural locations.

 

Often, the workers are not directly contracted by farmers, but via intermediate recruitment agencies, who then allocate workers to different farms. There are also reports of criminal exploitation or even modern slavery, often impacting workers arriving in Europe illegally or without a work permit.

 

The Seasonal Workers Directive is the main piece of EU legislation regulating migrant work on European farms, granting non-EU migrant workers equal treatment in terms of employment conditions and most social benefits; however, it is not being sufficiently implemented in many Member States. Considering the fragility of the European food chain and the critical situation many workers find themselves in, finding a way to improve the enforcement of its legislation while also crediting the vital work of seasonal workers is a crucial question for the years to come.

2.Key stakeholders

Seasonal migrant workers can come from all around the world, including EU countries. However, non-European workers enjoy significantly fewer benefits and rights than their European counterparts, thus requiring additional legislative attention, for example through the Seasonal Workers Directive. Often, different Member States will predominantly recruit migrant workers from countries they have a particular relationship with. For instance, a large part of the migrant workers admitted by France and Spain are from Morocco.

 

Despite the now-harmonised EU law regarding these workers, it is still the Member States’ jurisdiction to designate national authorities to enforce the implementation of the Seasonal Workers’ Directive. Member States are designated to ensure that seasonal workers can file complaints about possible infringements of their rights. 

 

Ensuring that all Member States follow the new directive is the responsibility of the European Commission. However, the responsible EU agency, the European Labour Authority (ELA), can only support the national authorities or coordinate multi-national investigations of workplaces. It is currently also exploring ways to enhance the awareness of seasonal workers for their rights.

 

The farmers who employ seasonal migrant workers from non-EU countries are mainly located in Southern Europe, especially Spain and Italy, but also in countries such as Sweden. Many of them overwork their personnel due to the extreme pressure they are put under by food retailers to lower production costs. Some supermarket chains have been known to force farmers to accept prices for their products that barely cover production. According to the EU Directive on unfair trading practices in business-to-business relationships in the agricultural and food supply chain, Member States now have to monitor food retailers to prevent such unfair trading practices.

Click here to view this Stakeholder Map on Miro.


 

3.Challenges and measures in place

Shortcomings of the Seasonal Workers Directive

Until the adoption of the Seasonal Workers Directive in 2014, the legal treatment of non-EU seasonal workers differed between Member States. While Member States still retain enhanced bilateral agreements with third countries to recruit seasonal workers, their admission criteria and minimum treatment have now been harmonised.

 

According to the Directive, non-EU workers are entitled to the same treatment as national workers in terms of employment and working conditions, including equal salaries as well as most social benefits, although Member States may exclude unemployment and family benefits, tax benefits, and access to vocational training and education. Particularly the last point has been criticised for contradicting the Directive’s stated goal of development of workers. A major point of criticism has also been the lack of centralised enforcement of the directive. According to Articles 17 and 24, overseeing the implementation of these new rules falls upon Member States rather than EU bodies. It is the responsibility of each Member State to carry out risk assessments, inspect workplaces and accommodation of migrant workers, as well as penalise employers in breach of the directive. While the basis for this procedure is upholding the principle of subsidiarity, it has also resulted in insufficient implementation in Italy and Spain, among other countries. Generally, with this kind of decentralised legislative design, disparities among Member States in their monitoring of companies are frequent, and the countless reports by non-governmental organisations (NGOs) detailing breaches of the directive highlight the gap between law and reality.

 

Furthermore, many migrant workers are unaware of their rights and of the relevant complaint procedures, even though Member States are obliged by Articles 11 and 25 to educate workers in this respect and provide complaint mechanisms. Additionally, the  lack of awareness prevents workers from seeking the state-mandated judicial protection from abusive employers stipulated in the Directive. One existing solution to this problem are pre-departure orientation courses for workers; however, this is not an EU-wide requirement.

 

Poor working and living conditions of foreign workers

As emphasised by Philip Alston, seasonal workers often work and live in extremely poor conditions, labouring, in some cases, more than twelve hours a day in extremely hot weather and with few breaks. Many live in isolated makeshift huts and tents, often made of inflammable material and located out in the fields, with no electricity or running water.

 

The Seasonal Workers Directive does attempt to tackle these issues by allowing workers to change their employers at least once, thus motivating employers to improve working conditions and support their workers’ rights. However, the aforementioned lack of awareness among foreign workers combined with a limited understanding of the country’s language often keep workers tied to exploitative employers. Furthermore, labour organisations that could also play a part in improving the awareness situation often struggle reaching out to workers, despite Article 25 of the Directive requiring Member States to facilitate their action.

 

Exploitation and criminal abuse of migrants

From another perspective, even solving these issues with the Seasonal Workers Directive would have no impact on those migrants who have come to or are working in the EU illegally, without proper documentation, and, therefore, with no legal protection. Among these workers are unregistered refugees or asylum-seekers who are legally not allowed to work until their asylum application has been granted. Last year, in the wake of the pandemic, the Italian government passed a law, granting unregistered migrant workers the possibility to apply for a short-term residence permit, which could become a model for the EU as a whole.

 

Currently, many farmers use a loophole in the Seasonal Workers Directive and do not directly employ their workers, but hire them from intermediary agencies. If that agency is not located in the EU, the terms of the Directive do not apply to the workers. However, there are also criminal organisations within Europe with a specialty in recruiting and exploiting foreign workers. One example is the Italian ‘caporalato’ system. The ‘caporali,’ criminals, often with ties to the mafia, locate predominantly undocumented immigrants and transport them out into the fields for excessive fees. Often, the workers also have to give the caporali a large proportion of their wages in return for food, water, and substandard shelter. If workers refuse, they risk dismissal or even physical violence; activists and organisations attempting to help these migrants are routinely threatened.

 

Root causes in the food supply chain

To sustainably address this issue, the EU will need to also examine its root cause, which is that farmers who do not exploit their workers face the financial disadvantage of having to demand higher prices for their products to stay profitable.

The EU grocery market is notoriously competitive: Food retailers and supermarkets, especially discount chains, such as Aldi or Lidl, often use aggressive techniques to lower food prices, including deliberately paying food suppliers late or cancelling orders at the last minute. In 2019, an EU Directive prohibiting such practices was adopted, however, its effectiveness remains to be seen as its enforcement is again a competence of the Member States with only six countries having implemented it by June 2021. Nonetheless, even in the case of success, the Directive would not remove the competitive advantage that exploiting seasonal workers gives farmers.

 

Currently, the EU’s Common Agricultural Policy (CAP)  is being renegotiated. In April 2021, the European Parliament proposed including a so-called ‘social conditionality’ mechanism in the new agreement, which would make the adherence to the EU’s standards regarding seasonal workers’ rights and employment conditions a requirement for receiving EU subsidies. While MEPs in favour of such a clause argue it would help reduce the competitive disadvantage of following the EU rules, both farmers’ associations and Member States have expressed concern the clause would increase bureaucracy and fall outside the scope of the CAP. An agreement will require further negotiation between stakeholders.


 

4.Further questions

  • What factors make seasonal workers more vulnerable to labour exploitation?

  • How can the EU and its Member States ensure seasonal workers are aware of their rights?

  • How could the EU help create agricultural business models for the future that ensure farms are profitable while also respectful of workers’ rights?

  • Should the EU get more involved in monitoring the implementation of the Seasonal Workers Directive in Member States?

  • How can the crucial role of seasonal workers be further validated by EU law?


 

5.Faces of Sustainability

Nobody can survive without food. For that reason, modern societies have built extremely fine-tuned supply chains aimed at keeping food affordable and available for all citizens. The fragility of these systems only becomes clear under extraordinary circumstances, such as the COVID-19 pandemic in 2020. During the months of travel restrictions, the thousands of seasonal agricultural workers annually employed in the EU were desperately missed by farmers who struggled to find a replacement in their domestic labour markets.

 

While the EU was ultimately able to prevent a collapse of food supply chains through state aid to farmers this time, 2020 still showcased the vital contribution of seasonal workers to the EU’s food security. As it stands, this contribution is still not being rewarded with a strong protection from exploitation and abuse, much less with good working and living standards. If the EU wants to get a head start on the next crisis, closing this disparity would be an important first step.


 

6.Material for further research

Essential Engagement

  • Read this summary of the Seasonal Workers Directive,

  • Watch this video about the conditions of seasonal migrants in Spain,

  • Read this article about criminal exploitation of workers and the importance of regular monitoring.

 

Additional Engagement

  • Here is a curated Mix collection with articles, research papers, and legal documents about the legal situation of seasonal migrant workers in the EU.

  • Here is a YouTube playlist with a collection of videos regarding the every-day life of Europe’s seasonal workers.