However, for the purposes of clarity, the dichotomy of decent work/forced labour would provide more certainty in terms of meaning, as both decent work and forced labour are notions defined within the ILO labour standards framework.
Severe labour exploitation
In 2015, the FRA published the report Severe labour exploitation: workers moving within or into the European Union. The term ‘severe labour exploitation’ used in the report refers to:
[F]orms of exploitation of workers which are criminal under the legislation of the EU Member State where the exploitation occurs. Hence, severe labour exploitation includes coercive forms of exploitation, such as slavery, servitude, forced or compulsory labour and trafficking (Article 5 of the Fundamental Rights Charter), as well as severe exploitation within the framework of an employment relationship, in particular employment situations covered by Article 9 (1) of the Employer Sanctions Directive.
At the same time, the report offers a definition of exploitation:
[W]ork situations that deviate significantly from standard working conditions as defined by legislation or other binding legal regulations, concerning in particular remuneration, working hours, leave entitlements, health and safety standards and decent treatment.14
In other words, the FRA seems to suggest that ‘exploitation’ comprises the acts that fall under civil breaches, whereas ‘severe labour exploitation’ is a kind of umbrella term that would cover actions that are often described as ‘modern slavery’, as well as applying to continuous and repeated employment of illegally staying third-country nationals; the employment of a large number of illegally staying third-country nationals; or if the employment of an illegally staying third-country national is accompanied by particularly exploitative working conditions.15
However, another term used in the EU context, ‘particularly exploitative working conditions’, seems to suggest that these conditions, while exploitative, do not quite meet the threshold of being severe. The EU Employer Sanctions Directive defines particularly exploitative working conditions as:
[W]orking conditions, including those resulting from gender based or other discrimination, 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;16
The comparator applied in the Directive is similar to the comparative process covered in the German criminal law: that defining trafficking for labour exploitation includes the test of “working conditions being in clear discrepancy to those of other workers performing the same or a similar activity”.17
Even when comparators are applied, the comparison drawn is still between the optimal and sub-optimal, and the degree of severity determines whether or not remedies can be sought in civil or criminal law. Consequently, the application of the continuum remains valid as a concept that describes the collection of various types and degrees of exploitations, while accepting that the threshold of severity can sometimes be difficult to determine and is likely to be disputed.
Indicators are most commonly applied to determine whether a worker’s situation amounts to forced labour. However, using these in turn to examine the actions of perpetrators – the bad actors as described by Benton18 –may prove helpful. Focusing the identification on the exploiter, rather than the victims, we can identify the sorts of actions and behaviours that the perpetrator (or rather perpetrators, as there commonly would be more than one) needs to be undertaking in order to achieve the exploitation of their victims.
While exploitation of a non-criminal nature is likely to be associated primarily with the workplace, such as violations of health and safety requirements or underpayment, more serious exploitation occurs in stages, and is not necessarily limited to a workplace.
In order to get a more accurate picture of the actions taken by the various parties involved in the exploitation, it is helpful to break these down into the different stages of the employment relationships that a worker enters into. The first stage is before the worker is employed (e.g., recruitment stage). This is when the offer of a job and working conditions are negotiated. This is also the stage at which workers are commonly deceived into believing that they will be paid well, or into accepting a loan from the recruiter which later turns into a situation of debt bondage.
The second stage is during the employment (e.g., exploitative living and working conditions). At this stage, workers are often required to accept living and/or working conditions that differ significantly from what was originally agreed. This can include overcrowded and squalid accommodation, deductions from wages, as well as violence and threats of violence.
The third stage is after the worker has left employment (e.g., continued control, debt, threats). In forced labour cases, exit or escape from a situation of exploitation often does not end the worker’s plight. When a worker owes a debt, he will be pursued by the agent. Workers are also often threatened by the agent not to go to the police.
The above-mentioned 11 indicators can be detected at each of the three parts of a worker’s journey; and if considered both from the perspective of a worker experiencing an exploitative situation, and from the actions that the exploiter needs to take in order to create the exploitative situation, we get a fuller picture of the complexity of the circumstances and the challenges that come with trying to define these as exact categories.
Recruitment agencies
An added challenge arises from the fact that many of the most vulnerable workers are not exploited at the workplace, but rather around the workplace. Temporary sub-contracted labour provided by an agent or a labour broker has increased and has become prevalent in many sectors in Europe, including in catering, hospitality, cleaning, care, and construction in the labour facilitation industry. Formal recruitment agencies, as well as informal agents, often operate within very little or no regulation, despite the fact that they often supply large numbers of workers. These agents have significant power over the workers, as they are not only the gatekeepers to accessing jobs, but also the ones that distribute pay.
While the majority of reputable recruitment agencies operate within the law and treat workers with respect, there are still many that take advantage of the gaps in regulation, the ignorance of workers about their rights, as well as those who are happy to bypass the law to increase their profits by abusing workers.
The most common forms of exploitation that workers experience at the hands of the labour brokers include:
Tied accommodation: a worker has no freedom of choice over their accommodation and must accept the accommodation provided by the agent as a condition of keeping their job; the quality of such accommodation is often sub-standard, while the price is inflated.
Unlawful deductions: agents deduct the costs of accommodation, transportation, insurance, etc., from the worker’s pay, resulting in payments well below the legal minimum wage, or non-payment of wages.
Non-payment of tax: workers receive payslips with tax deducted and are made to believe that they comply with the tax requirement, only to find out that the agent never paid the taxes on the worker’s behalf.
Controlling of bank accounts: the worker is made to open a bank account with the assistance of an agent, but has no control over that account, as all the documentation and access details, including the card, are kept by the agent.
Obligation to purchase services: the agent requires that the worker purchases certain services from them as a condition of employment, such as transportation, protective clothing, or translation services.
This abusive conduct by labour brokers has become known as the ‘hidden third party exploitation’.19 In order to detect whether the workers supplied by an agent are treated properly, the authorities, as well as the final employers, have to consider not just the working conditions at the workplace, but the working and living conditions in their totality. Many businesses that use temporary agency labour have become aware of this problem, and have begun to
scrutinise their labour providers with this in mind. In the UK, a multi-agency initiative –Stronger Together20 –was set up with participation from the authorities, NGOs, labour providers, and retailers to help to identify and address the risks of third party exploitation, especially in the food industry and agriculture.
Exploitation for criminal activities
Another challenge arising is that some workers will not be exploited in what are considered ‘regular’ or ‘traditional’ industries. Exploitation and forced labour is commonly considered only in the formal sphere, or in regular industries. However, cases are increasingly being reported of workers exploited for criminal activities:
A man with a young boy enters a supermarket in the Netherlands. The man gets a loaf of bread and queues up at the cashier. Meanwhile, the boy picks up a DVD player and heads straight out and reunites with two adults who load the box into a car.21
These events were recorded a few years ago on CCTV at the car park of a Dutch supermarket. The two children on the recording were a brother and a sister, who were travelling with an ‘uncle’ –a man who had documents suggesting that he was the children’s legal guardian. However, he was not related to the children. He lived in the same village as the children’s parents, and when they ran into debt, he said they needed to give their children to his care for a few years in order to recover the debt.
The Dutch police investigated the case and discovered that the young children travelled to a number of European countries in the two years they were in the ‘uncle’s’ care, and that they had criminal records for theft in several EU countries. Every time they were arrested, they were released after a few hours, back into the care of the uncle, who presented documents confirming that he was the legal guardian. No one asked him any questions. The children were from Romania.
“[Y]ou were engaged by pressure and coercion, but it is probably right to say that you were involved through naivety and exploitation,” said a judge in a trial against a Vietnamese man trafficked, and forced to tend cannabis in England. Despite that he was imprisoned for 16 months.22
These two cases are typical examples of trafficking for the purposes of criminal activity. Like in other trafficking scenarios, the victims are brought across international borders, or trafficked within a country, and subjected to exploitation.23 Only in these cases, the purpose of exploitation takes a form that is still hard for many to fathom – that of criminal activity. It can involve petty crime, such as pickpocketing, shoplifting, or distraction theft; however, there are also more serious forms, such as drug cultivation and distribution, as well as drug smuggling.
Some are reluctant to see these scenarios as forced labour. However, they fall squarely within the definition of the ILO: “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”. The fact that the labour or service rendered by a person is in fact a criminal activity means that it brings significant profit to the traffickers at a very low risk. As the victim is the one committing a visible crime, they are also the ones most likely to be caught and arrested. Against this backdrop, an individual found committing a crime, who is also likely to confess to that crime (victims tend to be coached to do so by traffickers), is unlikely to be identified as a victim of THB by law enforcement, who are rarely trained to look for the ‘crime behind the crime’. It is a somewhat counterintuitive concept, as one needs to be aware of the possibility of the scenario even happening, and be able to identify the indicators of trafficking and forced labour. More often than not, the fact that a person perceived to be the ‘criminal’ in these cases is actually a victim (and a witness) of a more serious crime is overlooked, as is the fact that they are committing a crime only because they are being forced to perpetrate it.
Yet the indicators and tools should apply to situations of forced criminality and, indeed, the bad actors here use similar methods of coercion as those who exploit workers in agriculture. For example, victims of trafficking for forced criminality are commonly24 not allowed to keep the profits from the criminal activity; and they are forced to carry out the activity against their will. These are standard indicators of forced labour. Added to that, they also bear the full risk of dangers arising from the activity, whether it be through the work itself or from criminalisation.25
Like with other types of trafficking for forced labour, the identification of the crime of trafficking for forced criminality and its victims will be made easier or more difficult depending on where it occurs. Forced labour in cannabis factories usually occurs in a private residential property, and the victim is likely to be the only witness of the crime committed against them. Trafficking for forced begging and pickpocketing, on the other hand, usually happen in a public space, which allows for more opportunities to identify victims, and also to get evidence from witnesses.
In all circumstances in which trafficking occurs, there will be some indications of trafficking. These will relate not only to the victims, but also to the people and places of exploitation, indications which can be used to refer back to the application of the continuum to detect the bad actors.
Severity of exploitation and access to rights
When it comes to identifying remedies and access of exploited workers to protection and assistance, difficulties often arise if the workers’ situation is not deemed serious enough to meet the threshold of crime, i.e., trafficking for forced labour. Protective frameworks exist in international26 and EU law27 that require governments to offer minimum standards of protection and assistance for trafficked persons (including that of non-punishment where a person has been forced to commit crime by their traffickers). However, only those who are identified as victims get access to protection and assistance.
The indicators mentioned in the previous section are often the key tool used by competent authorities to determine whether or not an individual is a victim. Correct identification is dependent on the knowledge of these indicators, as well as on the general awareness of trafficking in human beings. When this knowledge is lacking, or the situation of a victim is so complex that the fact of their trafficking might be concealed by another crime (in particular where they were trafficked for forced criminal activity), there is a risk that the individual is not identified, or misidentified as an offender.
Cases of trafficking for forced criminality have risen significantly in the EU in recent years.28 In a number of EU countries, trafficking for the purposes of forced labour in cannabis production is a significant issue. In this context, the situation of exploitation endured by a victim (often a young Vietnamese man or child) is obscured by the fact that the labour he is compelled to perform constitutes a crime. In such cases, both the questions whether or not he was compelled to commit the crime, and whether the conditions in which he was found were ‘exploitative enough’ to meet the threshold of forced labour, arise.
Both of these questions were addressed in a case examined in 2012 by the Court of Appeal of England and Wales. In its judgment, the Court found it difficult to identify the conditions in which the defendant (who was a child at the time of his trafficking) was found, to be severe enough to constitute forced labour:
We have therefore examined the question whether the circumstances in which this Appellant was working at the time of his arrest represented a level of coercion and compulsion which should have led to a decision that he should not be prosecuted.
Closely examined, the fresh material adds very little to the facts which are said to support the contention that the Appellant was indeed a victim of forced labour. The expert evidence is ultimately dependent on the Appellant’s accounts of these matters. The post sentence accounts themselves suggest … that the Appellant chose to work in the factory when a perfectly safe home with a member of his family was available to him after his arrival in this country. As a matter of fact, he chose to ignore this opportunity. Even on the best available construction of the evidence, his period of work in the cannabi
s factory was very brief. This was obviously not a pleasant or comfortable job, nor a decent environment in which to work. However on his own account, to begin with at any rate, he was untroubled by the conditions or the work. Having considered all the fresh material, the evidence which suggests that the Appellant was, in the word used in Article 26 “compelled” to work in these conditions is, at best from his point of view, nebulous. It is possible, and we can take it no further, that if he had worked for a much longer period, and had never after the initial night or three nights away, left the premises, or been able to leave them, and had been shut off from communication with his family here and abroad, the case might well have been very different.29
This case illustrates the importance of the need to understand not only the indicators of forced labour and definitions of trafficking (in this particular case the difference between trafficking of children and adults and the irrelevance of consent), but also the awareness of the actions of ‘bad actors’, as defined by Benton. The understanding is key to dispelling myths, such as that victims of forced labour are always locked up, and that in the majority of cases nowadays, as is the experience of front-line services providers, psychological pressure, threats, and manipulation are the methods of coercion commonly used by exploiters.
Routledge Handbook of Human Trafficking Page 26
