On 28 January 2009, the Confédération Paysanne (a French union of farmers), the SOC (a Spanish union of agricultural workers) and Amorces (a French NGO supporting projects in the field of solidarity) organized, with the support of the European Parliament Members Mrs Sarbu (Socialist Group), Flautre and Lambert (Green Party), a seminar entitled "Precariousness of seasonal labour force and industrial agriculture." Throughout the half day that was devoted to the seminar, the speakers stressed the harmful consequences of national and European laws on labour, agriculture and migration on foreign seasonal workers. In France, Spain and Italy, specific provisions are applied to what is called "seasonal" work [1] - status making the workers vulnerable to all sorts of abuse -, though the industrialization of agriculture tends to abolish "seasons." They are not only legally deprived of many rights normally granted to all (foreign) workers but also too often the victims of living and working conditions endangering their physical integrity or human dignity.

The discriminatory status of foreign seasonal workers

To understand why foreign seasonal workers have such a precarious status, we must first turn to the Common Agricultural Policy (CAP) and its effects on the agricultural world in general and seasonal workers in particular. The CAP aims especially to fund the industrialization of agriculture which is supposed to make agriculture more profitable. In fact, the amount of subsidies, mainly benefiting a minority of producers, is higher than incomes derived from this type of agriculture. Moreover, the CAP, by calling for mass production (to EU Member States, then to third countries), favours large farms and thus contributes to the gradual disappearance of small farmers. Finally, a handful of companies has an almost monopoly of the distribution and set prices according to its will, leaving little margin per unit sold. Producers tend therefore to reduce production costs, particularly wages, to increase this margin. Because work is hard and poorly paid in the agricultural sector, labour force is scarce, even more when the regions concerned are deserted.

That’s why some of the EU Member States have started to import an important agricultural labour force from abroad. In a context where migration policy towards the unskilled [2] is about "taking the labour force without the man", the will to increase the profit margin of producers could only result in a precarious status for the foreign workers concerned. On the grounds that their presence is required only for the "season", they are excluded from the common law on aliens. Even those who work 8 or 9 months per year for over 20 years, in Italy or France, are expected to leave at the end of each of their contracts ; no residence permit are granted to them. Such status is also a flagrant violation of their right to enjoy a normal family life [3], impedes the guarantee of social rights [4] and erodes the common labour law. In other circumstances, the repeated nature of these contracts would result in a new contract of indefinite duration (intermittent type contract), allowing a wage evolution, promotions, etc. Furthermore, despite being exposed to toxic products with delayed effects, they are generally not followed by the Labour Health Services when they return to their countries of origin and therefore are not supported in case of illness.

Very recently, thanks to the efforts of the Codetras (a ngo defending foreign workers’ rights in agriculture), the Halde (French high authority against discrimination and for equality) recognized the discriminatory nature [5] of the so-called seasonal status, said seasonal, concerning foreign workers who have been employed for many years in agriculture. In a French region, the Bouches-du-Rhône, the practice of signing 8-month "seasonal" contracts instead of 6-month ones had become systematic instead of exceptional [6]. In other words, signing “seasonal” contracts allowed well-informed producers to meet their need for labour force while keeping the foreign workers concerned under a derogatory status. In its 15 December 2008 deliberation, the Halde notes that the Prefect (regional high officer) [7] systematically renewed since 1995 8-month seasonal contracts when foreign workers had already worked for 3 years in the region (with at least 2 seasons for these 3 years). It wasn’t anymore the request of anonymous foreign workers when local labour force was insufficient but rather the request of named foreign workers to permanently replace the latter, at least partially.

Precarious and discriminatory, that status is now going to be shared by all the EU Member States. A European directive is indeed under preparation since 2005. It aims less to ensure the application of common law to the said seasonal workers than to harmonize national laws already enforced. If, for the moment, it recalls union and social rights of all workers regardless of nationality, it is likely that the lowest common denominator will be finally accepted due to a required unanimity among Member States. Preoccupied by the fight against illegal immigration rather than by the respect of labour law, they will be with no doubt enthousiastic about the new concept of "circular migration" as applied in Spain. However, the border between the so-called regular circular migration and irregular migration is far from sealed. For example, many new migrants arriving in Spain with this type of contract signed from their country of origin stay in Spain at the end of their contract and then become undocumented. Furthermore, some of these contracts are often signed in the country of origin by foreigners who were already in Spain (but undocumented) and paid a high price for the privilege to be temporarily regularized.

Working conditions too often violating labour law

The status of foreign seasonal worker is not only precarious and discriminatory. It also legally puts foreign workers in a position of vulnerability by making them dependent on their employers ; their residence and work permits are linked to the only contract they signed in the first place [8]. The ones who hire seasonal workers are thus in an exceptional position of strength : disagreeing with them means taking the risk of a dismissal – the end of the contract leads to the end of workers’ regular stay - or of not being hired next year. Where, as in the Bouches-du-Rhône, the vast majority of foreign workers in such a situation are from the same country, from the same village or even the same family, a conflict with their employer may also cost their place to their relatives. The subordination relationship existing in every labour contract is thus particularly pronounced when it comes to "seasonal" contracts. To be a long-term seasonal worker, you must make yourself docile. But, presuming that such a docility cannot last long (because of an improving knowledge of labour laws and local languages), some Spanish producers prefer asking for newcomers from Asia rather than continuing to ask for African and European workers increasingly aware of their rights and how to defend them.

If this position of vulnerability of so-called seasonal workers does not necessarily imply the violation of labour law against them by those who employ them, it facilitates abuses. The question here is not anymore how can their status be legally discriminatory but how can such a status be illegally violated. Under Article R.5221-20 of the French Labour Code, for example, the employer of so-called seasonal workers must respect labour laws, offer them working and salary conditions equivalent to French workers and ensure them to be housed in normal conditions ; the Prefect must check that the employer meets those conditions before accepting the introduction in France of any foreign worker, "seasonal" or not. In practice, some of them are however not housed or in one indecent manner. Moreover, some do not receive the legal minimum wage or are not paid overtime, are denied places of comfort in the workplace, or have their health endangered by the lack of access to drinking water (especially when working for hours in overheated greenhouses) or protective equipment when using pesticides of which harmful effects have been demonstrated. Finally, some are refused to be represented and protected by unions. In Spain, for example, the SOC is regularly expelled by the police from the property of producers ; it is said to disturb the quiet running of production when it gives workers some leaflets about their rights.

To the violation of the labour law standards can very often be added other types of abuse named during the European Seminar. For example, some French employer may happen to charge on the workers’ salary the fee they are supposed to pay to the authorities in exchange for hiring a “seasonal” foreign worker. In other cases, some employers want to be paid by foreign workers if they want to be hired. One can also hear about the daily humiliations or the sexual intercourses obtained by the use of threat (the threat of a dismissal or the non-renewal of the contract the following year). If the sanction of those employers under labour law may of course be an answer to these abuses and help improving the situation of the workers concerned - this is the approach generally adopted by the organizations involved -, one can nonetheless question the proportionality of such a response. In fact, these "abuses" sound as serious offences, even felonies, under criminal law : poisoning, working or living conditions infringing human dignity, extortion, acts of violence, rape... And when Tudorita-Viorica Mohan says "employers must understand that we are not slaves", one can be even more surprised by the lack of legal action against the employers who make themselves offenders.

From that perspective, the proposal of a directive providing for the punishment of those who hire third-country nationals staying illegally is simply irrelevant. It aims to punish employers, but not because they violate the rights of foreign workers who are vulnerable because of their irregular situation ; it aims to punish them because their behaviour is one of the causes of illegal migration of foreigners looking for work in Europe. Such a new directive is thus to “neutralize the economic benefits from illegal employment” by severely punishing the employers concerned. The European Union’s objective is very clear : "This proposal relates to migration policy, not to the employment or social policies." That’s why this proposal doesn’t concern foreign workers staying legally in the EU, like the so-called seasonal workers. However, such a directive could be useful to improve their situation as it requires Member States to : guarantee the automatic and effective recovery of unpaid wages even if they need to suspend their return to do it (Article 7) ; and to grant them a residence permit when they cooperate with the authorities in case of abusive working conditions, for at least the time of the proceedings (Article 14, 3).

The unused resources of the criminal laws on trafficking and exploitation

The proposal is nevertheless worthy of interest as it reveals a scale of state intervention concerning the abuses committed by employers. A first level corresponds to a simple violation of labour law and/or aliens law ; financial penalty is preferred in this case. Then come the exploitative working conditions (working conditions to differ significantly from those enjoyed by legally employed workers, for example) bringing a criminal sentence. Finally, these same conditions should lead to a more serious sentence when they are victims of human trafficking as understood in the 2002 Framework Decision. If the early stages are covered by the EU only through the employment of third-country nationals illegally staying on its territory, European common policy on trafficking is however indifferent to the nationality or the legality of the residence of the trafficked persons. And, by listening to the speakers during the European Seminar talking about serfdom, servitude, exploitation and even slavery, such a policy might be the most relevant to be applied to many of the so-called seasonal foreign workers.

Implementing the 2000 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, the EU has drawn a common policy on this matter. Under the 2002 Framework Decision, trafficking means the recruitment, transportation, transfer, harbouring, or subsequent reception of a person (including exchange or transfer of control over it) for the purpose of exploitation, including of that person’s labour or services (like forced or compulsory labour or services, slavery or practices similar to slavery or servitude). To achieve his/her goal when the victim is more than 18, the trafficker shall either use of coercion [9] or abuse a position of vulnerability – this abuse is such that the person has no real and acceptable alternative but to submit to the abuse involved. The EU Member States which had not yet ratified the 2000 Protocol were thus required to implement it – at least partially - through the application of the 2002 Framework Decision.

The European common policy on trafficking first advantage is thus to be applied by all Member States. As the 2002 Framework Decision draws a minimum standard, some of them have however adopted a more protective approach by adopting a broader definition of trafficking. In France, for example, Article 225-4-1 of the Penal Code punishes the recruitment, transport, transfer, accommodation, or reception of a person, in exchange for any benefit, in order to permit the commission against that person of a series of offences, including the act of submitting him/her to living or working conditions inconsistent with human dignity. The trafficker can be punished by 7 years’ imprisonment and by a fine of €150 000, even if he/she has not used any means of coercion or abused of his/her position of vulnerability. The trafficker can be the one who will finally exploit that person by effectively submitting him/her to living or working conditions infringing human dignity as well as only an accomplice of the exploiter. Articles 225-13 and 225-14 of the French Penal Code define what is meant by living or working conditions inconsistent with human dignity : 1. the act of obtaining the performance of unpaid services or services against which payment is made which clearly bears no relation to the importance of the work performed from a person whose vulnerability or dependence is obvious or known to the offender ; 2. the act of subjecting a person, whose vulnerability or dependence is obvious or known to the offender, to working or living conditions incompatible with human dignity. Both offences are punishable by 5 years’ imprisonment and by a fine of €150 000. Concerning the so-called seasonal workers, their position of vulnerability or dependency is easy to establish as it directly derives from their status as defined by law. More generally, such a position is also legaly assumed when a person is submitted to this kind of treatment upon his/her arrival on French territory (article 225-15-1 of the French Penal Code).

Another advantage of the EU common policy on trafficking lies in the 2004 Directive that requires Member States to grant a renewable residence permit of at least 6 months to trafficking victims who cooperate with the competent authorities. Rather than defining a status of victim, it defines a kind of “repentant” status suspending any deportation of third-country nationals who are victims of trafficking in exchange for their cooperation. Such a status is precarious but allows them to effectively exercise their victim’s rights : the rights to information, assistance, protection and compensation. The 2005 European convention on trafficking has completed these provisions by strengthening their protection, although their cooperation remains a condition [10].

The blur concept of exploitation might however lead to a broad criminalization of the employers who don’t respect the labour law standards. To ensure a relevant repression of exploitation and trafficking without criminalizing every employers infringing labour law, a serious work of definition must be done. And workers as well as employers shall be part of the process.

To conclude, the criminalization of employers may not be a solution to ensure the respect of labour law standards, but that should not mean letting them unpunished when they commit serious criminal offences only because they are employers. A clear threshold beyond which the acts are no longer only considered under labour law but also under criminal law must be established. High interests are at stake : human integrity and dignity. The legal status of (foreign) workers should not keep employers away from punishment when their behaviour infringes such interests, especially when the law put their employees in a position of particular vulnerability. Such practices will only make acceptable behaviours like labour exploitation and trafficking, whereas fighting this phenomenon lie at the top of the EU agenda.