Wednesday, 21 November 2007

Greece: illegal migrants, legal pay

... or, "why I love the Supreme Court of Greece".
In a landmark ruling, the Supreme Court has ruled that illegal migrant workers who are not paid minimum wage or fairly compensated for overtime may sue employers under Greek labour laws in spite of immigration law prohibiting employers from hiring foreigners who do not hold a valid residence permit.
If this is not already law elsewhere in the European Union (EU) - for example, in Britain - I hope that this sets an example. It's a shame that it cannot act as a legal precedent for the rest of the EU, but it can and should act as a moral principle.

In the UK, 'the big grocers make unfair demands on suppliers.... pass "excessive" costs and risks to their suppliers', so 'farmers [have] suffered in the supermarkets['] pursuit for cheap produce'. The suppliers, in turn, pass on those costs to their workers. 'As one labour official in China explain[ed the process, to the Washington Post, cited in an Action Aid report], "Wal-Mart pressures the factory to cut its price, and the factory responds with longer hours or lower pay, and the workers have no options."'

In the UK, 'Bulgarians said they were forced to "live like pigs on scraps", scavenging vegetables from the fields when their Latvian gangmaster withheld their pay for 34 days'. 'Investigators found workers hungry and fearful. Some of them had been forced to work a day without access to food or water. Some had been threatened with eviction from the caravans if they refused to work.'

In many places, as 'in South Africa, laws have been put in place that should protect these workers, but the reality belies the legislation. Supermarkets have to take some of the responsibility for this. [President of the South African union Sikhula Sonke, Wendy Pekeur observed that] ".... They have the power to provide minimum wages and proper housing and pay benefits and pensions."'

The same principles apply in this case, both for local Greek supermarkets and for international supermarkets sourcing their produce from Greek suppliers. If the law protects the labour, then the costs have to be accepted by those who make the profits (or by the consumers who demand the labour), which is the only acceptable and sustainable way forward.

At the end of Kathy Tzilivakis's article, there was a tick-list of significant, successful migrant labour rights battles, titled "immigrants wage-ing war":
  • In 1998, about 200 immigrant farm hands, mainly Albanians and Romanians, in the village of Agios Georgios, northern Attica, went on strike. They demanded an eight-hour workday and wage increases. Their demands were met six days later. It was the first ever strike staged by immigrant farm workers in Greece.
  • In 1999, over 100 Albanian workers in the village of Loutra on the holiday island of Lasvos went on strike, demanding wages equal to Greek workers. Their demands were met.
  • In June 2002, several thousand migrant vegetable-pickers in Marathon, eastern Attica, went on a two-day strike demanding overtime and 25-30 euros a day. The mass walkout came as a major blow to the 500 landowners, who were not able to supply markets in Athens. They promised to increase the wages by a few euros.
  • In May 2005, hundreds of legal immigrant farm workers in the central Greek village of Tirnavo demanded improved wages, risking deportation. Locals made it clear they might have their residence and work permits revoked. But under mounting pressure to maintain production levels, employers agreed to pay a few euros more in daily wages.
(It was originally presented in reverse-historical order; I turned it about to highlight the progress achieved, or lack of it.)

Tzilivakis continued:
The decision grew out of a suit filed by Albanian farm workers in 2003. They claimed they had been paid below minimum wage and systematically denied overtime pay by their employer between the years 1998 and 2003 [when they quit, for this reason]. Siding with the Albanian workers, Greece's highest court awarded them five years' worth of lost wages even though they were illegally living in the country for the first three years (1998-2001).

Had the court ruled otherwise it would have reduced unscrupulous employers' potential liability, making it more attractive for them to hire undocumented migrant workers....

[A] landmark Supreme Court ruling extended workers' rights to the undocumented....

"The Supreme Court's decision is very important because it recognises their [the workers'] rights since 1998 [despite their illegal residence status] because they were with the same employer," said [the Albanian workers' attorney Stavroula] Daniil-Karpathaki, adding that the ruling will have broad implications for all immigrant workers' labour rights.
Is Daniil-Karpathaki's caveat that "it recognises their rights since 1998 [rather than 2001] because they were with the same employer [after their residence was legalised in 2001 as they were before]", poor phrasing, or poor translation, or does it mean,
  • either, that only those immigrant workers whose residence is subsequently legalised have had their rights recognised, which seems an overly optimistic interpretation of that caveat,
  • or, that only those immigrant workers whose residence is subsequently legalised and who have remained with the same employer have had their rights recognised, which seems an overly pessimistic interpretation of the principle of the case,
  • (or, is it merely a statement regarding the technical judgement in this case, rather than the general precedent set by the case)?
It is an important caveat to dwell on, as it could provide a loophole for employers whose workers have never been legally resident to avoid their obligations towards them. (It carries the implication that the employer bore an obligation because of the continuous employment of those workers, so that if the workers were either never legally employed, or were never legally employed by that employer, it would have no obligation to them.)

Still, the reporting of the case, grounded in the court's judgement and subsequent legal commentary, takes a very optimistic view of the precedent, if not of migrant workers' opportunities to put it into practice:
Chances of undocumented migrants taking their employer to court over lost wages, however, are slim to none because they would risk arrest and deportation for violating immigration law. Those who have legalised their status in Greece are fully protected under the law, even if they worked illegally in the past.
So, workers who had never been legally employed could access the rights they ought to have had while they were being employed, but would then be deported? That seems to contradict Daniil-Karpathaki's caveat, but coincide with the spirit, if not the letter, of the law.
Based on the court's ruling, all workers in agriculture, fishing and livestock farming - including immigrants who have not entered into a written work contract because of their unauthorised residence status - should be protected by the country's General Collective Bargaining Agreement under which they are entitled to the monthly minimum salary of 657 euros and the right to overtime pay - "time and a half" - for each hour worked beyond the 40 worked in a week. These three sectors (agriculture, fishing and livestock farming) have no collective bargaining agreement of their own.

Agriculture is most heavily reliant on immigrant labour. Immigrants account for 90 percent of all hired hands on Greek farms, according to research conducted by Haralambos Kasimis, professor of rural sociology at the Agricultural University of Athens.

It is farming and other undesirable 3D sectors - the dirty, dangerous and difficult jobs shunned by middle-class Greeks - like construction and domestic work that absorb large numbers of migrant workers.

According to Alexis Mitropoulos, one of Greece's leading labour law experts, the Supreme Court ruling is "very important".

"It recognises that all workers in our country, immigrants employed in agriculture in this case, should be remunerated like Greeks employed in the same sector without any discrimination," he told the Athens News.

Mitropoulos also said immigrant workers in Greece can refer to this decision and demand legal wages based on the country's general collective bargaining agreement. "This ruling obliges employers in our country to completely adhere [to rules regulating legal wages], which means that those who do not pay economic migrants the national minimum legal wage will be breaking the law," he said.
There is an economic benefit for local workers, too, as, they can compete for the minimum-wage jobs and it was pleasing to see the local workers' solidarity:
"We applaud the Supreme Court ruling," George Alevizakis, secretary for immigration issues at the Confederation of Workers in Greece (GSEE), told the Athens News. "It is a very positive outcome and sends a strong message that we hope will encourage all migrant workers to seek redress from employers."

.... [Labour and employment] checks are rare, allowing employers to openly flaunt the law by hiring illegal immigrants with impunity.... Immigrants make up roughly 10 percent of Greece's 10.9 million population. According to the GSEE, the country's biggest trade union, the country is home to as many as 300,000 migrant workers who do not hold a valid residence permit.
some still feel unprotected. They are the live-in domestic workers, who are virtually unheard and unseen as they toil in Greek homes as nannies and housekeepers. They have no collective bargaining agreement of their own....
They also have little opportunity to organise (because they work individually - and frequently for so long that they simply do not have time, or coinciding times for group activities, etc.) and little opportunity to reach a collective bargaining agreement, as the nature of their employment (individual employers and employees in innumerable, isolated relationships) makes the formation of a union and/or the implementation of collective action difficult.
[M]any suffer from exploitative low wages and are threatened with deportation if they complain of overwork....

[Unity of Filipino Migrant Workers in Greece (KASAPI-Hellas) President Joe Valencia said that] "the work never stops for domestic workers who live in [their employers' homes]... There is [also] no minimum wage. It all depends on the employer. Some receive as little as 400 euros [a month]."

Not only are many live-in immigrant domestic workers (both legal and illegal) not paid overtime, they are almost always underpaid for the long hours they are required to work. Few enjoy employment benefits such as paid maternity leave. They also rarely enjoy a high level of job security and may be dismissed at a moment's notice.

The GSEE is currently hammering out a proposal aimed at securing the labour rights of domestic workers, according to Alevizakis. In turn, Daniil-Karpathaki said she has decided to mobilise labour law experts to find out how to establish special collective bargaining agreements to cover the agriculture, livestock farming, fishing and domestic work sectors.
Kathy Tzilivakis, Athens News, 16th November 2007, 1 and 15: "Illegal migrants can sue for pay". [Not available online as of 22nd November.] [Now available at Spero News as of 23rd November.]

No comments:

Post a Comment