Towards a Decent Labour Market for Low-Waged Migrant Workers

Table of Contents

Towards a Decent Labour Market for Low-Waged Migrant Workers An Introduction Tesseltje de Lange and Conny Rijken

Section 1 Setting the Scene: Imbalances on the Labour Market

1 The Challenge of Migration Politics as Labour and Labour as Politics Bert van Roermund

Section 2 Access to the Labour Market for EU Citizens and Third-country Nationals

3 From Competing to Aligned Narratives on Posted and Other Mobile Workers within the EU?

4 Labour Arbitrage on European Labour Markets Free Movement and the Role of Intermediaries Jan Cremers and Ronald Dekker

5 The Seasonal Workers Directive Another Vicious Circle?

Margarite Helena Zoeteweij

6 Towards Protection of Vulnerable Labour Migrants in Sweden The Case of the Thai Berry Pickers Petra Herzfeld Olsson

Asylum Seekers’ Limited Right to Work in the Netherlands Tesseltje de Lange

Section 3 Imbalances and Vulnerabilities

When Bad Labour Conditions Become Exploitation Lessons Learnt from the Chowdury Case Conny Rijken

Employer Sanctions Instrument of Labour Market Regulation, Migration Control, and Worker Protection?

Bottom-up Approaches to the Regularisation of Undocumented Migrants The Swiss Case

When Nationalism Meets Soft Skills Towards a Comprehensive Framework for Explaining Ethno-migrant Inequality in the Dutch Labour Market

Collective Agreements and Equal Opportunities for Women and Disadvantaged Groups Johan Graafland

List of Figures and Tables

Chapter 4 Figure1 Simple model of HR (labour demand) decision-making

Chapter 7 Figure1 Amounts withheld from the salary of a single asylum seeker working full-time

Figure 2 Amounts withheld from the salary of a married asylum seeker with two children, working full-time

Chapter 9 Figure1 Standardized sanctions for illegal employment

Chapter 12

Table 1 Sample characteristics (in %) Table2 Descriptive statistics

Table3 Estimation results

274 275 276

An Introduction

This editorial chapter sets the stage for the groundbreaking chapters that comprise this volume. We discuss in some detail the fragmented legal framework of intra-EU mobility and labour market access of third-country nationals coming to the EU. In the discussion of the concept of decent labour and decent labour markets, we identify three dichotomies at the intersection of (the regulation of) labour markets and migration that underlie this volume. This is followed by a discussion of the collected chapters, each of which describes and problematises aspects of the road and obstacles towards a decent labour market for low-waged migrant workers. The chapter concludes with a multilayered framework and some unconventional thoughts on how to achieve such a decent labour market.

Keywords: labour migration, low-waged migrants, decent labour market, intra-EU mobility, EU migration law

This book is the final output of a research project — Protecting labour migrants in the Netherlands: past, present and in the future that allowed us to collaborate with the selected contributors to this volume.’ Together, we dive into the position of low-waged migrant workers from within the EU, possibly working under worse labour conditions than nationals, or under the level of their education attainments, as well as third-country ı The project was financed by Institute Gak, (www.instituutgak.nl ) project title: ‘Bescherming van arbeidsmigranten in Nederland: toen, nu en in de toekomst’.

Rijken, Conny and Tesseltje de Lange (eds): Towards a Decent Labour Market for Low Waged Migrant Workers. Amsterdam: Amsterdam University Press, 2018 DOT: 10.5117/9789462987555_INTRO nationals, especially those in low-paid jobs such as seasonal workers, asylum seekers or those without legal residence. These migrant workers contribute to the labour market, valued for their work but are vulnerable to abuse. The research aim of this project was to contribute to developing theories and strategies to overcome this vulnerability and window for abuse: to work towards a decent labour market for low-waged migrant workers. Understanding the fragmented legal framework and its consequences for migrant workers was a first step to achieve this aim. Together with the contributors to this volume, we looked into opportunities to mitigate the negative consequences.

It cannot be denied that migrant workers are an integral part of EU labour markets. Dynamics of globalisation, individualisation, flexibilisation, and liberalisation are only a few factors that determine the state of labour markets today. After the recent financial crisis, we see a rise in employment rates and shortages in the labour market. Today, we see migration flows of rather diverse groups of migrant workers under a great diversity of legal schemes, ranging from intra-EU mobility of EU nationals, to asylum seekers and international students. Not all migrant workers profit equally from the positive dynamics of economies on the rise. It seems to be a general notion that the divide between the privileged and the unprivileged, the haves and have nots, in the labour market, is widening.”

In this editorial chapter, we first discuss terminological ambiguities employed in this field and define the limits of this volume. Next, we discuss in more detail the relevant fragmented legal framework and the concept of a decent labour market as used in our research. We discuss the concept of decent labour and decent labour markets and identify three dichotomies at the intersection of (the regulation of) labour markets and migration that underlie this volume. This is followed by a discussion of the collected chapters, each of which describes and problematises some aspect of a road towards a decent labour market for low-waged migrant workers. In the final section, we draw our conclusions. This edited volume is unique, not only because it studies different legal areas in their interrelatedness but uses

2 On this divide, see, for instance: R. B. Freeman (2007), ‘The Challenge of the Growing Globalization of Labour Markets to Economic and Social Policy’, in E. Paus (ed.), Global Capitalism Unbound. Winners and Losers from Offshore Outsourcing, Palgrave pp. 23-39; also C. Teney, O.P. Lacewell, and P. de Wilde (2014), ‘Winners and losers of globalization in Europe: attitudes and ideologies’, European Political Science Review, 6(4) pp. 575-595; W. Tiemeijer (2017), Wat is er mis met maatschappelijke scheidslijnen? WRR.

insights from other disciplines — e.g. economics, anthropology, political sciences — to understand the problem and to look for ways to improve the position of migrant workers.

Terminological ambiguity

A first terminological ambiguity we face, regards the concept of ‘migrant workers’: migrant workers come under many - legally speaking — different frameworks. We look at overarching legal regimes that are central to this study, which are migration law, the laws on access to the national or EU labour market, and the laws describing the rights of migrant workers. Migration law defines migrant workers according to their status upon arrival, which can be facilitated by laws such as the free movement laws for EU nationals or EU labour migration laws for third country nationals (TCN) or by EU and national laws governing the arrival of TCNs coming to the EU for reasons other than work. Indeed, not all migrant workers arrive as workers: they might arrive and remain legally within the EU as family migrants, as foreign students,’ or may enter to seek refuge, or have other reasons for entry; if they are working, they too are considered migrant workers. Those migrants that enter legally for reasons of work are labelled as labour migrants. They often receive (restricted) work permits for specific jobs, employers, or geographical areas within a country.

Migrant workers’ legal status is not fixed, but may change over time for better or for worse.* Migrant workers might arrive without permission to stay and work, labelled as ‘undocumented’, ‘unauthorised’, ‘irregular’ migrant workers.} Their irregularity can be caused by loss of a previously held legal

3 T. de Lange (2015), ‘Third-Country National Students and Trainees in the EU: Caught between Learning and Work’, [/CLLIR, 31(4) pp. 453-472-

4 R. Paul (2015), The political Economy of Border Drawing. Arranging Legality in European Labour Migration Policies, Berghahn; M. Ruhs and B. Anderson (2010), Who needs migrant workers? Labour shortages, immigration and public policy, OUP.

5 Still very relevant is the discussion on undocumented migration by S.H. Legomsky (2009), ‘Portraits of the Undocumented Immigrant: A dialogue’, Georgia Law Review, 44(65). Also see B. Bogusz, R. Cholewinski, A. Cygan, and E. Scyszczak (2004), Irregular Migration and Human Rights: Theoretical, European and International Perspectives, Martinus Nijhoff Publishers; A. Triandafyllidou and D. Vogel (2010), Irregular Migration in the European Union: Evidence, Facts and Myths’, in A. Triandafyllidou (ed.), Irregular Migration in Europe: Myths and Realities, Farnham: Ashgate pp. 291-299.

residence status,° can be uncovered through measures of intensified control,’ and can be dissolved through regularisations.®

All migrant workers, whatever their status as a migrant is, and regardless of the protection or lack thereof offered in migration and labour market access laws, are also workers. As workers, they may fall under the scope of labour laws and receive legal protection. But how to determine what kind of worker the migrant qualifies as; as employed, or seconded, or provider of a service, or self-employed? This is another terminological — and legally relevant — ambiguity central to this volume. In the next paragraph, we will elaborate on this legal fragmentation.

A Fragmented Legal Framework for EU Labour Mobility

The ambiguity of the concept of the migrant worker is shaped by, and can only be understood within, the legal and regulatory regime of the EU, by current debates and sensitivities on migration in general, and by the opening of the labour market for EU nationals from relatively newer EU Member States.

Intra-EU migration is based on Title IV on free movement of persons, services, and capital of the Treaty of the Functioning of the European Union (TFEU). The chapters in Title IV define the rights of EU nationals moving into another EU Member State as workers, to establish a business or to provide a service. It is a legal framework with blurry boundaries between the legal categories of movers. The Regulation on Free Movement

6 L. Goldring, C. Bernstein, and J.K. Bernhard (2009), ‘Institutionalizing precarious migratory status in Canada’, Citizenship Studies, 13(3) pp. 239-265; F. Diivell (2011), ‘Paths into irregularity: The legal and Political construction of irregular migration’, European Journal of Migration and Law, 13 pp. 275-295.

7 See, for instance, A. Desmond (2016), ‘The development of a Common EU Migration Policy and the Rights of Irregular Migrants: A Progress narrative?’, Human Rights Law Review, 16(2) pP- 247-272.

8 See, for instance, S. Chauvin, B. Garcés-Mascerenas, and A. Kraler (2013), ‘Working for Legality: Employment and Migrant Regularization in Europe’, International Migration, 51(6). 9 Thisis at least the case in the Netherlands today and, to our knowledge, in most EU countries, although the legality of a job contract in case of illegal employment of irregular migrants, and thus the protection offered through labour laws, has been contested; see, for instance, A. Bogg (2013), ‘The immoral trap: migrant workers and the doctrine of illegality’, in B. Ryan (ed.), Labour migration in hard times: reforming labour market regulation?, Institute of Employment Rights; E. Dewhurst (2011), ‘The Right of Irregular Immigrants to Outstanding Remuneration under the EU Sanctions Directive: Rethinking Domestic Labour Policy in a Globalised World’, E/ML, 13(4) pp, 389-410.

1612/68/EC explicitly mentions in its preamble the ‘social advancement’ of the worker as one of the aims of free movement of workers. Whereas Regulation 1612/68 allowed for a protection of the national labour market in the EU context, the social advancement was never used as an aim and subsequently abolished in the Regulation 492/2011, tipping the balance of interests involved towards the interests of employers and their need for work force over the migrants’ interest in ‘social advancement’ through working elsewhere in the EU. A similar process occurred when adopting and negotiating the Posted Workers Directive (PWD). Framing posting of workers under the free movement of services and choosing this as the sole legal basis for the PWD, the position of posted workers was dealt with under the freedom to provide services. Regardless of the (limited) protection clauses adopted in the PWD to guarantee minimum rights to posted workers, the PWD diminished their position.” In relation to the free movement of services, the Services Directive was adopted in 2006.” Because the risk of social dumping” was considered too high when the ‘country of origin’ principle was applied, this was not included in the directive. Other measures to protect service providers were, however, not included. According to Article 14, Member States are prohibited to make the provision of services conditional to nationality or residency requirements of the providers and other conditions, making it nearly or practically impossible for service providers from other Member States to provide services in that Member State. Article 15 explains which conditions can be imposed that are not discriminatory to service providers from other EU Member States. This volume shows how this directive is creatively applied, e.g. through letter box firms, to increase financial profits to the detriment of the position of the (migrant) service provider.'*

Current political debates on the free movement of workers and services, on the one hand highlight how intra-EU mobility is strongly supported at the EU level and considered ‘one of the unfulfilled promises of the EU’. On

10 Directive 96-71-EC of 16 December 1996 concerning the posting of workers in the framework of the provision of services, OJ 21/1/1997, L 18/1.

11 See Chapter 3 by Houwerzijl and Schrauwen in this volume.

12 Directive 2006/123/EC of12 December 2006 on services in the internal market, OJ 17/12/2006, 1376/36.

13 Although social dumping has not been defined it is understood as a set of unfair and uncompetitive practices aimed at gaining (monetary) advantages which could have negative consequences for economic processes and workers’ social security.

14 See, for instance, Chapter 4 by Cremers and Dekkers in this volume.

15 J. Donaghey and P. Teague (2006), ‘The free movement of workers and social Europe: maintaining the European ideal’, Industrial Relations Journal, 37(6) pp. 652-666.

the other hand, host states are rather ambivalent and may consider the use of free movement of workers and services by nationals from new Member States as a threat rather than a potential benefit. Although, for a long time, these free movement rights led a dormant life, they became actively applied after the last two enlargements of the EU, and especially after the restrictions towards these freedoms were abolished. High unemployment rates in host Member States and perceived use or abuse of the social benefits have now led to a negative image of EU workers.’ The differences in wages, labour conditions, and opportunities to work throughout the EU are a constant incentive for people living in the EU where wages and conditions are low, to try to improve these in other EU Member States where wages and labour conditions are high. From an employer’s perspective, free movement creates opportunities to lower labour costs either by using service providers from other, low-wage EU countries or by moving the business to such countries. This creates a continuous tension on the one hand between the economic benefits of free movement of workers and services, and, on the other hand, upholding labour rights standards.

In legal and political discourse, there is a strong claim that open labour markets should be accompanied by enhanced labour standards or stronger EU social policy.” The lack of full competence at the EU level in the field of social policy makes it more difficult (not to say impossible) to adopt and include social safety nets in regards to the free movement of workers and services. This is called the problem of the ‘Social deficit’ of the EU construction. The competition between economic freedom and fundamental social rights includes the risk of a race to the bottom in terms of labour rights. Moreover, Achtsioglou and Doherty argue that a lack of correspondence of EU declarations on social values, ‘without an expansion of the EU’s competences within the social field, any social objective will remain simply declaratory’. Recent developments amending the posting of workers directive to guarantee ‘equal pay for equal work’

16 Editorial Comments (2014), ‘The free movement of persons in the European Union. Salvaging the dream while explaining the nightmare’, Common Market Law Review, 51 pp. 729-740.

17 J. Donaghey and P. Teague, p. 662. In November 2017, the so-called ‘pillar of social rights’ was signed, proposing a decent labour market for EU citizens, not mentioning resident non-EU nationals though. Available at: https://ec.europa.eu/commission/priorities/deeper-and-fairer-economic-and-monetary-union/european-pillar-social-rights/ european-pillar-social-rights-20-principles_en.

18 E. Achtsioglou and M. Doherty (2014), ‘There must be some way out of here: The Crisis, Labour Rights and Member States in the Eye of the Storm’, European Law Journal, 20(2) pp. 219-240.

may be perceived as an example of a move in a more social direction.’ The directive focusses on enforcement of social norms to prevent social dumping. Donaghey and Teague on the other hand conclude that practices of social dumping and wage dumping as a consequence of open labour markets is not widespread nor supported by solid evidence. The threats to national social security as expressed by some ministers in the EU Member States have not been sufficiently supported by quantitative data, they argue.”° We remark that it cannot be denied that corporations, temporary work agencies, as well as self-employed persons and companies hiring migrant workers have shown great ingenuity in circumventing rules of equal treatment covering migrant workers albeit, often through legitimate legal constructions.

Besides circumventing behaviour and the ‘social deficit’, a third aspect complicating the application of the free movement of workers and services is the issue of defining work relations. It is not always clear when a person is posted, or working by means of hiring out, or when a person is a worker, (bogus) self-employed person, or service provider. The providing of services, either as (bogus) self-employed person, posted worker, or through transnational temporary work agencies, has been widely used and abused. This has led to a variety of constructions in which minimum wages are not paid, access to social benefits is denied, people are dependent on their employer or agency while they officially work as a self-employed person, and thus do not receive minimum wages nor benefit from collective agreements and protection regimes for workers.” For each of these different types of workers a different legal regime exists with different rules on limitations to the freedoms that can, and do, create incentives to frame a labour situation according to the regime with the most opportunities to limit equal treatment and to maximise profits.

19 Available at: http://www.europarl.europa.eu/news/en/press-room/201710161PR86114/posted-workers-better-protection-and-fair-conditions-for-all. Also see Chapter 3 by Schrauwen and Houwerzijl in this volume.

20 Letter sent in April 2013 by the UK Home Secretary and her Austrian, German, and Dutch counterparts to the President of the Justice and Home Affairs Council regarding the strain on services and national welfare systems posed by the free movement of Union citizens and the response of Czech, Hungarian, Polish, and Slovak ministers, in December 2013, highlighting the beneficial nature of such movement for host Member State economies.

21 J. Cremers, J. Dølvik, and G. Bosch (2007), ‘Posting of workers in the single market: attempts to prevent social dumping and regime competition in the EU’, Industrial Relations Journal, vol. 38(6) pp. 524-541.

16 TESSELTJE DE LANGE AND CONNY RIJKEN Labour Migration to the EU

Apart from intra-EU mobility, people move from third countries to the EU as well. The legal regime on migrant workers from outside the EU — non- EU nationals also called third-country nationals (TCN) — coming to live and work in the European Union Member States, is laid down in title V of the Treaty on the Functioning of the EU (TFEU), on the areas of freedom, security, and justice. This title of the TFEU includes a chapter on border check, asylum, and immigration policies. As far as relevant for this volume, Title V states that the EU shall develop a common policy on visas and other short-stay residence permits. Furthermore, it shall develop a common policy on asylum, subsidiary protection, and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. It shall set the standards concerning the conditions for the reception of applicants for asylum or subsidiary protection. Finally, it shall develop a common immigration policy aimed to ensure, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking of human beings. In this respect, measures shall be adopted regarding the conditions of entry and residence and combating both illegal immigration and unauthorised residence and trafficking of persons. Furthermore, the Member States remain free to set conditions and admission quotas of third-country nationals coming from outside the EU to seek work, if not covered by the specific EU directives.

Based on these TFEU provisions, the EU has concluded several Directives with specific relevance for labour migration. These are the Single Permit Directive 2011/98/EU aiming at efficient entry procedures but not setting any criteria for admission.”? Both migrants admitted for reasons of work, and working though admitted for other reasons, fall within the scope of this Directive and are entitled to equal treatment with nationals.?3 Only one EU Directive sets standards for migration into lower skilled jobs, this is the

22 Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State, official Journal L 343.

23 See: A. Beduschi (2015), ‘An empty shell? The Protection of Social Rights of Third Country Workers in the EU after the Single Permit Directive’, in P. Minderhoud and T. Strik (eds.), The Single Permit Directive: Central Themes and Problem Issues, Oisterwijk: WLP.

Seasonal Workers Directive.*4 This Directive sets entry conditions, sanctions for employers who do not abide by the rules, and an equal treatment right for the workers, but grants no right to family reunification, for instance. In contrast, however, there are numerous directives covering sectors with highly skilled labour migration, an area of migration where political agreement is easier to reach.” The first was a directive for the admission of scientists, the Scientific Researcher Directive, which was subsequently assimilated into a directive for the admission of foreign students and scientists.”° Researchers may teach in addition to conducting research as long as research remains the primary task. Next came a directive for highly qualified and highly remunerated migrants, the European Blue Card Directive.” This directive, which is currently under review, is only widely used in Germany. Relatively new is the Intra Corporate Transfer (ICT) directive.”° The ICT directive regulates admission in the event of intra-group transfers of managers, specialists, or interns for a period of more than go days. The legal status of migrant workers and their family members transferred under this Directive is very similar to that of seconded workers under the Posting of Workers Directive and is not equal to the position of nationals. Like the Seasonal Workers Directive, it only allows for temporary labour migration.”9 Finally, there is the Employers’ Sanctions Directive, which stipulates that EU Member States are obligated to punish employers who hire third-country nationals who have not been granted a lawful right of residence and/or work permit.” In addition, and important for our discussion, the Employ-

24 Discussed in this volume by Zoeteweij and Herzfeld Olsson (Chapters 5-6).

25 A.A. Caviedes (2010), Prying open Fortress Europe. The turn to Sectoral Labour Migration, Lexington Books.

26 Directive 2016/801/EU of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes, or educational projects and au pairing (recast), Official Journal L 132/21.

27 Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, Official Journal L 155/17.

28 Directive 2014/66/EU of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer, Official Journal L157/1.

29 C.Costello and M. Freedland (2016), ‘Seasonal Workers and Intra-corporate Transferees in EU Law: Capital’s Handmaidens?’ inJ. Howe and R. Owens (eds.), Temporary Labour Migration in the Global Era. The Regulatory Challenges, Hart Publishing; T. de Lange and S. van Walsum (2014), ‘Institutionalizing temporary labour migration in Europe; creating an “in-between” Migration Status’, in L.F. Vosko, V. Preston, and R. Latham (eds.), Liberating Temporariness? Migration, Work, and Citizenship in an Age of Insecurity Liberating Temporariness? Migration, Work, and Citizenship in an Age of Insecurity, McGill-Queens University Press.

30 Directive 2009/52/EC of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals, Official Journal L 168/24.

ers’ Sanctions Directive also provides that Member States must provide a certain degree of protection for illegally employed foreign nationals. The European Commission concluded in its review of the Employers’ Sanctions Directive that the level of protection offered to illegally employed TCN by the Netherlands, as well as by a number of other Member States, is not yet adequate." Other EU Directives deal with different kinds of migration rather than labour migration, such as family reunification, long-term residence’? or asylum-seeking, and set standards for labour market access for non-EU nationals as well. But for the right to work of asylum seekers, as discussed by De Lange in this volume (Chapter 7), these other directives remain untouched here. Although Directives include the obligation to provide for a certain level of equality, not all migrant workers are to be treated equal to nationals of the receiving EU Member States.33

This legal framework — together with the labour, tax, or social security laws of the country where a job is performed — creates the legal regime applicable, and defines the position of the migrants, both EU nationals and TCN, on the labour market in the receiving Member States.

The Concept of Decent Labour in a Decent Labour market

Given this fragmented legal framework and using the position of the migrant worker to look at it, what challenges can be identified? Labour lawyers, migration scholars, and political theorists have delved into these themes, compartmentalising the topics and/or groups, looking at intra-EU mobility, (temporary) labour migration, labour exploitation, integration, undocumented migrants, or seasonal workers. A sound ‘solution’ doing justice to all categories of migrant workers and their specifics may not exist, but we depart from the normative stance that, if a better balance can be struck between interests of all labour market actors, a more decent labour market can be created.

So how do we define decent work and does decent work imply a decent labour market? Decent work takes place on the individual level and, as such, fits the perspective chosen in this volume, namely the perspective

31 See Chapter g by Berntsen and de Lange in this volume.

32 Onlabour mobility within the EU oflong-term residents, see L. Della Torre and T. de Lange (2017), ‘The “importance of staying put”: third country nationals’ limited intra-EU mobility rights’, Journal of Ethnic and Migration Studies, DOI: 10.1080/1369183X.2017.1401920.

33 B. Friðriksdóttir (2016), What happened to Equality. The Construction of the Right to Equal Treatment of TCN in EU Law on Labour Migration, (PhD Thesis) Radboud University Nijmegen.

of the migrant worker. A decent labour market refers to the way in which the labour market is organised, namely in such a way that it stimulates decent work and diminishes elements that facilitate or allow practices that are detrimental to workers, including migrant workers. We look at the International Labour Organisation (ILO), EU Social Charter, and EU Directives for further guidance. The ILO description of decent work reads:

Decent work sums up the aspirations of people in their working lives. It involves opportunities for work that are productive and deliver a fair income, security in the workplace and social protection for families, better prospects for personal development and social integration, freedom for people to express their concerns, organise and participate in the decisions that affect their lives and equality of opportunity and treatment for all women and men.3*

Overall, we see neither specific policy aims nor practices that actually implement this broad definition of decent labour, especially not for migrant workers. For instance, long-term perspectives or vocational training for migrant workers are rarely established. Although the Seasonal Workers Directive requires equal treatment with respect to vocational training, few, if any, EU countries facilitate a future career for their seasonal workers other than, maybe, a fast-track visa procedure, once again, for seasonal work.35 A decent labour market protects migrant workers against exploitation and offers them opportunities according to their abilities.3° As such, labour market policies must facilitate equal and fair participation of all migrant workers, including those in low-waged jobs. Throughout this volume, situations, regulations, and abuses are identified that undermine a decent labour market.

If we look at the EU legal framework, this directs us to the European Charter of Fundamental Rights. Article 14, for instance, states that Everyone has the right to education and to have access to vocational and continuing training. Vocational and continuing training are typically investments employers make in their workers to encourage commitment. State-run or financially backed training provided to temporary low-waged labour

34 Available at: http://www.ilo.org/global/topics/decent-work/lang--en/index.htm.

35 Chapter 8 by Rijken in this volume.

36 A. Sayer (2009), Contributive Justice and Meaningful Work, Department of Sociology, Lancaster University, Lancaster; S. Bolton, K. Laaser, and D. Mcguire (2016), ‘Quality Work and the Moral Economy of European Employment Policy’, JCMS, 54(3) pp. 583, 598 DOI: 10.1111/jcms.12304.

migrants (and to citizens performing these jobs as well) could add to building a sustainably decent labour market with workers’ career perspectives in both the receiving and sending countries.2’ Article 15 of the Charter on the Freedom to choose an occupation and the right to engage in work starts by saying that ‘Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation’ (emphasis added). But this freedom is, in practice, restricted for labour migrants, low-waged or not, in case their admission for reasons of employment is tied to a specific employer. If they chose to work somewhere else, without the required permission, they fall into irregularity. So far, this has not been interpreted to mean that tying a migrant to an employer through a work permit, common in almost all labour migration regimes, is in conflict with the Charter or must be considered as illegal. However, it has been argued by scholars that it increases vulnerabilities to abuse and exploitation.* In the final paragraph, article 15 reads ‘Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union’. But how decent is the labour market if TCN seasonal workers must be treated equal to citizens, while EU nationals sent across internal borders, through posting, to perform a service, are not? Here, we support the view that a decent labour market in low-waged sectors can only be achieved in a sustainable manner if the ‘mission statement’ of the ILO that labour is not (merely) a commodity, is taken seriously for all (local, migrant, and posted) workers alike.