Improving access to protection and remedy for human trafficking victims for the purpose of labour exploitation in Belgium and the Netherlands

ILO-Brussels has launched a technical study examining access to protection and remedy for victims of human trafficking for the purpose of labour exploitation in Belgium and the Netherlands. Both countries recently ratified the ILO Protocol Forced Labour which emphasises in particular the access to protection and remedy for victims of forced labour and human trafficking. We interviewed Irene Wintermayr and Amy Weatherburn, authors of the study.

News | 20 May 2021

Why did you undertake the study?

Our motivation for the study goes back to personal experience in a Brussels shelter for human trafficking victims. Through our volunteering in the shelter, we got to know better several of the victims staying there. In informal conversations on their hopes and fears for the future, we learned that for many of them, it was not clear whether the investigation into their case would continue. This was of great concern to them. Dismissal of a case usually means withdrawal of victim status and its associated rights including a work and residence permit. We wanted to know: what kind of avenues for access to protection and remedy do such persons have. These are persons that have clearly been exploited and who may have been initially identified as a human trafficking victim but who over the course of the investigation lost their victim status.

What were some your main findings?

We found that in terms of access to protection there are not really any formal structures in place other than those available under the human trafficking procedure. With regard to remedy on the other hand we found several avenues in both countries. These include claiming compensation (such as back wages or damages) in criminal proceedings (other than human trafficking) or launching proceedings in civil or labour courts. We also examined state-operated compensation mechanisms for victims of violent crimes, for workplace accidents or insolvency of the employer. However, we found that there are numerous barriers preventing effective access to these avenues in practice. The support and expertise of specialised NGOs and trade unions in making use of them is indispensable.

In the study, you examine in particular the role of labour inspectors in providing access to protection and remedy. Why are they important actors in this context?

As labour inspectors carry out unannounced workplace inspections and are competent to interview workers, they are ideally placed to detect victims. Situations of labour exploitation are often not evident at first sight and whether or not a victim is detected may depend on labour inspectors’ capacity to recognize the signs indicating a human trafficking situation. Both countries have specialised labour inspection units which have been trained to detect victims of human trafficking. We also found that the inspection report and the quality of information it contains (e.g. about the particular working and living conditions a potential victim was found in), can have a significant impact on a potential victim’s access to protection and remedy as it constitutes important evidence in a case.

In both countries, labour inspectors also play an important role in providing access to remedy such as in the recuperation of back wages or social security contributions. For instance, in Belgium, labour inspectors can retroactively formalise an employment relationship for the duration a person worked for an employer, thus opening access to parts of the social security system.

However, in both countries, there is a risk that immigration concerns overshadow the right to remedy of workers in an irregular situation. In Belgium, labour inspectors have a formal duty to report such workers to immigration authorities, whereas in the Netherlands joint inspections with specialised police units competent on trafficking and immigration takes place. Workers then receive deportation orders, without having the chance of claiming remedy for violations suffered (e.g. any back wages).

You also examined the role of trade unions in this context in both countries. Could you elaborate on your findings?

Trade unions play a critical role when it comes to protecting workers’ rights and ensuring decent working conditions for all workers. However, in the anti-trafficking context their visibility appears not to be well-developed. Nevertheless, we found several important examples which demonstrate the role trade unions can play in the detection of potential victims and in facilitating their access to remedy. For instance, the Dutch FNV-VNB seeks to ensure compliance of employers with applicable collective agreements in the transport sector and reaches out to potential victims pro-actively such as by visiting them when they are resting in motorway car parks for lorries. This is important as for many of these workers, it is nearly impossible to seek out help as their working conditions often severely limit any opportunities they may have to report exploitation to authorities. As many victims are not affiliated to a trade union, they do not benefit from the important services unions offer. Importantly, the Brussels branch of the CSC-ACV trade union has a weekly helpdesk open to all workers and provides the opportunity for workers in an irregular situation to join with a special membership fee to benefit from all services including legal assistance.

What do you hope to achieve with the report?

We hope that the key findings, good practices and action points will feed into reflection processes in both countries and beyond and contribute to the improvement of protection and remedy for (potential) victims of human trafficking for the purpose of labour exploitation everywhere.