Illegal employment by third country nationals is a reality in Luxembourg. However, as well as in the case of grey and informal economy, it is rather hard to grasp or quantify to which extent. Nevertheless, the problem is not as significant as the one of the posted workers which is more relevant and worrisome and needs to be situated in the context of a labour market of the Greater Region.
In the past, several labour related regularisation measures have been implemented in Luxembourg in order to provide both employers and employees the possibility to regularise situations of illegal employment. The last labour related regularisation measure was implemented in early 2013 in the context of the transposition of the Employers' Sanctions Directive 2009/52 by law of 21 December 2012. During this regularisation, the Directorate of Immigration received 664 applications. These regularisations give a partial indication of the extent of the phenomenon, even though these numbers do not provide a real picture of the problem because the conditions of this regularisation were very strict and in a very short time frame (less than two months) and a certain number of irregular migrants’ workers were not willing to expose themselves by applying and preferred to remain undetected. This regularisation also provided information on the main sectors were the phenomenon is found in order of importance: HORECA, cleaning, crafts, industry and construction. The Ministry of Labour, Employment and Social and Solidary Economy at the end of the regularisation has insisted in the need to increase the number of controls to employers. The law of 21 December 2012 established administrative as well as criminal sanctions for employers who illegally employ irregularly staying third country nationals, particularly in relation to offenses to the Labour Code in aggravating circumstances. This law amended also article 89 of the Immigration Law abrogating the possibility of making labour related regularisations.
The Inspectorate of Labour (‘Inspection de Travail et des Mines’, hereafter called ITM), which is in charge of labour inspections and the control of illegal employment of TCNs in Luxembourg, is currently going through a restructuring phase following the latest audit of this administration from January 2015. Particularly the current insufficient number of staff of the ITM, which is in need of a significant short term increase of staff, represents a main challenge in the field of illegal employment in Luxembourg. It is also in the context of this restructuring phase of the responsible administration that the drafting of this study presented a number of challenges, especially in relation to the operational and statistical part of the template.
The information regarding the conditions to be fulfilled by both the employers and the employees in the context of an employment relationship are available on the website of the concerned authorities. Furthermore, they are disseminated by the NGOs working in the field, even though there are no specific campaigns targeted to prevent illegal employment of TCNs. The matter was raised in the context of the ‘social identification badge’, which was introduced in 2013 in order to fight against social dumping in particular in the construction sector. One national stakeholder suggested that the ‘social identification badge’ could be revised and adapted to other economic sectors in order to better monitor and prevent illegal employment.
In regards to access to justice and enforcement of rights of illegally employed TCNs, Luxembourg foresees the right for illegally employed TCNs to make a claim against their employer, including in cases in which they have, or have been, returned. This claim falls under the general provisions concerning the right to bring a case before civil courts. The Labour Code establishes that the employer who has employed an irregular staying third-country national must pay to the third-country national the following amounts: 1) salaries and any other emoluments, which a similar employee would have benefited for the same employment; 2) the total amount of outstanding remuneration as well as the cost of the transfer of these amounts to the third-country national to the country to which s/he is returned; 3) the total amount of unpaid social contributions and taxes, including administrative fines, as well as, court and legal fees. In addition, the Labour Code establishes that the third-country national who has been illegally employed before the execution of any return decision has to be systematically and objectively informed by the control agents of his/her rights to recover the outstanding remunerations and back payments, as well as the right to benefit from free of charge legal aid in order to attempt a recovery action against the employer, even if the third-country national has already been returned.
Labour unions can support and assist TCNs in legal proceedings related to social and labour law, provided that they have been given a mandate to do so. Eventual costs of administrative and civil proceedings can be taken in charge by the labour unions if the TCN is a member of the respective labour union.
The Law does not establish fines against TCN’s who were illegally employed. The TCN may be issued a return decision and lose his/her residence rights; however, the Directorate of immigration processes these situations on a case-by-case basis and inform the persons concerned to terminate the illegal employment situation.