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Details have emerged on how some large companies based in European countries are unlawfully employing third-world nationals through subcontractors resulting to human trafficking and exploitation.

The trend, which intensified during the Covid-19 outbreak in 2020, is widely reported in catering and tourism, agriculture and forestry and construction sectors. Authorities have also identified van delivery services as another sector gaining prominence in unlawful work.

A recent study conducted in Austria showed that undocumented male workers from developing countries were mainly employed in the construction and hospitality sectors, while undocumented female workers worked in cleaning and in private households as well as in the hospitality sector.

Other sectors under scrutiny are security services, event management and demolition work where many workers are usually needed for several days at short notice and the work only requires a low-skilled workforce with no permanent employment terms.

The report said that this work involves a significant number of third-country nationals because there are not enough workers in Austria and the companies employing these people hope that the work will be concluded before the authorities can carry out any checks.

The study revealed that the extent and prevalence of unlawful employment varies depending on whether it involves private households or companies, on the size of the company and on the particular sector of the economy adding that in all cases, there are employers who are willing to circumvent regulations and take advantage of the workers.

Though the report does not expose the countries of origin of the affected workers, its revelations come at a time when the Kenyan government is jubilated by the growth of diaspora remittance currently at more than Sh4 billion.

This new found foreign currency earner which has now overtaken traditional sectors including tourism, coffee and tea sector combined could point to a possibility that Kenyans fleeing from unemployment back home could be affected by the labour migration malpractice in the Schengen states.

“Unlawful employment in Austria does not usually take place at large companies directly since they have good risk management and appropriate Information Technology systems in place to prevent cases of unlawful employment.

 In the experience of the Financial Police, large companies, therefore, often outsource the risk and the (potentially unlawful) employment of foreign nationals is handled via subcontractors,” the study conducted by the European Migration Network (EMN) said.

It adds: “This means that labour is bought in, preventing any unlawful conduct from being attributed to the company itself. If necessary, the sub-contractor is dissolved under company law and a new sub-contractor is founded, which results in any previous convictions disappearing with the insolvency.”

The report explains how the Covid-19 pandemic sparked public debate in Austria over the precarious employment conditions of migrant temporary workers which included an increased amount of overtime, poor hygiene standards, racism and threats of dismissal if an employee took sick leave.

According to EMN, since 2016/2017, no new prevention measures to prevent unlawful employment have been introduced that specifically target employers or third-country nationals. This is due to the fact that the existing measures are considered to be sufficient by Austria’s Federal Ministry of Labour and Economy.

“The spectrum of ways in which the workers are exploited is wide and can range from underpayment and other forms of wage and social dumping to human trafficking. Labour exploitation can also be a form of human trafficking. This is the case if persons receive no or inadequate remuneration for their work for a prolonged period, or if their working hours or conditions are excessively long or unreasonable,” the report explained adding that such cases have increased in Austria in recent years.

EMN puts unlawful employment in three categories, including where third-country nationals regularly reside in the country but engage in undeclared work. Second, third-country nationals regularly reside in the country but work outside the conditions of their residence permit or without the approval of the labour market authorities. Third, third-country nationals irregularly stay in the country and engage in undocumented work.

In Austria, an employee cannot be penalized for unlawful employment but may suffer consequences under alien law for unlawfully employed foreign nationals.

However, the employer is sanctioned in cases of unlawful employment. This may involve, the employment of a third-country national who has not been declared to the social insurance system as required or does not have the corresponding approval of the labour market authorities or residence permit.

The repercussions of unlawful employment to a culpable employer include exclusion from public contracts and funding, withdrawal of business licence and denial of entitlement to a work permit by the government.

Third-country nationals who do not have free access to the labour market require an official permit to take up gainful employment in Austria. An employer may only employ third-country nationals as per the Act Governing the Employment of Foreign Nationals, if the third-country national has a valid permit for this employment or if the employer has been granted an official permit (work permit, posting permit or confirmation of notification) for the specific third-country national.