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Undocumented work (by foreigners) and sanctions. The situation in Italy

WP C.S.D.L.E. “Massimo D’Antona”.IT – 321/2017

This essay reproduces the report presented at the EUROMED Seminar, Turin, 16-17 September 2016. The Italian version that will be published on Lavoro e diritto n. 1/17. The reflections presented in this contribution were developed with the support of the project PRIN 2010-11 LEGAL_Frame_WORK, financed by Decree of the Italian Ministry for Education, Universities and Research of 23 October 2012 and refer to: L. Calafà, Lo sfruttamento lavorativo oltre le migrazioni: percorsi di ricerca (volume edited by D. Gottardi, LEGAL FRAME WORK, 2016, Giappichelli, p. 159 ) and in L. Calafà, Immigration and labour policies: paradoxes of the European Union, in N. Bodiroga-Vukobrat, V. Tomljenovic, G. G. Sander (Ed.) Transnational, European and National Labour Relations, Springer, 2016, forthcoming.

The author deals with the issue of undocumented work (by foreign nationals) focusing specifically, as the title suggests, on the domestic rules in this area, but without forgetting that – after the adoption of the Lisbon Treaty – we are living in a period of strict implementation of EU law. The legal reflections are accompanied by a constant reference to the academic literature which is increasingly being published in this area and which has expanded considerably in recent years (with different characteristics within the new and traditional immigration countries).
After setting out – in the introduction – the characteristics shared between the various countries from the Mediterranean area and noting the existing multi-level governance, the paper will focus on Directive 2009/52. This Directive offers a framework for viewing the most important legal questions raised by undocumented work (by foreign nationals).
This includes in particular: a) the question regarding the concept of an undocumented foreign worker; b) the various sanctions applicable in Italy (for both employers and employees); c) the issue of a worker's supervening undocumented status; d) questions related to access to justice by undocumented foreign workers (especially if a victim of serious exploitation) and finally e) the exploitation of self-employed labour, a situation which is difficult to punish, and the relevance of which is not limited solely to migrant workers.

author(s): Calafà, Laura
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