Conceptualización jurídico-laboral del tráfico ilegal de mano de obra

Abstract

This research examines the conceptualization held by the labour doctrine and existing jurisprudence on illegal cession or illicit trafficking of labour (art. 43. 2, 3 and 4 ET). According to the doctrine, this activity can be prosecuted as an offence of unlawful trafficking in labour, as defined in art. 312.1 CP. On the other hand, for scientific criminal doctrine, the offence of illegal trafficking in labour sanctions, in addition to the illegal cession of labour, employment outside legal mechanisms. With regard to the interpretation of this issue by the corresponding judicial bodies, while jurisprudence exists within employment law for offences covered by criminal law, there is currently no corresponding jurisprudence within criminal law. We analyse this problem in order to find answers and provide solutions. The aim of the present research is to determine, in a globalised world where productive decentralization is a widespread phenomenon, what illegal labour trafficking is with a view to providing guidelines for legal operators and to clearly delineate the typical conduct of such an offence so that it can be prosecuted and punished appropriately. In doing so, two of the disciplines within the Spanish legal system, employment and criminal law, are combined in a single focus, illegal trafficking in labour, on the understanding that this protects a set of interests that affect the security of working relations, which ought to be effectively protected by the labour and penal systems, given their relevance to maintaining a “state of well-being”. Illegal intermediation has a direct and indirect impact on the labour market, as well as on workers’ rights, since the trust and integrity of working relations are broken by the intrusion of a new actor who fraudulently interferes with the employment relationship. It is necessary, therefore, to contextualize the present study within the framework of the requirements of the social and democratic State of Law, in the terms of art. 1.1 CE. In order to achieve the aforementioned objective, we refer to the labour and penal doctrines that analyse the illegal trafficking of labour, and to the resolutions on illegal trafficking of labour, employment outside the legal mechanisms (employment intermediation without reporting the activity to the relevant employment service) and illegal transfer of labour, using a mixed quantitative and qualitative methodology, given its scientific contribution to the study of legal facts and consequences for people, in our case, related to employment law. For the analysis of the new academic realities and challenges that we face in a globalised, changing and interdependent society, methodological complementarity is essential. The data obtained from the sentences examined raise the following questions: if in 2010 article 177 bis on human trafficking is introduced into the Penal Code, and indeed one of the points covered is labour exploitation, why is illegal trafficking in labour covered by Article 312.1 of the Penal Code not effectively prosecuted? In order to find answers, we decided to interview professionals related, in one way or another, to illegal or unlawful trafficking in labour. To do so, we use qualitative methodology, a humanistic-interpretative perspective, with a naturalistic-phenomenological base (interpretative paradigm), that is to say, we focus on the knowledge of reality and of the possible causes that have led to the current situation. We conclude the doctoral thesis with the conclusions which highlight the inadequate application of the penal precept under analysis. Effectively, this means that to date no sentence has actively condemned an alleged case of illegal transfer of labour or illegal brokering, since criminal law interprets the illegal trafficking of labour as involving exploitation of the worker, which departs from the offences described in the employment laws examined (arts. 5(c) RDAC and arts. 7.1(b) and 33.4(b) Lemp, concerning irregular employment intermediation; and, art. 43 ET, regarding the illegal trafficking of labour), as well as the criminal legislation itself, which has a precept, 177 bis CP, on human trafficking, which aims to pursue labour exploitation.