Arbetsrättsligt skydd och tillgång till rättskipning för papperslösa arbetare. Rätt till lön, föreningsrätt och diskrimineringsskydd i konflikt med migrationsrättsliga bestämmelser

Sammanfattning: The thesis analyzes whether undocumented workers successfully can assert three labour law rights – the right to remuneration, the right to organize and the right to protection from discrimination – against their employer. The first research problematic concerns the scope of labour law for undocumented workers: "Does the rights apply to undocumented workers, and if so, to what extent and in what way does migration law affect the applicability of the rights of undocumented workers?". The second issue deals with access to justice: "What are the obstacles and what opportunities exist for undocumented workers access to justice?“. The purpose of the thesis is to highlight the applicability of labour law for undocumented workers and to discuss the issue of access to justice with respect to both migration law and labour law, the organization of the labour market and the agency of undocumented workers. In chapter two undocumented workers are set in the legal context. Undocumented migrants lack residence permits in Sweden and are not entitled to work. Employers hiring undocumented workers may face penalty and fines. Also the employee risk penalty. Migration law also creates a risk of deportation and detention for the undocumented worker. The risk of deportation effect undocumented workers’ access to justice. Chapter three positions the undocumented worker in international law and the applicability of human rights for workers. Chapter four interprets cases from the Swedish Labour Court which deal with labour law issues relating to undocumented migrants employment, and the conflict that exists between migration law and labor law. The legal system does not uphold undocumented workers employment since they are criminalized, with consequences for the employment rights. The chapter also contains a brief review of the right to judicial process. Chapter five, six and seven discuss how migration law affects, in turn, the right to organize, the right to remuneration and the right to protection from discrimination for undocumented workers. In parallel, the thesis discuss how access to justice is restricted or enabled by the risk of deportation, the lack of protection of the employment and the practices of social organizations (trade unions, the governmental Ombudsman against discrimination, anti-discrimination agencies). Conclusions Undocumented workers are included in the legal definition of the employee, but the prohibition of undocumented workers employment, expressed in the Aliens Act, undermines the protection that labor law provides other employees. When undocumented workers unionize or in other ways find support from documented persons or organizations, this has a major impact on undocumented workers access to justice. Through this support undocumented workers can take a less prominent role in both industrial action, negotiation or in court, which counteracts the risk of deportation. Trade unions can also help with legal knowledge and financial means to litigation. Therefore the unions’ and other actors’ attitudes toward undocumented workers and their rights play a prominent role for undocumented workers’ access to justice.