The United Nations Special Rapporteur on the right to food, Hilal Elver, on her visit to Italy in January 2020, outlined the issue of ‘caporalato’ as one of the main priorities of the Italian agricultural sector. But which are the challenges for women?

Gender demographics in Italy

According to the Italian National Institute of Statistics (ISTAT)’s 2019 SDG Report, poverty and inequalities in Italy remain steady but are high compared to other countries.[1] In this context, the figure of ‘caporale’ finds fertile soil. The so-called caporale is ‘an individual who goes beyond the role of recruiter on behalf of local producers,’  organizing and controlling a workforce for seasonal fruit and vegetable labours. He creates an unlawful exploitative system known as ‘caporalato’ which is characterized by physical and psychological violence, intimidating practices, threats and sexual harassment. Historically rooted in certain southern regions (Sicily, Apulia, Calabria, Basilicata and Campania), the phenomenon of caporalato is now widely diffused in Italy, a country where women are particularly impacted by the high unemployment rate (11,8 per cent versus 9,8 per cent for men, according to ISTAT),  meaning that they are at higher risk of labour instability, low incomes, social exclusion, poverty and a lack of social protection.[2]

According to Flai-Cgil’s report, in 2016, of workers who were victims of caporalato, 42 per cent were women. Moreover, Oxfam has revealed that women are paid 20 to 30 per cent  less than men performing equivalent tasks and are more likely to experience the most odious forms of extortion and violence, especially if they are migrant workers.

Legal instruments to fight caporalato in the Italian legal order

Back in 1999, when the Council of Europe’s Anti-Trafficking Convention was far from being discussed, Italy introduced the principle of unconditional assistance for migrant workers, either EU or non-EU citizens, and victims of violence and severe exploitation: article 18 of Legislative Decree No. 286/1999221[3] provides rightsholders with ‘a long-term programme of assistance and social integration, as well as with a residence permit for humanitarian reasons.’  

Another milestone in the fight against exploitation came in 2016, when the Italian government enacted a Law on countering undeclared work and labour exploitation in the agricultural sector.[4] Strongly advocated by Italy’s largest trade unions, the law substantially amended the Italian Penal Code by improving criminal persecution of illicit intermediation and work exploitation and imposing monetary sanctions and confiscation of lands for wrongdoers.[5] With this law, victims of caporalato have been finally recognized as eligible for assistance under the scope of the above-mentioned article 18.

Additionally, Italy was one of the first European countries to enact a law on social agriculture,[6] placing agriculture at the forefront of the debate on human and social development. The innovative aspect of the law consists in recognizing that agribusiness entrepreneurs and social cooperatives can play a worthwhile role in rural and marginalized areas and in converting them into the operational harms of the government to delivery welfare policies in such areas. [7]

Now, the question arises as to whether these legal tools are sufficient to mitigate the differentiated and disproportionate impact of caporalato on women.

Gender dimension of the Guiding Principles on Business and Human Rights

In May 2019, the Working Group on the issue of human rights and transnational corporations and other business enterprises submitted a report to the Human Rights Council on the Gender dimension of the Guiding Principles on Business and Human Rights (UNGPs). The report acknowledges that women usually face heightened forms of discrimination and additional barriers when it comes to seeking remedies, due to widespread patriarchal structures of power, chauvinistic social customs and stereotypes. To mitigate these negative impacts, the report provides guidance to interpret the UNGPs through a gender lens, using a three-step gender framework: gender-responsive assessment, gender-transformative measures and gender-transformative remedies.

Testing Italian legal instruments to eradicate caporalato under the three-step gender framework

In the following exercise, the author will test the responsiveness of existing legal instruments to eradicate caporalato and suggest gender-transformative policy options, based on the three-step gender framework.

1. Legislative Decree No. 286/1999221 and the Law on countering undeclared work and labour exploitation in the agricultural sector

Step 1: gender-responsive assessment

Thanks to article 18 of Legislative Decree No. 286, women victims of severe exploitation and trafficking can receive unconditional protection and assistance aimed at their social inclusion and labour integration. This may include ‘long-term accommodation, language classes, vocational and training courses, access to social services, legal advice, and psychological follow-up.’ Despite its pioneering approach, experts have denounced substantial barriers (e.g. long waiting) to obtaining the residence permit and accessing social services, which increases the vulnerability of victims. It goes without saying that women can be disproportionally impacted by these inefficacies, enhancing their risk of marginalization, exploitation and violence.

Step 2: gender-transformative policy options

• Identify additional barriers faced by women in accessing mechanisms to request residence permits for humanitarian reasons and social services (e.g. low literacy, gender-based stereotypes and cultural norms, limited economic resources, etc.), and consider reinforced social protection schemes for women ‘kept on hold’ by bureaucracy.
• Capacity building on gender-sensitivity for professionals operating on the ground (police, municipal institutions, judges, social workers, health care professionals, etc.).
• Monitor the effectiveness of existing programmes on social and labour integration for women, including considering women empowerment-specific trainings.
• Conduct extensive consultations with women organizations to ensure meaningful integration of a gender perspective in future experimental protocols (similar to the 2016 protocol against caporalato)
• Consider the opportunity to create non-judicial grievance mechanisms with a gender-transformative approach or confer existing mechanisms (e.g. OECD’s National Contact Point) an explicit mandate to redress gender-based discriminations and abuses in the agricultural sector.

2. Law on social agriculture

Step 1: gender-responsive assessment

In line with the European Union’s recommendation on ‘developing specific programmes of assistance and protection of female victims of sexual and/or labour exploitation aimed at providing victims with concrete job alternatives,’ the law on social agriculture has huge potential to act as a bulwark against (and counterweight to) caporalato. Indeed, it creates alternatives for victims, including welfare programmes and rehabilitation.  Nevertheless, the law fails to integrate a gender perspective throughout its provisions. Likewise, the Observatory on Social Agriculture, created to monitor the application of the law and facilitate best practices, was not provided with specific competences to assess the benefit of social agriculture for women.

Step 2: gender-transformative policy options

• Train social and educational workers on gender equality, drawing their attention to the intersectional nature of gender discrimination (e.g. race, residence in rural areas, disability, income, language, education, minority, digital literacy, migration status, etc.).
• Provide the Observatory on Social Agriculture with specific competences on women including collecting and disclosing gender-disaggregated data, monitoring the impact of social agriculture for women victims of agrimafias, issuing gender-transformative strategies for the future of social agriculture and guiding public institutions engaged in social agriculture (both at the national and regional level) on how to integrate gender perspectives in social agriculture-related programmes.
• Review the composition of the Observatory, ensuring the participation of women organizations and gender balance in its composition.

Conclusion

Multiple legal and policy tools have been put in place by Italy to combat the phenomenon of caporalato. Nevertheless, these exploitative practices are far from being eradicated and gender-neutral approaches have shown to be ineffective to tackle the specific situation of vulnerability to which women are exposed in rural areas. Engendering the current legal and policy framework is the first step to promote systemic changes and substantive gender equality in the Italian agribusiness.

Marta has a Master’s in International Law from the Geneva Graduate Institute of International and Development Studies. She currently works as senior consultant on Corporate Responsibility and Human Rights  at Deloitte, in Barcelona. Her research interests include legal and policy analysis of CSR, corporate accountability and human rights due diligence.

Note: the author writes this post in her personal capacity. The opinions expressed by the author in her posts on this Blog are her own and do not necessarily reflect the official opinion of Deloitte.

 

[1] In 2017, with only 19,5% of the national income available for the poorest 40% of population, Italy performed below the European average (21,1%). [Source: 2019 Italian National Institute of Statistics (ISTAT)’s SDG Report]

[2] Despite a general improvement in gender equality-related indicators, over 60% of women aged 16 to 70 have been victims of some kind of violence and foreign women are more likely to experience most serious forms of violence (7,7% versus 5,1% of Italian women). [Source: 2019 Italian National Institute of Statistics (ISTAT)’s SDG Report]

[3] Legislative Decree 25 July 1998, No. 286, Testo Unico delle disposizioni concernenti la disciplina dell’immigrazione e norme sulla condizione dello straniero

[4] Law No. 199/2016 provisions on countering undeclared labour, labour exploitation in agriculture and wages rebalance in agricultural sector.

[5] According to law No. 199/2016, indicators that shall be considered as conclusive of exploitation are: wages under the minimum established by collective agreements; incompliance with labour laws related to working hours, holidays and rest periods; incompliance with applicable health and safety regulations; and degrading labour and housing conditions. The existence of any of these practices shall be sufficient to establish a cause of action under the law.

[6] Law No. 141/2015 provisions on social agriculture.

[7] Under the scope of the law, there are activities such as those involving inclusion of people with disability and disadvantaged workers, activities with a clear social, educational and recreational value for the community, activities supporting medical, psychological or rehabilitative therapies and initiatives for environmental and food and nutritional education.