Labor Mobility in the Global Compact

Transcription

1 Labor Mobility in the Global Compact Recommendations for Protecting, Promoting and Implementing the Human and Labor Rights of Temporary Migrant Workers in the Global Compact for Safe, Orderly and Regular Migration April, 2018

2 This working document was developed by the Instituto de Estudios y Divulgación sobre Migración A.C. (INEDIM) based on consultations with a range of organizations who represent and support temporary migrant workers. Organizational representatives and experts sent input via an online survey, consultations and a regional workshop. The organizations and experts that provided input include: Polaris Proyecto de Derechos Económicos, Sociales y Culturales A.C. Catholic Relief Services Instituto Centroamericano de Estudios Sociales y Desarrollo Enlace, Comunicación y Capacitación A.C. Centro de los Derechos del Migrante Inc. Centro de Estudios Legales y Sociales Red de Jornaleros y Jornaleras Central de Trabajadores de la Argentina Miguel Yaksic Ricardo Changala We offer this set of public policy proposals as a contribution to the effective implementation and monitoring of the Global Compact. 2

3 This document would not have been possible without the generous support of the Open Society Foundations. 1. Introduction pg Eliminating Costs for Workers pg Non-Discrimination pg Labor Rights and Access to Justice pg Joint Liability for Employers pg Transparency and Accountability pg. 22 3

4 1. Introduction The New York Declaration for Refugees and Migrants is a reaffirmation by States of their intention to fully protect the human rights of all refugees and migrants, regardless of status. One of the outcomes of this Declaration will be the Global Compact for Safe, Orderly and Regular Migration in 2018, which will articulate commitments for the protection of migrants and their families, including those who migrate under the auspices of temporary labor migration programs, also known as labor mobility systems. While all migrant workers, regardless of their migration status, are entitled to human and labor rights, when temporary migrant workers take jobs through labor mobility systems, they often face risks, abuses and discrimination, a reality documented by international agencies, governments and CSOs. Moreover, in many cases employers use recruiters and other intermediaries to match temporary migrant workers with employers, creating increasingly complex labor supply chains which must be monitored and regulated by States to ensure that not only employers, but also private recruiters and agents, are meeting the standards of protection for temporary migrant workers under international human and labor rights laws. Ideally, national employment offices should play a much greater role in managing labor mobility systems and workers should be able to access employment opportunities themselves directly. Also, labor mobility programs should enable access to a path to citizenship, and visas should be portable rather than tied to a particular job. We applaud the examples of best practices that move in these directions. However, given the current widespread use of recruitment and contracting agencies, which often serve to obfuscate liabilities and facilitate labor rights abuses/violations, we offer this set of proposals to build an adequate regulatory framework as a step toward having temporary migrant workers enjoy full economic, political, social and cultural rights in destination places. 4

5 This working document will address five priority issue areas: Eliminating Costs for Workers Non-Discrimination Labor Rights and Access to Justice Joint Liability of Employers Transparency and Accountability P While these five issues do not address all States obligations under international law, they were chosen for inclusion here due to their importance for the well-being of temporary migrant workers and their families, as well their relevance to the commitments made in the New York Declaration and other binding and soft law obligations. A list of international treaties and agreements that lay out commitments made by States with respect to human rights, labor rights, the rights of women, the rights of indigenous groups and others is attached in Appendix 1. In each of the five areas, we will describe the issue and identify existing best practices that show how international standards may be put into practice. We then list a few policy goals based on international principles and standards of protection for temporary migrant workers. Specific targets are then offered as steps on a path towards achieving the goals, and finally we propose a set of indicators that will allow observers to monitors progress in reaching each goal. 5

6 1.1 Proposals for goals, targets and indicators The Sustainable Development Goals (SDGs) adopted in 2015 by the General Assembly of the United Nations include several goals and targets that are relevant for temporary migrant workers and their families, including women workers, youth and workers of indigenous origin. The SDG framework provides a useful structure for articulating and monitoring progress towards the achievement of goals for the well being of temporary migrant workers and their families. As such, this document follows the same framework of goals, targets and indicators to suggest a process for achieving goals and targets concerning labor mobility systems through the Global Compacts. The goals proposed here should be achieved by 2030, the same end date as most of the SDGs. In order to reach this deadline and to allow time for reorientation where necessary, earlier dates have been set for targets. Some priority or modest targets are to be realized by 2020, as the earliest realistic date for implementing change. Other intermediate term targets are to be realized by 2023, allowing enough implementing time but also the opportunity to institute any necessary further changes by 2030 if needed. Some targets represent milestones on the way to achieving goals, while other targets focus on steps that would contribute to a goal being achieved. The proposed indicators will provide data to assess whether progress is being made towards achieving the stated targets and goals. 1.2 Data to assess progress in achieving goals and targets To accurately assess progress towards stated goals and targets, it is necessary to have consistent definitions along with regularly updated, appropriately disaggregated and carefully collected data. There have been improvements in data collection in the fields of immigration, employment and development in recent years, though there is still not enough quantitative or qualitative data available about labor mobility systems and their impact on social, human and economic development in either destination or origin countries. 6

7 The Global Compact must emphasize the importance of collecting and publically sharing data about labor mobility systems, both to inform policy-makers about the realities faced by temporary migrant workers and their families as well as to monitor the intended and unintended consequences of such systems. The Global Compact should emphasize the importance of collecting disaggregated data on labor mobility programs, and the employers and recruitment agencies who operate within them, as a way to reveal the impact of the programs on labor markets of both destination and origin countries; the realities faced by temporary migrant workers and their families; and as a tool in monitoring progress in the realization of goals and targets. 7

8 2. Eliminate costs for workers No recruitment fees or related costs should be charged to, or otherwise borne by, workers or jobseekers. The ILO has advised governments should be guided by the underlying principles of the Migration for Employment Convention 97, the Migrant Workers Convention The principles contained in the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families should also be taken into account. 2.1 Background A key purpose for formalizing and regulating international labor mobility systems is ensure that all parties benefit and are able to contribute to the economic and social development of both origin countries and destination communities. The role of the State in labor mobility systems is to ensure decent work, as defined by the International Labor Organization, by regulating labor relations between employers and workers within the context of complex transnational dynamics and labor markets. While workers are able to cross borders in order to meet the needs of industrial sectors, the historic asymmetry in power and access to information has often meant that social protections as well as human and labor rights, such as access to decent health care, retirement funds, health and safety regulations and other legally mandated benefits do not travel across borders with the workers. This leaves migrant workers vulnerable to exclusion from social protection regimes in either the origin countries, the destination countries or both. The delegation of health care costs, recruitment fees, transportation expenses and others costs to workers too easily creates a situation of dependence upon an employer or situations of indebtedness, exploitation and in extreme cases, human trafficking. Therefore, it is essential to strengthen those institutional practices and organizational models that protect the fundamental human and labor rights of temporary migrant workers. 8

9 This speaks to the 2015 United Nations Sustainable Development Goals for 2030: Goal 1. End poverty in all its forms everywhere Goal 5. Achieve gender equality and empower all women and girls Goal 8. Promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all Goal 10. Reduce inequality within and among countries 2.2 Best Practices THE IBEROAMERICAN MULTILATERAL AGREEMENT ON SOCIAL SECURITY (CONVENIO MULTILATERAL IBEROAMERICANO DE SEGURIDAD SOCIAL) [14] The IberoAmerican Multilateral Agreement on Social Security is the first international instrument to protect the right of migrant workers and their families to enjoy social and economic benefits across the region, through the coordination between national legislatures around pensions and disability benefits. Signed in 2005, the agreement allows workers to accumulate seniority and consolidate payments into one social security account from different countries and provide the option to receive pension fund benefits while residing in a different country than where they were earned, regardless of nationality. The majority of Spanish Portuguese-speaking countries who make up the IberoAmerican Community have signed the Agreement, though for it to be fully effective for workers States must have also signed an implementing Agreement. The nations with the Agreement fully in effect are Bolivia, Brazil, Chile, Ecuador, El Salvador, Spain, Paraguay and Uruguay. 9

10 UAE GOVERNMENT WELCOME PAMPHLET [15] In 2016 the UAE distributed a welcome pamphlet to all new worker airport arrivals. In this pamphlet, the Ministry of Human Resources and Emiratization explained its 16 new labor 16 regulations, including a new ministerial decree on termination conditions for employers and employees. It states clearly: UAE law requires your employer to pay the costs of your recruitment and deployment. These include any fees paid to a private recruitment agency that is accredited by the government of your country, the costs of the issuance of an entry visa and travel to the UAE, and the costs of post arrival processing requirements such as medical tests in the UAE and the issuance of your residency permit. The pamphlet urges workers in need of help to attend any Labour Office, adding, Your Labour Office will both assist you and protect you. The promise of protection is important as it can provide workers with the confidence to raise questions about their circumstances. 2.3 Proposed goals, targets and indicators 1) Adopt and implement measures to eliminate all costs related to recruitment, obtaining visas and crossing borders, contracting, and transportation for temporary migrant workers, in both origin and destination places. 2) Adopt and implement measures to prevent the double taxation of temporary migrant workers. 3) Adopt and implement measures to ensure that all temporary migrant workers and their families have access to adequate health care that covers all health needs on and off the job, provided by the destination State or, if necessary, by the employer. 4) Adopt and implement measures to ensure that all temporary migrant workers are granted universal and portable access to basic social security protections, such as pensions or retirement funds, workers compensation, unemployment insurance, paternity and maternity leave and others. 10

11 5) Adopt and implement measures to ensure temporary migrant workers are able to accrue seniority over the years and to access earned benefits from the destinations country s social security system they have contributed to, even if they no longer reside in that country. 6) Adopt and implement measures to ensure that workers who cannot finish their contract, due to injury, emergency, lack of work or any other issue, are made whole and are returned to their address of origin by the employer in a dignified and safe manner Targets to be included in the Global Compact 1) By 2021, all States will pass legislation that explicitly prohibits all recruitment and contracting fees for workers and that requires recruiters of all kinds, or employers, to cover all expenses related to travel to and from the site of employment. 2) By 2023, local offices or mobile offices with trained staff will exist in areas near where migrant workers live in origin countries, in order to handle administrative procedures for potential migrant workers and employers. These offices will operate in coordination with worker organizations and/or civil society organizations to provide training and guidance to migrant workers on all aspects of the labor mobility systems, especially with regard to their rights and to how they can demand and exercise them. 3) By 2021, States and their appropriate agencies will have coordinated to clarify how taxation regimes apply to temporary migrant workers and will ensure that double taxation is prevented. By 2023, bilateral agreements will be signed and implemented between nations to avoid double taxation. 4) By 2021 States will pass legislation ensuring that temporary migrant workers and their families have access to adequate health care that covers all health needs on and off the job. By 2023, clear guidelines will be established for how temporary migrant workers and their families may be incorporated into the public health systems of destination and/or origin countries, or if that is not legally feasible, how employers will cover the expense of an adequate supplementary or complete private health care plan. 11

12 5) By 2023, bilateral mechanisms or agreements will have been signed to ensure that workers who pay into social security systems of a destination country may accrue seniority over the years and are able to access those benefits after having returned to the origin country. 6) By 2020, States will pass legislation requiring that all employers leave a guaranteed deposit to cover the expense of making workers whole as well as returning workers to their address of origin in a safe and dignified manner, in the case of injury, lack of work or any other reason for an early end to the labor contract Indicators proposed to monitor progress in the Global Compact i. States will have ratified the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, as well as ILO Conventions 96, 97, 100, 143, 169, 176, 181, 188 and 189. ii. Labor mobility systems agreed to between States will explicitly prohibit recruitment and contracting fees for workers in either origin and destination countries, and will require employers to cover all expenses related to the cost of obtaining visas, crossing borders and travel to and from the site of employment. iii. A dedicated budget will exist to support the necessary national and local structures that will, in coordination with worker organizations and civil society, provide administrative services related to temporary migrant systems as well as provide information and guidance on health and social security services and the labor justice system for temporary migrant workers. iv. The number of workers covered by bilateral or multilateral agreements between States that prevent double taxation and ensure the portability of social security for all migrants will increase yearly to reach 100% by v. The number of workers and their families that are adequately covered by a public or private health care plan that addresses work-related health care, injuries and basic primary health care will increase each year to reach 100% by

13 vi. All temporary migrant workers are given point of departure training, worksite training and written materials in their own language, about how they may access their health and social security benefits while in the destination country as well as any pertinent benefits after their return to the origin country. The number of workers that are aware of their contributions and their employers contributions to a social security system and how to access these benefits regardless of current location will increase each year reach 100% by vii. The existence of a publically verifiable escrow fund that holds employers deposits for each worker, to cover their return to their address or origin in the case of an unexpected early end to the labor contract. 13

14 3. Non - discrimination No recruitment fees or related costs should be charged to, or otherwise borne by, workers or jobseekers. The ILO has advised governments should be guided by the underlying principles of the Migration for Employment Convention 97, the Migrant Workers Convention The principles contained in the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families should also be taken into account Background Most States today prohibit the selection of workers based on discriminatory criteria. However, there is a history of using labor mobility programs to recruit a set of workers with particular characteristics for particular jobs (all young men in construction, mostly single women in domestic work, etc.), which has at times resulted in an unequal segmentation of workers by language, by ethnic origin, by sex or by age. Therefore, it is desirable to explicitly address the issue of discrimination in practice through the regulations that cover the recruitment and contracting of temporary migrant workers. Labor mobility systems must be designed to have explicit prohibitions on criteria based on sex, age, race, indigenous status, marital status, physical disability, health, sexual orientation or sexual identity, when these are not essential to the requirements of the job. Special attention should be given to ensure that women workers and members of indigenous groups are afforded the same access to temporary migrant visas and employment as other groups, and not left in conditions of vulnerability. Moreover, labor inspectors and regulatory bodies should be given adequate training and clear criteria to distinguish between what constitutes a legitimate requirement for particular types of employment and what is often a purely discriminatory preference an employer has for certain categories of workers. Regulators should engage with worker organizations, unions and civil society organizations while regulating labor mobility systems, by sharing information to identify and remedy structural patterns that lead to workers being typecast as appropriate for only certain kinds of employment. 14

15 In addition, all temporary migrant workers should be afforded the same rights and protections as national workers. Training, skills and education achievements from the origin countries should be recognized in destination countries to broaden the range of opportunities available to temporary migrant workers. Special attention should be paid to the agricultural sector and to domestic workers, two industries that have historically enjoyed fewer labor protections than other segments of the economy. This speaks to the 2015 United Nations Sustainable Development Goals for 2030: Goal 5. Achieve gender equality and empower all women and girls Goal 8. Promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all Goal 16. Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive ins titutions at all levels 3.1. Best practice UNIONS AND CIVIL SOCIETY ORGANIZATIONS USING NAALC TO IMPROVE THE USA- MEXICO AND CANADA-MEXICO LABOR MOBILITY SYSTEMS The Centro de los Derechos del Migrante (CDM) and the United Food and Commercial Workers Union (UFCW) Canada have used the North American Agreement on Labor Cooperation (NAALC) to file a joint petition to address the problem of gender discrimination in recruiting practices, with the support of several additional worker and civil society organizations. The petition reports that in both countries, women are systematically excluded from temporary labor programs. For example, in the United States, women represent just 4% of participants in the temporary agricultural work program (the H-2 programs), despite the fact that 28% of farmworkers in the country are women. Similarly, in Canada, just 3% of participants in the Seasonal Agricultural Worker Program are women, while women s representation in the overall agricultural labor market is up to 30%. The petition was filed in July 2016, seeking that the United States and Canada take measurable steps to address sex discrimination in the temporary labor programs. 15

16 3.3 Proposed goals, targets and indicators Goals for States to be included in the Global Compact 1) Adopt and implement measures in destination and origin countries to prevent discriminatory criteria in recruitment and contracting, such as sex, age, ethnic origin, marital status, physical disability, sexual orientation or sexual identity, when these are not essential to the requirements of the job. 2) Specifically create greater opportunities for women migrant workers and migrants belonging to indigenous peoples. 3) Adopt and implement measures that ensure all temporary migrant workers are afforded the same rights and protections as national workers regardless of the industry they work in. 4) Recognize skills, qualifications and career licenses across borders to broaden the range of opportunities for temporary migrant workers in the destination country. 5) Engage representatives from worker organizations, indigenous peoples, women s organizations and other members of civil society with the State to identify and remedy structural patterns of unequal access to employment opportunities Targets to be included in the Global Compact 1) By 2020, States will have removed any discriminatory criteria from labor mobility systems and will penalize the use of discriminatory criteria in the recruitment and hiring of temporary migrant workers. For certain characteristics to be considered to be essential to the job, an employer must submit a written, technical justification to the relevant labor authorities for approval. 2) By 2020, States will have convened representatives from women s organizations, indigenous organizations, unions and other civil society organizations to receive input on how labor mobility programs should be modified to create opportunities for vulnerable populations. 3) By 2023, States will reform their labor laws to extend to all temporary migrant workers the same rights and protections as enjoyed by national workers. 16

17 4) By 2023, States will have developed multilateral or regional systems to recognize or certify education, training and licenses from the country of origin in a timely manner Indicators proposed to monitor progress in the Global Compact i. States will have ratified the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, as well as Conventions 97, 100, 111, 156, 169, 183 and 189. ii. Employment patterns in all industries using labor mobility systems will reflect greater diversity of ages, sex and ethnic backgrounds. There will be greater numbers of women and indigenous workers represented among the higher-paying positions available within the labor mobility systems. iii.existence of a protocol for inspections that includes steps to detect and eliminate discriminatory criteria in recruitment and hiring. Number of inspections will increase 10% each year to between 2020 and iv. Recruiters who use discriminatory criteria in recruitment and hiring practices have their license revoked. Employers who use such criteria face penalties. v. A regional agreement exists to standardize or match equivalencies in education and licensing, allowing temporary migrant workers to use skills and qualifications from their country of origin to explore other employment opportunities in the destination country 17

18 4. Labor rights and access to justice Governments should ensure that workers have access to complaint and other dispute resolution mechanisms. ILO has asserted that States should adopt appropriate steps to prevent, investigate, punish and redress such abuses through effective policies, legislation, regulations and adjudication, and exercising and mandating due diligence to ensure that human rights are respected Background Temporary migrant workers should be fully covered by the laws, including the labor code, of the nation, state or locality where they are employed, and be able to exercise their rights if these laws are violated. In practice however, the main channel used to address problems and complaints are often consular offices that may not have sufficient jurisdictional capacity to fully respond to labor violations, leading to negotiated solutions without the workers opportunity to access the justice system. Bilateral or multilateral agreements between government should not be allowed to establish informal practices that effectively lower labor standards. As a result, it is essential that destination places have a fully funded and functioning mechanism under control of the competent authorities to adequately supervise labor conditions and to ensure that temporary migrant workers have the same access to the justice system as national workers. This program should incorporate provisions that take into consideration the nature of temporary migrant labor, such as whistleblower protections; the prevention of blacklists; visa extensions to allow migrant workers to follow-up on legal complaints; special permissions in the case of severe abuses such as trafficking; and ways to continue legal proceedings from a worker s home country. The practice of restricting work visas to employment with a specific employer leaves workers vulnerable to financial and administrative challenges and trapped in a particular job situation with little recourse, a situation that approximates forced or indentured labor. ILO Convention 143 discourages the practice of connecting work visas to a particular employer, and asserts that workers should be able to move between employers. 18

19 At the same time, stronger labor inspections and access to the labor justice system should remain distinct from the segments of the legal system that address immigration controls, regularization of documents or the police. Temporary migrant workers should be able to report labor violations without the fear of this process affecting their possibility to remain in the country, their migration status or their ability to pursue regularization. Finally, temporary migrant workers have the right to representation, as stated in ILO Convention 97 and in most national legislations, in order to have their voices heard in destination countries and to take collective action in pursuit of improved wages, benefits and working conditions. For this, it is essential that labor institutions be supported and strengthened in both origin and destination countries to protect the rights of temporary migrant workers and all workers to freely organize and collectively bargain. This relates to the 2015 United Nations Sustainable Development Goals for 2030: Goal 8. Promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all Goal 10. Reduce inequality within and among countries Goal 16. Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive ins titutions at all levels 3.1. Best practice IMPROVED ACCESS TO JUSTICE FOR LEGAL COMPLAINTS IN PAKISTAN In February 2016, the Ministry of Overseas Pakistanis and Human Resource Development (MoOPHRD), developed an online complaint system allowing migrant workers and overseas Pakistanis to submit legal complaints in cases during recruitment or employment, accompanied by a tracking system that will enable the complainant to track the status of their complaint. Recruitment complaints that are registered could also be linked to employers or placement agencies at destination to keep them informed of possible fraudulent activities with their counterparts. 19

20 COLLECTIVE BARGAINING AGREEMENTS IN MANITOBA, CANADA Temporary migrant workers in Manitoba, Canada have successfully organized several union locals with the United Food and Commercial Workers of Canada across the state, bringing together both temporary and permanent workers to collectively bargain for improved wages, benefits and, in many cases, over issues of particular importance to workers in labor mobility systems. For example, the collective bargaining agreement with the company Maple Leaf Foods includes expedited arbitration to ensure that a worker has access to formal justice mechanisms before leaving the country along with the ability to accrue seniority and be recalled in future seasons. Finally, and importantly, under this agreement the employer is required to sponsor a worker s permanent residency application, should the worker so request, facilitating a path between temporary and permanent regular migration status. 4.3 Proposed goals, targets and indicators Goals for States to be included in the Global Compact 1) Extend the freedom of association and the right to form a union to temporary migrant workers in the destination country, including in sectors and industries not currently covered by labor laws. 2) Adopt and implement measures that ensure all temporary migrant workers are provided with a publically available contract that meets international labor standards, in their own language, that specifies the conditions and nature of their employment and that is validated by the State in both destination and origin countries. 3) Strengthen the independent inspection capacity of States to enforce labor laws for temporary migrant workers. 4) Link the licensing process for recruiting agencies and actors to labor inspections and compliance with labor laws. INEDIM INEDIM Labour Recommendations Mobility in the Global for Protecting, Compact: Promoting Recommendations and Implementing for Protecting, the Human Promoting and Labor and Implementing Rights of Temporary the Human Migrant and Workers Labor to Rights be considered of Temporary for their Migrant inclusion Workers in the in draft the Global of the Compact Global Compact for Safe, for Orderly Safe, Orderly and Regular and Migration Regular Migration. 20

21 5) Develop programs to ensure temporary migrant workers are effectively covered in practice by the same legal rights and protections as national workers in the destination country. Whistleblower protections, work visa extensions and other protections will be developed to protect workers from reprisals or blacklisting when exercising their labor rights, and will be isolated from other elements of the legal system. 6) Implement measures that ensure temporary migrants have the same access to the relevant agencies of the destination country to resolve labor complaints as national workers, as well as free legal services, in their primary language. 7) Eliminate restricted work visas, ensuring that a worker may change employers without losing their work visa Targets to be included in the Global Compact 1) By 2023, the labor codes in both destination and origin countries will be reformed to extend freedom of association and the rights to form a union and bargain collectively, including in sectors and industries not currently covered by labor laws, and these rights will be monitored by a special ombudsman position. 2) By 2020, all employers will be required to use a standard employment contract that conforms to the highest international employment standards. 3) By 2020, fraudulent job offers or other forms of recruitment fraud will be classified as a specific crime. 4) By 2023, labor mobility programs will be required to ensure that temporary migrant workers enjoy the same legal and labor rights as national workers, with protections against reprisals and regardless of whether they remain in the country of employment. This will include ways for migrants to either remain employed in the destination country while a case is in progress or to use technology to allow workers to pursue legal claims from the origin country. INEDIM INEDIM Labour Recommendations Mobility in the Global for Protecting, Compact: Promoting Recommendations and Implementing for Protecting, the Human Promoting and Labor and Implementing Rights of Temporary the Human Migrant and Workers Labor to Rights be considered of Temporary for their Migrant inclusion Workers in the in the draft Global of the Compact Global Compact for Safe, for Orderly Safe, and Orderly Regular and Migration Regular Migration. 21

22 5) By 2023, there will be a dedicated budget to support a special ombudsman position with national and local offices that facilitate access to the labor justice system, free legal services and translation services for temporary migrant workers. These offices will coordinate with worker organizations, unions and civil society organizations to receive case referrals and learn of violations, and will coordinate with labor inspectors to follow up on complaints. 6) By 2023, there will be a dedicated budget that supports the training and deployment of labor inspectors in workplaces and recruiting offices that hire temporary migrant workers. Employers found to violate labor laws will be required to make workers whole for any damages incurred. Recruiters found to violate labor laws will face the suspension of their license and face sanctions. 7) By 2023, destination States will reform their visa frameworks to ensure that any temporary migrant worker is free to change employers without loss of a visa or work permit Indicators proposed to monitor progress in the Global Compact i. States will have ratified ILO Conventions 97, 102, 118, 143, 181 and 189 as well as the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families. ii.the number of temporary migrant workers represented by worker organizations increases yearly, and the number of workers covered by collective bargaining agreements reaches 25% by iii. Employers and recruiters respect the right to organize a union and collectively bargain; those who are found to have violated labor laws are penalized. iv. All workers have a copy of a contract prior to departure, in a format that is understandable to them, which conforms to international labor standards and has been ratified by both the origin and destination governments. v. Fraud in recruitment procedures is categorized as a specific crime. 22

23 vi. Existence of a protocol with specific criteria for labor inspections of recruitment agencies of all kinds, specific penalties for violations and a dedicated budget to train and deploy labor inspectors. Number of inspections will increase 10% each year between 2020 and 2030 and will be an input in the process to renew the license of a recruitment agency. vii. Existence of a protocol with specific criteria for labor inspections of workplaces using temporary migrant workers, specific penalties for violations and a dedicated budget to train and deploy labor inspectors. Number of inspections will increase 10% each year between 2020 and viii.temporary migrant workers are effectively covered by and have access to the destination country s national labor justice system. Free legal services are available in all languages, including indigenous languages, and are located near sites of recruitment and employment. The number of workers covered by legal services programs increases yearly to reach 100% by ix. Existence and use of bilateral or multilateral mechanisms to transfer compensation for damages from one country to another at no cost to the worker. x. Temporary migrant workers receive a visa for employment in a sector, not with a particular employer. 23

24 5. Joint liability for employers Appropriate legislation and policies on employment and recruitment should apply to all workers, labor recruiters and employers. Academic experts advise a law in the destination country can hold employers financially responsible if their recruiters violate [international labor] standards. The law can also hinge employers access to temporary work visas on a demonstration that their recruiters obey the standards Background While improved regulation of recruiters and contractors is essential, it is also the case that labor mobility systems are responding to global pressures: of workers from origin countries to earn higher wages in destination places, of employers to access an important supply of labor and of States to harness the economic power of remittances. As a result, the recruiters who participate in the system are responding to a powerful set of incentives that may not be easily contained through greater regulation. In addition, recruiters in labor mobility systems are almost always part of labor supply chains, which may be only two actors a final employer and a recruiter or which may involve several actors across borders and which serves to obscure the final legal responsibility of an employer for social or labor responsibilities. Ideally, we feel that the role of recruiters and the number of steps in the labor supply chain should be reduced, with more labor mobility programs in the hands of national employment offices and workers able to access employment opportunities themselves directly with employers. However, whether there are intermediaries or not, the final employer has an important role in shaping the labor market for temporary workers. Any effort to improve recruitment and working conditions for temporary migrant workers must include a role for employers to exert downward, positive pressure to improve labor standards. In addition, employers as the final beneficiaries of temporary migrant labor must be held liable for the actions of their recruiters and the entire labor supply chain. 24

25 This relates to the 2015 United Nations Sustainable Development Goals for 2030: Goal 8. Promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all Goal 10. Reduce inequality within and among countries Goal 16. Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels Goal 17. Strengthen the means of implementation and revitalize the Global Partnership for Sustainable Development 5.2. Best Practices CIVIL SOCIETY ORGANIZATIONS ADVOCATING FOR EMPLOYER RESPONSIBILITY THROUGH THE RADAR PROGRAM The RADAR Program is a recent initiative of ProDESC that aims to establish the employers' joint liability in practice in order to eradicate abuses that occur during the recruitment of Mexican temporary migrant workers for the H2-A and H2-B visa program in the United States. For this purpose, RADAR documents abuses and investigates labor and product supply chains to identify all actors, from the worker to the employer to the brands that sell the product or service to the consumer. RADAR notifies the direct employer of the worker who suffered abuse in order to establish formal knowledge of the problems in his labor supply chain, which is a necessary proof and an important precondition for establishing his joint liability in court. Other actors, such as brands who have Corporate Social Responsibility Policies, are also notified to increase positive pressure on employers and recruiters. In addition, RADAR informs the Mexican Labor Department of the abuse to make it comply with its obligation to implement the legal responsibility of recruitment agencies for their agents and sub-agents. 25

26 HOLDING EMPLOYERS ACCOUNTABLE FOR RECRUITERS IN NEPAL In February 2016, the Nepal Association of Foreign Employment Agencies (NAFEA) went on strike for 17 days, after police raided 18 recruitment agencies for overcharging, tax fraud, document fraud and adopting illegal channels for deployment of migrant workers. The strike was settled with a 31 point agreement between the NAFEA and the Government of Nepal. The government argued that the money sent by Nepalese recruitment agencies to agents in the destination countries amounted to around US$ million per year. Since the employer will have already paid for the work visa before its issue, there is no financial outlay for it by the recruitment agency, so they have no right to ask the migrant worker for reimbursement. If the agency is under instructions from the employer to have the worker pay for the work visa (i.e. to reimburse the employer) it will be a clear violation of the laws in Qatar, Saudi Arabia and UAE and the employer should be liable for prosecution. Indeed, given that recruitment agencies in origin countries are given power of attorney to act on the employer s behalf, the legal liability rests with employers in destination countries where it is unlawful to charge workers. THE MANITOBA WORKER RECRUITMENT AND PROTECTION ACT (WRAPA) In Canada, a government-led approach to supply chain liability can be seen in the Manitoba Worker Recruitment and Protection Act (WRAPA), a licensing system for agencies recruiting migrant workers that provides for a proactive enforcement mechanism. WRAPA bans recruiters from charging any fees to foreign workers and prohibits employers from recovering recruitment fees from workers. Comprehensive information on all facets of employers, employees and recruitment agents are required. Employers are liable for recruitment fees charged to workers if the employer recruited the worker with an unlicensed recruiter. The Act also includes specific offenses for employers who utilize unlicensed recruiters. 26

27 5.3 Proposed goals, targets and indicators Goals for States to be included in the Global Compact 1) States will hold employers in the destination country jointly liable for their recruiters violations of fiscal or labor laws and regulations, as well as holding lead recruiters jointly responsible for their sub-agents and brokers violations of regulations. 2) States will require employers to clearly inform workers of their legal rights and to facilitate access to the offices and agencies that offer free legal support and guidance to temporary migrant workers. 3) Labor justice systems in States will have a greater awareness of labor supply chains or indirect employment relationships and be better equipped to address them. 4) Employers will be motivated to find more of their migrant workforce via national employment programs or through direct hires, rather than through third-party recruiters Targets to be included in the Global Compact 1) By 2020, employers will be required to post information in the workplace informing workers of how to contact national legal offices and local workers organizations. 2) By 2020, the public reports on labor mobility systems published by States and employers will include detailed information on the use of subcontractors in both origin and destination places. 3) Between 2019 and 2023, judges and inspectors in the labor justice system will receive training on labor supply chains and indirect employment relationships, their particular solutions as well as the existing laws and regulations that allow employers to be held accountable for the actions of their recruiters or subcontractors. 4) Between 2019 and 2023, employers will receive information on national employment offices with labor mobility programs as well as how to hire temporary migrant workers directly. 27

28 5) By 2023, States legal frameworks will hold employers jointly liable for their recruiters violations of fiscal or labor laws and regulations, as well as holding lead recruiters jointly responsible for their sub-agents and brokers violations of laws and regulations. 6) By 2023, States will penalize employers who knowingly use recruiters who have violated fiscal or labor laws and regulations in the past Indicators proposed to monitor progress in the Global Compact i. Existence of legislation that holds employers jointly liable for their recruiters violations of fiscal or labor regulations, as well as holding lead recruiters jointly responsible for their sub-agents and brokers violations of regulations. ii. Information is posted in all workplaces informing workers of how to contact national legal offices and local workers organizations. The number of employers complying with this regulation will increase each year to reach 100% by iii. Public reporting or a database available from States and employers which include detailed information on the use of subcontractors in both origin and destination countries. vi. Temporary migrant workers are hired through national employment offices or as direct hires, rather than through labor recruiters. The number of temporary migrant workers hired through recruiters decreases each year to reach 50% by

29 6. Transparency and accountability Workers should have access to free, comprehensive and accurate information regarding their rights and the conditions of their recruitment and employment. The ILO advises In consultation with organizations of workers and employers governments should take measures to ensure compliance across the recruitment industry Such measures should include public registration, licensing or other regulatory systems. These systems should be effective, transparent and should allow workers and other interested parties to verify the legitimacy of recruitment agencies and placement offers Background To ensure that international labor mobility programs fulfill the expectations of both employers and workers, and contribute to the economic and social development of both origin and destination communities, temporary worker programs and their usage must be justified, transparent and accessible to workers and their representatives. As such, it is essential that States are able to adequately supervise and regulate private recruitment agencies and all actors and sub-agents who operate as recruiters and that such efforts are connected to national labor regulatory systems. In addition, the use of labor mobility systems must be reserved for use when there is a proven labor market shortage in the destination country. Regularly updated, fully public registries of recruiters who are licensed to operate, along with their history of compliance with labor and fiscal obligations is an important tool for both employers and workers. Worker representatives, unions and civil society organizations should participate in the development and maintenance of these registries. Workers in both origin and destination countries should be aware of what employment is being filled through labor mobility systems, therefore it is necessary that States ensure that the lists of employment offered are publically reported and accessible to all workers. In addition, the relevant agencies from both origin and destination places should produce annual public reports on the number of workers employed through labor mobility systems, in what industries, what employers are using such systems and what their record of compliance is with fiscal and labor regulations. 29

30 Point-of-departure education programs allow workers to arrive with sufficient information to report violations, and should cover the relevant labor laws, health and safety regulations and labor institutions of the destination country. Temporary migrant workers should also be informed of how to contact relevant labor and civil society organizations in order to have a voice in the ongoing dialogue between public and private actors in the development and monitoring of temporary migrant worker systems. This speaks to the 2015 United Nations Sustainable Development Goals for 2030: Goal 8. Promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all Goal 10. Reduce inequality within and among countries Goal 16. Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels Goal 17. Strengthen the means of implementation and revitalize the Global Partnership for Sustainable Development 6.2. Best Practices WORKERS EMPOWERED, SHARING INFORMATION ABOUT EMPLOYERS AND RECRUITERS: CONTRATADOS.ORG As an interactive website that allows temporary migrant workers to review employers and recruiters, Contratados.org serves as a sort of Yelp for labor mobility programs. Workers can leave reviews warning other workers away from recruiters whose promises have turned out to be false, or confirm that a particular employer has followed through on promised wages or living conditions. Workers who are pursuing H2-A and H2-B visas can verify the labor histories of employers and recruiters before accepting employment. As a result, workers themselves are empowered to ensure transparency in the recruiting process and to hold actors in labor mobility systems accountable. The transmedia platform developed by the Centro de los Derechos del Migrante, Inc. (CDM) also serves as an organizing tool, allowing workers from diverse worksites to communicate and learn about policy matters that affect them. 30

31 THE BAHRAIN LABOUR MARKET REGULATORY AUTHORITY (BLMRA) The BLMRA registers and monitors recruitment agencies and can investigate fraudulent recruitment practices. They are required to attest to the validity and authenticity of documentation for work visas and to verify the existence of an employer and workplace so workers are not left stranded and undocumented. A blacklist is maintained on employers and recruitment agencies that have committed offenses or misled migrant workers in the past, banning them from future hiring. An explanatory brochure is provided to all arriving migrant workers in their own language, along with a SIM card which can be used to report grievances and violations. All information concerning their work permit is transferred to the SIM card. 6.3 Proposed goals, targets and indicators Goals for States to be included in the Global Compact 1) States will have the capacity to effectively regulate all private actors in the recruiting process, whether agencies or individuals, and to sanction any recruiter or contractor who operates in a fraudulent manner or who violate international labor standards. 2) States will ensure temporary migrant workers receive clear and accurate information in the country of origin, in their native language and in a manner that they can understand, about the nature and conditions of the employment offered. 3) Adopt and implement measures that ensure there is adequate public information available on what employers are using labor mobility systems and when, how many temporary migrant workers are employed through these programs, and how well both employers and recruiters are complying with international labor standards. Worker representatives, unions and civil society organizations should have a role in this process. 4) Specific responsibilities of the State, of recruiters and of employers will be clearly delineated, to ensure that the recruitment and contracting process occurs in accordance with international labor standards. 31

32 6.3.2 Targets to be included in the Global Compact 1) By 2020, States will provide a master sample employment contract, developed in collaboration with worker organizations, unions and civil society organizations, to be used by recruiters and employers. This contract will conform to international labor standards and will fully describe the nature and conditions of the employment offered. 2) By 2023, a protocol will exist that delineates the full responsibilities of the State, of recruiters and of employers in the recruitment and contracting process. 3) By 2020, States will authorize all actors involved in recruitment activities, with such licenses granted according to clear criteria that include the capacity to comply with fiscal and legal norms. The criteria will be developed in consensus with worker representatives, unions and civil society organizations. Such licenses must be renewed on a regular basis as a condition for ongoing operations. 4) By 2023, States will have a specific, publically available protocol that defines the requirements for an employment visa as well as the administrative process to obtain it, allowing workers more easily access labor mobility programs directly and independently. 5) By 2023, the corresponding agencies of both origin and destination countries of temporary migrant workers will make available a public and updated registry of how many workers are hired through labor mobility programs, in what industries and with what employers. States will also publish yearly reports which list all licensed recruiters, whether agencies or individuals, and details the findings of inspections of recruitment agencies and their aggregate levels of compliance with financial and labor regulations. 32

33 6.3.3 Indicators proposed to monitor progress in the Global Compact i. Existence of a public registry of recruitment agencies that have been licensed by the State to carry out recruiting activities. Workers and their representatives and allies can easily find to what extent employers use labor mobility programs as well as whether they with particular recruiters, hire directly or work through national employment programs. ii. Existence of clear criteria, developed in consensus with worker representatives and civil society organizations, for receiving a license to operate as a recruitment agency or actor, including evidence of adequate financial resources and their capacity to comply with international recruiting standards. iii. Presence of a regional reporting system that receives and publicizes yearly reports by both origin and destination places on recruiting agencies and their compliance with fiscal and labor obligations. iv. Existence of clear communication channels between worker representatives and civil society organizations with employer and government representatives, along with defined mechanisms for consultation and feedback between public and private institutions. v. Public job listings exist for employment offered through labor mobility programs. Workers and their representatives and allies in both destination and origin countries have the same ability to learn about and apply for the jobs available for temporary migrant workers. 33

34 7. Apendix 1 General: United Nations. Universal Declaration of Human Rights, adopted by General Assembly Resolution 217 A (III), of 10 December United Nations. Vienna Convention on the Law of Treaties, adopted 23 May 1969 and entered into force on 27 January United Nations. Vienna Convention on Consular Relations, adopted 24 April 1963 and entered into force on 19 March United Nations. United Nations Declaration on the Rights of Indigenous Peo ples, adopted by General Assembly Resolution 61/295, of 13 September United Nations. Report on indicators for promoting and monitoring the imple mentation of human rights. UN Doc. HRI/MC/2008/3, of 6 June Human Rights: United Nations Conventions International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, adopted 18 December 1990 and entered into force on 1 July Convention on the Elimination of All Forms of Discrimination against Women, adopted 18 December 1979 and entered into force on 2 September Convention on the Rights of the Child, adopted 20 November 1989 and entered into force on 2 September Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 December 1984 and entered into force on 26 June Convention on the Rights of Persons with Disabilities, adopted 13 December 2006 and entered into force on 3 May

35 International Convention on the Elimination of All Forms of Racial Discrimination, adopted 7 March 1966 and entered into force on 4 January International Covenant on Civil and Political Rights, adopted 16 December 1966 and entered into force on 23 March International Covenant on Economic, Social and Cultural Rights, adopted 16 December 1966 and entered into force on 3 January Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 18 December 2002 and entered into force on 22 June Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, adopted 25 May 2000 and entered into force on 12 February Optional Protocol to the Convention on the Rights of the Child on the sale of chil dren, child prostitution and child pornography, adopted 25 May 2000 and entered into force on 18 January Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty, adopted 15 December 1989 and ente red into force on 11 July Human Rights: Inter-American Conventions American Declaration of the Rights and Duties of Man, approved at the Ninth International American Conference, Bogota, Colombia, American Convention on Human rights ( Pact of San Jose ), adopted 22 November 1969 and entered into force on 18 July

36 Inter-American Convention on the Prevention, Punishment, and Eradication of Vio lence against Women (Convention of Belém do Pará), adopted 9 June 1994 and entered into force on 5 March Inter-American Convention to Prevent and Punish Torture, adopted 9 December 1985 and entered into force on 28 February Inter-American Convention for the Elimination of All Forms of Discrimination Against Persons with Disabilities, adopted 8 June 1999 and entered into force on 14September Inter-American Convention Against All Forms of Discrimination and Intolerance, adopted 5 June Inter-American Convention Against Racism, Racial Discrimination and Related Forms of Intolerance, adopted 5 June Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights ( Protocol of San Salvador ), adopted 17 November 1988 and entered into force on 16 November Protocol to the American Convention on Human Rights to Abolish the Death Penalty, adopted 8 June IHR Court. Juridical Condition and Rights of Undocumented Migrants. Advisory Opinion OC-18/03, of 17 September Series A No. 18. IACHR. The right to access to public information in the Americas: Inter- Ameri can standards and comparison of legal frameworks. OAS Doc. OEA/Ser.L/V/II. IACHR/RELE/INF.7/12, of 30 December

37 Labor Rights: ILO Conventions Convention 96, on Fee-Charging Employment Agencies (revised in 1949). Convention 97, on Migration for Employment Convention (revised 1949). Convention 100, on Equal Remuneration (1951). Convention 111, on Discrimination in Respect of Employment and Occupation (1958). Convention 143, on Migrant Workers (complementary provisions 1975). Convention 156, on Workers with Family Responsibilities (1981). Convention 169, on Indigenous and Tribal Peoples (1989). Convention 181, on Private Employment Agencies Convention 182, on the Worst Forms of Child Labour (1999). Convention 183, on Maternity Protection (2000). Convention 189, on Decent Work for Domestic Workers (2011). ILO Documents and Recommendations International Labor Conference. Report III (Part 1B). General Survey on Migrant Workers, ILO. the decent work agenda. Available at: aboutthe-ilo/decent-work-agenda/lang--en/index.htm. ILO. Recommendation No. 61, Migration for Employment (1939) adopted 28 June 1939 at the 25th meeting of the General Conference of the International Labor Organization. 37

38 ILO. Recommendation 86, Migration for Employment (revised 1949), adopted 1 July 1949, in the 32nd Meeting of the International Labor Conference. ILO. Multilateral Framework for Labor Migration. Non-binding principles and guidelines for a rights-based approach to labor migration, adopted by the Tri partite Meeting of Experts on the ILO Multilateral Framework on Labor Migra tion held in Geneva, from 31 October through 2 November ILO. Towards a fair deal for migrant workers in the global economy. Geneva, ILO Documents and Recommendations CEDAW Committee. General recommendation No. 26 on women migrant wor kers (2008). Committee on the Protection of the Rights of All Migrant Workers and Mem bers of their Families. General comment No 1, on migrant domestic workers. UN Doc. CMW/C/GC/1, of 23 February CESCR Committee. The Right to Work (Art. 6 of the Covenant). General com ment No. 18, approved 24 November Committee on the rights of the child. Consideration of reports submitted by States parties under Article 44 of the Convention. Concluding observations on Belize. UN Doc. CRC/C/15/Add.99, of 10 May Committee on the rights of the child. Consideration of reports submitted by States parties under Article 44 of the Convention. Concluding observations on Honduras. UN Doc. CRC/C/15/Add.105, of 24 August Committee on the rights of the child. Consideration of reports submitted by States parties under Article 44 of the Convention. Concluding observations on Costa Rica. UN Doc. CRC/C/15/Add.117,of 24 February

39 Committee on the rights of the child. Consideration of reports submitted by Sta tes parties under Article 44 of the Convention. Concluding observations on El Salvador. UN Doc. CRC/C/15/Add.232, of 30 June Committee on the rights of the child. Consideration of reports submitted by States parties under Article 44 of the Convention. Concluding observations on Belize. UN Doc. CRC/C/15/Add.252, of 31 March Committee on the rights of the child. Consideration of reports submitted by States parties under Article 44 of the Convention. Concluding observations on Nicaragua. UN Doc. CRC/C/15/Add.265, of 21 September Committee on the rights of the child. Consideration of reports submitted by States parties under Article 44 of the Convention. Concluding observations on Honduras. UN Doc. CRC/C/HND/CO/3, of 2 May Committee on the rights of the child. Consideration of reports submitted by Sta tes parties under Article 44 of the Convention. Concluding observations on El Salvador. UN Doc. CRC/C/SLV/CO/3-4, of 17 February Committee on the rights of the child. Consideration of reports submitted by States parties under Article 44 of the Convention. Concluding observations on Costa Rica. UN Doc. CRC/C/CRI/CO/4, of 3 August Committee on the Protection of the Rights of all Migrant Workers and Mem bers of their Families. Concluding observations of the Committee on the Protec tion of the Rights of all Migrant Workers and Members of their Families on El Salvador. UN Doc. CMW/C/SLV/CO/1, of 4 February Committee on the Protection of the Rights of All Migrant Workers and Mem bers of their Families. Concluding observations of the Committee on the Pro tection of the Rights of all Migrant Workers and Members of their Families on Mexico. UN Doc. CMW/C/MEX/CO/2, of 3 May Committee on the Protection of the Rights of All Migrant Workers and Members of their Families. Concluding observations of the Committee on the Protec tion of the Rights of all Migrant Workers and Members of their Families on Gua temala. UN Doc. CMW/C/GTM/CO/1, of 18 October

40 Committee on the Protection of the Rights of All Migrant Workers and Mem bers of their Families. Concluding observations of the Committee on the Protec tion of the Rights of all Migrant Workers and Members of their Families on the Second Periodic Report of El Salvador. UN Doc. CMW/C/SLV/CO/2, of 2 May Committee on the Protection of the Rights of All Migrant Workers and Mem bers of their Families. Concluding observations in the absence of a report of the Committee on the Protection of the Rights of all Migrant Workers and Members of their Families on Belize. UN Doc. CMW/C/ BLZ/CO/1, of 9 September