The ILO and the protection of migrant workers in situations of irregular work

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1 The ILO and the protection of migrant workers in situations of irregular work

2 Migration and labour Migration heavily impacts on labour issues; Migration law regulates fluxes and conditions of access and stay; Labour law regulates the territorial application of law to those working in the labour market; Insiders v. outsiders, or National workers v. migrant workers; Uniformity of rules and working conditions in the labour market.

3 Migration and labour Labour law is particularly territorialised; Territoriality can be: Protective: ensuring equal protection for all; Protectionist: preventing the entrance of destabilising factors. Challenges to territoriality: Movements of capitals; Movements of persons. is the national legal framework still reliable?

4 Migration and labour Territorial labour law applies to migrant workers is it? Do migrant workers enjoy the same substantial rights of national workers? Migration is related to decent work and labour market issues; The bulk of global migrants are migrant workers. 90% of total international migrant population is economically active (ILO source); 40% of the 21 million forced labourers are migrant workers (ILO source).

5 Migration and labour Worker employer unbalanced relationship equalised by law and trade union activity; Temporary/permanent regular migrant worker employer worker subject to law on migration and weaker party; Irregular migrant workers employer worker is outside the law, not covered by any protection, exposed to abuses and blackmail; Fragmentation of labour market through the regulation of migration.

6 Few words about ILO Founded in 1919 as part of post-ww I world order; Concerned with peace and social justice; New constitution in 1944 renovation in post-ww II; Revised founding document in 1998 Declaration on fundamental principles and rights at work; Conventions if ratified, legal obligation to apply; Recommendations non-binding documents; Tripartite system joint definition of labour standards; Committees system of monitoring no court system, no individual cases, no enforcing mechanism.

7 Migration and ILO Regulation of migration; Protection of vulnerable groups of workers; 1919 ILO constitution protection of workers when employed in countries other than their own ; 1998 Declaration special attention to the problems of persons with special social needs, such as... the migrant workers ; 1999 Decent work agenda formal and informal economy.

8 First phase: regulating national labour market Unemployment Conv. no. 2 (1919): dealing with protection from unfair competition in case of migrant workers and safeguards of national social security systems; Equality of treatment Conv. no. 19 (1925): equality of treatment extended to foreign workers; Migration for employment Conv. No. 66 (1939, not in force):limiting abuses to migrant workers by providing equal treatment with national workers (no less favourable) (prohibiting misleading propaganda). imposing conditions of reciprocity between states (colonial time).

9 Second phase: focus on migrant workers For the purpose of this Convention the term migrant for employment means a person who migrates from one country to another with a view to being employed otherwise than on his own account and includes any person regularly admitted as a migrant for employment. (Art. 11) Migrant worker is the employed workers (regularly admitted), with the exceptions of seamen, frontier workers, short-term liberal professions and artists. Addressing the regulation of migration for employment.

10 Second phase: focus on migrant workers Migration for Employment Conv. No. 97 (1949): Parties shall provide national policies, laws and regulation related to emigration and immigration; Appropriate steps against misleading propaganda related to immigration and emigration; Adequate information, medical services, good hygienic conditions to migrant workers; Taking measures for facilitating departure, journey and reception of migrant workers; No less favourable conditions than nationals and no discrimination as for remuneration, trade union membership, accommodation, social security, legal proceedings; Right to stay in case of illness;

11 Third phase: the irregular migrant workers Changed scenario increasing of irregular fluxes. Migrant Workers Conv. No. 143 (1975 only 23 ratifications) (aka Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers) Two parts: Part I covers all migrant workers migration in abusive conditions ; Part II applied only to migrant workers admitted on a regular basis principle of equal opportunities and treatment between migrant and national workers.

12 Migrant Workers Conv. 143 (1975) Part I Preamble: labour is not a commodity and right to migrate; Obligation to respect of basic human rights of all migrant workers (Art. 1); Obligation for States to determine situations of illegally employed migrant workers in their territory (Art. 2); Obligation to determine violations of international law or agreements and national law in situations of migration for employment (Art. 2); Involvement of representatives organisations of workers and employers in defining national law and policies (Art. 7);

13 Migrant Workers Conv. 143 (1975) Part I Obligation to suppress clandestine movements of migrant for employment and illegal employment of migrants (Art. 3); Prosecution of manpower traffickers and effective detention of employers illegally employing migrant workers (Art. 6); No illegal or irregular situation for the regularly admitted migrant worker in case of loss of job (Art. 8); Equality of treatment in respect of rights arising out of past employment as regards remuneration, social security and benefits (Art. 9.1); In case of legal proceeding, possibility to receive proper defence (Art. 9.2); Right to stay and take up a legal employment (Art. 9.3); Basic employment rights for migrant workers in irregular situations

14 Migrant Workers Conv. 143 (1975) Part II Only for migrant workers in regular status; Exception for temporary workers entered in the country under request of the employer (along with the usual exceptions ); Obligation of national policies promoting equal treatment and equal opportunities in respect of employment and occupation, social security, trade union and cultural rights (Art. 10); Policies for integration of migrant workers and families and for preserving national and ethnic identities (Art. 12); equality of treatment AND equality of opportunity AND integration AND preservation of identity.

15 ILO Committees and migrant workers in irregular status CEACR Survey: Illegal employment of migrant workers favoured by pressures to emigrate and closing of borders closing of legal channels opens the illegal channels; Basic human rights for migrant workers in irregular situation include the core labour rights and do not require citizenship or residence; Illegally employed migrant workers shall not be deprived of their rights in respect of the work actually performed; Right to regularise the irregular situations; Protection from illegal employment sanctions to employers employing illegally migrant workers and manpower traffickers. Vulnerability of women migrant workers exclusion of artist and domestic workers;

16 ILO Committees and migrant workers in irregular status Committee on Freedom of Association: The sole exceptions to right to organize concerns armed forces and police all workers are covered by related Convs., also migrant workers in irregular status; Spain case (2001): Spanish law making the exercise of trade union rights for migrant workers to be dependant on authorisation of their presence in Spain violating ILS; Korea case (2010): Refusal to register the Migrants Trade Union and arrests and deportations of members undocumented migrant workers are entitled to trade union membership and to have their working conditions improved through collective agreement primary status of migrant workers is the worker status!

17 New landscape in labour migration Decline of the State in regulating and monitoring labour migration (private agencies) Conv. 181 (1997) on private employment agency; Feminization of migration for employment 49% of all international migrants (ILO source 2010); More marginalised work (domestic work, sex work ); Increase in temporary migration; Increase in irregular migration clandestine migration and illegal employment; Reluctance of States in ratifying Migrant Workers Conv.; maintaining the status quo instead of revising the Conv.

18 Fourth phase: a softer approach 1998 Declaration on fundamental principles and rights at work: Migrant workers as persons with special social needs; Elimination of all form of forced or compulsory labour; Elimination of discrimination in respect of employment and occupation; Labour standards shall not be used for protectionist purposes.

19 Fourth phase: a softer approach 1999 Decent work agenda: Progressive abandon of regulatory technique; Method of Multilateralism; Promoting norms, employment, social protection and social dialogue; Addressing all the workers in the formal and informal sector.

20 Fourth phase: a softer approach 2006 Multi-lateral Framework on labour migration: Unique normative ILO instruments non-binding framework on principles and guidelines for national policies and legislations; Human rights-based approach not innovative in contents but in method; Major themes: decent work; international cooperation; promotion and protection of migrant workers rights; development; Key issues: protection of women; addressing irregular status; temporary migrant workers.

21 Fourth phase: a softer approach 2006 Multi-lateral Framework on labour migration: Protection of human rights to all migrants regardless of their status; Actively pursuing non-discrimination limiting rules based on nationality; Addressing human rights of migrant workers during the journey attempt to coordinate migration polices; International labour standards shall apply to migrant workers. Prevention and protection against abusive migration practices (sanctions and penalties);

22 A fifth phase? All international labour standards cover all workers irrespective of their nationality or immigration status (2011); Fundamental rights conventions: Abolition of forced labour; Elimination of child labour; Trade union rights; Equality and non-discrimination in employment and occupation; Other conventions of general application: Labour inspection; Protection of wages; Maternity protection; Health and safety.

23 ILO Conv. No. 189 on Domestic Work (2011) Shift back to hard law; First time domestic work is recognised in a holistic manner in a legal document; Sectorial approach work like no other, work like any other Human rights approach civil rights and social and labour rights; Precarious work family member v. workers/employer relationship; Migrant work often performed by undocumented migrant workers and women; Isolation from rest of workforce non-unionised and marginalised.

24 ILO Conv. No. 189 on Domestic Work (2011) Preamble: decent work / significant contribution to global economy / gendered and migrant-led work; Preamble recalls the particular relevance for domestic workers of Migration for Employment C97 (1949), Migrant Workers C143 (1975) and 2006 Multi-lateral framework; Domestic work definition work performed in or for household(s) in an employment relationship(art. 1); Effective promotion and protection of human rights of all domestic workers (Art. 3) application of core labour standards to domestic workers;

25 ILO Conv. No. 189 on Domestic Work (2011) Social and labour rights: Protection from abuse, harassment and violence (Art. 5); Fair terms of employment and decent work conditions (Art. 6); Minimum wage coverage and no sex discrimination (Art. 11); Payment in cash (Art. 12); Minimum age and education (Art. 4); Right to safe and healthy work environment (Art. 13) Right to social security protection, especially maternity (Art. 14). Labour inspections, sanctions, access to courts, right to privacy (Art. 17).

26 ILO Conv. No. 189 on Domestic Work (2011) Provisions dealing specifically with migrant conditions: Providing written contract when domestic worker is recruited in another country (Art. 8); Conditions written in an understandable manner for the worker (Art. 7); Application of convention to domestic migrant workers (Art. 8); Right to hold travel and identity document (Art. 9); Obligation to regulate recruitment through private agencies (Art. 15).

27 Conclusion Role of ILO setting guidelines for national law and policies on migration; Changing approach from regulation of matching labour surplus and labour shortages to protecting vulnerable groups of migrant workers; Historical evolution following socio-economic reality); Problems: Effectiveness of ILO standards; No individual complaints migrant workers in irregular status do not have access to courts and there are not collectively organised; Role of trade unions risk of protectionist approach.

28 The ITUC campaign on FIFA World Cup million of migrant workers (94% of workforce); Kafala system: employers enjoy near total control over the movement of workers forced labour; No collective agreements in force / No compliance system for labour complaints / Very strict regulation of trade union association; Very poor and dangerous working conditions ITUC estimates more than 7000 workers will die before 2022 (based on data from the Qatar Supreme Council for Health); Multinational companies of different countries operating in construction/infrastructure sector in Qatar; Asking fair and not racially-based minimum wage, compliance with ILO labour standards, freedom of association for migrant workers, collective bargaining, end of kefala system (not modified in new labour law reform adopted in 2015).

29 Thank you for your attention! QUESTIONS? COMMENTS?