Natsu Nogami-Shimokawa Technical Officer on International Labour Standards and Fundamental Principles and Rights at Work International Labour Office Subregional Office for East Asia (SRO Bangkok) International Labour Standards on Migration for Employment

ILO and migration Labour migration is a process to be managed, not a problem to be solved. Migration = employment policy Protection of migrant workers - at the heart of ILO

Migrant Workers - ILO Constitution The protection of the human rights of men and women migrant workers and the promotion of their equal treatment and opportunity is a principle enshrined in the ILO Constitution

All International Labour Standards Applicable Unless otherwise specified in the instruments concerned, all of the ILO Conventions and Recommendations cover nationals and non-nationals alike

All IL Standards : Examples Once a person gets to work in a country that has ratified minimum-wage fixing standards, (s)he is entitled to the same minimum wage as national workers In a country that has ratified C. 183 (or C. 103) (maternity protection), to e.g. same protection against pregnancy testing, benefits as citizen workers

Immigration & Work Permission IL standards do not compromise the right of sovereign States  to admit or refuse a non-citizen entry into the territory  to issue / renew residence or work permits Yet, there are recommendations

Immigration & Work Permission max. 2 years lawful residence : free choice of employment, except State interest (Art. 14 (a) C143, para. 6, R151) > 5 years residency: application for citizenship should be permitted (para. 51 R100) consider family reunification for regular migrant workers (Art. 13 C143)  family = spouse & dependent children, wider under UN MWC

Immigration & Work Permission termination of employment for regular MW  should be under same conditions as for citizen workers  should not imply automatic loss of residence / work permit (Art. 8 C143)  if loss implied, then sufficient time should be given to find alternative job expulsion order should be subject to appeal

Fundamental Human Rights at Work: Regular & Irregular Migrant Workers Fundamental human rights at work are meant to protect the vulnerability of the person against the power of the State or economic interests As such, they apply to human beings irrespective of status  national citizens  regular migrant workers  irregular migrant workers

International Labour Standards of particular relevance to migrant workers ILO Fundamental Conventions (C.87/98, C.29/105, C.138/182 and C.100/111) Migration for Employment Convention (Revised), 1949 (No.97) and Recommendation (Revised) 1949, (No.86) Protection of Migrant Workers (Underdeveloped Countries) Recommendation, 1955 (No.100) Migrant Workers (Supplementary Provisions) Convention, 1975 (No.143) and the Migrant Workers Recommendation, 1975 (No.151) Private Employment Agencies Convention, 1997 (No.181) and Recommendation (No.188) Be reminded that ALL International Labour Standards are applicable to migrant workers, unless otherwise specified in the instruments concerned

Migration management: a two-way street in a global village - home countries

Labour mobility policy must follow from an overall employment policy:  Step 1: map employment opportunities along demographic projections  Step 2: develop human resource development policy  Step 3: develop labour mobility policy C. 122 & R. 169 ILO Multilateral Framework

measures to uphold integrity of the recruitment process  information  protection against exploitation  welfare and support while abroad  measures for reintegration

Migration management: a two-way street in a global village - host countries

Key = Widening the focus less focus on narrowly limiting the admission of foreign workers to fill existing labour shortages more focus on meeting  expectations for authorized employment opportunities (and human resource development) for migrant workers, recognizing the productive contribution  expectations with regard to protection of human rights

do economic and demographic planning (including changing labour market needs) plan for the entire migration cycle better protect of migrant workers (including integration policies)

involve the cooperation of the widest range of stakeholders  employers  trade unions  private recruitment agencies  migrant associations  international organizations expand bilateral cooperation enhance and disseminate understanding of the mutual benefits of orderly migration

How to manage migration for employment ?

Management Tools legislation in home country regulating the recruitment, introduction and placement process bilateral agreements between home and host countries covering issues such as  right of entry and stay  the protection of rights resulting from employment (e.g. through standard employment contracts)  the promotion of education and training opportunities for migrant workers, social security  assistance to workers and members of their families wishing to return to their country of origin multilateral agreements withholding key issues from bilateral negotiations

ILO instruments Settles a number of these issues multilaterally Instruments of particular relevance to migrant workers  Fundamental Conventions (C.87/98, C.29/105, C.138/182 and C.100/111)  No.97 Migration for Employment Convention (Revised), 1949  No. 86 Migration for Employment Rec. (Revised), 1949  No.143 Migrant Workers (Supplementary Provisions) Convention, 1975  No.151 Migrant Workers Rec., 1975  No.100 Protection of Migrant Workers (Underdeveloped Countries) Rec., 1955  No. 181 Private Employment Agencies Convention, 1997

UN instruments UN Convention Against Transnational Organized Crime and Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the [UN Convention]  Provides authoritative definition of trafficking  Art. 6 contains provisions on assistance to and protection of trafficking victims (C. 182)

UN instruments International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (UN MWC)  In force since 1 July 2003, 40 parties (+ 15 signatures) to date (incl. Sri Lanka, Philippines & Timor Leste)  Lack of ratifications, same as C. 97/C. 143  Main differences with C. 97/C. 143 wider definition of family wider scope of protection (includes frontier workers, self- employed, seafarers) watered-down “free choice of employment” recognizes possibility of individual complaints

International Labour Standards on migrant workers - Directions To achieve orderly migration, the standard- setting activities of the ILO in this area have been concentrated in two main directions :  to establish the right to equality of treatment between nationals & non-nationals in the field of social security (e.g. C. 19) and  at the same time to institute an international system for the maintenance of acquired rights in the course of acquisition for workers who transfer their residence from one country to another (e.g. C. 157)  to find comprehensive solutions to the problems facing migrant workers (C. 97 and C. 143)

Some particular issues and concerns

Vulnerability of migrant workers There are a number of elements or conditions that may increase the vulnerability of a migrant worker: e.g.  Personal profile: sex, age, social or national origin, education, skills  Employment status regular/irregular full-time/part-time/temporary/casual/seasonal  Industries or sectors (formal/informal): agriculture and fishing, construction, manufacturing, domestic work, etc  Involvement of a third party: i.e. smuggling and trafficking Very often, one migrant worker may fall under all or several of these categories - e.g. a trafficked domestic child worker – making him/her the most vulnerable worker.

ILO response to irregular migration:  means and tools: e.g. Intl labour standards ILO multilateral framework technical cooperation  sector-based or rights-based approaches: e.g. Informal economy Migrant workers Migrant workers in irregular situations

International Labour Standards: 1. Minimum standards of protection (C.143) Basic human rights Rights arising out of past employment (i.e. remuneration, social security and other benefits) to ensure that illegally employed migrant workers are not deprived of their rights in respect of the work they actually performed Cost of expulsion Regularization of the situation

Migrant workers in irregular situations International Labour Standards: 2. Specific measures targeted at migration in abusive conditions: i.e. clandestine migration, illegal migration and illegal employment of migrant workers (c.143)

Migrant workers in irregular situations ILO Multilateral Framework on Labour Migration lays down principles and guidelines to promote good practices on irregular migrant workers: e.g.  Case No.2, 12, 55, 58, 63, 69, 82, 126

Occupational safety and health of migrant workers OSH is a significant concern for migrant workers because:  Migrant workers are often employed in high-risk sectors  Language and cultural barriers require specific OSH communication, instructions and training approaches  Migrant workers may be prone to occupational injuries and work-related accidents if their general health condition is poor In a number of countries, national OSH legislations do not cover informal economy, in which many migrant workers are found to be working

Intl. Labour Standards on OSH There are a number of ILO instruments related to occupational safety and health  Umbrella framework: Occupational Safety and Health Convention (No.155) and Recommendation (R.164) 1981; and the Protocol of 2002 to the Occupational Safety and Health  For migrant workers, Migrant Workers Recommendation, 1975 (No.151) requires member States to ensure equal treatment of nationals and migrant workers in respect of OSH

C.155 does not exclude migrant workers per se from the scope of its application. However, it allows exclusion of:  “particular branches of economic activity” such as maritime shipping or fishing  “limited categories of workers” Ratifying states may determine these exclusions but only after consultation with organizations of employers and workers Even if exclusions are made, C.155 requires ratifying states to progressively extend the scope of application

Measures to ensure OSH for migrant workers Key approaches  Extend national laws, regulations and policies to cover all workers in formal and informal economy  Non-discrimination and equal treatment of nationals and migrant workers To this end, some special considerations or measures to ensure equality need to be considered: e.g.  provide OSH training and instruction in the language that migrant workers understand.  trade unions play an important role in ensuring OSH. However, in some countries, migrant workers are not allowed to form or join unions. This needs to be taken into consideration as well.

Further information on Intl Labour Standards on OSH is available upon request