1. Labour Dimensions of the PICTA TMNP International Legal Framework for the Protection of Migrant Workers, Good Practices and ILO Technical Assistance Nilim Baruah, ILO Regional Office for Asia-Pacific, Bangkok PICTA TMNP Workshop, Nadi, Fiji, 22-23 August 2011 Pacific Islands Secretariat

2. Introduction Chapter 6 of the Study on PICTA TMNP – Social Issues and Migrant Rights - provides a good overview There are international standards on the protection of migrant workers Trafficking and exploitation of migrant workers should be avoided This can occur during recruitment and during employment unless there is appropriate legislation and enforcement Equal treatment of nationals and migrant workers should be a guiding principle

3. 1. International Legal Framework 1.1 International human rights law UDHR;ICPR; ICESCR; ICERD; CEDAW; CAT; CRC These instruments, usually widely ratified, protect all human beings regardless of their nationality and legal status. A number of basic or fundamental rights are violated in the case of migrant workers. These rights are found in general human rights instruments and are also protected by most national constitutions: freedom from slavery, freedom from forced labour, degrading or inhuman treatment or punishment ILO noted in 1999 the growth in labour trafficking and smuggling and “unless brought under control could become one of the dominant forms of abusive migration in the years to come”. The UN General Assembly adopted in 2000 two protocols on Trafficking and Smuggling (of persons) supplementing the UN Convention against Transnational Organized Crime.

4. 1. International Legal Framework 1.2 International “Migration Charter” ILO Conventions No. 97 and 143 - First international instruments providing more comprehensive solutions to the problems facing migrant workers - Equal treatment between regular status migrants and nationals in employment and working conditions - Measures to counter irregular migration UN Convention on Migrant Workers 1990 - Comprehensive and furthers the rights of irregular migrant workers - Along with ILO C143 contains provisions intended to ensure that all migrant workers enjoy a basic level of protection whatever their status

5. 1. International Legal Framework 1.3. International Labour Standards Many provisions in the more widely ratified fundamental Conventions as well as in other less ratified Conventions are not limited to nationals and apply to migrants. The rights at work in the 8 ILO Conventions deemed fundamental by the international community include freedom of association and right to collective bargaining, freedom from forced labour and child labour and non-discrimination. Other particularly relevant standards include C181 on Private Employment Agencies; C19 on Equality of Treatment (Accident Compensation); C118 on Equality of Treatment (Social Security); CI88 on Fishing on Commercial Vessels and C189 Decent Work for Domestic Workers.

6. 2. Recruitment Recruitment abuses involving licensed and unlicensed brokers include high fees and costs, misrepresentation, failure to meet placement obligations and contract substitution. Matching employers and job seekers: direct – employer- worker, via private recruitment agencies, via public placement agencies. What works best and for what? Should employers be recruiting more from profiles in data-bases of qualifying job seekers created in public placement agencies? Public placement agencies are an alternative particularly when numbers are not large. Korea EPS. Most recruitment in/from Asia takes place via private recruitment agencies

7. 2. Regulation of Recruitment Country of origin governments have generally responded with regulation in terms of licensing requirements, a limit on fees and a complaint mechanism. Some have also provided performance based incentives. Information campaigns have been mounted against illegal recruitment.

8. 2. Regulation of Recruitment 2.1 International Standards The most recent and comprehensive international instrument on the regulation of recruitment is ILO Convention 181 on Private Employment Agencies. 23 countries have ratified the Convention (1 from the Asia Pacific Region - Japan). More widely used as a guide in drafting of legislation. Article 1 – Definition of PEA Article 7 – Fees and costs Legislators may preserve some occupations for recruitment via PES only (Article 2) R188 (1997): calls on States to combat unfair advertising practices and misleading advertisements

9. 2. Regulation of Recruitment 2.2 Registration and licensing Citizenship Financial capacity Personal and professional qualifications Validity of the license Listing of sub-agents There are divergent requirements in terms of the refundable guarantee deposit that needs to be put up by recruitment agencies seeking a license. What licensing requirements are appropriate for purposes of efficiency and protection? In addition, how can sub-agents be regulated?

10. 2. Regulation of Recruitment 2.3 Costs Placing an upper limit on the fees that PEAs can charge is common practice in Asian countries of origin with mature LM regimes. Information should be disseminated to the public on recruitment- related fees and costs allowable under the legislation, such as: cost of placement and documentary services; skills testing fees; medical examination and inoculation; passport and visa fees; airport terminal fees (if applicable); other authorized fees. How can the costs be reduced? Some banks advance departure loans linked to remittances. The best practice is that placement or intermediary fees are not borne by the worker.

11. 2. Regulation of Recruitment 2.4 Monitoring and Enforcement (Source: OSCE-IOM-ILO LM Handbook, 2006) Authorized body should do this by: obtaining reports by recruitment agencies on job placement, status of employment of those deployed, and other information needed by state agencies; organizing periodic visits or inspections by state agents or their representatives; introducing information campaigns identifying recruitment agencies or foreign employers blacklisted for violations of the law or for having perpetrated illegal acts or abuses; establishing efficient and competent mechanisms for review of migrant workers’ employment contracts prior to signature and during their employment when the contract is enforced.

12. 2. Regulation of Recruitment Monitoring activities should be linked to a complaint mechanism for workers and, more specifically migrant workers. Workers who have been deceived or abused during recruitment should have the possibility to file complaints and to receive compensation. Adjudication through regular court proceedings can be costly and difficult for migrant workers. It is therefore advisable to set up in addition an administrative complaint procedure which would also assist law enforcement authorities in targeting criminal recruiters.

13. 2. Regulation of Recruitment Complaint Procedures Tier I Private Employment Agencies In the event of abusive employment conditions abroad, the migrant should first contact the PEA that hired him or her. The PEA should then attempt to settle the dispute between employee and employer amicably and by voluntary agreement. Tier 2 Responsible State Authority If tier 1 fails, then the appropriate institutions should provide impartial and effective third-party assistance through conciliation, arbitration, and mediation. Institutions should get in touch with their counterparts in the country of employment. Should the complaint be proven, the responsible authority should revoke or suspend the licences or satisfy claims for refunding. Tier 3 Adjudication, though prolonged and costly, this is the best way to deal with serious abuses of human rights in the recruitment process, including human trafficking. Complaints involving acts that are criminal in nature and require the imposition of penalties such as fines and imprisonment come within the jurisdiction of the courts.

14. 2. Regulation of Recruitment 2.5 Performance-based incentives 2.6 Self-regulation Codes of Conduct Rating/labeling (ISO 9000)

15. 3. Post Admission Policies – Rights of MWs in the Context of Temporary LM 3.1 Labour market regulation – employment restrictions and job mobility within the same employment sector 3.2 Terms and conditions of employment 3.3 Trade union rights 3.4 Family unification 3.5 Health care 3.6. Education 3.7 Social Security: ILO Conventions 19, 118, 157 3.8 Occupational health and safety Enforcement - Labour inspection

16. 4. Support Services 4.1 Pre-departure orientation 4.2 On-site consular support 4.3 Remittances 4.4 Return and reintegration

17. 5. How can ILO potentially support the implementation of the PICTA TMNP? 5.1 Technical assistance in the review and development of legislation (regulation of recruitment, labour law) and information resources on the same 5.2 Technical assistance in the design of a recruitment mechanism & in assessing labour market requirements for MWs 5.3 Training and capacity building: social security; regulation of recruitment; labour inspectors (sensitisation on migrant worker issues); employers and workers organizations (on protection of migrant workers); consular officials. 5.4 Technical assistance in the design of support services (pre-departure orientation)