1 rights of migrant workers dpa naidu senior specialist on workers’ activities ilo sro-manila

11

Rights of Migrant Rights of Migrant WorkersWorkers

DPA NaiduDPA NaiduSenior Specialist on Workers’ ActivitiesSenior Specialist on Workers’ Activities

ILO SRO-ManilaILO SRO-Manila

22

The rights of migrant workers as The rights of migrant workers as laid down in the relevant laid down in the relevant

International Labour Conventions International Labour Conventions & Recommendations& Recommendations

There are may rights and freedoms in There are may rights and freedoms in International labour Conventions and International labour Conventions and Recommendations that are relevant to Recommendations that are relevant to migrant workersmigrant workers

The rights and freedoms that are laid The rights and freedoms that are laid down in the following Conventions and down in the following Conventions and Recommendations complement or Recommendations complement or supplement one or more of the other supplement one or more of the other Conventions and/or Recommendations, Conventions and/or Recommendations, and are of general application to the great and are of general application to the great majority of today’s ordinary migrant majority of today’s ordinary migrant workersworkers

33

Convention 97Convention 97 Migration for Employment Convention Migration for Employment Convention

(Revised), 1949(Revised), 1949 Recommendation 86Recommendation 86

Migration for Employment Recommendation Migration for Employment Recommendation (Revised), 1949(Revised), 1949

Recommendation 100Recommendation 100 Protection of Migrant Workers (Underdeveloped Protection of Migrant Workers (Underdeveloped

Countries) Recommendation, 1955Countries) Recommendation, 1955 Convention 143Convention 143

Migrant Workers (Supplementary Provisions) Migrant Workers (Supplementary Provisions) Convention, 1975Convention, 1975

Recommendation 151Recommendation 151 Migrant Workers Recommendation, 1975Migrant Workers Recommendation, 1975

44

The various rights and freedoms The various rights and freedoms included in these Conventions and included in these Conventions and Recommendations can be classified Recommendations can be classified under five broad categories, each under five broad categories, each referring or applicable to different referring or applicable to different contexts in the migrant processcontexts in the migrant process

Before leaving the home country and Before leaving the home country and during the journey to the new countryduring the journey to the new country

On arrivalOn arrival During employmentDuring employment Social and Civil rightsSocial and Civil rights RepatriationRepatriation

55

All the rights and freedoms embodied All the rights and freedoms embodied in these Conventions and in these Conventions and Recommendations are equally Recommendations are equally applicable to the plantation workers. applicable to the plantation workers. In addition Convention No. 110, In addition Convention No. 110, concerning conditions of employment concerning conditions of employment plantation workers (1958) in Part II, plantation workers (1958) in Part II, affords certain special protection to affords certain special protection to plantation workers against exploitation plantation workers against exploitation and abuses by recruiters and agents.and abuses by recruiters and agents.

Before we look at these various rights Before we look at these various rights and freedoms, we should know who a and freedoms, we should know who a MIGRANT WORKER IS. MIGRANT WORKER IS.

66

Who is a migrant Who is a migrant worker?worker?

General definition:General definition:

““MIGRANT WORKER” means “A MIGRANT WORKER” means “A person who migrants or who has person who migrants or who has migrated from one country to another migrated from one country to another with a view to being employed with a view to being employed otherwise than on his own account otherwise than on his own account and includes any person regularly and includes any person regularly admitted as a migrant for admitted as a migrant for employment.”employment.”

77

ExclusionsExclusions One or more of the following One or more of the following

groups are excluded from the groups are excluded from the relevant Conventions and relevant Conventions and Recommendations:Recommendations: Frontier workersFrontier workers Artists and Members of Liberal Artists and Members of Liberal

Professions who have entered the Professions who have entered the country on a short term basiscountry on a short term basis

SeafarersSeafarers Self-employed personsSelf-employed persons Persons coming specifically for Persons coming specifically for

purposes of training or educationpurposes of training or education

88

Exclusions….Exclusions….

Employees of organisations or Employees of organisations or undertakings operating within the undertakings operating within the territory of a country who have been territory of a country who have been admitted temporarily to that country admitted temporarily to that country at the request of their employer to at the request of their employer to undertake specific duties or undertake specific duties or assignments, for a limited and assignments, for a limited and defined period of time, and who are defined period of time, and who are required to leave that country or required to leave that country or completion of their duties or completion of their duties or assignmentsassignments

Workers who stay in a country Workers who stay in a country illegallyillegally

99

Rights of migrant workers Rights of migrant workers employed in plantationsemployed in plantations

Convention 97Convention 97 Migration for Employment Convention Migration for Employment Convention

(Revised) 1949(Revised) 1949 Recommendation 86Recommendation 86

Migration for Employment Recommendation Migration for Employment Recommendation (Revised), 1949(Revised), 1949

Recommendation 100Recommendation 100 Protection of Migrant Workers (Under-Protection of Migrant Workers (Under-

developed Countries) Recommendation, 1955 developed Countries) Recommendation, 1955

Applicable International Labour Standards

1010

Convention 143Convention 143 Migrant Workers (Supplementary Migrant Workers (Supplementary

Provisions) Convention, 1975Provisions) Convention, 1975 Recommendation 151Recommendation 151

Migrant Workers Recommendation, Migrant Workers Recommendation, 19751975

Convention 110Convention 110 Plantations, 1958Plantations, 1958

1111

A. Applicable rights and A. Applicable rights and freedoms before leaving home freedoms before leaving home country and during journey to country and during journey to

new countrynew country Information about employment Information about employment

opportunities and working and living opportunities and working and living conditionsconditions Right to know before leaving the home Right to know before leaving the home

country general conditions of work and country general conditions of work and life in the intended country of work life in the intended country of work (R.86-Para 5(2), Also Footnote 3)(R.86-Para 5(2), Also Footnote 3)

1212

A. Applicable rights and freedoms before leaving home country and during A. Applicable rights and freedoms before leaving home country and during journey to new country………journey to new country………

RecruitmentRecruitment Protection against possible forms of Protection against possible forms of

exploitation by recruiting agents or exploitation by recruiting agents or prospective employers prospective employers (C.97, Article 3; (C.97, Article 3; C.97, Appendix I, Article 3, and Appendix C.97, Appendix I, Article 3, and Appendix II, Article 3)II, Article 3)

1313


ContractsContracts Contract of employment setting out rate Contract of employment setting out rate

of pay and conditions of work and terms of pay and conditions of work and terms of employment of employment (C.97, Appendix I, Art. 5; (C.97, Appendix I, Art. 5; Appendix II, Art. 6, and R. 86, Model Appendix II, Art. 6, and R. 86, Model Agreement Art. 22)Agreement Art. 22)

1414


Facilitated departureFacilitated departure Facilities and assistance from public Facilities and assistance from public

authorities in dealing with documentary authorities in dealing with documentary and other formalities and other formalities (C.97, Art. 2, C.97, (C.97, Art. 2, C.97, Appendix I, Art. 4 and 6, and Appendix II, Appendix I, Art. 4 and 6, and Appendix II, Art. 4 and 7)Art. 4 and 7)

1515


Medical attentionMedical attention Medical examination and attention for Medical examination and attention for

migrant worker and family members migrant worker and family members before departure, during journey and on before departure, during journey and on arrival arrival (C.97, Art. 5; R.86, Para 12 and 14, (C.97, Art. 5; R.86, Para 12 and 14, R. 100, Para 8)R. 100, Para 8)

1616


Free travelFree travel Not an absolute right, employer or Not an absolute right, employer or

recruiter is expected to pay cost of travel recruiter is expected to pay cost of travel to migrant and, in appropriate cases, to to migrant and, in appropriate cases, to family members family members (R.100, Para 7)(R.100, Para 7)

1717

B. Applicable rights and B. Applicable rights and freedoms on arrivalfreedoms on arrival

Customs exemptionCustoms exemption Take into the country of work personal Take into the country of work personal

effects, including those of family effects, including those of family members, authorised to accompany members, authorised to accompany them, as well as tools of their trades them, as well as tools of their trades free of customs duty free of customs duty (C.97, Appendix III, (C.97, Appendix III, Art. 1)Art. 1)

1818

B. Applicable rights and freedoms on arrival…….B. Applicable rights and freedoms on arrival…….

Assistance in finding suitable Assistance in finding suitable employmentemployment Free of administrative costs or without Free of administrative costs or without

payment of fees for services, appropriate payment of fees for services, appropriate public authorities to provide assistance in public authorities to provide assistance in finding suitable employment finding suitable employment (R. 151, (R. 151, Para 2(a) in conjunction with C.97, Art. 2, Para 2(a) in conjunction with C.97, Art. 2, also C.97, Appendix II, Art. 9 and 10)also C.97, Appendix II, Art. 9 and 10)

1919

B. Applicable rights and freedoms on arrival…….B. Applicable rights and freedoms on arrival…….

Settling inSettling in Assistance to facilities in settling down in Assistance to facilities in settling down in

the new environment, with the new environment, with documentation, interpretation and other documentation, interpretation and other formalities on such matters as housing, formalities on such matters as housing, etc. etc. (C.97, Art. 6(1)(a)(iii); C.97, Appendix (C.97, Art. 6(1)(a)(iii); C.97, Appendix I, Art. 6 (c), and Appendix II, Art. (7(c), R. I, Art. 6 (c), and Appendix II, Art. (7(c), R. 100, Para 21 and 22)100, Para 21 and 22)

2020

C. Applicable rights and C. Applicable rights and freedoms during freedoms during

employmentemployment Wages and other terms of employmentWages and other terms of employment

Equality with the national of the country of Equality with the national of the country of work to minimum wage rates, hours of work to minimum wage rates, hours of work, rest periods, holidays with pay, work, rest periods, holidays with pay, welfare facilities, and other benefits. welfare facilities, and other benefits. Payment in kind should be within limits Payment in kind should be within limits fixed by concerned authorities fixed by concerned authorities (C.97, Art. (C.97, Art. 6(1)(a)(i); R. 100, Para 23, 25, and 36; R. 6(1)(a)(i); R. 100, Para 23, 25, and 36; R. 151, Para 2)151, Para 2)

2121

C. Applicable rights and freedoms during employment……C. Applicable rights and freedoms during employment……

Working conditionsWorking conditions Equality of treatment in respect of working Equality of treatment in respect of working

conditions – including those designed specially conditions – including those designed specially for women and young workers for women and young workers [C.143, Art. [C.143, Art. 12(g)]12(g)]

Job securityJob security Equality of treatment in respect of matters Equality of treatment in respect of matters

connected with job security – including those connected with job security – including those concerning redundancy and related matters concerning redundancy and related matters [C.143, Art. 8; R. 151, Para 2(d)][C.143, Art. 8; R. 151, Para 2(d)]

2222


PromotionPromotion Promotional prospects to be same as for Promotional prospects to be same as for

nationals of the country of work nationals of the country of work [R. 100, Para [R. 100, Para 38, 39 and 40; R. 15, Para 2(c)]38, 39 and 40; R. 15, Para 2(c)]

Social securitySocial security Social security benefits to be the same as those Social security benefits to be the same as those

applicable to the nationals on such matters as applicable to the nationals on such matters as employment injury, maternity, sickness, employment injury, maternity, sickness, invalidity, old age, death, etc. invalidity, old age, death, etc. (C.118, C.97, Art. (C.118, C.97, Art. 6 (1)(b); R. 100, Para 45, 46 and 47, C. 143, 6 (1)(b); R. 100, Para 45, 46 and 47, C. 143, Art. 10, R. 151, Para 34, C. 157, R. 167)Art. 10, R. 151, Para 34, C. 157, R. 167)

2323


Health and safetyHealth and safety Special protection in respect of health Special protection in respect of health

and safety, especially protection against and safety, especially protection against illness to which they were not exposed illness to which they were not exposed in their country; advice and help with in their country; advice and help with psychological problems arising from psychological problems arising from unfamiliar working and living unfamiliar working and living environment; and on prevention of environment; and on prevention of occupational accidents and diseases occupational accidents and diseases (R.100, Para 45 and 46; R. 151, Para 20, (R.100, Para 45 and 46; R. 151, Para 20, 21 and 22)21 and 22)

2424


Trade union rightsTrade union rights The basic freedoms and rights respecting The basic freedoms and rights respecting

freedom of association and collective freedom of association and collective bargaining, particularly those covered by bargaining, particularly those covered by Conventions No. 87 and 98, and the special Conventions No. 87 and 98, and the special provisions applicable to migrant workers, to be provisions applicable to migrant workers, to be respected by countries employing migrant respected by countries employing migrant workers and, accordingly, the trade union workers and, accordingly, the trade union rights of local workers to be extended to rights of local workers to be extended to migrant workers, as well migrant workers, as well [C.87; C.97, Art. 6(1)[C.87; C.97, Art. 6(1)(a)(ii); C.98, C.135, R. 143, C.141, R. 149, (a)(ii); C.98, C.135, R. 143, C.141, R. 149, C.143, Art. 10; R. 151, Para 2(g)]C.143, Art. 10; R. 151, Para 2(g)]

2525


Access to courtsAccess to courts Access to courts to be made available to Access to courts to be made available to

migrant workers in the same way as migrant workers in the same way as nationals, to settle grievances arising from nationals, to settle grievances arising from working conditions, trade union rights and working conditions, trade union rights and social security social security (C.97, Art. 6(i)(d); C.143, (C.97, Art. 6(i)(d); C.143, Art. 9(2); R. 151, Para 33 and 18; R. 100, Art. 9(2); R. 151, Para 33 and 18; R. 100, Para 38, 39 and 40; C.143, Art. 14(a) and Para 38, 39 and 40; C.143, Art. 14(a) and (c); R. 151, Para 2(b) and (d); Also C.97, (c); R. 151, Para 2(b) and (d); Also C.97, Art. 8 and R. 151, Para 31)Art. 8 and R. 151, Para 31)

2626


Access to other jobs and vocational Access to other jobs and vocational trainingtraining In addition to the right to a job suited to In addition to the right to a job suited to

one’s qualification, access to vocational one’s qualification, access to vocational training and other jobs to be made training and other jobs to be made available to migrant workers, subject to available to migrant workers, subject to reasonable restrictions imposed by reasonable restrictions imposed by Governments regarding recruitment to Governments regarding recruitment to certain civil service postscertain civil service posts

2727


Freedom of movementFreedom of movement Freedom of movement, within country of Freedom of movement, within country of

work, to be assured to migrant workers, work, to be assured to migrant workers, subject to same limitations as applicable subject to same limitations as applicable to nationals to nationals (C. 143, Art. 14(a)(C. 143, Art. 14(a)

2828

J. Applicable social and civil rightsJ. Applicable social and civil rights Education and cultureEducation and culture

Equality of treatment with respect to education Equality of treatment with respect to education – including facilities to learn the language of – including facilities to learn the language of the country where they work. Children to be the country where they work. Children to be given facilities to learn mother tonguegiven facilities to learn mother tongue

Culture – while maintaining their own culture, Culture – while maintaining their own culture, to participate in the cultural life of the country to participate in the cultural life of the country where they work on the basis of equality with where they work on the basis of equality with the nationals of that country the nationals of that country (R. 100, Para (R. 100, Para 49(d) and (e); C. 143, Art. 12(f); R. 151, Para 7)49(d) and (e); C. 143, Art. 12(f); R. 151, Para 7)

2929

J. Applicable social and civil rights ……J. Applicable social and civil rights ……

Transfer of funds to home countryTransfer of funds to home country Subject to normal limits on Subject to normal limits on

import/export of currencies, transfer of import/export of currencies, transfer of such part of earnings and savings as such part of earnings and savings as they wish to contribute to the welfare of they wish to contribute to the welfare of the members of the family in home the members of the family in home country country (C.97, Art. 9)(C.97, Art. 9)

3030


Family reunification and visitsFamily reunification and visits No absolute right – but it is No absolute right – but it is

recommended by the relevant ILO recommended by the relevant ILO standardsstandards

Migrants workers to be allowed to visit Migrants workers to be allowed to visit their families, after at least one yeartheir families, after at least one year

Alternatively, family to be allowed to Alternatively, family to be allowed to visit the worker for corresponding period visit the worker for corresponding period

(C.143, Art. 13, R. 151, Para 13, 14, 15, (C.143, Art. 13, R. 151, Para 13, 14, 15, 16, 17, 18 and 19)16, 17, 18 and 19)

3131


Advisory servicesAdvisory services Competent authority to provide advise Competent authority to provide advise

and assistance, free-of-charge, including and assistance, free-of-charge, including information on social matters, and aid information on social matters, and aid from the social services, possibly in the from the social services, possibly in the mother tongue or with interpretation mother tongue or with interpretation and translation and translation

(C.97, Art. 2, R. 151, Para 7(1) and 24)(C.97, Art. 2, R. 151, Para 7(1) and 24)

3232

E. RepatriationE. Repatriation

Appeal against arbitrary decisionsAppeal against arbitrary decisions Right of appeal against decision to Right of appeal against decision to

terminate employment or to deprive terminate employment or to deprive resident status. If successful, right to resident status. If successful, right to reinstatement/reinstatement/

compensation, same right to legal aid, compensation, same right to legal aid, as applicable to national workersas applicable to national workers

(C.151, Para 32, 33 and 34)(C.151, Para 32, 33 and 34)

3333

E. Repatriation ….E. Repatriation ….

Travel costsTravel costs No absolute right to free travel back to No absolute right to free travel back to

home country. But, if the migrant home country. But, if the migrant worker fails to secure the employment worker fails to secure the employment for which he was selected for no fault of for which he was selected for no fault of his, he will not have to pay cost of his his, he will not have to pay cost of his return or that of family membersreturn or that of family members

(C.97, Art. 9(1) and (2); R. 151, (C.97, Art. 9(1) and (2); R. 151, Para Para 33 and 34)33 and 34)

3434


Assistance with arrangementsAssistance with arrangements Right to assistance in recovering Right to assistance in recovering

outstanding remuneration, severance outstanding remuneration, severance pay, compensation for holiday, etc. pay, compensation for holiday, etc. Equal treatment to be accorded as Equal treatment to be accorded as applicable to national workersapplicable to national workers

(C.97, Art. 9(1) and (2); R. 151, (C.97, Art. 9(1) and (2); R. 151, Para Para 33 and 34)33 and 34)

3535


Rights of returning migrant in home Rights of returning migrant in home countrycountry On return to country of origin, migrant On return to country of origin, migrant

workers have right to assistance. workers have right to assistance. Entitled to unemployment benefit, if it Entitled to unemployment benefit, if it exits; assistance in obtaining work; right exits; assistance in obtaining work; right to social security acquired in the course to social security acquired in the course of employment abroad; exemption from of employment abroad; exemption from customs duty on personal possessions, customs duty on personal possessions, etc.etc.

(C.97, Appendix III, Art. 2; R. 86, Para 20)(C.97, Appendix III, Art. 2; R. 86, Para 20)

3636

Special protection to Special protection to migrant workers employed migrant workers employed

in the plantationsin the plantations Protects migrant workers against Protects migrant workers against

exploitation and abuse by recruitersexploitation and abuse by recruiters Upon recruitment migrant workers to be Upon recruitment migrant workers to be

produced before public authoritiesproduced before public authorities Migrant workers to be medically Migrant workers to be medically

examined. If medically unfit worker and examined. If medically unfit worker and family to be repatriated by recruiterfamily to be repatriated by recruiter

(C.110, Part II)(C.110, Part II)

3737

List of Ratifications of International Labour Conventions

Migration of Employment Convention (Revised), 1949

Convention No. 97

Date of entry into force: 22.1.1952Date of entry into force: 22.1.1952 41 ratifications41 ratifications

Algeria (Excluded the provisions of Annex IIAlgeria (Excluded the provisions of Annex II 19.10.196219.10.1962

Bahamas (Excluded the provisions of Annexes I to III)Bahamas (Excluded the provisions of Annexes I to III) 25.5.197625.5.1976

Barbados (Excluded the provisions of Annexes I to IIIBarbados (Excluded the provisions of Annexes I to III 8.5.19678.5.1967

BelgiumBelgium 27.7.195327.7.1953

BelizeBelize 15.12.198315.12.1983

Bosnia and Herzegovina (Excluded the provisions of Annex Bosnia and Herzegovina (Excluded the provisions of Annex III)III)

2.6.19932.6.1993

BrazilBrazil 18.6.196518.6.1965

Burkina FasoBurkina Faso 9.6.19619.6.1961

Cameroon (Excluded the provisions of Annexes I to III)Cameroon (Excluded the provisions of Annexes I to III) 3.9.19623.9.1962

CubaCuba 29.4.195229.4.1952

Cyprus (Excluded the provisions of Annexes I and IIICyprus (Excluded the provisions of Annexes I and III 23.9.196023.9.1960

Dominica (Excluded the provisions of Annexes I to III)Dominica (Excluded the provisions of Annexes I to III) 28.2.198328.2.1983

Ecuador (Excluded the provisions of Annexes I to III)Ecuador (Excluded the provisions of Annexes I to III) 5.4.19785.4.1978

France (Excluded the provisions of Annex II)France (Excluded the provisions of Annex II) 29.3.195429.3.1954

GermanyGermany 22.6.195922.6.1959

Grenada (Excluded the provisions of Annexes I to III)Grenada (Excluded the provisions of Annexes I to III) 9.7.19799.7.1979

GuatemalaGuatemala 13.2.195213.2.1952

3838



Convention No. 97

Date of entry into force: 22.1.1952Date of entry into force: 22.1.1952 41 ratifications41 ratifications

Guyana (Excluded the provisions of Annexes I to III)Guyana (Excluded the provisions of Annexes I to III) 8.6.19668.6.1966

ItalyItaly 22.10.195222.10.1952

Jamaica (Excluded the provisions of Annexes I to III)Jamaica (Excluded the provisions of Annexes I to III) 26.12.196226.12.1962

Kenya (Excluded the provisions of Annexes I to III)Kenya (Excluded the provisions of Annexes I to III) 30.11.196530.11.1965

Malawi Sabah (Excluded the provisions of Annexes I to III)Malawi Sabah (Excluded the provisions of Annexes I to III) 3.3.19643.3.1964

Mauritius (Excluded the provisions of Annexes I to III)Mauritius (Excluded the provisions of Annexes I to III) 2.12.19692.12.1969

NetherlandsNetherlands 20.5.195220.5.1952

New Zealand (Excluded the provisions of Annex II)New Zealand (Excluded the provisions of Annex II) 10.11.195010.11.1950

Nigeria (Excluded the provisions of Annexes I to III)Nigeria (Excluded the provisions of Annexes I to III) 17.10.196017.10.1960

NorwayNorway 17.2.195517.2.1955

PortugalPortugal 12.12.197812.12.1978

Saint Lucia (Excluded the provisions of Annexes I to III)Saint Lucia (Excluded the provisions of Annexes I to III) 14.5.198014.5.1980

Slovenia (Excluded the provisions of Annex III)Slovenia (Excluded the provisions of Annex III) 29.5.199229.5.1992

SpainSpain 21.3.196721.3.1967

Zanzibar (Excluded the provisions of Annexes I to III)Zanzibar (Excluded the provisions of Annexes I to III) 22.6.196422.6.1964

The former Yogoslav Republic MacedoniaThe former Yogoslav Republic Macedonia 17.11.199117.11.1991

Trinidad and Tobago (Excluded the provisions of Annexes I to III)Trinidad and Tobago (Excluded the provisions of Annexes I to III) 24.5.196324.5.1963

3939

Date of entry into force: 22.1.1952 41 ratifications

Uruguay 18.3.1954

Venezuela 9.6.1983

Yogoslavia (Excluded the provisions of Annexes I to III) 24.11.2000

Zambia (Excluded the provisions of Annexes I to III) 2.12.1964



Convention No. 97

1 rights of migrant workers dpa naidu senior specialist on workers’ activities ilo sro-manila

Documents

migrant workers recommendation

employment recommendation

migrant process

employment convention

various rights

addition convention

following conventions

civil rights social