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מוקד סיוע

לעובדים זרים

התכנית למשפט ורווחההתכניות לחינוך משפטי קליני ע"ש אלגה צגלה

הפקולטה למשפטים ע"ש בוכמן

July 2006

Principles of an Arrangement for the

Employment of Migrant Workers in Israel

Abstract

This position paper lists the problems created under the current arrangements for theemployment of migrant laborers in Israel – primarily corruption and wrongful employmentnorms – and proposes alternative arrangements.

The main recommendations are:

1. Bi-lateral agreements between Israel and the countries of origin of migrant workers.Such agreements would protect workers both at the phase of recruitment and arrivalin Israel and at the phase of departure from Israel.

2. The recruitment and classification of workers in countries of origin shall be performedby governmental or international bodies or by representatives of the Israeli embassies – but not by business entities. The manner of payment by the worker for the servicewill be determined with full transparency, and the work license will be handed over directly to the worker at the embassies.

3. Deceleration of the pace of worker-substitution – the “revolving door” – by a series of means listed below.

4. Equation of the conditions of migrant workers and Israeli workers, in a manner preventing discrimination and improving employment and payment norms, which alsoharm Israelis interested in working in sectors such as caregiving, agriculture or construction.

The Association for Civil Rights in Israel, 75 Nahalat Binyamin St., T.A. 65154, Tel. 03-5608185, Fax 03-5608165

The Law and Welfare Program, TAU Law Faculty, Tel. 03-6405235, Fax 03-6407422Commitment to Peace and Social Justice, P.O.B. 2713, Jerusalem 91026, Tel. 02-6222148, Fax 02-6222168

Hotline for Migrant Workers, 33 Hachashmal St., T.A. 65117, Tel. 03-5602530, Fax 03-5605175

Physicians for Human Rights, 52 Golomb St., T.A. 66171, Tel. 03-6783718, Fax 03-6873029

Kav LaOved, 17 Y.L. Peretz St., T.A. 61022, Tel. 03-6883766, Fax 03-6883537

Adva Center, P.O.B. 36529, T.A. 61364, Tel. 03-5608871, Fax 03-5602205



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5. Equation of the social rights of migrant workers and Israelis, particularly with respectto legal assistance and representation, and the right of association. Such rights shallbe preserved also in the process of the worker’s return to his country of origin.

The Main Problems with the Current Arrangement

For over a decade, statements made by State officials have revealed the existence of a need,in certain work sectors, to employ migrant workers. Thus, Israel has joined the overwhelmingmajority of developed nations in the global economy era. At present, there are approximately190,000 migrant workers in Israel. Most of them had arrived legally, with work permits, and aminority either arrived as tourists or were smuggled into Israel. Migrant workers arrived inIsrael in the early 1990s, to replace Palestinian construction and agriculture workers, whoseentry into Israel was denied due to the security and separation policy. In addition, caregivingworkers were brought to Israel in the context of the trend to privatize health services in Israel.After the number of migrant workers peaked at approximately 250,000 in 2001, their numbershave declined following a massive deportation campaign, a recession and the unstablesecurity situation. The number of migrant workers in Israel is now once again on the rise.

The policy for the employment of migrant workers in Israel, outlined by the Government,encourages widespread exploitation of migrant workers and trafficking in persons for workpurposes. The exploitative mechanism is based on the following elements:

• Willful blindness to the collection of high brokerage fees (up to $15,000) frommigrant workers in Israel and overseas, some of which find their way to brokers andemployers in Israel. The brokerage fees force workers to borrow money and render them financially-dependent upon their work in Israel. The collection of brokerage feesis so profitable, that in no few cases migrant workers are brought into Israel with nointention of employing them.

• The binding arrangement, which prohibits migrant workers from substitutingemployers. The binding arrangement prevents workers from dealing with exploitation,abuse and salary-withholding by finding an alternative employer. According to thebinding arrangement, even workers who were traded without their knowledge or choice, lose their legal status. Studies by the Research, Planning and EconomyAdministration at the Ministry of Trade and Industry1 (Ronny Bar-Tsuri and YoramIda) indicate that the main cause for migrant workers’ loss of legal status is not their overstaying the license period or working outside the original sector, but their leavingtheir employers due to substandard conditions and/or salary withholding.

• Lax or non-existent enforcement of protective labor laws and against criminalconduct against migrant workers (violence, imprisonment, confiscation of documents,and threats). The lack of enforcement enables employers to abuse migrant workersblatantly, and without fear of penalty.

• The “revolving door” policy – massive deportation of workers having lost their work permits, alongside the massive introduction of new workers. It is important tonote that according to the data of the Central Bureau of Statistics, the number of deported workers has, in all years to date, been smaller than the number of workersbrought into Israel legally with work permits.

The policy described above has been recognized by the U.S. Department of State, UN bodiesand the Israeli Supreme Court as a type of enslavement and trafficking in persons.

1 Yoram Ida, “The Factors Affecting Foreign Workers’ Transition to Illegal Employment”, November

2004, http://www.moital.gov.il/NR/rdonlyres/8C9F809F-85AB-4ABF-BF36-

F58EB8FB33BE/0/X6038.pdf , and Ronny Bar-Tsuri, “Chinese Workers Employed in IsraelWithout a Permit”, June 2005, http://www.moital.gov.il/NR/rdonlyres/AA7184E8-48EE-49D9-

9689-8705BA96C30D/0/X6538.pdf .



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In view of this situation, the State of Israel has to accept the following principles:

• In Israel, as in other Western countries, labor migration is not a temporaryphenomenon. The policy must propose long-term solutions for labor migration.

•

Migrant workers were invited to Israel in order to meet an economic need.Their treatment should derive from their important contribution to the growth of theIsraeli economy.

• Migrant workers are human beings for all intents and purposes, and are notto be treated as working tools. Being human beings, there can be no waiver, not eventemporary, of their basic human rights.

• The argument whereby migrant workers cause unemployment is demagogicand unfounded. Its objective is to eliminate governmental responsibility for unemployment. A study by the Research, Planning and Economy Administration atthe Ministry of Trade and Industry2 (Shmuel Amir and Daniel Gottlieb) demonstratesthat the entry of hundreds of thousands of migrant workers to Israel over the 1990s

accounts for only a marginal percentage of the scope of unemployment. Obviously,each and every unemployed person is a world unto himself, but the figuresdemonstrate that the blame cannot be placed upon migrant workers, particularly inview of the economic need for migrant workers, declared by the State time and again.

• Conversely, the exploitation and oppression of migrant workers erodes thesalaries of Israeli workers, and ousts them from certain employment sectors. Ensuringfair employment conditions for migrant workers would enable fair competitionbetween Israelis and immigrants (in which Israelis have “home court” advantage), andprotect both groups as one.

The principles proposed below do not seek to intervene in the State’s considerations in thedetermination of sectors or quotas, but assume that, in varying sectors and scopes, labor

migration to Israel will continue over time. Consequently, the State of Israel has to take thefollowing steps in order to ensure that the employment of migrant workers, in all phasesthereof (recruitment in the country of origin, arrival, residence and return to the country of origin), does not violate human rights, extends proper and fair treatment to migrant workers,and protects Israeli workers against unruly competition and wrongful employment practices.

Principles for the Arrangement of the Employment of Migrant Workers in Israel

International and Bi-Lateral Agreements with Countries of Origin

The State of Israel is interested in introducing migrant workers into certain sectors inorder to boost the domestic economy. The countries of origin are interested in havingtheir residents work overseas as a means for the introduction of foreign currency andthe reduction of the rate of unemployment. Herefrom derive the duties of both the Stateof Israel, which invites workers, and of the countries of origin, interested in sendingworkers, to respect the workers and their rights, and to grant them support on thebasis of mutual cooperation.

Recommendations

1. The State of Israel, which constitutes a destination for migrant workers, hasthe duty to sign international conventions aimed at protecting migrant workers.

2

Shmuel Amir and Daniel Gottlieb, “The Entry of Foreigners and the Ousting of Locals fromEmployment in Israel”, June 2005, http://www.moital.gov.il/NR/rdonlyres/046863F8-7A02-

4F1A-8172-E496672C9257/0/knisatzarim.pdf .

http://www.moital.gov.il/NR/rdonlyres/046863F8-7A02-4F1A-8172-E496672C9257/0/knisatzarim.pdf








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2. The State of Israel has to sign bi-lateral agreements with countries of

origin, in order to regulate the residence of migrant workers and grant themprotection at the stages of both recruitment and arrival, and of return to the country of origin.

3.Work licenses shall be issued only to migrant workers from countrieswith which Israel shall have bi-lateral agreements.

4. Israel shall sign bi-lateral agreements with countries that meet minimal

criteria, including the satisfactory protection of workers’ rights; the countries’ being aparty to relevant treaties; the countries’ subjection to supervision and control byinternational bodies (such as UN bodies and NGOs); the degree of cooperationdemonstrated by those countries with the country of destination and internationalbodies in the protection of workers.

Combating the Collection of Brokerage Fees and the Detrimental Involvement of Middlemen

It is universally known that migrant workers are charged a high brokerage fee, at therate of thousands of dollars, with very high (extortionate) interest rates, starting fromthe phase of recruitment in the country of origin, through the phase of arrival andplacement, and often also in the transition to a new employer, during their term of legalresidence in Israel. Considering the accepted salary levels in the countries of origin,the brokerage fees constitute an unbearable economic burden for migrant workers,rendering them an easy target for exploitation and abuse by brokerage companies andemployers, and creating patterns of bondage, which serve as a basis for trafficking inpersons. Migrant workers’ dependency upon their long-term employment in Israel inorder to repay the loans they had taken in their countries of origin in order to pay thebrokerage fees, enslaves them to their employers, even if they did not actually partakein the receipt of the brokerage fees. Such debts drive workers to seek illegalemployment in order to increase their income and meet the interest payments. As

aforesaid, Israel has a duty to combat the brokerage-fee collection phenomenon, bothin the countries of origin and in its own territory.

Recommendations:

5. Cooperation with the countries of origin in order to prevent the

collection of brokerage fees and the remittance thereof to Israel, using thecurrently-existing means for the prevention of money laundering.

6. The recruitment and classification of workers in the countries of origin

shall be performed by governmental bodies, international bodies, or representatives from the Israeli embassies, but not by business entities. In the

event of a need to charge a fee for such service from the migrant workers, theamount of the fee will be reasonable in terms of the country of origin, and the manner of payment will be determined with full transparency.

7. In order to prevent the involvement of brokerage companies in the

classification process, with brokerage fees collected ‘under the table’, the followingsteps shall be taken:

a. The work-seeker shall be required to approach the classifying

body in person, without any middlemen. The various registration formsshall be handed out to applicants only. The process of receipt of the worklicense at the embassies shall be performed vis-à-vis the work-seeker inperson, and not vis-à-vis any broker or manpower company.



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b. Information about employment opportunities in Israel shall be

given out to any person, free of charge and without any bureaucraticprocess (such as by periodic lectures, open to work-seekers, or leafletseasily-obtainable at public places).

c.The recruitment and classification process will be simple, andthe forms written in clear language, such that no middleman’s assistance

shall be required in order to fill them out. If the work-seeker shall requireassistance in filling out the forms, such assistance shall be rendered to himfree of charge by the classifying body.

d. In order to prevent bribery, if work-seekers’ applications exceed theentry quotas, it shall be clarified to work-seekers that the choice amongthem will be based on a lottery.

e. The criteria for the screening of candidates shall be determined

so as not to produce “cash cows” in the countries of origin (such asexpensive professional training offering worthless titles).

8. A preparatory workshop of several hours (free of charge) shall be given to

all migrant workers before departing for Israel, at which they shall be afforded theopportunity to ask questions and receive explanations.

9. Each migrant worker shall receive a detailed ‘rights sheet’ in his

country of origin, written in simple and clear language. The rights sheet shall includereferrals to enforcement agencies and help organizations.

Prevention of the ‘Revolving Door’ and Violation of Workers’ Rights

Since brokerage fees are a primary motive for bringing migrant workers, the bodies

bringing the workers have an interest in increasing their rate of substitution. A highsubstitution rate prevents workers from repaying the loans they had taken, thusdealing them a critical blow. The two tools for accelerating the rate of substitution arethe legal mechanism that turns workers having come to Israel to work legally intoillegal residents, and an enforcement mechanism that hastens to deport them. Thethreat of deportation and loss of legal status enable a violation of the rights of workers,who depend on the employer’s graces. In addition to the injury to migrant workers,entire employment sectors become inaccessible to Israeli workers.

Recommendations:

10. The authority to issue residence and work permits shall be transferred

from the Ministry of the Interior to the Ministry of Trade and Industry, or to a

body which will concentrate the handling of migrant workers (as, in practice, theauthority to issue permits to Palestinians to work and reside in Israel has beentransferred to a single body). The Ministry of the Interior lacks the economic viewpointrequired to shape procedures on the matter, since it is not familiar with thecontribution of migrant workers to the market and the economic importance of protecting their rights.

11. The migrant workers’ residence permit will not be conditioned upon the

work license, and will be issued in advance for the maximum period in whichthe State will allow the immigrant to work in its territory . A worker shall beentitled to seek legal employment freely, without being subject to the threat of deportation during periods of unemployment. A breach of the terms of the worklicense will not be deemed as a breach of the residence permit. The limited renewal

of the residence permit and work license are nothing but another tool enabling the



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revolving door. The supervision over the employment of migrant workers may beperformed via the mechanism which will monitor their work licenses.

12. Workers will be entirely free to work for any employer, subject to thequotas and sectorial restrictions determined by the State, and to freelytransition among employers entitled to employ migrant workers.

13. The licensing process shall not be performed individually per employer,

and the employment of migrant workers shall not be limited to severalemployers or placement agencies. Experience shows that employer-licensingprocesses are tainted by corruption and arbitrariness. Moreover, restrictingemployment approvals to certain employers confers upon them excessive power relative to the migrant workers, leads to cartelization, and allows for severe abuseand aggravation of working conditions relative to the rest of the labor market. To thisis added the injury to workers’ rights which derives from the reduction or revocation of employers’ licenses. The State can limit migrant workers to working for employerswho meet clear and transparent professional criteria (such as registered contractors,persons with national insurance entitlement, etc.

14. Migrant workers will be able to look for work via private agencies, the

National Employment Service and databases or placement services of their embassies (if any). The cost of placement in Israel shall be charged only toemployers. The ability of workers to approach a variety of different sources in order to seek work will afford them genuine mobility and protection of their rights. It will alsoallow for the preservation of salary levels and competition by Israeli workers. TheEmployment Service shall cooperate with embassies to provide services to migrantworkers.

15. Quotas will not be cut down in a manner which will force migrant

workers already in Israel to leave before expiration of their anticipated term of employment. Such cutbacks prevent workers from repaying the loans they had taken

in order to work in Israel, and drastically violate their rights.

16. The State shall prefer the placement of migrant workers already in Israel

over the introduction of new workers from overseas. If vacant work licenses arestill available after the present population has been exhausted, such licensesshall first be offered to persons already in Israel as tourists, to persons in theprocess of seeking asylum or refugee-status, and to persons having hadrefugee-status. Only after exhaustion of the foregoing populations, shall newworkers be recruited from overseas. The only interest in bringing new workers fromoverseas in lieu of using local workers is the collection of high brokerage fees bybrokers and employers.

17. Enforcement mechanisms shall concentrate on employers rather than

on workers in order to prevent unlawful employment and employment under illegalconditions. Deterrence of employers (i.e., deterrence of the “demand”) is moreeffective and more just than deterring workers, since the workers are both unfamiliar with the laws of the State and subject to more severe financial constraints.Enforcement that focuses on workers is a clear recipe for a “revolving door”.

18. Quotas for arrest and deportation of migrant workers shall be cancelled.Such quotas encourage authorities to deport indiscriminately and create a “revolvingdoor”.

19. A transparent and graded process for the cautioning and penalization of

migrant workers for a breach of the terms of their work license shall be held,

subject to suitably-authorized judicial review. Arrest and deportation cannot bethe immediate and chief solution for any event of breach of the terms of a working



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license. It must be understood that migrant workers are not always able to discern thelegal fine points of the possibilities available to them. Therefore, non-serial offenders,and workers having deviated slightly from the terms of their permit, should becautioned and/or fined. The nature of the offense committed by the worker shall bemade clear to him in a document written in his own language.

20. No responsibility shall be imposed on employers to ensure the

departure of migrant workers having lost their employment license or exhausted their permissible residence period. Employers are not enforcementagencies, and have no right to force a person to leave the country.

21. The rights of migrant workers having been arrested due to illegal

residence or a breach of the terms of their working license, in the context of proceedings for review of the arrest and accessibility to the legal process, shallbe entirely identical to those of persons arrested in a criminal proceeding,including the right to free representation, translation services, and non-collection of fees for legal proceedings, in order to avoid unnecessary deportationand the operation of a “revolving door”.

22. The State shall establish bodies which shall render direct services to

migrant workers whose rights have been violated, while ensuring linguisticaccessibility, orderly opening hours and telephone service, and comprehensiveenforcement powers over all the relevant factors (employers, residence permits andworking licenses, arrest and deportation).

Equation of Migrant Workers’ and Israeli Workers’ Conditions

There are two reasons for full equation of conditions. The first is the prohibition ondiscrimination fixed in international conventions, including ILO No. 97. The second isto prevent the deterioration of employment conditions in certain sectors, which harmsmigrant workers and leads to the ousting of Israeli workers. The equation of conditions

must be substantive, and not merely formal, and must take into account the weakenedstatus of migrant workers.

23. Pension insurance shall apply to migrant workers according to the

same conditions applicable to Israeli workers, via pension funds (other than thefine imposed on premature redemption). If the countries of origin offer pensioninsurance, insurance continuity shall be maintained through the bi-lateral agreements.

24. Absolute equation of conditions as between migrant workers and Israeli

workers with respect to national insurance, including unemployment insurance,shall be ensured.

25. The application of all labor laws and expansion orders to migrantworkers shall be ensured, including the adjustment of clauses in the expansionorders pertaining to seniority grading for migrant workers.

26. The creation of closed, migrant-worker labor markets shall be

prevented, while prohibiting special taxation and other discriminatoryconditions. The equation of employment costs shall be performed by the strictenforcement of full equality of rights as between migrant and Israeli workers,including, if necessary, the determination of a salary threshold no lower thanthe accepted salary for Israeli workers in the industry. Special taxation on theemployment of migrant workers creates an incentive for the State to bring in migrantworkers, also when the interests of migrant workers and of Israeli workers areprejudiced. In addition, experience shows that the means for ensuring the collection

of such taxes distort the considerations for the construction of employmentarrangements.



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27. The State shall take steps to prevent the creation of cartels among

employers or placement agencies, and will ensure competition over workers’employment conditions. In the absence of such steps, both migrant workers andIsraeli workers seeking to enter migrant workers’ fields of employment are harmed.

Equation of the Human Rights and Civil Rights of Migrant and Israeli Workers

Migrant workers are first and foremost human beings, and should not be treated as acommodity or as a mere instrument for economic development. The State may notignore migrant workers’ needs and fundamental rights as human beings. Any personworthy of integrating in the local economy is worthy of integrating in the local society.Any concept to the contrary is racist, exploitative and intolerable.

28. The human rights and social rights of migrant workers and Israelis shall

be substantively, and not merely formally, equated, particularly with respect toeducation, religion, welfare, the right to legal representation and assistance andthe right of association. The creation of ghettos of ignorance and poverty harms notonly migrant workers, but is also damaging to the Israeli civil society. The existence of

religious and community institutions and workers’ organizations are essential not onlyfor the protection of migrant workers, but also in order to enable a dialogue betweenworkers and the authorities.

29. The National Health Insurance Law shall apply to migrant workers

during their term of residence in Israel. Health insurance fees shall be collectedfrom salaries, and services shall be rendered through the health funds [ kupot holim]. Issues of insurance continuity and ensuring the propriety of migrant workers’health examinations in countries of origin will be coordinated with the countries of origin in bi-lateral agreements.

30. There shall be no discrimination among work-seekers on the basis of family status. In particular, a person shall not be denied a residence permit

and/or a work license due to a change in his or her family status (such asmarriage or childbirth), or due to the presence of relatives in Israel. In addition,the State cannot ignore, over time, a person’s right to live in the company of hisor her family.

31. A person whom the State has deemed fit to allow to legally reside

therein over time, shall not be denied access to residence and citizenship bythe State, in the event that Israel has become his or her actual life center . Aperson’s contribution to the economy of the State entitles him also to integrate into itscivil fabric.

Process of Return to the Country of Origin

The State of Israel’s responsibility to migrant workers does not end upon expiration of the migrant worker’s term of employment. The State of Israel and the country of originmust ensure an orderly process of repatriation, and help the worker re-integrate in hiscountry of origin. The deportation of migrant workers must be an exceptionalproceeding, and must take into account that illegal residents and violators of workinglicense conditions are not criminals.

32. The State of Israel shall establish a mechanism to assist migrant

workers return to their countries of origin. The mechanism will handle issues suchas ensuring the exhaustion of the worker’s rights and legal proceedings, the exerciseof pension rights, pension continuity and insurance continuity (in accordance with thebi-lateral agreements). The mechanism will assist both workers leaving legally, and

those deported by the State.



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33. The country of origin shall establish a parallel mechanism to ensure, if necessary, the continued handling of issues mentioned in the previous section,and to assist workers in re-integrating in their countries of origin.

34. The State shall determine criteria and allow discretion to enable a

limited extension of residence permits and work licenses in order to ensureworkers’ welfare, such as for the conclusion of legal proceedings, a child’s schoolyear or medical treatment.

35. Migrant workers whose return to their countries of origin jeopardizestheir lives or welfare, as determined in international conventions, shall not beforced to leave the State of Israel without a suitable solution.

36. An illegal resident who cannot be deported by the State for whatever

reason (such as a stay-of-exit order, lack of certificates, health condition, etc.) willnot be kept in custody for the purpose of deportation for longer than a shortand limited period of time.

37. Illegal residents are not criminals. They shall not be kept in custody inthe company of criminals and criminal detainees. However, the State shall notderogate from their rights relative to the rights of other detainees if they arearrested, particularly with respect to the right to file a prisoner’s petition.

Hanne Zohar, Director Kav LaOved

Oded Feller, Adv.The Association for Civil

Rights in Israel

Shevy Corzan, CEOHotline for Migrant Workers

Ran Cohen, Migrant Workers & RefugeesProject Director

Physicians For Human Rights Israel

Itai Swirksi, Adv.The Law and Welfare Program

Dr. Yossi Dahan, ChairpersonAdva Center

Gili Rei, CEOCommitment to Peace and Social Justice

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