There are three kinds of approaches: the national, bilateral and multilateral approach.
States can lay down in their own laws the basic principles of treatment to which their citizens should be entitled when they move abroad, whether temporarily or permanently. They may want to buttress broad principles with detailed standard or model employment contracts to be respected. Furthermore, they can - unilaterally or in concert with like-minded States - attempt to exert diplomatic, economic or moral pressure on other States where they feel that these other States do not treat their citizens as well as they should.
Diplomatic or moral pressure is exercised from time to time. For example, heads of States or ministers make public declarations. They meet with their counterparts abroad, in public or private, or they use ambassadorial services to convey their views.
Economic pressure is exercised less frequently, largely because migrant-sending countries are generally weaker countries, economically speaking, than migrant-receiving countries. But it is not unknown in the field of migrant workers. Algeria abrogated its migration agreement with France in 1973 when Algeria felt that its citizens in France were insufficiently protected. The Philippines temporarily interdicted the recruitment of entertainers for Japan and housemaids for Saudi Arabia, among other States, when the then President of the Philippines, Ms. Aquino, felt that Filipinas too often encountered abuse in those States. This temporary interdiction of recruitment was accompanied by the promise to lift the ban if notable improvements in the treatment of Filipinas could be expected.
States can negotiate the treatment to be accorded to their nationals and lay down the agreed principles and procedures in a bilateral treaty or an instrument of a lesser status or effect, such as a declaration of intent or a framework agreement.
Obligations deriving from bilateral agreements or treaties have historically been the most important constraint on the exercise of state power over non-nationals. Treaties have the advantage of being subject to the jurisdiction of the courts of the countries involved and to such international jurisdiction as the contracting parties may agree to. The subjection of bilateral treaties to national and international jurisdiction has, in democratic States, given rise to an increasingly effective defence of the rights of the individual vis-à-vis the rights of the State's powers.
In the field of bilateral labour agreements of an operational nature, such as those in force in Western Europe in the 1960s, courts have sometimes played an important role. Their intervention was not always necessary. Most of these operational recruitment agreements foresaw the establishment of bilateral commissions. Their tasks included the examination of general problems that arose in the implementation of the agreement as well as questions as to which rights migrant workers and members of their families were entitled to.
In the European bilateral agreements it was generally stated that the workers from country A to be employed in country B should enjoy the same conditions of remuneration and work as the citizens of B. Even where this principle of equality of opportunity and treatment was not specifically written into a bilateral recruitment agreement, it was nevertheless operative under the constitution, labour code or other general laws and regulations of the country of employment
The point here is not that the equality principle was laid down somewhere but that the courts could be seized of the matter and that judges could apply the equality criterion. Courts could be seized of the matter through labour attaches, through trade unions of whom migrants formed part, through private groups that took it upon themselves to defend migrant workers' rights, or through the migrants themselves who - with or without the support of a hired lawyer - could go to a court to claim their rights.
Bilateral migration agreements are not unknown for countries supplying labour to the Middle East. South-East Asian countries have concluded a number of migration agreements with several Middle Eastern countries. These are generally framework agreements or declarations of intent. Where they do not become incorporated into the municipal laws of the migrant-receiving country, they are not subject to that country's judicial system. That does not, however, mean that migrant workers do not have any rights in those countries or that they cannot claim rights before the general or labour courts.
States can - going beyond national measures and bilateral negotiations - attempt to protect their citizens abroad through the promotion of multilateral minimum standards at the regional or global levels; through ratifying and applying them; and through putting pressure on States on whose territories their citizens are, to ratify and apply them as well. By this means, too, migrants can enjoy protection.
There are a variety of regional and global instruments designed to protect migrant workers and members of their families. One can make a broad distinction between general migration standards and standards specifically or exclusively dealing with social security protection.
Regional standards in Europe, such as those elaborated under the auspices of the Council of Europe, cover both general migration and social security questions. General migration Conventions usually touch briefly on social security protection; but social security standards that go into detailed principles and procedures need to be elaborated as separate standards.
At the global level, it has been the ILO which has led the struggle for the protection of the rights of migrant workers when employed in countries other than their own. The ILO has recently been joined by the United Nations where, in 1989, the General Assembly adopted the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.
The full text of these standards is available under the ILO's homepage http://www.ilo.org, click on "International Labour Standards Human Rights", then on "SITEMAP" and in the SITEMAP, click on "International labour standards on migrant workers". In that screen, the text can be accessed by clicking on the titles of the aforementioned Conventions and Recommendations. The short-cut access is: http://www.ilo.org/public/english/ 50normes/whatare/standards/migrant.htm .
The main Conventions and Recommendations dealing with social security matters concerning migrant workers are:
The summary of the main provisions of the ILO standards concerning migrant workers follows hereunder. It is arranged, not Convention by Convention, but by major subject matter.
A worker has the right to know, before leaving the home country, the general condition of work and life in the intended country of work, and the employment opportunities which exist there.
The recruitment of migrant workers should be carried out only by public authorities, prospective employers or private agencies. Recruitment by employers or agents should be subject to prior authorisation and carried out under official supervision. The intending migrant should thus have the right to protection against various possible forms of exploitation, such as the charging of excessive fees, the use of misleading propaganda, and attempts to evade immigration controls.
Migrant workers have the right, where governments supervise what goes into an employment contract, to receive before departure a written contract of employment, covering conditions of work and terms of employment, particularly the rate of pay.
When workers leave their own country, especially for the first time, they usually need help to cope with the practical and administrative steps involved. They have the right to assistance from the public authorities to deal with the documentary and other formalities; and they should not be charged for this.
Workers, and members of their families authorised to accompany them, should enjoy medical examination and attention before departure, during the journey and on arrival.
Migrant workers who have been recruited or engaged by an employer should not have to pay the cost of their own travel. While there is, strictly speaking, no absolute right to free travel, the recruiter or the employer is expected to pay travelling expenses. The transport of migrant workers should in any case be subject to official authorisation, and any fare charged should be reasonable.
In respect of wages, migrant workers have the following rights: equality with the nationals of the country of work; minimum wage rates, fixed either by collective bargaining or by the competent authority; participation, through their representatives, in the operation of statutory machinery for fixing wages, where it exists; to receive pay in the form of cash, at regular intervals; where food, housing, clothing and other essential supplies and services form part of remuneration, to controls on the part of the competent authority so as to ensure that such "payments in kind" are adequate, fair, and do not exceed a certain proportion fixed by the authority.
The principle that migrant workers should receive treatment at least equal to that which is applied to nationals of the country concerned also covers other terms of employment, including hours of work, rest periods, holidays with pay, welfare, facilities and other benefits. The most important aspects of this matter are dealt with separately in the following sub-paragraphs.
The physical conditions under which migrants work are not separately regulated by ILO standards, but there are two ways in which their rights are protected: by general standards governing such matters as working hours, protection against toxic substances or dangerous machinery, noise and vibration, as well as those designed to give special protection to women and young workers; and secondly, by the application of the "equal treatment" principle referred to previously, which should ensure that migrant workers enjoy the same protection as the nationals of the country in which they work.
A migrant worker also has the right to "equal treatment" in respect of job security. While no international labour Convention establishes an absolute right to a job, migrant workers should not be subject to discrimination if the work force has to be reduced, for example, for reasons of redundancy.
The fact that a migrant worker may have been recruited for a particular job does not mean that he or she must remain in the same position regardless of experience, ability or conduct. They should be given the same opportunities for promotion as nationals of the country.
Migrant workers have special needs in respect of health and safety, and therefore should benefit from special measures additional to those applicable to workers in general. These include measures to protect them against illnesses to which they were not exposed in their country of origin, and to which they have reduced immunity; advice and help with psychological problems arising from an unfamiliar working and living environment; and instruction and training in the prevention of occupational accidents and diseases, including familiarisation with warning signs and symbols relating to work hazards.
The right of all workers in member States of the ILO to belong to trade unions is protected by several Conventions, Nos. 87 and 98 in particular, and by the Constitution of the ILO, so that this basic right must be respected even in countries whose governments have not ratified the Conventions. In addition, the Conventions and Recommendations concerning migrant workers contain several references to the obligation to guarantee the trade union rights accorded to local workers to migrant workers as well.
The principal rights in this area, apart from the rights to form and join unions, are as follows: the right to engage in collective bargaining; to elect representatives for this and other purposes; to use machinery for arbitration and conciliation for the settlement of disputes; and to be consulted by management on matters affecting conditions of work and terms of employment.
Migrant workers can make use of courts in the same way as nationals when they feel aggrieved about their working conditions, trade union rights or social security matters.
Jobs must be open to migrant workers irrespective of the level of skills involved but, of course, according to the worker's level of qualifications. If the migrant worker wishes to acquire more skills, he has the same right as nationals to do so.
However, access to jobs is not unconditional: a government may require a minimum period of two years of lawful employment before a migrant worker has a free choice of work in the sense that he or she can pick up such other jobs as are available. A government may restrict access to limited categories of employment, in particular the civil service, where this is considered necessary in the interests of the State.
Migrant workers are free to move at any time from one place to another in the country of work, provided that they are lawfully within the territory, subject only to limitations which apply also to national workers.
Within the boundaries of possible limits on the import and export of currencies, migrant workers have the right to transfer such part of their earnings and savings as they wish.
There is no absolute right to family reunification, but the relevant ILO standards recommend that measures be taken in this direction by the Governments concerned. During paid annual holidays, migrant workers should be allowed to visit their families after at least one year of service, in cases where a family cannot join the worker. Alternatively, the family should be allowed to visit the worker for a corresponding period.
In adapting to an unfamiliar situation, migrant workers need, and are entitled to receive, assistance and advice from the competent authority. This would normally include information on social matters, including aid from the social services - given if possible in the mother tongue of the persons concerned, otherwise with interpretation and translation facilities. These services should be provided free of charge.
Migrant workers have the right to appeal against a decision to terminate their employment or to deprive them of their resident status. The workers affected are entitled to challenge the decision and, if successful, to reinstatement or time to find alternative employment, as well as to compensation for loss of wages. Migrant workers have the same right to legal aid as national workers, and should have the possibility of being assisted by an interpreter.
Existing ILO standards do not provide an absolute right to free travel back to the home country. However, if a migrant workers fails, for a reason for which he is not responsible, to secure the employment for which he has been recruited, or other suitable employment, he will not have to pay the cost of his return, nor that of members of his family who have been authorised to accompany or join him.
A migrant worker and his family members who are expelled from a country may have to pay his own travel costs but he does not have to bear the costs of the administrative or judicial procedures leading to the expulsion, or of implementing the order, for example of police escorts to the frontier.
The arrangements for leaving the country of employment can be complicated and difficult, and migrant workers are entitled to assistance in dealing with the problems involved. Irrespective of whether they were present or employed legally or illegally, they have a right to outstanding remuneration, severance pay, compensation for holidays not taken, as well as, in certain cases, the reimbursement of social security contributions. If any difficulty arises in obtaining these entitlements, they should enjoy equal treatment with national workers as regards legal assistance.
Assuming that they have retained the nationality of their State of origin, migrant workers have the right to assistance when they return to their home country, to whose finances they will normally have contributed during their absence abroad by sending home a part of their earnings. They are entitled to unemployment benefit, if necessary and if it exists, assistance in obtaining work - for example by not being obliged to satisfy conditions as to previous residence or employment. Their rights in the field of social security would also include rights acquired in the course of their employment abroad.
To offer the ILO's constituents - governments, employers' and workers' organizations - an additional tool in tackling the persistence of the problem of the maltreatment or exploitation of migrant workers, the ILO proposed to a Meeting of Experts convened in April 1997 a new procedure, notably to deal with situations where Convention-based procedures were inapplicable. The question at issue was what the ILO could do when migrants were evidently exploited and existing Conventions were inapplicable. Technical cooperation projects, advisory missions, national seminars and the Director-General's good offices have been judged to be useful but perhaps not highly effective means of action. Therefore, the Office proposed what it called "pattern or practice studies", which could be foreseen in countries receiving migrants as much as in countries sending migrants. The ILO started from the assumption that it could not undertake any study in any country without the consent of the Government concerned. If the Office received bonafide allegations of exploitation of migrants, it should verify the information first. If there was a prima facie case of exploitation, and as a first step, the Director-General should inform the concerned government and solicit its observations. If the Government's response were to imply that there might be some basis for the allegation conveyed, the Director-General should, as a second step, raise the question whether it would be useful to throw light on the question through a study in the country concerned. If the Government's response was negative, the matter should rest there. If the Government concerned indicated that it would not be opposed to a study, the Director-General should promptly seize the relevant committee of the Governing Body of the matter. Only after the Government's consent had been obtained in the Governing Body would, as a third step, a pattern or practice study be initiated. Its aim would be to have relevant policy-makers look at what goes wrong and what can be done to right it. The ILO's intention was to help constituents to find solutions to problems in a practical way, through a low-key approach and without attracting the limelight. Furthermore, the Office, as is the case today, would not react to communications by individuals or to individual cases of maltreatment but only to communications by governmental or non-governmental organizations and where they concerned "patterns or practices" of exploitation.
The Experts agreed to the proposed procedure, and the Governing Body of the ILO formally endorsed it as its November 1997 session. The details can be found in ILO document GB.270/5.
For further information, please contact the South-East Asia and the Pacific Multidisciplinary Advisory Team (SEAPAT) at
Tel: + 63.2.815.2354 or + 63.2.819.3614 and Fax: + 63.2.812.6143
E-mail:
seapat@ilo.org
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