Geneva, June 1999
Report III (1B)
The migration process
131. The four instruments provide for migrant workers and their families to be given various guarantees and facilities to assist them in four stages of the migration process: (a) during the recruitment process; (b) prior to departure from the sending country; (c) during the journey to the host country; and (d) upon arrival in the host country. As mentioned above (paragraphs 126-129), both sending and receiving countries have a role to play in ensuring that migrants and members of their families complete the migration process under informed and non-abusive conditions, and the paragraphs below should not, unless otherwise specified, be read as applying exclusively to either sending or receiving countries.
132. Article 7 of Convention No. 97, Annexes I and II to the same instrument and Paragraphs 1(b), 1(c), 1(d), 13, 14 and 15 of Recommendation No. 86 deal with the recruitment, introduction and placing of migrants for employment. The main purpose of these provisions is threefold: (a) to protect migrant workers; (b) to facilitate the control of recruitment; and (c) to suppress clandestine employment.
133. Article 2 of Annexes I and II of Convention No. 97 and Paragraph 1 of Recommendation No. 86 distinguish the recruitment, the introduction and the placing of migrant workers. These expressions are defined in identical terms throughout the instruments. To reflect the respective fields of application, Article 2 of Annex II to Convention No. 97 limits its provisions to recruitment, introduction and placing operations which are carried out under "a government-sponsored arrangement for group transfer", while Article 2 of Annex I treats recruitment, introduction and placement operations which are not carried out under "a government-sponsored arrangement for group transfer".
134. According to the definition given in Article 2(a) of Annex I to Convention No. 97, "recruitment" is defined as "(i) the engagement of a person in one territory on behalf of an employer in another territory, or (ii) the giving of an undertaking to a person in one territory to provide him with employment in another territory, together with the making of any arrangements in connection with the operations mentioned in (i) and (ii) including the seeking for and selection of emigrants and the preparation for departure of the emigrants".
135. Thus, "recruitment" covers not only direct engagement by the employer or his or her representative, but also operations conducted by an intermediary, including public and private recruitment bodies. The definition covers situations where the prospective migrant is offered a definite job and where a recruiter undertakes to find a job for the migrant. The definition also covers operations accompanying the recruitment procedure, in particular, selection operations. Thus, the notion of recruitment is a very broad one.
136. The term "introduction" is defined in Article 2(b) of Annex I to Convention No. 97 as "any operations for ensuring or facilitating the arrival in or admission to a territory of persons who have been recruited within the meaning of paragraph (a)".
137. Under Article 2(c) of Annex I to Convention No. 97, the term "placing" is defined as "any operations for the purpose of ensuring or facilitating the employment of persons who have been introduced within the meaning of paragraph (b)".
138. The Recruiting of Indigenous Workers Convention, 1936 (No. 50),(1) adopted 13 years prior to Convention No. 97, does not include this threefold definition of hiring. Rather, it defines "recruitment" broadly in Article 2(a) as "all operations undertaken with the object of obtaining or supplying the labour of persons who do not spontaneously offer their services at the place of employment or at a public emigration or employment office or at an office conducted by an employers' organization and supervised by the competent authority". As has been stated previously by the Committee, legislation which follows the wording of Convention No. 50(2) may be deemed compatible with that given in the relevant provisions of Convention No. 97 and Recommendation No. 86, as long as "this legislation is in effect applicable to recruitment operations conducted by all private employment agencies other than those run by employers' organizations under the supervision of the competent authority".(3)
139. From the information available to the Committee, it appears that national legislation regulating recruitment, introduction and placing operations does not, as was seen above to be the case with the definition of "migrant worker", always define these terms. When it does, legislators sometimes use terms which are different from those given above. On the basis of the available information, however, this discrepancy does not appear to pose major problems in practice.
140. Article 5 of Annex I and Article 6 of Annex II of Convention No. 97 list the documents which should be issued to migrants prior to their departure from the sending country. The documents which are to be provided to the migrant prior to departure are intended to give him or her adequate information on living and working conditions in the country of employment. These include, primarily, the employment contract (Article 5(1)(a) and (b) of Annex I and Article 6(1)(a) and (b) of Annex II), as well as a written document containing information concerning "general conditions of life and work applicable to him in the territory of immigration" (Article 5(1)(c) of Annex I and Article 6(1)(a) of Annex II) and, when a contract is not issued until arrival in the receiving country, a written document, which can be either specific to the individual or which can address a group of migrants, specifying "the occupational category for which he is engaged and the other conditions of work, in particular the minimum wage which is guaranteed to him" (Article 5(2) of Annex I and Article 6(2) of Annex II). It should be noted that these provisions are applicable only to States which "maintain a system of supervision of contracts of employment between an employer, or a person acting on his behalf, and a migrant for employment" (Article 5(1) of Annex I and Article 6(1) of Annex II). Where no such system of supervision of labour contracts is maintained, as, for example, the Netherlands reported, no such obligations exist. The following paragraphs will address these provisions in more detail.
(a) System of supervision of contracts
141. The general labour legislation of a number of migrant-sending countries, including Belize, Benin, Congo, Egypt, Ghana, Philippines, Portugal, Sri Lanka and Viet Nam, provides for controls on employment contracts. In some cases contracts offered to national workers for employment abroad must be certified by an official of the Ministry of Labour, as is the case in Colombia, Hong Kong, India, Mauritius, Pakistan and the United Kingdom (St. Helena). By virtue of such legislation, the employer or his or her representative is required to draw up the employment contract in writing and submit it for approval to the competent authority in the sending country prior to the prospective migrant's departure. Emigration clearance is not given to the worker unless the terms of the contract comply with the relevant provisions of the sending country's legislation. In Ghana employers must pay a "capitation fee" to the Chief Labour Officer for each contract with a foreign worker which is attested. One government report, that of Hong Kong, indicates that contract supervision applies only to contracts of less than a certain value, or to specific categories of labour which may be deemed particularly vulnerable.(5) Another country, Ecuador, indicated that the same system of supervision of contracts exists for nationals and non-nationals alike.
142. Some migrant-sending countries reported that in countries where a large number of their nationals were employed, various measures were implemented to ensure the continued compliance with the terms of contract agreed to. Two countries, Pakistan(6) and Viet Nam, reported establishing representative offices of the public employment service, or stationing a labour attaché in such countries to ensure nationals' contracts were respected. Burkina Faso reported the establishment of a national commission with a mandate to ensure the application of nationals' contracts in Gabon. With particular reference to female migrants, Sri Lanka(7) reported that in countries where many Sri Lankan women were employed as domestic workers, their contracts must be registered at the Sri Lankan Embassy in the country of employment. The Philippines(8) also reported the establishment of welfare and monitoring centres in countries where women were known to be employed in positions which may render them more vulnerable to abuse and exploitation. The Committee notes with interest the Constitution and other legislation of Mexico(9) which stipulates that all contracts between Mexican nationals and foreign employers must be certified by the appropriate municipal authorities, approved by the Conciliation and Arbitration Committee and authorized by the Consulate of the country to which the worker intends to migrate.
143. A few migrant-receiving countries, notably the Central African Republic(10) and New Zealand,(11) reported legislation providing that foreign workers are not permitted to commence a wage-earning activity in the country unless they are in possession of an employment contract which has been approved by the competent authority in the receiving country. France reported that the "Expaconseil" service can give advice, on request, to employers wishing to hire foreign workers as well as to potential emigrants, on the drawing up of contracts and their contents, in particular in relation to social security and remuneration. However, from the information made available to the Committee, supervision of migrants' employment contracts appears to be a less common practice in receiving States than in sending ones. In this respect, the Committee considers that, in light of fraudulent practices taking place in the country of employment, such as contract substitution, migrant-receiving countries should take a more active role in supervising the issuance and execution of contracts of employment.
144. Contract substitution is the practice whereby, despite having signed an authorized contract prior to departure, upon arrival in the country of employment, the worker is issued with a new contract specifying lower conditions of work, pay and so on. Such a practice has been known to occur particularly in the Gulf States. In this regard, the Committee notes the specific reference in the report from India that emigration clearance is only given to nationals when the Protector General of Emigrants is satisfied that "the worker will be deployed in the same job for which he/she has been recruited".
(b) Date and place of the issue of the contract
145. Article 5(1)(a) of Annex I and Article 6(1)(a) of Annex II of Convention No. 97 stipulate that "a copy of the contract of employment shall be delivered to the migrant before departure or, if the governments concerned so agree, in a reception centre on arrival in the territory of immigration". In this regard, Article 5(2) of Annex I and Article 6(2) of Annex II to Convention No. 97 specify that when the migrant does not receive the employment contract until his or her arrival in the host country, he or she must be informed prior to departure by a written document, of conditions of life and work in the host country. This will be discussed in more detail in paragraphs 155-157 below.
146. The Committee notes with regret that very few governments provided information on this point. A few governments, notably Belarus, Croatia, Grenada, Mauritius and Qatar, specified that contracts must be issued to migrants prior to their departure from the country. Israel and Qatar reported that a copy of the employment contract must be deposited with the National Employment Service and the Labour Department, respectively. Hong Kong indicated that a copy of a contract certified by the Commissioner for Labour is sent to the competent authorities in the receiving country, and in Egypt contracts for Egyptians recruited to work abroad must be deposited with the Ministry of Manpower and Training.
(c) Contents of the contract of employment
147. Article 5(1)(b) of Annex I and Article 6(1)(b) of Annex II to Convention No. 97 provide that the contract of employment should contain "provisions indicating the conditions of work and particularly the remuneration offered to the migrant".
148. From the information made available to the Committee, it appears that most commonly, as is the case in China,(12) Croatia,(13) Egypt(14) and Viet Nam(15) for example, contracts for employment abroad must contain information concerning the identity of the parties, indications of the nature of the employment, the date of engagement, the duration and place of employment, the amount and method of payment of the wage, the hours of work, transport costs and the burden of repatriation expenses. One of the most comprehensive obligations which came to the Committee's attention was reported by Belarus, and included the above specifications plus information regarding, inter alia, overtime or night work, paid leave, conditions of termination and extension of contract, transport to and from the place of work, catering, housing, medical services (including for family members), social insurance and health services in case of industrial accident.
149. The Committee notes with interest the reports of two governments, Belarus and Israel, which stated that it is obligatory for employers or recruiters to furnish migrants with employment contracts in either their mother tongue or in a language which they can understand.
150. Workers considering taking up employment in a country which is not their own are often, due to geographical distance as well as to the nature of the occupations they tend to undertake, in a disadvantaged position to determine reasonable terms and conditions of work in the country of employment prior to departure. In this respect, the Committee emphasizes that, in order to ensure that migrants are protected to the greatest possible extent from abuse and exploitation in relation to conditions and terms of employment, contracts of employment should be as complete as possible. In particular, the Committee considers it desirable that contracts should regulate such essential matters as hours of work, weekly rest periods and annual leave, without which the indication of the wage, as required by the annexes to Convention No. 97, may become meaningless. The Committee considers in this respect that certain aspects of wage protection (payment intervals, means of payment, deductions from wages for payment of services rendered by private employment agencies, etc.) could be included in the contract or any other written document issued to the migrant worker. The Committee also emphasizes that particular attention should be paid to provisions in migrant workers' contracts which may be contrary to the ILO's fundamental principles, such as the right to organize, the right to engage in collective bargaining and the right to strike.
(d) Model contracts
151. The Committee notes with interest that in some countries, including for example, Antigua and Barbuda,(16) Bulgaria, Croatia(17) and the United Republic of Tanzania (Zanzibar),(18) migrants' contracts must be drawn up in accordance with a prescribed model, attached to the relevant legislation. The intended purpose of such a model contract is to ensure that migrants who may be unfamiliar with the standards and terms of employment in the host country are guaranteed basic protection from abuse and exploitation.
152. Some governments, such as those of Hong Kong,(19) Sri Lanka(20) and the United Republic of Tanzania (Zanzibar),(21) report that model contracts are used only in relation to those occupations which may be deemed particularly vulnerable, such as domestic work, manual labour or agricultural work.
153. In a few countries, including the United Republic of Tanzania (Zanzibar),(22) use of the standard contract is mandatory, although in the majority of cases, it serves simply as a model to provide prospective employers and migrants with guidance in formalizing employment agreements.(23) In cases where it is mandatory, the model contract is printed in advance, including basic provisions regarding minimum wages, hours of work and so on, and then personalized with the addition of particulars relating to, for instance, the identity of the contractors, the nature and place of the work and the duration of the contract.
154. A few governments, including Mauritius and
the United Republic of Tanzania (Zanzibar), submitted copies of such
contracts to the Committee. From the information provided, it appears that,
as a general rule, these contracts regulate the rights and obligations of the
parties in some detail. Most of the standard contracts which the Committee has
examined deal with the place and nature of employment, the duration of the contract,
the basic wage, regular working hours, overtime pay, paid leave, medical care,
repatriation in the event of death of the worker and dispute settlement. Contracts
may also contain provisions concerning family reunification, certain social
security benefits, travel costs, medical and hospital care and procedure for
the termination of the contract.
155. Convention No. 97 also stipulates that migrant workers should be issued with a number of other documents, in addition to an employment contract, prior to departure, to supplement the information contained in the contract. Article 5(1)(c) of Annex I and Article 6(1)(c) of Annex II to Convention No. 97 provide that migrant workers must receive "in writing before departure, by a document which relates either to him individually or to a group of migrants of which he is a member, information concerning the general conditions of life and work applicable to him in the territory of immigration".
156. The information provided to the Committee in relation to the provision of such a written information document was, unfortunately, too sparse to allow it to reach general conclusions. The information which was received indicates that legislation in both sending and receiving countries obliging written information documents to be issued to migrants prior to their departure from the host country is rare. A small number of examples are available, however.
157. The Government of Mauritius reported that
companies seeking to recruit non-nationals for work in the country must sign
an agreement with the Government guaranteeing to furnish the worker with a written
document covering such matters as accommodation, travel costs, copy of the contract,
minimum wage and so on. Croatia, reported that its Employment Office
is obliged to inform national workers of living and working conditions in the
country of employment prior to departure, although it was not specified whether
this information takes the form of a written document. The United Kingdom
reported that migrants recruited through private agents must be given written
details of their employment in advance, in a language which they can understand,
and employers must receive written details about the worker. The United
States reported that migrants recruited for agricultural work must be provided
with a written document specifying the following information: (a) the place
of employment; (b) wage; (c) type of crop and nature of the work; (d) period
of employment; (e) transport, housing and so on if these are provided; (f) the
existence of any strike or work stoppage;(24)
and (g) any agreements between the employer and other establishments in the
locality providing goods or services to the migrant workers relating to any
commission or benefit to the employer. While few other countries indicated such
provisions, paragraphs 191-213 below, concerning migration information and assistance
services, examine other means of ensuring that migrants are in possession of
information on living and working conditions in the country of employment prior
to their departure.
158. Article 5(3) of Annex I and Article 6(3) of Annex II to Convention No. 97 provide that the competent authority should take the necessary measures to ensure that "the provisions of the preceding paragraphs are enforced and that appropriate penalties are applied in respect of violations thereof". Looking at current trends in clandestine migration and illegal employment, it appears that those particularly likely to violate contract regulations are not only employers and their intermediaries who are involved in illicit or clandestine movement of migrants, but also migrants themselves.(25) The possibility that violations are also committed by state officials, however, should not be excluded.
159. As with many aspects of the recruitment, introduction and placement of migrants, the information provided to the Committee was insufficient to generate a reliable picture of how governments deal with violations of legislation governing employment contracts. The information available suggests that the legislation which provides for a system of supervision of labour contracts prior to the departure of the migrant worker also tends to contain provisions designed to ensure its application. As stated above, in certain migrant-sending countries the law specifies that the authorities must refuse migrant workers, who do not have a duly certified employment contract, permission to leave the country. In other countries, for example, Dominica,(26) the principle of "carrier's responsibility" holds transport companies responsible for ensuring that emigrants are in possession of officially approved contracts.
160. As with many other aspects of the migration process, cooperation between migrant-sending and migrant-receiving countries may prove the most effective way of ensuring that migrants are recruited under non-abusive and non-exploitative conditions. Agreement between the sending and receiving country upon a standard contract containing basic provisions to govern the recruitment of migrants from one country to the other may be the most effective way of protecting migrant workers. The Committee notes with interest that a number of sending and receiving countries have established bilateral or multilateral agreements to regulate the recruitment of workers and to ensure the protection of workers recruited under their auspices. To take two examples on this subject, the flow of workers from Nicaragua to Costa Rica is governed by the "Labour Migration Agreement, 1993"(27) which ensures that the Costa Rican authorities transmit job offers to the Costa Rican Consulate in Nicaragua, which then follows this up with the Nicaraguan Ministry of Labour. According to regulations in Sri Lanka, the Government of India is authorized to appoint an agent for the purpose of safeguarding the interests of Indian immigrant labourers in Sri Lanka.(28)
161. Article 3(2) of Annex I and Article 3(2) of Annex II to Convention No. 97 stipulate that the right to engage in recruitment, introduction and placing activities are to be restricted to "(a) public employment offices or other public bodies of the territory in which the operations take place; (b) public bodies of a territory other than that in which the operations take place which are authorized to operate in that territory by agreement between the governments concerned; (c) any body established in accordance with the terms of an international instrument".
162. Article 3(3) of Annex I to Convention No. 97 states:
3. In so far as national laws and regulations or a bilateral agreement permit, the operations of recruitment, introduction and placing may be undertaken by --
(a) the prospective employer or a person in his service acting on his behalf, subject, if necessary in the interest of the migrant, to the approval and supervision of the competent authority;
(b) a private agency, if given prior authorization so to do by the competent authority of the territory where the said operations are to take place, in such cases and under such conditions as may be prescribed by --
(i) the laws and regulations of that territory, or
(ii) agreement between the competent authority of the territory of emigration or any body established in accordance with the terms of an international instrument and the competent authority of the territory of immigration.
163. Articles 3 and 4 of Annex II to Convention No. 97 reaffirm these provisions. Thus, hiring activities can be undertaken either by official recruitment bodies, or by other bodies or individuals authorized to do so by the State.
164. The majority of recruitment for employment abroad was once undertaken by official recruitment bodies, often in the form of government-sponsored group transfer.(29) In recent years, however, the increasing role of private recruitment agencies has had the effect of "commercializing" recruitment for foreign employment,(30) and far fewer migrants than before are being recruited through government channels.(31) However, in a number of sending countries, such as the Central African Republic,(32) the recruitment of workers remains exclusively the responsibility of the public employment services. In some countries such as Cameroon, Croatia, Luxembourg and Venezuela the public employment service is the only body permitted to recruit foreign workers, and in others, for example, Slovenia,(33) the public employment service is the only service permitted to recruit workers for employment abroad. In yet others, such as the Czech Republic, public employment services are the only recruitment bodies permitted to deal with any form of migration for employment.
165. It should be noted that the majority of public authorities,
such as those in Guyana, Netherlands and the Syrian Arab Republic,
provide services to the general public, nationals and permanently resident non-nationals
alike, rather than focusing specifically or exclusively upon migrant workers
alone.(34) The Committee notes, however, that
Japan indicated the provision of both general services (Public Employment
Security Offices) and specific services (Employment and Service Centre for Foreigners).
A number of European countries cited the European Employment Services (EURES) as the primary means of recruiting non-national workers and of coordinating regional recruitment policies. EURES is a European labour market network aimed at facilitating the mobility of workers in the European Economic Area (EEA). It brings together the European Commission and the Public Employment Services of the countries belonging to the EEA. EURES operates through more than 450 EURO Advisers stationed throughout Austria, Belgium, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Luxembourg, Netherlands, Norway, Portugal, Spain, Sweden and the United Kingdom .
The objectives of EURES are to provide information, counselling and assistance in relation to placement and recruitment to nationals of EEA countries. Potential migrants and interested employers are provided with information on living and working conditions, legislation, administrative formalities, advice on how to find a job and access to the public employment services of other EEA countries. EURES has established two databases, the first dealing with job vacancies for EEA nationals, and the second containing general information on living and working conditions in EEA countries. EURES also provides a service to ensure the comparability of qualifications within the EEA.
Note: Further information on EURES can be found on the Internet.
(a) Bilateral and multilateral agreements
166. In this regard, the Committee notes the reports of a number of major migrant-receiving countries which indicate that, outside regional agreements, recruitment of foreign workers is no longer common practice. For example, Germany reported that it is no longer able to report on the provisions of Annexes I and II because recruitment of migrant workers ceased in 1973 and it has terminated recruitment agreements with Greece, Italy, Republic of Korea, Morocco, Portugal, Spain, Tunisia, Turkey and Yugoslavia.(35) The Netherlands reported that, despite the existence of bilateral recruitment agreements with a number of countries including Morocco, Portugal, Spain, Tunisia, Turkey and Yugoslavia,(35) no labour has been recruited on a large scale from these countries since the 1980s. France reported recruitment agreements existing with Austria, Finland, Norway and Sweden, as well as a framework agreement with Canada (Province of Quebec). Venezuela indicated that while no cooperation agreements existed governing relations between the national employment service and corresponding services in other countries, there was an obligation to do so should the need arise. Japan indicated to the Committee that, to date, no cooperation has taken place with employment placement facilities and other related bodies in other member States of the ILO.
(b) Free services
167. Article 7(2) of Convention No. 97, Article 4 of Annex I and Article 4(1) of Annex II, provide that the services rendered by public employment services in connection with the recruitment, introduction or placing of migrants for employment are to be provided free of charge. While the legislation of most countries appears to comply with this provision,(36) according to the information made available to the Committee, this appears to have raised problems in practice for a number of countries, some of which, such as Albania and Dominica,(37) charge fees. In the case of Pakistan, workers recruited for employment abroad must deposit a fixed fee, which partially finances the Welfare Fund (a fund to provide assistance to nationals abroad) and partially represents a fee for recruitment.(38) In Indonesia, workers recruited for employment abroad must cover the costs of recruitment, which can be collected through monthly instalments taken from his or her future wages.(39) Two countries, Sri Lanka and Viet Nam, stated in their reports that the provision of free employment services to non-nationals constituted a major barrier to ratification of the Convention. India reported that while fees are charged to potential emigrants, the Government is exploring the possibility of meeting the requirements of Article 2 of the Convention. Other countries, including Antigua and Barbuda, Australia and Canada,(40) while charging for employment services for non-nationals, claim in their reports that this was in accordance with the provisions of the Convention, as the fees charged cover any eventual administrative costs relating to processing visa applications and do not constitute a charge for employment information as such. The Syrian Arab Republic reported that the fees it charges workers for services are merely "symbolic".
168. In this regard, the Committee points out that Article 4(2) of Annex II to Convention No. 97 states: "The administrative costs of recruitment, introduction and placing shall not be borne by the migrants [...] although no definition of 'administrative costs' is given". In this regard, the Government of Sri Lanka in 1993 asked the Office for an informal opinion(41) as to whether the fact that the Sri Lankan Bureau of Foreign Employment makes prospective migrants pay a tax which is designed to cover certain costs (medical examinations, insurance, vocational training, information and other social services) can be considered as contravening the principles of the Convention. The Office responded that: (a) on the one hand, it was possible that an institute whose sole mandate was to deal with questions relating to emigration for employment, was not a public employment service, and that therefore the Sri Lankan Bureau of Foreign Employment was not included in the scope of the Convention; (b) on the other hand, Article 2 of the Convention stipulates that a free service "to assist migrant workers" must be ensured, without specifying whether this service is to be provided by the public employment service, or another service. Article 2 refers, in particular, to the provision of reliable information, as an example of the type of service which should be provided free to migrant workers. According to the Government's letter, the charges made by the Sri Lankan Bureau of Foreign Employment covered, inter alia, the "provision of information"; (c) in consequence, the ILO concluded that the charges foreseen by the Sri Lankan Bureau of Foreign Employment "appear to be incompatible with Article 2 of the Convention".
169. Although it is clear that a more recent instrument cannot be used to interpret the original meaning of Convention No. 97, an examination of more recent instruments of the ILO containing provisions relating to "administrative costs" of recruitment, introduction and placement of workers, may give an idea of the ways in which the Organization has addressed this question. Article 4 of the Recruitment and Placement of Seafarers Convention, 1996 (No. 179) stipulates that: "A Member shall, by means of national laws or applicable regulations: (a) ensure that no fees or other charges for recruitment or for providing employment to seafarers are borne directly or indirectly, in whole or in part, by the seafarer; for this purpose, costs of the national statutory medical examination, certificates, a personal travel document and the national seafarer's book shall not be deemed to be 'fees or other charges for recruitment'." The Private Recruitment Agencies Convention, 1997 (No. 181), which was recently adopted, reaffirms this principle in Article 7 according to which "private employment agencies shall not charge directly or indirectly, in whole or in part, any fees or costs to workers [with certain] exceptions [...] in respect of certain categories of workers, as well as specified types of services provided by private employment agencies".
170. It appears that the principle of the free provision of services could be re-examined in light of the Articles 4 and 7 mentioned above.(42) Charging workers for purely administrative costs of recruitment, introduction and placement remains, however, forbidden for both public and private recruitment agencies under Convention No. 97. From the reports submitted to the Committee, it appears that compliance with this provision may constitute an obstacle to ratification of the Convention. In this regard, the Committee notes with interest the report of Switzerland which indicates that the public employment service is free for regular-entry migrant workers who already have permission to work in the country, but charges administrative fees to employers inquiring about recruiting foreign labour. The employers are not permitted to demand reimbursement for these fees from recruited workers. Such a situation would appear to be in conformity with the provisions of Annex II to Convention No. 97 and is one way to ensure that public recruitment bodies can continue to operate for profit.
171. As mentioned above, private recruitment for employment abroad has become a lucrative industry in many countries since the 1980 General Survey was conducted. From the information available to the Committee it appears that most countries attempt to regulate the activities of private recruitment agencies in one way or another, although the information provided was, unfortunately, not always sufficient to render a detailed description of how they are regulated.
172. Direct recruitment by the employer or by his or her representative, or by private agencies, is authorized under Article 3 of Annex I and Article 3 of Annex II to Convention No. 97, in so far as national laws and regulations or bilateral or multilateral arrangements permit. However, given the wide scope for abuse by intermediaries of prospective migrants during the recruitment procedure,(43) these provisions require that the right to engage in the operations of recruitment, introduction and placement shall be subject to the approval and supervision of the competent authority. In this connection, Article 3(3)(a) of Annex I makes a distinction between recruitment by the employer or his or her representative, which may be authorized "subject, if necessary in the interest of the migrant, to the approval and supervision of the competent authority", and the activities of private agencies, which must obtain prior authorization from the "competent authority of the territory where the said operations are to take place". Operations conducted by private agencies must also be subject to the supervision of the competent authority of that territory (Article 3(4)). The provisions of Annex II as well as Paragraph 14(3) of Recommendation No. 86, although worded somewhat differently, have a similar aim.
173. The provisions of Annexes I and II respecting recruitment by private bodies were conceived in the same spirit as those of the Fee-Charging Employment Agencies Convention (Revised), 1949 (No. 96), which specifies that fee-charging employment agencies must obtain authorization to place or recruit workers abroad. Convention No. 96 was revised in 1997 in light of the growth and changing nature of private recruitment agencies. The Preamble to the Private Recruitment Agencies Convention, 1997 (No. 181), indicates that it was adopted "considering the very different environment in which private employment agencies operate, when compared to the conditions prevailing when [Convention No. 96] was adopted, and recognizing the role which private employment agencies may play in a well-functioning labour market, and recalling the need to protect workers against abuses".
174. One country, Morocco, reported that, while currently no regulation of private recruitment agencies exists, as the Government is considering ratification of Convention No. 181, it feels that this will ensure that the appropriate modifications will be undertaken. It should be noted that, contrary to Convention No. 181, the provisions of Annexes I and II to Convention No. 97 apply not only to fee-charging employment agencies but also to private bodies whose operations are conducted free of charge, such as, for example, non-governmental organizations. Another country, Egypt, reported that it was strongly in favour of permitting the activities of fee-charging agencies, and Viet Nam reported that recruitment agencies are allowed to charge a fee to cover their costs, which the Government considers an obstacle to ratification. In Turkey, the Confederation of Employers' Associations stated that the provisions of the Turkish Labour Act outlawing the activities of private recruitment agencies "no longer meets present-day labour market conditions and needs".
175. Some governments, including those of Antigua and Barbuda,(44) the Central African Republic, and the Falkland Islands (Malvinas), report that no private recruitment agencies exist, while others, such as San Marino, report they have completely outlawed private recruitment agencies. In many cases, including Finland, Germany, Greece, Netherlands, Norway and Turkey, such activities are prohibited if they are remunerated. One country, the Syrian Arab Republic, outlaws private recruitment agencies other than those established under the auspices of reciprocal agreements. Yet other countries, including Barbados and Bulgaria, reported that no legal provisions were in place to regulate the activities of private recruitment agencies. Many countries, however, report a variety of means to encourage the activities of legitimate private recruitment agencies, while protecting workers from potential abuses. These measures can roughly be divided into those taken prior to commencement of the recruitment activities, and those taken to ensure subsequent compliance with the law.
(a) A priori measures
176. In most countries which provided information on this subject, including the Bahamas, Bahrain, Côte d'Ivoire, Czech Republic, India, Mauritius, Netherlands, Norway, Qatar and Sri Lanka, special regulations have been adopted under which any person or body recruiting workers for employment abroad must obtain a licence. A similar obligation is sometimes provided for under general labour legislation, either in connection with the recruitment of national workers for employment abroad, as is the case in Pakistan,(45) or for the introduction of foreign workers into the country and their placement, as is the case in Israel.(46)
177. Two countries, Cyprus and New Zealand, reported that systems of accreditation for private recruitment agencies were in the process of being established. In the latter case accreditation would not be mandatory, but would mean that requests for work permits from non-accredited recruitment bodies would "not be given the same weight as claims backed by an accredited government agent".(47) Another country, Jordan, reported that draft regulations on the supervision of private recruitment agencies are currently being prepared.
178. The Committee remarked in its last General Survey on migrant workers(48) that when private bodies, particularly employment agencies, conduct their activities at the national or international levels, it appears to be important, if the provisions of Annexes I and II respecting recruitment are to be effectively applied, that the authorization granted to private recruitment agencies operating exclusively within the country be distinct from that granted to those intending to recruit either non-national workers for employment inside the country, or national workers for employment abroad. The difficulties facing migrant workers appear to be sufficiently distinct to merit separate attention. This appears to be the case in most countries which provided information on this subject, such as the Czech Republic(49) and Israel.(50)
179. In principle, authorization tends to be issued to recruiting bodies for a certain period. In some countries, such as the Bahamas,(51) Bahrain, Dominica, Mozambique, Saudi Arabia and Sri Lanka, licences must be renewed on a yearly basis; in others such as Mauritius, renewal is biennial, while in others, including Belarus and Egypt, the renewal period is every five years. More rarely, licences are granted for a quota of workers specified in advance.(52) Generally speaking, authorizations for such activities are granted to private bodies only after the applicants have supplied certain information relating to their persons and activities. In addition, certain conditions must also be fulfilled by the applicant, such as good morals, no police record, enjoyment of civic rights, and solvency.(53) One country, Sri Lanka, reported that the Government must be convinced that the agency applying for a licence "is capable of carrying on the business in an irreproachable manner". The Netherlands reported that in order to obtain a "mediation permit" recruitment agencies must have: (a) a sound business plan; (b) a list of rates for employers which is published in advance; and (c) a guarantee that workers will not pay fees. Information submitted by New Zealand stated that under the newly proposed scheme, accredited agents would have to demonstrate a good knowledge of New Zealand combined with a strong commitment to the country. In the Bahamas, licences are only granted when the licensing officer is "satisfied that adequate provision has been made for safeguarding the health and welfare of the workers to be recruited", and in Belarus licences may be revoked for violating legislation or for "life-threatening actions and actions which may be detrimental to people's health or may have other serious consequences".(54) In Belize, applicants for licences "shall be subject to the general condition that no force, coercion or misrepresentation of any kind shall be used in inducing a prospective worker to accept employment and that no payment in money or in kind or promises of such payment shall be made by the licensee to the worker as an inducement to accept employment".(55)
(ii) Financial guarantees
180. In a number of cases, beyond application for a licence to operate, recruitment agencies may be required to deposit a financial security as a guarantee that they will fulfil their obligations.(56) In the Philippines, for example, foreign employers and promoters offering contracts to Filipino women as performing artistes are required to deposit the equivalent of US$20,000 with the competent authorities. In Egypt, the deposit amounts to 50,000 Egyptian pounds and in Mauritius,(57) the prescribed financial deposits can be paid either in cash, in the form of an insurance policy, or as a bank guarantee. In Thailand, agencies are required to deposit 100,000 baht for a licence to recruit workers for employment in the country and 5 million baht to recruit workers for employment abroad,(58) and in Indonesia private recruitment agencies must deposit 375 million rupiahs to obtain a licence.
(iii) Regulation of fees charged
181. It was mentioned above that under Convention No. 97, public recruitment activities must be provided free of charge and under Convention No. 181 both public and private employment services should be provided to workers free of charge. Private activities are not explicitly governed by the obligation in Convention No. 97, although, as stated above in paragraph 168, Article 4(2) of Annex II states that "the administrative costs of recruitment, introduction and placing shall not be borne by the migrants", an obligation binding on both public and private bodies.
182. While some States which provided information to the Committee have not outlawed fee-charging recruitment agencies, they have chosen to regulate the amount which private recruiters can charge for their services. For example, Egypt,(59) set a maximum placement fee which is either a set one-off payment or a given percentage of the contract salary. In a number of cases, including the Czech Republic, Israel and Switzerland, the maximum amount of the fees which may be charged by private agencies is regulated. The United Kingdom reported that, except in a few "limited and prescribed circumstances", private services are provided free to workers.
183. The Committee notes that the Articles relating to the regulation of private recruitment agencies contained in Convention No. 97 and Annexes I and II appear to have caused a certain amount of confusion in member States. From the information which has been submitted, as well as from the Committee's knowledge of recruitment practices in many regions of the world, it appears common practice in many regions that private recruitment agencies charge prospective migrants for recruitment services. Moreover, migrants are often willing to pay high fees for recruitment even in countries where such practices are outlawed. The Committee considers that, given the changing nature of private recruitment since the adoption of the instruments, and the high probability for exploitation of workers willing to pay fees in any case, the provisions of the instruments would benefit from being more explicit on this point.
(b) A posteriori measures
(i) Labour inspections
184. Although government reports are not very explicit on this point, it appears that the legislation of most countries provides for supervision by the public authorities of the activities of private agencies which are authorized to engage in the recruitment of national workers for employment abroad or the introduction and placement of foreign workers. The most common means of ensuring recruitment agencies' compliance with the law is through labour inspectorates, as is the case in, for example, Albania, Angola, Burkina Faso, Colombia, Netherlands, Papua New Guinea, Portugal and the United Kingdom. One country, Jamaica, reported that labour inspections of all private recruitment agencies take place on a quarterly basis.
185. The sanctions which are entailed by non-compliance with the law vary across countries. In the Bahamas,(60) Israel,(61) Mali,(62) Qatar(63) and the United Kingdom,(64) a fine is imposed, and in others, such as Greece,(65) and Pakistan,(66) imprisonment is also possible. Norway reported that penalties of up to two years' imprisonment and a fine can be imposed upon anyone who "for the purposes of gain, conducts organized activity with a view to assisting foreign nationals to enter the Realm in return for payment".(67) It is to be noted that, one country, Turkey, reported that the sanctions for recruiting nationals for employment outside the country were more severe than those for recruiting non-nationals for employment in the country. In most countries with a licensing system in place, such as the United Kingdom,(68) organizations and individuals can be banned from recruitment operations for a period of time. The Committee notes with interest the report of Israel which indicates that, in cases where a violation is committed by a private recruitment agency, the actual employer who employed the migrant shall also be charged with violation unless "he proves that the violation was done without his knowledge and that he used all reasonable means to prevent it".(69)
186. In order to facilitate supervision of the activities of private bodies, the legislation in some countries, for example Egypt,(70) provides for the submission of periodic reports on activities to the competent authority. Others, including Mali, oblige recruiters to keep registers. One country, Mauritius, requires statistical information on recruitment activities to be submitted to the competent authorities every four months, while another, Mozambique, demands detailed data be submitted for every recruited worker on a monthly basis. In Belarus all employers and recruiters are obliged to register their contracts with non-nationals with local migration bodies, and in Australia "migration agents" or private recruitment agencies are obliged to keep records of their activities which must be made available on request to the Migration Agents' Registration Board.
187. In light of the guidelines adopted by the Tripartite
Meeting of Experts on Future ILO Activities in the Field of Migration in 1997
(see box 3.2 below), the Committee would have welcomed information regarding
self-regulation of recruitment agencies, in the form of the adoption of non-binding
codes of conduct or monitoring the activities of private recruitment agents
by their own members. However, no governments or workers' or employers' organizations
submitted information which would have permitted the Committee to determine
whether or not self-regulation is a widely used means of regulating recruitment
Migrant-sending as well as migrant-receiving countries should encourage the self-regulation by private agents of their profession. Self-regulation should include the adoption by private agents of a code of practice to cover, inter alia, the following:
(a) minimum standards for the professionalization of the services of private agencies, including specifications regarding minimum qualifications of their personnel and managers;
(b) the full and unambiguous disclosure of all charges and terms of business to clients;
(c) the principle that private agents must obtain from the employer before advertising positions and in as much detail as possible, all information pertaining to the job, including specific functions and responsibilities, wages, salaries and other benefits, working conditions, travel and accommodation arrangements;
(d) the principle that private agents should not knowingly recruit workers for jobs involving undue hazards or risks or where they may be subjected to abuse or discriminatory treatment of any kind;
(e) the principle that migrant workers are informed, as far as possible in their mother tongue or in a language with which they are familiar, of the terms and conditions of employment;
(f) refraining from bidding down wages of migrant workers; and
(g) maintaining a register of all migrants recruited or placed through them, to be available for inspection by the competent authority, provided that information so obtained is limited to matters directly concerned with recruitment and that in all instances the privacy of the workers and their families is respected.
Source: Extract from the Report of the Tripartite Meeting of Experts on Future ILO Activities in the Field of Migration , op. cit., p. 17.
188. It should be recalled here that, although the provisions of Annexes I and II regarding direct recruitment by employers do not require the employer to obtain previous authorization before commencing such operations, they are nevertheless subject, if necessary in the interests of the migrant, to the approval and supervision of the competent authority (Article 3, paragraph 3(a), of Annex I and Article 3, paragraph 3(a), of Annex II) in the sending country. These provisions, as with Paragraphs 13 and 14 of Recommendation No. 86, assimilate operations undertaken by persons "in the service of the prospective employer and acting on his behalf" to operations undertaken by the employer himself.
189. In relation to direct recruitment practices, the Committee regrets that few governments(71) have supplied information on the measures taken to secure the observance of their recruitment legislation in this respect. One country, Luxembourg, reported that employers or employers' organizations can, under certain strict conditions, recruit directly from abroad; and in Bulgaria, employers need to acquire government authorization to do so. In Qatar, employers are permitted, subject to special permission from the Ministry of Labour, Social Affairs and Housing, to import migrant labour to meet their own needs.(72) Given limited information, the Committee is in no position to assess the practical effect given to these provisions. It reiterates its statement in the 1980 General Survey on this point, that the absence of information is the more regrettable in that many suppliers of clandestine labour carry on their activities in contravention of the law regarding recruitment.
190. In order that prospective migrants are able to make a well-founded decision on whether or not to leave their home countries, they should have access to reliable and unbiased information on the formalities which must be completed, as well on the conditions of life and work which await them.
191. Article 2 of Convention No. 97 stipulates that: "Each Member [...] undertakes to maintain, or satisfy itself that there is maintained, an adequate and free service to assist migrants for employment, and in particular to provide them with accurate information." Annexes I and II of Convention No. 97, as well as Recommendation No. 86, specify more precisely what this entails in practical terms.
192. Although most governments which have supplied information on the matter confine themselves to confirming the existence of a service to provide information to emigrants and immigrants, some reports give a more complete picture of the range of activities of the information services, along the lines of Part III of Recommendation No. 86 and the annexes to Convention No. 97. Some major migrant-receiving countries, including Australia, Finland, New Zealand and Sweden, provided examples of information leaflets and promotional documents published by their services, which the Committee notes with interest. Switzerland reported that it publishes brochures on working and living conditions in approximately 100 different countries for Swiss nationals intending to emigrate.(73)
193. Paragraph 5(2) of Recommendation No. 86 stipulates that information services should "advise migrants and their families, in their languages or dialects or at least in a language which they can understand, on matters relating to emigration, immigration, employment and living conditions, including health conditions in the place of destination, return to the country of origin or of emigration, and generally speaking any other question which may be of interest to them in their capacity as migrants". Paragraph 7(1)(a) of Recommendation No. 151 specifies more clearly what subject-matters may be of interest to migrants, recommending Members to inform migrants of matters covered in Paragraph 2 of Recommendation No. 151, including vocational guidance and training, placement services, conditions of work, social security measures, welfare facilities, trade union membership, conditions of life, including housing, education and health facilities.
194. Regarding the languages in which information is provided, only a few governments, including those of Australia and Hong Kong, indicated that they provided information to prospective migrants in the languages of the most prominent migrant-sending countries. Argentina reported that information was disseminated to migrants through agreement with the Catholic Committee on Immigration, Caritas Argentina and the International Committee on Migration, which uses translators where necessary. Japan reported that the Government publishes information on working in Japan in Chinese, English, Hangul (Korean alphabet), Portuguese, Spanish and Tagalog, and the Immigration Bureau of the Ministry of Justice prepares guides on immigration procedure in standard Chinese, English, Korean, Taiwanese dialect and Thai.
195. Regarding the substance of the information, the range of topics covered by national information services appears to be very wide in those countries which provided it, ranging from general information on immigration law, as provided by Australia, to information such as that provided in Finland and New Zealand(74) covering, inter alia, social and health services, day-care facilities, housing, taxes and dental care.
196. Paragraph 5(3) of Recommendation No. 86 specifies that "The service should provide facilities for migrants and their families with regard to the fulfilment of administrative formalities and other steps to be taken in connection with the return of the migrants to the country of origin or of emigration, should the case arise". Two major migrant-sending countries, Algeria and Pakistan, reported that the primary focus of their information provision was to return migrants, in an attempt to help them reintegrate into their home country. Of other sending countries, Chile reported activities to assist return migrants with financial aid, professional training and so on, and in 1990 a National Foundation for the Reception and Settlement of Repatriated Greeks was established in Greece. In India, the Government reports that (a) state authorities have been advised to set up societies to "guide and assist returning migrants in their rehabilitation through self-employment, skill upgradation or wage-paid employment programmes", and (b) that employment exchanges record requests from returning migrants separately and render them "requisite assistance". Finally, the Committee notes with interest that one major migrant-receiving country, Germany, provides reintegration assistance to migrants who return to their country of origin, including information on setting up small businesses, and ensuring the recognition of qualifications obtained in Germany.
197. Information can be provided in a number of ways. It appears from the information submitted to the Committee that the majority of information tends to be provided in written form, or on occasion orally. There is no information available on whether governments also make use of the mass media such as the press, television and radio. The Committee was interested to note that, given technological developments in recent years, a number of governments, including those of Australia(75) and Malaysia,(76) now make use of the Internet to disseminate information, and one other, Brazil,(77) reported that it was in the process of establishing such a service.
198. With the exception of the Philippines,(78) no State made mention of specific information programmes or services directed towards female prospective migrants. While States are not obliged by these instruments to provide gender-specific information, the Committee considers that in light of the increasing "feminization" of migration(79) and the particularly vulnerable position in which many female migrants can find themselves, in many cases information campaigns specifically directed towards women may be appropriate.(80) The Committee notes with interest the Philippines' report, which indicated that a special service had been initiated to inform prospective female nationals of the conditions of work and life facing them in the host country. The programme also attempts to dissuade women from taking up positions in which they are likely to be exposed to abuse and exploitation.
199. Paragraph 5(4) of Recommendation No. 86 provides "with a view to facilitating the adaptation of migrants, preparatory courses should, where necessary, be organized to inform the migrants of the general conditions and the methods of work prevailing in the country of immigration, and to instruct them in the language of that country. The countries of emigration and immigration should mutually agree to organize such courses". It does not appear from the limited information which was supplied to the Committee that such courses are widespread, although the Committee notes with interest that the Fund to Assist Workers Abroad in Thailand can be used to provide training to workers prior to their departure.(81) According to other legislation in Thailand such preparatory courses should provide workers with information on the future employer, conditions of work and life in the host country, as well as information on culture, traditions and prohibitions in the host country.(82) An agreement between Portugal and France specifies that Portuguese workers recruited for employment in France must be informed in Portuguese of their rights and duties in the host country, through the provision of pre-migration courses.(83) Indonesia organizes pre-migration courses for all intending emigrants, including language training and a pre-departure orientation course.
200. Paragraphs 8 and 9 of Recommendation No. 86 stipulate that any changes to migration formalities and legislation should be published in advance of coming into force, and that adequate publicity should be given to such regulations and laws in the languages most commonly known to migrants. No governments reported undertaking activities of this nature.
201. It was explicitly stated in the preparatory work to the 1949 instruments that Convention No. 97 was "worded in a general manner, so as to permit recourse where desirable to voluntary organizations in the application of measures".(84) Furthermore, Annex II of Convention No. 97 stipulates in Article 8 that "appropriate measures shall be taken by the competent authority to assist migrants for employment, during an initial period, in regard to matters concerning their conditions of employment; where appropriate, such measures may be taken in cooperation with approved voluntary organizations". More succinctly, Paragraph 5(1) of Recommendation No. 86 stipulates that "the free service provided in each country to assist migrants and their families and in particular to provide them with accurate information should be conducted: (a) by public authorities; or (b) by one or more voluntary organizations not conducted with a view to profit, approved for the purpose by the public authorities, and subject to the supervision of the said authorities; or (c) partly by the public authorities and partly by one or more voluntary organizations".
202. In other words, Members are under an obligation either to provide or fund the provision of information or other assistance to migrant workers or to ensure the existence of such services, and to monitor them and, where necessary, intervene to supplement them.(85) This latter point has been the subject of direct requests by the Committee in recent years.(86) Governments thus have great freedom of choice on which channels are used to provide information.
203. Many States did not provide details on information provision prior to departure. From those which did, it appears that most migrant workers and members of their families receive information prior to departure about living and working conditions in the country of destination from a combination of the sources outlined below.
204. Most governments reported that information provision to migrants prior to departure, as is the case in Albania,(87) Paraguay,(88) and Switzerland,(89) was the responsibility of an official governmental body. Some reports, including those of Slovenia(90) and the United Kingdom (St. Helena),(91) indicate that the provision of free information to prospective migrants is combined with the activities of the national employment service, while others, such as France,(92) have established particular agencies mandated to deal with all questions relating to emigration and immigration. In France, the agency provides a personalized service to prospective migrants by mail, fax or telephone including the three elements: "(i) personalized information on specific subjects; (ii) provision of a complete document on expatriation; (iii) a telephone consultancy service (by subscription)". The Czech Republic reported that it was currently in the process of constructing a centralized information service.
205. In terms of information provision outside the jurisdiction of the State, governments of several migrant-receiving territories, including Canada (Province of Quebec),(93) Falkland Islands (Malvinas),(94) Hong Kong,(95) United States,(96) Uruguay(97) and Zambia,(98) report that, often in combination with services provided in the receiving country, they provide information services prior to departure either through the establishment of special offices dedicated to migration questions, or more generally, through their diplomatic missions and consular services abroad.
206. Article 2 of Convention No. 97, Article 4 of Annex I of Convention No. 97, Article 4 of Annex II of Convention No. 97, and Paragraph 5(1) of Recommendation No. 86 stipulate that assistance and information services for migrant workers should be provided free of charge. From the limited information available on this topic, the provision of free pre-migration information does not appear to pose a problem for most countries, in contrast to the provision of free employment services specified in Article 7(2) of Convention No. 97 which, as noted in paragraphs 167-170 above, appears to have raised more difficulties. Australia, however, reported that a "small fee" is charged for information packages supplied by Australian embassies and high commissions. The Government indicated that the fee is paid to "cover part of processing an application for a visa. It is not a fee for information".
Cooperation between information services of
migrant-sending and migrant-receiving countries
207. Both sending and receiving countries have a role to play in ensuring that migrants and members of their families have access to free and reliable information on all aspects of the migration process prior to departure. In this regard, cooperation between sending and receiving States is vital, in particular before prospective migrants make the choice to leave their home country. In general terms, Article 1 of Convention No. 97 provides in this regard that:
Each Member of the International Labour Organization for which this Convention is in force undertakes to make available on request to the International Labour Office and to other Members --
(a) information on national policies, laws and regulations relating to emigration and immigration;
(b) information on special provisions concerning migration for employment and the conditions of work and livelihood for migrants for employment;
(c) information concerning general agreements and special arrangements on these questions concluded by the Member.
208. With more specific reference to information services, Article 4 of Convention No. 143 states that "Members shall take such measures as are necessary, at the national and the international level, for systematic contact and exchange of information on the subject with other States".
209. Most governments did not provide information on whether and to what extent they collaborate with the information services of other States. Some, including Malaysia and Portugal, confirmed that they do engage in such activities, but failed to give details of the nature of this cooperation. Of the States which did submit information on this subject, most stated that, despite no formal agreements regulating information exchange, cooperation does occur in practice. Some of these, in particular Hong Kong(99) and Sri Lanka,(100) reported having close contact with other countries through labour attachés stationed abroad, or through diplomatic and consular missions. A certain number of governments, such as those of Cameroon, Falkland Islands (Malvinas) and Trinidad and Tobago stated that they did not participate in a regular exchange of information, but provided information on request to other countries.
210. A small number of States, notably Belgium,(101) Malawi(102) and Venezuela,(103) reported that the majority of information exchange occurs through the medium of bilateral or multilateral agreements.
211. Some States, usually those reporting little or no immigration or emigration such as Belize and Cyprus, took the position that cooperation with other States was unnecessary, given the insignificant levels of international migration occurring. Another State, Ecuador,(104) indicated that while such cooperation did not actually occur in practice, there were no legal barriers to prevent such information exchange should it become necessary.
212. One State, Tajikistan, reported that despite several attempts to obtain information on the subject of migration, in particular from private companies in the Republic of Korea and the Gulf States, their requests had met with little cooperation from other countries, and the Government recently requested the Office's technical assistance to develop an information network on this issue.
213. Australia reported that facilities for such cooperation did not exist, and considered this an obstacle to full implementation of the Convention.
214. The existence of official or authorized information services does not suffice to guarantee that migrant workers are sufficiently and objectively informed before emigrating. Workers must also be protected from misleading information stemming from intermediaries who may have an interest in encouraging migration in any form to take place, regardless of the consequences for the workers involved. Unscrupulous agents who profit from migration flows may have an interest in disseminating erroneous information on the migration process, including exaggerated claims on living and working conditions in the host country, as well as on the chances of finding and maintaining work. Given migrants' vulnerability to this form of abuse, it is essential that States take measures to combat such activities.
215. Article 3(1) of Convention No. 97 provides that: "Each Member [...] undertakes that it will, so far as national laws and regulations permit, take all appropriate steps against misleading propaganda relating to emigration and immigration." Again, the flexible wording of the provision, introduced during the discussions leading to the adoption of the 1949 instruments, should be noted. This leaves governments considerable freedom in terms of measures they may choose to take.
216. Initially, it should be noted that the Convention does not define what is meant by the term "misleading propaganda", as it was intended to be applicable to all national situations and all means of disseminating information. Most countries did not specify particular information media, although the Czech Republic reported having enacted general provisions against misleading propaganda in the press, television and radio. No initiatives aimed at combating misleading propaganda on the Internet were reported to the Committee, although governmental information submitted to other organizations indicate that a number of such measures have been undertaken.(105)
217. It should be noted that Convention No. 97 obliges ratifying States to combat misleading propaganda against both immigration and emigration. Thus, governments have an obligation on the one hand to prevent false information being disseminated to nationals leaving the country, and on the other to combat false information regarding non-nationals arriving in the country. Although the Convention does not make explicit reference to it, the Committee considers that the fight against misleading propaganda ought also to tackle propaganda targeting the national population (such as that propagating stereotypes of migrants as being more susceptible to crime, violence, drug abuse and diseases).(106) A workers' organization (CGT -- Force ouvrière) in France, indicated the importance of anti-racism and anti-xenophobic measures in this regard. The information supplied by governments, however, was on the whole too vague to identify whether any or all of these problems were being tackled.
218. The majority of countries which have chosen to adopt legal measures to combat misleading propaganda have not enacted laws specifically aimed at protecting migrants, but rather aim to protect all workers, national and non-national, from undertaking work of which they are not fully informed. Usually enacted within the Labour Code or employment laws, such as in Antigua and Barbuda, Bahamas, Dominica and Kenya,(107) these provisions tend to protect workers against recruitment on the basis of misrepresentation, under conditions of unlawful pressure, or by mistake. Other States such as Mozambique,(108) have opted for legal prohibition of misleading propaganda. Yet others, such as the Czech Republic,(109) have directed legislation at the means of dissemination, such as the press or mass media, prohibiting the dissemination of false information in general. Brazil, reported having enacted general constitutional and penal provisions(110) to prevent the dissemination of misleading propaganda which includes the possibility of imprisonment for up to three years and a fine. Germany reported that penal sanctions can be imposed upon those who "try to seek profit from tempting Germans to emigrate by fraudulent means", and anyone wishing to disseminate commercial information or advice to prospective migrants must first obtain a permit.(111)
219. Hong Kong(112) reported that it represses misleading propaganda indirectly, by treating it as fraud, while others, for example, Malaysia(113) and Uruguay,(114) reported that while having enacted no laws specific to the issue, other institutional safeguards, including the thorough examination of work contracts, terms of employment, salary and so on, prior to issuance of a work permit, ensures that migrants for employment are protected from misleading propaganda.(115)
220. The Committee is aware of a practice in some countries whereby private recruitment agencies wishing to place advertisements in public media must first obtain clearance from the relevant authorities. For example, in Thailand, recruitment agencies and employers must apply for a permit to advertise overseas positions and only those demonstrating a record of sending workers abroad may advertise for workers without having made prior arrangements with a foreign employer. Prior to publication, all advertisements are subject to screening by the local Employment Agency Registrar.(116) The Committee notes with interest the report from Austria, which indicated that workers who migrate for employment as a result of misleading propaganda can receive financial compensation.
221. The penalties for violating legal provisions against misleading propaganda vary according to the nature of the relevant law. In some countries, such as Kenya,(117) employees who are found to have been recruited under unlawful pressure or by mistake or misrepresentation are to be repatriated at the cost of the employer. In other cases, such as Hong Kong,(118) employment agencies risk losing their licences for misleading workers as to the terms and conditions of employment.
222. The Falkland Islands (Malvinas) reported that no legislation existed concerning the repression of misleading propaganda. Of the governments which have opted to intervene not through the legal system but on a more practical level, some, such as those of Belize(119) and Hong Kong,(120) indicate that they have taken measures to guarantee the quality of information given to migrants by demanding that persons or enterprises desirous of disseminating information to migrants for employment must first obtain a licence.(121)
223. Authorities may also intervene to correct false or misleading propaganda which comes to their attention and one country, the United Republic of Tanzania (Zanzibar),(122) reported having undertaken such corrective measures.
224. A larger number of countries, including Dominica, Estonia, Grenada, Guyana, Israel, Malaysia, San Marino, Trinidad and Tobago and Venezuela, reported that misleading propaganda on emigration and immigration is not a problem in their countries, and for this reason, no legal or practical steps were deemed necessary to repress such activities. It should be borne in mind, however, that even in countries where misleading propaganda is not currently a problem, preventive measures may still be appropriate to ensure that this remains the case.
225. Misleading propaganda can emanate from within the sending State, the receiving State or from an intermediary State. Given this, and the devastating consequences which it can have for migrants who are subjected to it, cooperation between migrant-sending States and migrant-receiving States is essential. Article 3(2) of Convention No. 97 states that Members should "For this purpose [...] where appropriate act in cooperation with other Members concerned". The Czech Republic,(123) Hong Kong(124) and Portugal reported initiatives to combat misleading propaganda in cooperation with other States. One country, Malawi,(125) stated that membership in a regional organization constituted a means of cooperating on the subject. France reported an initiative taken to cooperate with a French association in the Netherlands, which began on an experimental basis in 1992, and which has been followed up, and Cameroon indicated that information was distributed to the authorities of other States in order to combat misleading propaganda.
226. Article 5 of Convention No. 97 stipulates that:
Each Member [...] undertakes to maintain, within its jurisdiction, appropriate medical services responsible for --
(a) ascertaining, where necessary, both at the time of departure and on arrival, that migrants for employment and the members of their families authorized to accompany or join them are in reasonable health;
(b) ensuring that migrants for employment and members of their families enjoy adequate medical attention and good hygienic conditions at the time of departure, during the journey and on arrival in the territory of destination.
The purpose of these provisions is twofold: first to ensure that the migrant is fit to undertake the journey to the country of destination, and second to avoid the migrant and members of his or her family, having completed the journey to the host country, being refused entry on medical grounds.(126)
227. Countries which provided information on this question report enacting legislation in a number of areas. Some countries, such as Cyprus,(127) include provisions in their general emigration legislation to the effect that all prospective emigrants are subject to a medical examination. Other countries include provisions in their employment legislation, to the effect that either all recruited workers must undergo medical examination, as is the case in Dominica and Zambia, or workers who are specifically recruited for employment outside the home country must be subject to medical examination, as is the case in Belize and Malaysia. One of the conditions for entry into Mexico is to present an official certificate of good mental and physical health, delivered by the authorities of the country of origin.(128) Others, such as Cyprus and Trinidad and Tobago, indicate that the country's public medical services permit access by all nationals to adequate medical care at any time. In Thailand a doctor must obtain a licence prior to carrying out medical examination of jobseekers going to work abroad.(129)
228. Regarding the costs of medical examination, Convention No. 97 specifies that the State should ensure the medical examination of prospective migrants prior to their departure, within its own jurisdiction. It does not specify who should bear the costs of the examination. The United Kingdom (Bermuda) reported that work permits are not issued to nationals recruited to work abroad unless the migrant produces a full chest X-ray and a doctor's certificate. In this case, and other similar cases, such as Dominica, it appears that it is the worker's responsibility to cover the costs of such an examination. Other reports, such as those from Belize, Hong Kong, Israel and Mauritius, indicated that it was the employer's or recruiter's responsibility to ensure medical inspection costs are covered. Kenya indicated provisions to the effect that any migrant who refuses to attend a medical examination may be sanctioned by a fine of up to 20,000 shillings, or imprisonment for up to one year, or both. While the provision of medical services prior to departure and upon arrival is an obligation under Article 5(a) of the Convention, the Committee considers that such sanctions are not in keeping with the spirit, if not the letter, of the instruments.
229. It was noted above (paragraph 107) that States are not permitted to exclude any categories of migrants, other than those explicitly mentioned in the Conventions, from the provisions. In relation to the provision of medical inspection prior to departure, this appears to be problematic for a number of governments which reported that, for instance, that of Hong Kong,(130) only workers recruited for manual labour overseas and only nationals migrating for short-term contracts, or, as is the case notably in Grenada(131) and Guyana, only workers recruited under government-sponsored schemes are guaranteed medical examination prior to their departure. Similar problems appear to be reflected in the countries of employment when it comes to guaranteeing medical examination upon arrival, as discussed below.
230. Information submitted by governments did not, as a rule, mention the extension of medical inspections to members of migrant workers' families entitled to accompany them to the country of employment. Cyprus(132) and Malaysia indicated that medical examinations were undertaken for all migrants, not exclusively migrants for employment.
231. Paragraph 14(4) of Recommendation No. 86 provides: "As far as possible, intending migrants for employment should, before their departure from the territory of emigration, be examined for purposes of occupational and medical selection by a representative of the competent authorities of the territory of immigration". A small number of receiving countries, including France,(133) reported stationing officers in sending countries for the purposes of ensuring medical examinations were undertaken according to the standards of the country of employment.
232. Few countries, among them Belize,(134) reported other initiatives to ensure hygienic and healthy conditions at the time of departure, in accordance with Article 5(b) of Convention No. 97. The information which was provided indicates that, as a general rule, the medical inspection of migrants prior to departure does not cause major problems for either the sending States or the workers directly involved.
233. Beyond the measures outlined above, little information was provided by governments on additional measures to facilitate the departure of migrants for employment. A few initiatives, however, are worthy of note.
234. A number of States reported that they assisted nationals recruited for employment abroad in ensuring that the appropriate administrative formalities were completed successfully. Some, such as Mauritius(135) and Trinidad and Tobago,(136) reported that they arranged for the issuance of travel documents, including booking transport for migrants, as a means of facilitating their departure. The report of Hong Kong indicated measures to simplify procedures to be completed prior to emigration. Mauritius reported that under employment legislation recruiters are responsible for obtaining entry certificates and documentation, and for the completion of all formalities on the behalf of every recruited worker.
235. As previously mentioned in connection with medical examination, a small number of States, including Grenada and Guyana, reported that special facilities to encourage the smooth departure of migrants for employment were only guaranteed to particular categories of workers, notably those recruited for government-sponsored migration.
236. The Committee notes the statement in the report of Oman which reads "in practice, the procedures of departure, journey and reception of workers are easy, and they do not require any exceptional or special measures as long as workers are in possession of valid entry visas".
237. It should be noted that Article 4 of Convention No. 97, which binds States to facilitate the departure, journey and reception of migrants for employment, applies only to measures taken within the jurisdiction of the State. Thus, as Australia points out, receiving countries are "not responsible for the departure arrangements and conditions on the journey for incoming migrants for employment".
238. A number of cases regarding migrants being illegally transported across international borders under appalling conditions, in many cases resulting in injury to, or even the death of, the migrants concerned have recently come to light and migration in abusive conditions will be discussed in more detail in paragraphs 289-364 below. The present chapter deals exclusively with the journey of regularly admitted migrant workers and members of their families authorized to accompany or join them.
239. According to Article 4 of Convention No. 97, States are required to ensure that: "Measures shall be taken as appropriate [...] to facilitate the departure, journey and reception of migrants for employment." As was noted above, the instruments do not specify in practical terms what these measures entail. However, States which have accepted the relevant provisions are obliged by Articles 6(d) of Annex I and 7(d) of Annex II to Convention No. 97 to ensure "the safeguarding of the welfare, during the journey and in particular on board ship, of migrants and members of their families authorized to accompany or join them". It is further specified that the responsibility for ensuring migrants and members of their families' welfare is protected lies with the public employment service specified in Article 4 of Convention No. 97.
240. Almost without exception, the reports provided by governments contained no information on the subject of migrant workers' protection during the journey to the country of employment. As a result, the Committee has found it extremely difficult to evaluate the measures which States have taken in this regard.
241. One State, Ethiopia, reported that this Article was incompatible with national policy, which they had interpreted as indicating that even if migrant workers are not competent for a specific job, the Article requires each member State to receive migrants and facilitate migration.
242. Article 5(b) of Convention No. 97 stipulates that: "Each Member [...] undertakes to maintain, within its jurisdiction, appropriate medical services responsible for [...] (b) ensuring that migrants for employment and members of their families enjoy adequate medical attention and good hygienic conditions [...] during the journey." It was stated above that medical inspection should take place on departure from the home country and upon arrival in the host country. In the intermittent period, regular-entry migrants must also be guaranteed adequate health care.
243. In 1995 the Committee addressed a direct request to Israel on this subject, stating that "the Committee notes the Government's statement that it is the responsibility of the employer to take proper care of the workers during their travel. It recalls that these provisions of the Convention require every State party to take appropriate measures to facilitate the departure, journey and reception of migrant workers and members of their families authorized to accompany them". To the Committee's regret, no governments provided information on this aspect of the instruments, and as a result, the Committee finds itself unable to assess the implementation of these provisions.
B. Cooperation among sending, receiving and transit States
244. Article 7 of Annex I to Convention No. 97 states that sending and receiving countries should, where appropriate "enter into agreements for the purpose of regulating matters of common concern arising in connection with the application of the provisions of this Annex". With the exception of Israel, which indicated that no situation had yet arisen necessitating such agreements, no governments provided detailed information on such agreements.
245. Article 5 of Annex II to Convention No. 97 states that: "In the case of collective transport of migrants from one country to another necessitating passage in transit through a third country, the competent authority of the territory of transit shall take measures for expediting the passage, to avoid delays and administrative difficulties." In this regard, New Zealand reported that no transit visas were required for international passengers transiting the country for a period of up to 24 hours. The report of Lebanon questioned whether transit countries which have not ratified the Convention were bound to respect this provision. The Committee does not consider that this provision implies any such obligation on non-ratifying States. The Committee recalls that the obligation to cooperate binds only States which have ratified one or both Conventions, without there being any reciprocity other than free and sovereign will on the part of the other States to respond to this willingness to cooperate.
246. Paragraph 15(2) of Recommendation No. 86 states that: "The movement of the members of the family of such a migrant [introduced on a permanent basis] authorized to accompany or join him should be specially facilitated by both the country of emigration and the country of immigration."
247. No governments indicated to the Committee any measures which were taken in cooperation, or in their capacity as countries of transit to facilitate the journey of migrant workers, with the result that the Committee cannot assess the practical implementation of the provisions.
248. The cost of the outward journey is not a subject which is broached by the provisions in question. However, a number of migrant-sending countries, such as Antigua and Barbuda,(137) Bahamas, Ghana, Mauritius,(138) Mozambique and the United Republic of Tanzania (Zanzibar), indicated provisions by which workers recruited for employment abroad are not liable for travel costs. Some migrant-receiving countries or territories, such as Hong Kong, also indicated that contracts for incoming non-nationals recruited as domestic helpers must contain a clause stipulating that the worker or his or her family shall not cover the costs of the inward journey and the worker must not cover the costs incurred during the journey such as overnight accommodation and food.
249. Article 1 of Annex III to Convention No. 97 states that "personal effects belonging to recruited migrants for employment and members of their families who have been authorized to accompany or join them shall be exempt from customs duties on arrival in the territory of immigration". Article 2 extends exemption from customs duties to "portable hand tools and portable equipment of the kind normally owned by workers".
250. The Committee notes that while 21 of the 41 States which have ratified Convention No. 97 have excluded Annex III from ratification, compliance with these Articles does not appear to pose major problems in practice. Most countries which have provided information on this subject, such as Israel and New Zealand, exempt migrants' personal possessions from customs duty.
251. Almost without exception, the government reports provided no information on the treatment and protection of migrants during the journey to the country of employment. In confronting the same problem during the 1980 General Survey,(139) the Committee stated that, given the evolution of air transport and the decreasing likelihood that migrants are transported en masse by special forms of transport, certain provisions of the instruments relating to the protection of workers during the journey have "ceased to be of current interest". This explanation was, at the time, confirmed by the report of the Federal Republic of Germany, which specifically stated that provisions concerning migrants' welfare during the journey had been dropped from national legislation.
252. In the past two decades, the trend towards air travel has further augmented. In this regard, Hong Kong reported that "the need for medical attention on board aircraft is normally minimal because the time spent on air travel is short". The decline of government-sponsored group transfer of migrants has also become apparent. It should be noted however, that a very small number of migrant-sending countries, including Malawi, continue to organize government-sponsored group migration through the use of charter planes and, as is the case in Dominica, under the escort of government officials. However, the Committee is of the opinion that the spirit in which the instruments were conceived, namely to provide highly flexible instruments which could apply to all national situations, is no longer reflected through the provisions of the instruments being examined in this survey on transportation of migrant workers, and these provisions have become irrelevant for the vast majority of States, in so far as migration no longer takes place under such conditions.
253. Article 4 of Convention No. 97 states in the most general terms that: "Measures shall be taken as appropriate by each Member, within its jurisdiction, to facilitate the [...] reception of migrants for employment." This provision is intended to ensure that migrants are well received in the country of destination, and that measures are taken to facilitate their smooth transition to the host country. In relation to this provision, the Government of Lebanon reported that facilitating the departure, journey and arrival of migrants constitutes, along with the provision of free medical services, the biggest obstacle to ratification of the Convention.
254. Once more, the flexible wording of the provisions should be noted. States are only required to ensure measures when it is deemed "appropriate" for them to do so. Depending on the national situation, this may imply, for example, that measures are appropriate when migration flows reach substantial proportions, or when problems emerge during the reception process, or in the case of migrants arriving to undertake particularly vulnerable occupations, or in any number of other cases.
255. The specification that countries are only obliged to enact measures "within their own jurisdiction" ensures that migrant-sending States are not obliged to provide reception services in the country of employment. In this regard, the following paragraphs can, unless otherwise specified, be read as dealing only with reception services provided by and in the country of employment.
A. Medical services and hygienic conditions upon arrival
256. It is specified in Article 5(a) of Convention No. 97 that Members undertake to provide appropriate medical services for "ascertaining, where necessary, both at the time of departure and on arrival, that migrants for employment and the members of their families authorized to accompany or join them are in reasonable health". The provision of medical inspection prior to departure was discussed in paragraphs 226-232 above.
257. At the time of drafting the 1949 instruments, the majority of migration flows involved long, arduous journeys, often by boat, to the country of destination, and it was considered that medical inspection at either end of the journey was necessary to ensure that migrants completed the process under healthy and hygienic conditions. However, in the 1980 General Survey, the Committee came to the conclusion that, in light of the development of transportation technology and the increasing likelihood that aircraft are the primary means of migration, medical inspection both at the time of departure and upon arrival was probably no longer necessary to ensure that workers are fit. The Committee reiterates this point, and considers a single medical inspection (preferably on departure) as sufficient to ensure application of the provisions, in so far as migration is actually carried out under these conditions.
258. Medical examinations upon arrival appear to be routine practice in many migrant-receiving countries, including Luxembourg, Syrian Arab Republic and the United States. In some countries the medical inspection takes place the day after arrival, as is the case in Mauritius, while in other countries, such as Switzerland,(140) the inspection takes place up to 15 days after arrival. One country, Bahrain,(141) reported that it was the responsibility of the employer to ensure that migrant workers are free from all contagious disease. Another country, the Netherlands, reported that no special facilities exist for medical inspection of migrants, but that migrant workers are entitled to make use of the health care services in the same way as nationals. The Committee notes that the necessity for a medical examination appears to depend, in some cases, upon the length of the migrant's intended stay. For example, the United Kingdom reported that migrants entering for more than six months should normally pass a medical examination or produce a medical certificate, and France indicated that migrants entering the country for less than three months are not obliged to be medically tested. In this and other cases, such as that of Paraguay, production of a valid medical certificate avoids the need for a medical examination. This also appears to be the case in Belgium where only the primary migrant needs to produce a medical certificate; members of his or her family are not obliged to do so.
259. In most cases, however, as for example in Belize, medical inspection and the provision of adequate medical services upon arrival appears to be extended to all categories of regular entry migrants and are not restricted only to migrants for employment.
260. Beyond the provision of immediate medical examination, Article 5(b) of Convention No. 97 stipulates that Members undertake to maintain medical services for the purpose of "ensuring that migrants for employment and members of their families enjoy adequate medical attention [...] on arrival in the territory of destination". This is not the same obligation as ensuring that migrants are in reasonable health, but rather requires ensuring that services are available for them to consult should they so require. It may be of interest to note that two countries, Lebanon and Morocco, reported that the provision of free medical services and the verification of hygienic conditions at the time of arrival constituted major barriers to ratification of Convention No. 97.
Content of medical testing
261. One issue which has come to the Committee's attention is the content of medical tests to which migrants are subjected upon entry. Governments report various tests which must be undergone before migrants are permitted to enter the country. Luxembourg reports that all nationals of States outside the European Union must be cleared of any illness or physical or mental disability which might prevent the individual from fulfilling the occupation which they have been recruited to do, or which might entail prolonged hospitalization. In Cyprus, immigrants are tested for, inter alia, hepatitis and venereal diseases. New Zealand requires X-ray certificates from all immigrants except pregnant women and children. France reported that it tests all non-EU nationals intending to stay for more than three months for bubonic plague, cholera and yellow fever, as well as illnesses which are considered a threat to public health, such as "(i) addictions to substances or plants classified as drugs; (ii) mental disorders likely to threaten public order or safety". The United Kingdom indicated that entry can be refused to migrants if they are suffering from a "specified disease which may interfere with his ability to support himself or his dependants".(142) Argentina reports that entry can be refused if a migrant is suffering from a contagious disease which could pose a threat to public health, or a mental or physical handicap which would prevent the individual from undertaking the occupation for which he or she was recruited. In Thailand, proof of a smallpox vaccine is required and entry can be refused on grounds of insanity, leprosy, elephantiasis and serious drug or alcohol addiction.(143) The Committee noted with interest the report of Paraguay, which indicated that refusal of entry on medical grounds of family members of migrants may be waived following an evaluation of the seriousness of the illness and the financial and moral situation of the family.
262. The legislation of some countries, including Antigua and Barbuda, prohibits entry on medical grounds to any person who appears, for afflictions as varied as blindness, alcoholism, dementia, or other physical or mental conditions, to constitute either a danger to the native population, or whose health care is likely to become a burden on public funds. In this regard, the Committee draws attention to the fact that exclusion of individuals on certain medical or personal grounds which do not pose a danger to public health or a burden to public funds, may be dated, due to scientific developments or changing social attitudes, and some may now even constitute unacceptable discrimination. In particular, the Committee notes that Trinidad and Tobago, prohibits entry to, inter alia, homosexuals.(144)
263. Medical testing and the prohibition of entry of persons on the grounds that they may constitute a grave risk to public health is likely to be a routine and responsible precaution to take prior to permitting the entry of non-nationals. In this regard, the Committee draws the attention of member States to the International Health Regulations adopted by the World Health Assembly in 1969, which lay out the measures which are deemed reasonable to prevent migration from posing a threat to public health. In particular reference is made to article 84 which states that:
Migrants, nomads, seasonal workers or persons taking part in periodic mass congregations, and any ship, in particular small boats for international coastal traffic, aircraft, train, road vehicle or other means of transport carrying them, may be subjected to additional health measures conforming with the laws and regulations of each State concerned, and with any agreement concluded between any such State.
264. One development which the Committee notes from a minority of reports is the testing of prospective migrants for the Human Immunodeficiency Virus (HIV) and the Acquired Immunodeficiency Syndrome (AIDS).(145) For example, Cyprus reports that all migrant workers are tested for AIDS prior to arrival and upon their departure from the country. This also appears to be the case for the Russian Federation, where non-nationals wishing to stay more than three months in the country must undergo AIDS screening, and entry is denied to anyone testing positive. In Cuba, migrants wishing to stay for more than three months undergo AIDS screening and non-Cubans testing positive are repatriated. Similar provisions appear to exist in the Republic of Korea and Uzbekistan for various categories of non-national workers. In this regard, the Committee draws attention to its statement made in the 1996 Special Survey of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), regarding discrimination on the grounds of state of health. In this survey, the Committee wrote:
Discriminatory practices may take many forms, which are often hidden. For example, workers may be questioned about their HIV status, or be required to submit to AIDS screening, most often without their knowledge. They may also be dismissed solely on the grounds of the HIV status. Each of these practices constitutes discrimination [...] in the Committee's opinion, efforts to eliminate all discrimination based on state of health, and on HIV/AIDS in particular, should be carried out as part of the national policy to promote equality of opportunity and treatment.
265. The Committee also draws attention to the report of the United Nations Secretary General to the Second International Consultation on HIV/AIDS and human rights,(146) which states:
The Human Rights Committee has confirmed that the right to equal protection of the law prohibits discrimination in law or in practice in any fields regulated and protected by public authorities. These would include travel regulations, entry requirements, immigration and asylum procedures. Therefore, although there is no right of aliens to enter a foreign country or to be granted asylum in any particular country, discrimination on the grounds of HIV-status in the context of travel regulations, entry requirements, immigration and asylum procedures would violate the right to equality before the law.
266. The Committee reaffirms these statements, and considers that refusal of entry or repatriation on the grounds that the worker concerned is suffering from an infection or illness of any kind which has no effect on the task for which the worker has been recruited, constitutes an unacceptable form of discrimination.(147)
267. Article 2 of Convention No. 97 states that: "Each Member [...] undertakes to maintain, or satisfy itself that there is maintained, an adequate and free service to assist migrants for employment, and in particular to provide them with accurate information." Paragraphs 191-213 above analysed the provision of pre-migration information services. The focus of this section is upon the information services which States are obliged to ensure exist for migrants once they arrive in the country of employment. However, many of the same provisions apply to this stage of information provision as before, and to avoid unnecessary duplication, citations of ILO instruments relating to this subject will only be made where they apply specifically to information provision upon arrival.
268. As was noted above, in Section II, the wording of the provisions relating to information services is sufficiently general to allow a variety of measures to be considered as complying with the instruments, although Annexes I and II, as well as the provisions of Recommendation No. 86, indicate more clearly what is entailed in practical terms.
269. The information which was supplied to the Committee regarding the activities of information services to non-nationals upon their arrival in the country of employment was varied. While the majority of government reports did not broach this subject in any detail, those which did supplied information which the Committee examined with interest.
270. Regarding the languages in which information is provided, Australia,(148) and Hong Kong(149) stated that they provided information to prospective or newly arrived migrants in languages of the most prominent migrant-sending countries. Of particular interest to the Committee was the report from Finland which stated that besides providing oral information in either Finnish or the migrant's mother tongue, and written information in ten languages, the Government encourages all governmental agencies and voluntary organizations working with migrants in Finland to provide information in all the languages spoken in the country. The Committee notes with interest that in Finland, many information packages are transcribed in English or Finnish in a style which is designed to be easily understandable to migrants who have not been in the country for a significant period of time. Italy(150) stated that it published an explanation of immigration legislation and other laws of relevance to migrants in eight languages and, France indicated to the Committee that brochures are available in French, Arabic and Turkish.
271. One country, the Syrian Arab Republic, reported that the public employment services do not provide information to migrant workers in their own languages, and the report of Canada (Province of Nova Scotia) stated that the provision of information in either the migrant's own language or a language that he or she could understand (other than the host country's language) would "involve major implications and costs" and constituted an obstacle to full application of the Recommendation.
272. Paragraph 5(2) of Recommendation No. 86 covers, as noted above, the issues which may be of particular interest to migrants, relating to "emigration, immigration, employment and living conditions, including health conditions in the place of destination, return to the country of origin or of emigration, and generally speaking any other question which may be of interest to them in their capacity as migrants". A number of major migrant-receiving countries supplied information regarding such matters, which the Committee examined with interest. The most comprehensive information examined by the Committee was that provided by Finland and New Zealand. The publication of either "initiation packages" or separate documents dealing with different aspects of life and work in the host country appears, at least in these countries which provided information to the Committee, to be detailed and comprehensive.
273. As was found to be the case with pre-migration information, the vast majority of States do not provide information which is gender-specific. Again, it should be noted that this in itself is not an obligation under any of the ILO instruments concerning migration specifically, though it may be required under other international instruments. An initiative which the Committee notes with interest, however, is that taken in Finland, which has undertaken to provide a number of information leaflets and booklets specifically directed at female migrants. These documents cover issues such as pregnancy, child care, marriage, health care, maternity grants, family allowances, "mother-child" homes, rape and sexual harassment. Germany(151) also reported directing language classes and vocational training to migrant women and girls.
274. It was stated in paragraphs 201-205 above that, according to Paragraph 5 of Recommendation No. 86, information services can be provided for by public authorities, by one or more non-profit-making organizations or by a combination of these two sources.
275. As was noted earlier, a range of mechanisms have been instituted in migrant-receiving countries to provide information to migrants upon their arrival in the host country. In New Zealand, for example, the customs authorities publish a number of brochures for incoming migrants on such subjects as custom charges, prohibited and restricted imports, household concessions and baggage searching, while the Immigration Service publishes information on immigration policy. Italy reports that information is provided to migrants through state-funded organizations, as well as numerous trade unions, advice centres, benefit advice centres and assistance centres, some of which are voluntary organizations. Chile reported that while no centralized government body exists to provide such a service, every local government has a foreigners' department which advises non-nationals on administrative procedures and answers queries from migrants. France previously reported to the Committee that demand for information and guidance services had been uneven and that a reorganization of the state-funded information services was required.(152)
276. Article 2 of Convention No. 97, Article 4 of Annex I of Convention No. 97, Article 4 of Annex II of Convention No. 97 and Paragraph 5(1) of Recommendation No. 86 stipulate that Members must ensure that migration information and assistance services be provided free of charge. As was stated earlier, on the basis of the information provided in the government reports, this does not appear to pose major problems of implementation in migrant-receiving countries.
277. Paragraph 10 of Recommendation No. 86 stipulates that migration should be facilitated "by such measures as may be appropriate: (a) to ensure that migrants for employment are provided in case of necessity with adequate accommodation, food and clothing on arrival in the country of immigration".
278. A number of governments provided information on this provision, from which it appears to be extremely rare for all migrant workers to be provided with accommodation, clothing and food. Some countries, such as Antigua and Barbuda(153) and Canada indicated that bilateral and/or multilateral agreements make provisions for accommodation.(154) One country, Saudi Arabia, reported that employers recruiting migrants to work in isolated areas are obliged to provide appropriate housing, while another, Pakistan, stated that where migrants were involved in certain occupations, such as factory work, it would be expected that the employer would provide appropriate clothing. Italy reported that services were available to non-EU workers urgently requiring accommodation. In one case, Chile, the Government reported that accommodation and food were provided to refugees by the Catholic Migration Institute.
279. Some countries, including Cyprus, Israel and Mauritius reported that employers are bound to provide minimum standards of accommodation, which are subject to inspection. In this regard, Singapore indicated that it had introduced guidelines to encourage employers to improve the standards of accommodation for migrant workers, including schemes to encourage dormitory housing and subsidized public housing. One country, Barbados, reported that the Barbados Liaison Officer stationed in Canada is responsible for providing accommodation to Barbados nationals migrating under government-sponsored schemes.
280. Beyond government-sponsored migration and migrants recruited to work in specific industries or locations, it appears from the limited amount of information available to the Committee that the provisions relating to provision of accommodation, clothing and food may be of less relevance now than previously. At the time of drafting the 1949 instruments most migration took the form of group transfers, often for seasonal or short-term work in such occupations as agriculture and the building trade. At this time it was common for employers to house large groups of migrants near the site of employment in dormitory or group accommodation, and to provide food on site. Clothing designed for the specific task to be undertaken was also commonly provided by employers. Since that time, however, the nature of migration has changed, and as has been pointed out previously in this survey, the trend is now to migrate on a more or less individual basis, either migrating in the search of employment or seeking employment through public or private recruitment agencies. In this regard, it no longer appears to be the case that all migrants are in as obvious need of accommodation, food and clothing provision.
281. In particular as regards migrants who have entered
a country for permanent settlement, or even medium-term work, it may be that
the provision of migrant-specific housing, effectively segregating the migrant
population from the national population, is not conducive to social integration,
and may encourage stereotyping of both migrant and national communities. One
exception to this statement, however, is the continued recruitment of migrants
for seasonal or short-term work, who may be in particular need of assistance
to find accommodation (see box 3.3 below). Given this exception, however, the
Committee perceives the application of Paragraph 10(a) of Recommendation No.
86 to all migrants, regardless of the length of their employment, to be no longer
relevant to today's major migratory movements.
Several categories of migrants who are to be engaged in time-bound activities cannot be expected to have the time and resources to enter a country, look for housing and then start to work. The employers should be held responsible for adequate housing arrangements concerning migrant workers, particularly in the case of seasonal and project-tied workers. The extent of their responsibility should be provided for in the contract of employment.
Source: Report of the Tripartite Meeting of Experts on Future ILO Activities in the Field of Migration, op. cit., Annex I, para. 3.1.
282. In this regard, the Committee would like to draw attention to the Workers' Housing Recommendation, 1961 (No. 115), which may be of relevance to migrants working in time-bound activities. It is stated in Paragraph 2:
It should be an objective of national housing policy to promote, within the framework of general housing policy, the construction of housing and related community facilities with a view to ensuring that adequate and decent housing accommodation and a suitable living environment are made available to all workers and their families. A degree of priority should be accorded to those whose needs are most urgent . (155)
283. Article 6 of Annex I and Article 7 of Annex II to Convention No. 97 state that the measures to be taken for the purposes of the Convention include "(a) the simplification of administrative formalities". One country, Israel, stated that "individual employers are responsible for the services listed in this Article". The Committee points out that according to Article 4 of the Convention, it is States who are obliged to undertake the relevant measures to facilitate migration. Another Government, that of Ethiopia, stated "this should be seen by each Member that the rights and working conditions and employment opportunities and other services of their nationals should be protected and not be affected by international migration".
284. Article 6 of Annex I and Article 7 of Annex II to Convention No. 97 stipulate also that measures should include "(b) the provision of interpretation services". Norway indicated that a public interpretation service is available under the Immigration Directorate which translates material for migrants and authorities, which appears to be free of charge. Very little other information was provided on this subject to the Committee.
285. Finally, Article 6 of Annex I and Article 7 of Annex II to Convention No. 97 include "(c) any necessary assistance during an initial period in the settlement of the migrants and members of their families authorized to accompany them".
286. Article 8 of Annex II states that: "Appropriate measures shall be taken by the competent authority to assist migrants for employment, during an initial period, in regard to matters concerning their conditions of employment; where appropriate, such measures may be taken in cooperation with approved voluntary organizations."
287. Few governments provided detailed information on this subject. Two States, Antigua and Barbuda and the Bahamas, indicated that reception facilities, including escorting the migrant from the place of entry to the place of employment, are undertaken for migrants participating in government-sponsored migration schemes. Other countries, such as Luxembourg, stated that reception facilities for migrants exist, but failed to give details on how these operate in practice. France reported that a major focus of social policy regarding immigration was facilitating the integration of family members of migrant workers. To this end, it has established reception facilities particularly adapted to the needs of migrant workers' families. On the whole, however, the lack of detailed information from member States has hindered the Committee's ability to undertake a comprehensive comparison of measures taken in relation to these provisions.
288. From the information submitted to it on the application of provisions to facilitate the recruitment, departure, journey and arrival of migrants for employment, the Committee concludes that a number of difficulties appear to have arisen in practice for member States. To summarize, the major difficulties hindering ratification or application of the provisions relating to recruitment are: (a) the provision of free public employment services to non-nationals; and (b) confusion over the obligations relating to the operation of private (fee-charging) agencies. The provisions relating to measures to be taken prior to the departure of migrants do not appear to have raised any major difficulties for the majority of States which provided information on this subject, and the Committee notes with interest the variety and creativity characterizing the means which have been employed to ensure that workers are well informed prior to migrating. In terms of application of the provisions relating to protection of migrants during their journey to the country of employment, the Committee concludes that many of these no longer appear to be relevant to the vast majority of migration flows today. The redundancy of these provisions appears to be reflected by the lack of information which was provided to the Committee on this subject. Finally, in relation to the arrival of migrants in the host country, a major point of concern for the Committee is the growing phenomenon of testing incoming migrants for HIV or AIDS infection.
1. The Convention attracted 32 ratifications and has been shelved.
2. For example, s. 2 of the Bahamas' Recruiting of Workers Act, 1939, Ch. 290, and s. 2 of Dominica's Recruiting of Workers Act, 1943, Ch. 117.
3. 1980 General Survey, para. 157.
4. Other ILO standards relevant to employment contracts include the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Protection of Wages Convention, 1949 (No. 95), the Equality of Treatment (Social Security) Convention, 1962 (No. 118), the Holidays with Pay Convention (Revised), 1970 (No. 132), the Maintenance of Social Security Rights Convention, 1982 (No. 157), and the Termination of Employment Convention, 1982 (No. 158).
5. In Hong Kong, only contracts worth less than HK$20,000 per month, and all manual labour contracts must be certified.
6. Through the Bureau of Emigration and Overseas Employment.
7. Sri Lanka reports monitoring the implementation of female domestic workers' contracts in Kuwait, Lebanon, Oman, Saudi Arabia, Singapore and the United Arab Emirates.
8. Departmental Order No. 3/3A (1994).
9. Art. 123, para. XXVI, of the Political Constitution of the United States of Mexico, and ss. 78-80 of the General Population Act.
10. s. II.37.2 of the Labour Code, requires all contracts for workers recruited abroad to be authorized by the Ministry of Labour.
11. In New Zealand, contracts for foreign workers must be attested by the Immigration Service.
12. See for example, China where the Draft Regulations Safeguarding the Rights and Interests of Contract Workers Sent Abroad and Persons for Employment Overseas stipulate that emigrants' contracts should contain such details as the conditions of work, occupational health and safety information, labour insurance, treatment in case of industrial accident, occupational disease and death, administrative formalities and so on.
13. In Croatia, s. 12 of the Employment Act (No. 59/96) states that contracts should include reference to the duration of the contract, salary, fees and facilities, and repatriation conditions.
14. Under the Labour Act (Part 3), s. 28(bis2), contracts should contain details about the "job, the wage determined thereof, the conditions and circumstances of performance thereof, the rights and liabilities of the employee and the legal system which the contract is subject to".
15. In Viet Nam the Labour Code specifies that the number of workers, name of the employer, location of the work and wage must be specified in any labour contract.
16. Schedule C of Recruiting of Workers Act, Ch. 151, 1941.
17. Under s. 12 of the Labour Act (No. 59/96).
18. Under the Labour (Forms of Contract) Regulations, Ch. 61 of the Laws of the United Republic of Tanzania (Zanzibar).
19. For example, the Hong Kong Foreign Domestic Service of the Labour Department, in cooperation with the Immigration Department provides a standard contract for foreign domestic workers setting out the "major terms of service and welfare benefits".
20. Model contract is used for domestic workers recruited for employment in Kuwait, Saudi Arabia and the United Arab Emirates. See annex to the Sri Lankan Bureau of Foreign Employment Regulations, 1985.
21. One model contract is used for both nationals and non-nationals recruited for the weeding of plantations.
22. All foreign contracts must comply to Form II of the Labour (Forms of Contract) Regulations, Ch. 61 of the Laws of the United Republic of Tanzania (Zanzibar).
23. For more details, see Abella, op. cit., pp. 67-70.
24. It appears that this phrase, taken from the United States report, is intended to prevent employers from recruiting migrants to replace striking employees.
25. For more information on irregular migration and trafficking, see paras. 289-364 below.
26. Under ss. 13 and 14 of the Recruiting of Workers Act, 1943, Ch. 117.
27. This Agreement and its Addendum (1995) apply to the following sectors: agriculture, construction, domestic work and any other activities which the Ministry of Labour of Costa Rica designates.
28. Indian Immigrant Labour Ordinance of Sri Lanka, 1980.
29. Such as, for example, the government-sponsored arrangements operating between some Caribbean islands (for example Antigua and Barbuda, Barbados, Jamaica, etc.) and the United States and Canada.
30. For more details on the rise of private recruitment agencies, see Protecting the most vulnerable of today's workers, op. cit., paras. 101-124.
31. For example, "in Bangladesh a government agency, the Bureau of Manpower, Employment and Training, used to place most Bangladeshi workers who left to work abroad (87 per cent in 1976). By 1982, however, it only accounted for 20 per cent and eight years later for only 7 per cent", Protecting the most vulnerable of today's workers, op. cit., para. 105.
32. Under s. 176 of the Labour Code, Act No. 61/221.
33. Under the Act on Protection of Workers Temporarily Employed Abroad (1980), private recruitment agencies are not permitted to recruit Slovene citizens for employment abroad.
34. One exception is the Pakistan Overseas Employment Corporation, which provides information specifically to nationals intending to migrate.
35. That is, the ex-Socialist Federal Republic of Yugoslavia.
36. For example, Antigua and Barbuda, Bahamas, Central African Republic, Czech Republic, Finland, Germany, Grenada (but only to government-sponsored emigrants), Guyana, Israel, Malawi, Mali, Mauritius, Mexico, Netherlands, Trinidad and Tobago, Turkey and Zambia.
37. s. 13 of the Act on Employment of Albanian Citizens Outside the Territory of Albania, 03/10/91, states that: "the costs of preparing and sending the necessary documentation are to be covered by the person who wishes to be employed abroad, according to a tariff fixed by the Labour and Social Assistance Committee, under the supervision of the Ministry of Finance". Dominica claims that an employment service for migrants is maintained but that "this is not entirely free".
38. Emigration Act, 1979.
39. Implementation Directive for the Recruitment of Workers Domestically and Overseas (No. KEP.44/MEN/1994).
40. Antigua and Barbuda, under s. 9 of the Work Permits Act, 1971, charges fees for processing of work permit applications. Canada charges fees to temporary workers to cover "the cost of processing their applications for employment authorizations". The Government states: "This is not related to a public employment service to migrant workers and is therefore not in contradiction with Art. 7 of C. 97".
41. Governments which are in doubt as to the meaning of particular provisions of an ILO Convention or Recommendation may request the Office to express an informal opinion. The Office, always with the reservation that it has no special authority under the Constitution to interpret Conventions and Recommendations, has assisted governments when asked for its opinion. In practice, the Office endeavours to assist employers' and workers' organizations similarly. Where the request is for a formal or official opinion or the issue raised is likely to be of general interest, a Memorandum by the International Labour Office will be published in the Official Bulletin, containing the Office's opinion. A simple letter of reply will normally be sent by the Office in cases where a formal or official opinion is not specifically requested.
42. See para. 649 below.
43. Protecting the most vulnerable of today's workers, op. cit., paras. 110-124.
44. Antigua and Barbuda stated that no private recruitment bodies exist and that it outlaws fee-charging recruitment agencies under s. 5 of the Recruiting of Workers Regulations (Ch. 151 of the Revised Laws of Antigua, 1921).
45. For example, in Pakistan they are called "Overseas Employment Promoters".
46. Under ss. 63(a) and 65 of the Employment Services Act, 1959.
47. Quote taken from a press release issued by the Immigration Minister in June 1990. It was also postulated that accredited agents would be permitted to display an official logo in their premises.
48. Para. 171.
49. s. 11 of Act No. 9/1991 on Employment and the Activity of Bodies in the Sphere of Employment.
50. Of 202 private recruitment agencies licensed to operate in Israel, only 42 have specific authorization to bring non-national workers into the country. See s. 65 of the Employment Services Act, 1959.
51. s. 4(4) of the Recruiting of Workers Act, 1939, Ch. 290 of the Laws of the Bahamas. It has been argued that issuing licences for as short periods as one year only serves to discourage investment, and that a more flexible system would provide revokable licences for indefinite time periods. See Abella, op. cit., p. 78.
52. For example in Norway employers can apply for a collective work permit to recruit a fixed number of non-nationals according to s. 26 of the Regulations concerning the Entry of Foreign Nationals into the Kingdom of Norway and their presence in the Realm.
53. See, for example, s. 4(2) of the Bahamas Recruiting of Workers Act, 1939 (Ch. 290); and Dominica, s. 3(2) of the Recruiting of Workers Act, 1943 (Ch. 117).
54. Quotation taken from the report submitted by Belarus.
55. s. 4(i) of the Labour (Recruiting of Workers) Regulations, No. 70, 1963.
56. It has been argued, however, that obliging licencees to submit a financial guarantee to the State rather than ensuring that recruitment is conducted under legitimate and non-abusive conditions, rather puts those agencies which do apply for a licence at a competitive disadvantage and encourages the practice of illegal recruitment which is thus cheaper. See Abella, op. cit., p. 79.
57. s. 3 of the Recruiting of Workers Act, 1993 (No. 39).
58. Ministerial Regulation No. 8 of 1993 issued under the Employment Agencies and Employment Seekers' Protection Act, 1985.
59. For example, under Egypt's Labour Act (Part 3), s. 28(bis3), "the company may collect an amount of not more than 1 per cent of the wage of the employee who obtains employment abroad through the company, only for the first year as administrative expenses and no further amounts shall be collected".
60. Up to $400.
61. Up to 15,000 New Shekels.
62. 10,000-50,000 francs CFA.
63. 6,000 riyals.
65. s. 26 of Act No. 1346, 1983, and Act No. 1975, 1991.
66. Imprisonment of up to 14 years is possible.
67. s. 47(d) of the Immigration Act (1988).
68. Organizations and individuals violating recruitment regulations can be banned from operating for a period of up to ten years.
69. s. 4 of the Foreign Workers (Unlawful Employment) Law, 1995.
70. Under Act No. 10/1991, employment agencies are obliged to submit biannual reports on their activities.
71. The Czech Republic stated that it currently is following a policy whereby the activities of private recruitment bodies are highly restricted, and that direct recruitment by the employer is being encouraged. Turkey stated in its report that Turkish employers can seek manpower abroad, subject to obtaining permission and on the condition that no fees are charged for any recruitment services.
72. Act No. 14, 1992, to regulate the operation of labour-importing agencies.
73. The Government reported that these brochures are in high demand and over 29,000 requests were made in 1997.
74. New Zealand provides immigrants with a "Settlement Information Package" covering issues such as health, housing, education, business management, laws, taxes and conditions of contract.
75. Australia provides detailed information on immigration requirements and living and working conditions on the Department of Immigration and Multicultural Affairs website.
76. The Malaysian Immigration Department website contains information on all aspects of migration to and from Malaysia.
77. The Brazilian Office for Immigration Control reports that it is currently drafting a guide for the use of migrant workers and enterprises which employ them, which will be available, inter alia, on the Ministry of Labour's website.
78. The Selective Deployment of Filipino Women Workers established under the Departmental Order No. 32 (1996) attempts to place women only in countries which have "mechanisms that allow protection of these workers, bilateral and multilateral agreements and other measures to ensure their protection". Quote taken from the Philippines' report.
79. See paras. 20-23 above for an overview of the increasing role of women in migration. Particularly on the abuses and exploitation of migrant women, see L.L. Lim (ed.), op. cit.
80. States may collect such information by virtue of other instruments of the ILO, such as Convention No. 111 and other international instruments such as the Convention on the Elimination of Discrimination against Women.
81. Ministerial Regulation of 1987 respecting administration and control of expenditure of the Fund to Assist Workers Abroad.
82. Ministerial Regulation of 1989 respecting orientation of jobseekers.
83. Agreement between the French and Portuguese Governments relating to immigration, placement and social status of Portuguese workers and their families in France, 11 Jan. 1977.
84. ILC, Record of Proceedings, 32nd Session, Geneva, 1949, p. 569, para. 5.
85. See Picard, op. cit., Ch. 3.2.
86. For example, in 1995 a direct request was addressed to Israel making reference to the Government's statement in its last report that it was the employer's responsibility to provide migrant workers with information. The Committee asked the Government to indicate whether the Government was satisfied that an adequate and free service providing migrant workers with information was in place, in accordance with the Convention.
87. Under s. 9 of the Act on the employment of Albanian citizens outside the territory of the Republic of Albania (No. 7517), 1991, the Emigration Office is responsible for providing information to prospective migrants.
88. Through the National Migration Board in coordination with the Ministry of Justice and Labour.
89. Since 1 Jan. 1998 a section has been established within the Swiss Federal Aliens Office.
90. Through the Slovenian National Employment Office.
91. Through the Employment Unit of the Employment and Social Services Department of the United Kingdom (St. Helena).
92. For example, in France, the International Migration Office was established on 7 Jan. 1988, which develops information on living and working abroad for French nationals and companies. The Government also funds the "Expaconseil" service, which undertakes studies and publishes technical surveys of employment opportunities outside France, as well as providing specific information on job offers emanating from EU Member States.
93. Offices dealing with migration issues are reported to have been established in many countries.
94. Through the governmental offices in London.
95. Government offices overseas provide information on visa requirements.
96. Through the consular offices of the Department of State.
97. Through consular services abroad.
98. Zambia provides information to prospective migrants through its missions abroad.
99. Hong Kong reports that "where possible, appropriate actions are taken with commissions and consular offices of other countries".
100. Sri Lanka maintains contact through its labour attachés stationed in Kuwait, Lebanon, Oman, Saudi Arabia, Singapore and the United Arab Emirates.
101. Belgium reports that information exchange takes place through the European Union, with Benelux countries and through the Council of Europe.
102. Malawi reports that States contributing to regional migration flows maintain contact through the Southern African Labour Commission.
103. Venezuela cooperates closely with other States who have ratified the Andean Pact.
104. Ecuador cites s. 37(IV) and (V) of the Regulation of Application of the Act on Foreigners, which foresees the principle of cooperation with migration agencies in relevant States, although in practice this has not been used.
105. For more information, see UN Commission on Human Rights, Report of the expert seminar on the role of the Internet in the light of the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination, E/CN.4/1998/77/Add.2, 6 Jan. 1998 (available on the United Nations human rights website).
106. Anti-racism and anti-xenophobic policies targeting the national population will be addressed in more detail in paras. 423-426 below.
107. For example, Kenya has enacted a provision under s. 33 of the Employment Ordinance, Ch. 226 of 1962 which reads: "recruited employees shall, as soon as possible after being recruited, be brought before a magistrate or a justice of the peace [...] who before permitting such employees to be taken or transported to the place of employment shall satisfy himself that the requirements of this Ordinance and of any rules made thereunder and of any other laws for the time being in force relating to the recruitment of employees have been observed, and in particular that the employees have not been recruited by misrepresentation, or mistake, or by application of unlawful pressure".
108. Under Ch. 169 of the Laws of Mozambique, private recruitment agencies are obliged to refrain from exerting pressure or any form of coercion on workers, and from misleading them, ensuring always that the workers recruited accept the contract or its clauses of their own free will and with full understanding.
109. The Czech Republic has enacted a Press Act (No. 81/1996) and an Act on Radio and TV Broadcasting (No. 468/1991) which oblige the media to give the public in general truthful and objective information.
110. The Federal Constitution of Brazil lays down in art. 5(XIV) legal measures to protect citizens against advertising of products, practices and services harmful to health or the environment. ss. 206 and 207 of the Brazilian Penal Code bans all publicity against immigration and emigration. In 1997 the Committee addressed an observation to the Government asking for further details on any incidents which might have occurred in violation of these provisions.
111. s. 1 of the Migrants Protection Act (26 Mar. 1975).
112. Under s. 17 of the Hong Kong Theft Ordinance.
113. The Malaysian Ministry of Foreign Affairs and the Ministry of Industrial Relations investigate any foreign companies offering employment to Malay nationals as well as examining all prospective contracts prior to issuance of a work permit.
114. Uruguay, under ss. 4 and 5 of the Act on Immigration and Colonization of 18 July 1966 and ss. 32 and 37 of the Act on Foreigners of 3 Aug. 1937, ensures inspection of contracts prior to issuance of work permits.
115. See paras. 141-144 above.
116. Ministerial Regulation of 1986 respecting advertisement of employment offers.
117. Under s. 37(2) of the Employment Ordinance, Ch. 226 (Revised 1962).
118. Under s. 53(1) of the Employment Ordinance, Ch. 57.
119. Belize reports that the Labour Department is the only agency responsible for the dissemination of information relating to immigration.
120. Hong Kong reports that licences of employment agencies found to be disseminating misleading propaganda can be revoked, according to the provisions of s. 53(1) of the Employment Ordinance (Ch. 57).
121. See paras. 176-179 above.
122. The United Republic of Tanzania (Zanzibar), which recruits migrant workers primarily for the annual clove harvest, reports that one year when the crop was particularly small, the Tanzanian Government distributed information to the mainland discouraging migrants from coming to the country.
123. The Czech Republic reports that to combat misleading propaganda targeted at the emigration of Czech nationals it cooperates with Canada, France and the United Kingdom.
124. Hong Kong reports that, where possible, it cooperates with commissions and consular offices of other countries to combat such propaganda.
125. As a member of the Southern African Labour Commission.
126. It should be recalled that originally this provision was conceived in the interest of the employer, to ensure that recruited workers were healthy when they arrived. See also para. 257.
127. Cyprus reports that medical examinations are conducted according "to the requirements of the country to which they wish to emigrate".
128. s. 62 of the General Population Act.
129. Notification of the Department of Labour, 1990.
130. Hong Kong reports that migrants for permanent settlement are "normally required by the consulates or representatives of the countries concerned to be medically examined and certified fit for employment", implying that there is no need for Hong Kong to ensure medical examination.
131. The Government reported that "there are no statutory provisions which require persons migrating privately to specify the purpose for leaving the country and thus, except for officially sponsored schemes, the reason for migrating would not be known".
132. Cyprus reported that emigrants are offered vaccinations or treatment against communicable diseases according to their destination.
133. In France, the International Migration Office, under the Decree of 7 Nov. 1994, undertakes medical checks in sending countries for migrants intending to reside in France for a period in excess of three months. According to Decree No. 94-211 of 11 Mar. 1994, this is optional in the case of migrants emanating from within the European Union.
134. Belize reported that vehicles used to transport nationals for employment abroad under the West Indies Farm Labour Scheme were occasionally inspected to ensure hygienic conditions.
135. The Mauritian Ministry of Education and Human Resource Development arranges for the issuance of passports and air tickets.
136. Trinidad and Tobago reports that its authorities undertake to issue travel documents, as well as ensuring the travel itinerary, booking of tickets and training in the case of bus drivers prior to departure.
137. Under s. 2(a) of the Canadian/Caribbean Seasonal Workers Agreement of 1978 two-way transport is not charged to the worker.
138. s. 5(2)(c) of the Recruiting of Workers Act, 1993 (No. 39).
139. Para. 112.
140. In 1991, Switzerland removed the obligation for medical testing for tuberculosis for immigrants from countries of the European Union, members of the European Free Trade Association, as well as Australia, Canada, New Zealand and the United States.
141. Violation of this responsibility can result in a fine of up to 500 dinars or imprisonment for six months.
142. s. 80 of the Immigration Act, 1971, as amended in 1989.
143. Notification of 1979 of the Ministry of the Interior respecting qualifications or forbidden qualifications and conditions for aliens applying for work permits.
144. Under s. 8(1)(f) of the Immigration Act, 1969, No. 41.
145. For further information on this subject, see L. N'Daba and J. Hodges-Aeberhard: HIV/AIDS and employment (Geneva, ILO, 1998).
147. The Committee recalls the Joint Statement ILO/WHO on AIDS and the Workplace, Geneva, 27-29 June 1998, which emphasizes that "HIV infection by itself is not associated with any limitation in fitness to work. If fitness to work is impaired by HIV-related illness, reasonable alternative working arrangements should be made". Although this statement deals only with HIV infection, the same principle can be applied to other illnesses or infections.
148. Australia provides multilingual booklets for prospective migrants.
149. The Hong Kong Departments of Labour and Immigration provide free leaflets and publicity in both Chinese and English.
150. Italy reports having published a brochure in Arabic, English, French, Italian, Polish, Portuguese, Spanish and Tagalog explaining the content of Act No. 39/90.
151. Through the Federal Ministry for Labour and Social Affairs.
152. The Committee requested further information from the Government on this subject in a direct request in 1995.
153. Under s. 2(e)(i) of the Canadian/Caribbean Seasonal Workers Act, 1978, the employer must provide free accommodation and food at a maximum cost of $3 per day to the worker. Where food is not provided, workers must be provided with cooking utensils, fuel and facilities.
154. Under the Canadian/Caribbean and Mexican Seasonal Agricultural Workers Programme, NAFTA, the Canadian/Chile Free Trade Agreement, and the General Agreement on Trade in Services.
155. See also United Nations Fact Sheet No. 21, The human right to adequate housing.
Updated by HK. Approved by RH. Last update: 26 January 2000.