Geneva, June 1999
Report III (1B)
Equality of opportunity and treatment
365. Migrant workers face various forms of discrimination in employment and occupation. They often perform the jobs that national workers are reluctant to do, which explains why they are primarily employed in unskilled manual labour and menial tasks and are generally assigned to arduous or dangerous work.(1) Numerous studies, in particular one recently carried out by the ILO in several countries,(2) have clearly shown that the discrimination suffered by migrant workers begins at the recruitment stage and the difficulties in finding employment often result in highly qualified people doing relatively menial jobs.
366. Once they have found a job, migrant workers often come up against other forms of discrimination. Since they are generally concentrated at the bottom of the occupational ladder, it is hardly surprising that they earn substantially less, on average, than nationals. Often, however, they also earn less than nationals doing the same job. Their chances of advancement and promotion are impaired by the fact that they are also less likely than nationals to receive further training. Not only do migrant workers find it difficult to obtain a job, they also have trouble keeping it. They are often used as a buffer stock for reserve labour hired at times of shortage and dismissed when the employment situation deteriorates. Far from being a phenomenon exclusively affecting rich countries, this situation also occurs in the more dynamic developing countries.(3)
367. The Committee would like to draw attention to the fact that women migrant workers suffer from double discrimination in employment: first because they are foreigners and hence subject to the same discrimination as male migrant workers; and second because they are women and as such often victims of entrenched traditional attitudes in their country of origin or of employment concerning the place of women in society in general and in working life in particular. For example, such social attitudes may affect the right of these women to leave their country of origin without permission from their husband, to engage in certain occupations, to receive an equal wage for work of equal value, to have access to education or training programmes, etc. There is no overlooking the fact that the large majority of women migrant workers are concentrated in "typically female" occupations or sectors, which not only tend to be less well paid than the jobs held by men but are also among those least protected by labour legislation.(4) Accordingly, although the policy of equality of opportunity and treatment referred to in Convention No. 143 focuses on discrimination in respect of nationality, the Committee draws attention to the fact that under Article 6 of Convention No. 97, the policy of equality of treatment between nationals and migrant workers which each member for which the Convention is in force undertakes to apply, must be pursued "without discrimination in respect of nationality, race, religion or sex". The Committee therefore noted with interest the information supplied by Finland on this aspect of its policy of equal treatment for migrants.(5)
368. For the ILO, the implementation of a policy of equality
of treatment between nationals and migrant workers, and even more so of equality
of opportunity, represents a measure of protection in that it aims to secure
respect for the dignity of this category of workers, who are particularly vulnerable
to all kinds of abuse. It also acts as a deterrent in that it enables the cost
of migrant labour to be maintained at or raised to a level which is equal to
that of national labour, as the Government of Poland pointed out in
its report, observing that ratification of Conventions Nos. 97 and 143 and hence
the recognition of the principle of equality of treatment between nationals
and foreign workers would have the effect, among other things, of making foreign
labour less attractive to certain Polish employers and hence help prevent the
phenomenon of "social dumping".(6)
Along the same lines, it was with interest that the Committee noted that the
Federal Tribunal of Switzerland recognized that the application of
the principle of equality of treatment between national and foreign workers
served the public interest, by preserving social peace, to the extent that it
justified a certain restriction on the freedom of trade and industry guaranteed
by the Constitution; and that article 69 of the Constitution of Panama
prohibits the hiring of foreign workers which could undermine the working conditions
or standard of living of national workers. Although the underlying principles
of combating discrimination in employment are moral and social, economic considerations
also come into play, as illustrated by the extract from the manual drafted by
the ILO as the final output of the project entitled "Combating discrimination
against (im)migrant workers and ethnic minorities in the world of work".
As shown in the first phase of the ILO project, labour market discrimination does exist and migrants and ethnic minorities are particularly adversely affected by it. But why should policy-makers, legislators, employers, consumers, NGOs, trade unions and service providers care enough to change the state of affairs? Several reasons can be given, which are outlined below [...]
Economically, it is not only society but also the individual employer who pays the costs of discrimination. By discriminating, employers are not using the full potential of the human resources available to them, and therefore they are neither maximizing production nor minimizing costs, contrary to all economic sense. By changing strategy and acting in a non-discriminatory manner, it is suggested that employers could avoid this unnecessary competitive disadvantage. A number of economically based arguments against discrimination and in favour of equal treatment can be given as follows:
1. Firstly, by discriminating in recruitment, employers are potentially passing over some of the best qualified candidates for the job, on irrelevant grounds, such as nationality or race. If they recruited only on the basis of aptitude, where there is no place for discrimination, the best qualified workforce would be achieved. 1
2. Similarly, it has also been shown that by allowing discrimination to occur in the workplace, the employer is in fact encouraging disruption of teamwork, higher absenteeism, and reduced morale and commitment. 2
4. Further, on the national level, migrants and ethnic minorities are members of increasingly large communities who wield considerable market influence as consumers [...] What is more, the migrant/ethnic minority population in the countries under study is predicted to expand considerably in the future, and will constitute a highly significant proportion of the buying public -- and of the workforce. 3
5. The employer of a multi-ethnic workforce, being more representative of the multi-ethnicity which prevails in all the countries studied under the ILO project, is more likely to attract custom, talented job applicants and investors than the employer who discriminates [...] Consumers, employees and investors are beginning to value fair-mindedness and are rewarding this behaviour when they see it within companies. 4
6. A company consisting of diverse groups, with a wide range of skills and experiences, is more likely to be creative, open for new ideas and alternatives than one made up of a more homogeneous group in terms of background and experience. Thus, diverse workforces add value to business activities through increased creativity and better problem-solving capacities. 5
The economic argument as a whole is a strong one and should be appealing to all employers. Yet, whether through ignorance or misunderstanding, many employers do not see the costs of discriminating and continue to do so, to their own and others' detriment.
1 For specific examples on how companies have benefited from non-discrimination in the United Kingdom , see Confederation of British Industry: Discriminate on ability: Practical steps to add value to your workforce (London, 1991). For examples of other European countries, see Stewart and Lindburg: Gaining from diversity: Business participation and benefits in Europe's ethnic and cultural change: A report on perspectives and issues as a contribution to the European Year Against Racism (Brussels, 1997). 2 See Wrench: European compendium of good practice for the prevention of racism at the workplace (Dublin, 1997), p. vi and p. 36. For statistics on the amount racial harassment and discrimination in the workplace costs employers, in relation to the United Kingdom , see CRE: Racial harassment at work: What employers can do about it (London, 1995), pp. 11-13. 3 This strategy known as "micro-marketing" is described by Anholt who says "marketing people [in the United States and Australia] long ago discovered that if you speak to people in their own language -- and, a more complex and more subtle point, in their own culture -- they tend to prefer you to companies that can't or won't". See Anholt: "Tapping into microculture", in The Times , 29 Oct. 1997 (London). 4 For specific company examples, see CRE: Racial equality means business: A standard for racial equality in employment (London, 1991). 5 See Lindburg: Plus sum gain: Business investment in the socio-economic inclusion of Europe's immigrant and ethnic minority communities (Brussels, 1998), p. 6.
Source: A manual on achieving equality for migrant and ethnic minority workers (draft) (Geneva, ILO, 1998), pp. 10-13.
Section I. Scope of the principles set forth in the
instruments of 1949 and 1975
369. The main objective of the four instruments that are the subject of this survey is the elimination of the discrimination in employment and living conditions to which migrant workers are exposed. The instruments differ however in their approach: while the purpose of Convention No. 97 and Recommendation No. 86 is to proscribe inequality of treatment arising principally out of action by the public authorities, Part II of Convention No. 143 and Recommendation No. 151 aim in addition to promote equality of opportunity and eliminate discrimination in practice. It should be pointed out that under Article 6 of Convention No. 97 and Article 10 of Convention No. 143, the provisions of the four instruments as regards equality of treatment apply only to migrant workers (and the members of their families) who are lawfully within the territory of the country of immigration.
370. Paragraph 1 of Article 6 of Convention No. 97 reads as follows:
1. Each member for which this Convention is in force undertakes to apply, without discrimination in respect of nationality, race, religion or sex, to immigrants lawfully within its territory, treatment no less favourable than that which it applies to its own nationals in respect of the following matters:
(a) in so far as such matters are regulated by law or regulations, or are subject to the control of administrative authorities --
(i) remuneration, including family allowances where these form part of remuneration, hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum age for employment, apprenticeship and training, women's work and the work of young persons;
(ii) membership of trade unions and enjoyment of the benefits of collective bargaining;
(b) social security (that is to say, legal provision in respect of employment injury, maternity, sickness, invalidity, old age, death, unemployment and family responsibilities, and any other contingency which, according to national laws or regulations, is covered by a social security scheme), subject to the following limitations:
(i) there may be appropriate arrangements for the maintenance of acquired rights and rights in course of acquisition;
(ii) national laws or regulations of immigration countries may prescribe special arrangements concerning benefits or portions of benefits which are payable wholly out of public funds, and concerning allowances paid to persons who do not fulfil the contribution conditions prescribed for the award of a normal pension;
(c) employment taxes, dues or contributions payable in respect of the person employed; and
(d) legal proceedings relating to the matters referred to in this Convention.
371. This provision prohibits inequalities of treatment, which may result from legislation or the practices of the administrative authorities in certain areas. It does not, however, oblige States to take legislative or other measures to redress inequalities in practice. Nevertheless, States are under the general obligation, when the matters covered by clause (a) in particular are regulated by national legislation, to ensure that the legislation is applied, particularly by means of labour inspection services or other supervisory authorities. The wording according to which the State must apply "treatment no less favourable than that which it applies to its own nationals" allows the application of treatment which, although not identical, would be equivalent in its effects to that enjoyed by nationals.(7)
372. The principle of equality of treatment provided for by Convention No. 97 must be applied in a number of matters which will be examined in greater detail in section II of this chapter. It must however be made clear at this stage that Convention No. 97 does not deal with access to employment and to different occupations. This subject is covered by the provisions of Paragraph 16 of Recommendation No. 86.
373. The application of Article 6 of Convention No. 97 might raise certain constitutional problems in federal States. Under paragraph 2 of Article 6 the provisions of paragraph 1 of this Article shall apply in so far as "the matters dealt with are regulated by federal law or regulations or are subject to the control of federal administrative authorities". Paragraph 2 was thus adopted to enable these States to ratify the Convention, even though they may not be able to meet the obligations arising out of the application of the principle of equality of treatment in full because of the way in which powers and responsibilities are shared between the federal authorities and those of the constituent units (states, provinces, cantons, etc.). In matters regulated by the law or regulations of the constituent units, or which are subject to the control of their administrative authorities, each State must determine the extent to which and manner in which the provisions of paragraph 1 of Article 6 shall be applied. In this connection, Australia has stated that its usual practice is to ratify a Convention only after it has obtained the formal approval of all the governments of the territories and constituent states, which prevents problems from arising subsequently in the application of this instrument. It appears from the examination of the reports that the definition of immigration policy is generally regulated at the federal level, whereas the implementation of the policy of non-discrimination in employment and occupation is regulated by the authorities of the constituent units.(8)
374. To ensure equality of opportunity and treatment in practice, it is essential that legislation and administrative practice should not permit any differences in treatment between national workers and migrant workers in a regular situation. Nevertheless, this is not enough, since migrants, more than any other groups, are the victims of prejudice and other discriminatory attitudes in regard to their work and conditions of life, in particular at times of economic recession and high unemployment. Moreover, owing to their lack of information and knowledge, often compounded by linguistic difficulties, they do not always insist on their recognized rights. Part II of Convention No. 143 and Recommendation No. 151 accordingly require not only the repeal of statutory provisions and the modification of administrative practices which are discriminatory, but also positive action by the public authorities to promote equality of opportunity in practice. While taking account of the special needs of migration for employment, the 1975 instruments draw their general inspiration from the Discrimination (Employment and Occupation) Convention (No. 111) and Recommendation (No. 111), 1958.(9) A Special Survey was recently carried out on these instruments;(10) its observations on equality of opportunity and treatment in employment and occupation should be borne in mind in the context of this survey.
375. Under Article 10 of Convention No. 143 each State undertakes to "declare and pursue a national policy designed to promote and to guarantee, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, of social security, of trade union and cultural rights and of individual and collective freedoms for persons who as migrant workers or as members of their families are lawfully within its territory".
376. Although the Convention clearly states the scope and content of the policy to be followed, it leaves to each State the choice of methods to be followed in declaring and pursuing this policy. These methods must merely be "appropriate to national conditions and practice". Depending on the circumstances, the policy of equality of opportunity and treatment may be established by constitutional(11) or legal provisions,(12) by a series of administrative or legislative measures(13) or by other means.(14) The fact that there is no general text expressly setting forth a policy of equality of treatment is thus not an obstacle to acceptance of the obligations arising out of Part II of Convention No. 143, as some governments appear to believe.(15) In some countries, such as Finland, for example, constitutional provisions lay down the general principle of equality between nationals and foreigners, subject to certain reservations (essentially the exercise of political rights). Additional measures would appear to be necessary, however, in so far as these provisions essentially regulate relations between the State and individuals, and not those between private individuals (in particular between employers and workers).
377. It is not necessary to achieve equality of opportunity and treatment immediately upon ratification of the Convention. It is the objective of a national policy which may be implemented progressively under a coordinated programme of positive measures. These are described in detail in Article 12 of the Convention and in certain provisions of Recommendation No. 151 which will be examined in section II of this chapter and in Chapter 6.
378. The application of the policy of promoting equality to seasonal workers was discussed on several occasions during the preparatory work for the adoption of Convention No. 143 and called forth the following commentary from the International Labour Office: "under the text in its present form, seasonal migrant workers are obviously not excluded (as they are likewise not excluded under Convention No. 97) and they should therefore benefit from equality of opportunity and treatment. It seems likely, however, that the extent to which they will really be able to benefit from the 'national policy' enjoined by the Convention will depend on the time they stay in the country of employment".(16) It would seem obvious that although seasonal workers like other migrant workers, must enjoy equality of treatment in matters having an immediate impact such as remuneration, hours of work, etc., the possibility of enabling them to benefit from measures which demand a certain time, such as vocational training, is in practice much more limited when account is taken of the temporary exceptions in respect of free choice of employment authorized by Article 14(a) of Convention No. 143.
Methods appropriate to national conditions and practice
379. Article 10 of Convention No. 143 calls upon States to declare and pursue a national policy to promote and guarantee equality of opportunity and treatment "by methods appropriate to national conditions and practice". The Convention does not oblige States to intervene in matters which in some countries are left to collective bargaining or to the social partners, as some governments appeared to have interpreted it to mean.(17) As the Committee recalled in its Special Survey on Convention No. 111 (which lays down an obligation worded in similar terms), in such cases the State may endeavour to obtain the desired results, where necessary, by exhortation, by attempts at persuasion or by negotiation, rather than by having recourse to executive measures or legislation. The requirement that the methods be appropriate "to national conditions and practice" is also expressly stated in Article 12 of Convention No. 143, which specifies the measures to be taken within the framework of the national policy. Accordingly, Article 12(b), which refers specifically to the enactment of such legislation as may be calculated to secure the acceptance and observance of the policy, cannot be interpreted as imposing the general obligation to enact legislation in all the fields covered by Part II of the Convention. This conclusion is not invalidated by Article 12(g), according to which States must guarantee equality of treatment, with regard to working conditions, for all migrant workers who perform the same activity: on the one hand, since this provision is part of the general framework of Article 12, the measures it prescribes must be taken in a manner consistent with "national conditions and practice"; on the other, a study of the preparatory work(18) reveals that this provision was adopted "to avoid discrimination between migrant workers according to their nationality and their particular form of employment". In this connection it will be necessary to examine the impact on equality of treatment between migrant workers of increasing integration in regional groupings, one of the purposes of which is often to ensure equality of treatment between nationals of member States. In fact, in practice this equality is often, objectively, to the detriment of third-country nationals. This is among the subjects that should be addressed in an International Labour Conference discussion on the subject of migrant workers.
380. Unlike Article 6 of Convention No. 97, Part II of Convention No. 143 contains no special provisions governing federal States. Given the very flexible wording of Articles 10 and 12, however, it should be possible for these States to accept the obligations of the Convention without prejudice to the division of powers and responsibilities between the authorities of the federal State and those of its constituent units.
381. Article 6 of Convention No. 97 implies the repeal or abolition of discriminatory legislative measures and practices in the fields covered by the instrument. A similar obligation is expressly stipulated by Article 12(d) of Convention No. 143, under which States must "repeal any statutory provisions and modify any administrative instructions or practices which are inconsistent with the policy" of non-discrimination. As pointed out above in paragraph 372, paragraph 1(a) of Article 6 of Convention No. 97 refers to the principle conditions of work but not to access to employment. The equality policy referred to in Article 10 of Convention No. 143, however, refers, inter alia, to employment and occupation. The terms are similar to those used by Convention No. 111, Article 1(3) which provides that "the terms 'employment' and 'occupation' include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment". It would appear to be logical therefore to assign them the same meaning here, especially since the provisions of Recommendation No. 111 detailing the content of these various subjects (Paragraph 2(b)(i) to (vi)), were included in similar terms in Recommendation No. 151 (Paragraph 2(a) to (f)).
382. It should be recalled here that equality of opportunity and treatment as provided for in Article 10 of Convention No. 143 applies only to migrant workers and their families lawfully within the territory. It is only once the worker has been admitted to a country of immigration for purposes of employment that he or she will become entitled to the protection provided for in this part of the Convention. Article 10 does not therefore affect the right of a State to admit or refuse to admit a foreigner to its territory; nor is its purpose to regulate the issue or renewal of residence or work permits. The provisions of Part II refer to the period after the migrant is regularly admitted to the territory of the receiving country. It is only when residence and work permits contain restrictions or conditions contrary to the principle of equality of opportunity and treatment laid down in Article 10 of Convention No. 143 that States may have to amend or modify their law or practice in accordance with Article 12(d).
383. Article 14 of the Convention authorizes certain restrictions on the principle of equality of treatment as regards access to employment. Some of these, which are general in scope, allow States to make the free choice of employment subject to temporary restrictions during a prescribed period which may not exceed two years (Article 14(a)). Others, which are of a specific nature, allow permanent restrictions to be imposed on access to limited categories of employment or functions where this is necessary in the interests of the State (Article 14(c)).
(a) General restrictions
384. Article 14(a) of Convention No. 143 provides that a Member may:
[...] make the free choice of employment, while assuring migrant workers the right to geographical mobility, subject to the conditions that the migrant worker has resided lawfully in its territory for the purpose of employment for a prescribed period not exceeding two years or, if its laws or regulations provide for contracts for a fixed term of less than two years, that the worker has completed his first work contract.
385. It should be recalled in this connection that Recommendation No. 86, Paragraph 16 of which already advocated equality of treatment as regards access to employment, authorizes temporary restrictions for a period of five years.
386. Article 14(a) of Convention No. 143 makes a distinction between restrictions on the free choice of employment which may be authorized for a certain period and the right to geographical mobility, which must be assured whatever the duration of the residence or employment.
(i) Restrictions on free choice of employment
387. The legislation of most countries, with the exception of a few countries where immigrants are permanently admitted on arrival, contains restrictions which may affect free choice of employment. These restrictions may directly limit the access of migrant workers to employment by regulating the circumstances in which they may change jobs or by establishing priorities for employment in favour of national workers. The employment of migrant workers is indirectly affected by other limitations such as statutory provisions requiring employers to obtain authorization to employ foreign workers or fixing the proportion of national workers who must be employed in an undertaking.
388. The practices followed in different countries as regards direct restrictions on the circumstances in which a worker may change his or her job vary in restrictiveness. In many countries work permits are issued to foreigners -- at least during the initial period -- for a given post in an enterprise or for a given employer(19) as well as for a given geographic region, as is the case in Bulgaria, for temporary migrant workers. This also appears to be the case in countries which distinguish between permanent and temporary immigrants, in respect of the latter category. In certain cases authorization may be granted for a given occupation or branch of activity without being limited to a single employer, either from the start of the initial period of employment(20) or when certain conditions or residence and employment have been met.
389. When the permit is issued for a given post or a given employer the worker may change his or her employment or employer only under certain conditions. This is also the case with changes in authorized occupational categories. In most countries a worker may not in principle change employers during the first year, and workers holding a work permit issued for a given occupation may not, as a rule, engage in an occupation other than that authorized by the permit. Moreover, in most cases, the authorization to change employer or occupation is granted only after an examination of the employment market situation.(21)
390. In a number of countries(22) the employer may employ a foreign worker only if he or she has been authorized to do so or if the contract which is being offered to the foreign worker has been approved by the competent authorities. This authorization, which is necessary for the employer, must be distinguished from the work permit, which is necessary for the worker. The legislation of some countries(23) requires both an employment authorization and a work permit. Although the employment authorization must be obtained by the employer, it is nonetheless restrictive in its effects on the occupational mobility of the foreign workers, since they may not be hired by employers who have been refused employment authorizations. Depending on the case, employment authorization will be granted only if warranted by the employment market situation(24) or if the quota of foreign workers which has been fixed for each undertaking(25) or at the national level(26) is not exceeded or, as in the United States, if it is not going to negatively affect the salary and working conditions of national workers employed in similar activities. The Committee considers that such provisions certainly run counter to the principle of equality of treatment between foreign and national workers.(27)
391. Restrictions on the employment of foreigners, by means of work permits or employment authorizations, are generally imposed during a preliminary phase and are progressively relaxed after a prescribed period of residence or employment, when the worker acquires the status of a permanent resident or becomes entitled to an unrestricted work permit. The duration of such restrictions on employment varies considerably from one country to another,(28) whereas the maximum period authorized by Article 14(a) of the Convention is two years.(29) However, in practice this duration may be reduced for nationals of countries with which bilateral or multilateral manpower agreements have been concluded, or may even be waived for workers from countries belonging to a zone of free movement of labour, as is the case for the nationals of the 15 Member States of the European Union, or if bilateral agreements have been concluded, such as the agreement on the settlement and movement of persons signed on 3 September 1969 between the Republic of Upper Volta and the Republic of Mali. Although restrictions on the possibility of changing jobs are generally progressively relaxed on the expiration of a period prescribed by national legislation, this is not always the case. In some countries, immigration policy either makes a distinction between immigrants admitted on a permanent basis and temporary migrant workers as in the United States,(30) for example, or only recognizes temporary immigration;(31) the latter are only issued permits for a specified period and a specific job. They may thus not change employment without obtaining a new permit, whatever the duration of their stay in the country.(32)
392. The exemptions provided for by Article 14(a) of Convention No. 143 also apply to members of migrant workers' families, although they are not expressly mentioned. In so far as family members have not acquired permanent residence status or an unrestricted work permit, they may not usually take a job without a permit. The issue of the permit will in principle depend on the employment market situation and may be subject to a residence requirement, as in Austria, Denmark, Switzerland or the United Kingdom, for example. It would seem none the less that restrictions on employment in many countries cease to be applied to members of migrant workers' families when they are lifted for the workers themselves.
393. Restrictions on the access to employment of foreign workers may also be the result of employment priorities in favour of national workers in many countries. In several of these countries the legislation obliges employers, in more(33) or less(34) explicit terms, to give preference to nationals or requires the employment service to ensure that the priorities established in favour of nationals are observed.(35) Depending on the case, in general the priority will place nationals in first place, followed by certain privileged categories of foreigners, such as foreign spouses or workers belonging to the same regional or subregional community.(36) In both cases this situation would appear to be contrary to the principle of equality of treatment as regards access to employment when it exceeds the period allowed by Article 14(a) of the Convention, which is two years. In most countries, however, it seems that nationals are given preference only over foreigners who do not reside in the country.(37)
394. Equality of access to employment presupposes that foreigners have the right of access to employment services in the same conditions as nationals.(38) In most of the countries under review, only nationals or foreign permanent residents may be registered with the employment services.(39) The Committee has previously noted that in Austria, a migrant worker who is unemployed runs the risk of being expelled due to insufficient means of subsistence, regardless of whether he or she possesses a valid permanent residence permit. Switzerland also indicated that a permanent residence permit can be revoked in cases of poverty, as under Swiss law, poverty is a legal ground for expulsion, although the decision to expel an individual must respect the principle of proportionality, that is to say, expulsion is only ordered where return to the country of origin is possible and can be reasonably enforced. Equal treatment of national and foreign workers in terms of placement is an obstacle frequently mentioned by governments.
395. In a number of countries, a list of occupations closed to foreigners is laid down by law.(40) When such a prohibition is permanent, it is contrary to the principle of equal treatment unless it applies to limited categories of occupations or public services which it is necessary to reserve for nationals in the interest of the State.
396. As mentioned above,(41) certain provisions fix the maximum percentage of foreign workers who may be employed in an undertaking. In certain cases the total wages which may be paid to foreigners are also subject to a quota. Depending on the composition of the foreign workforce, provisions of this kind may involve the risk of restricting the possibilities of access to employment, at least for certain occupational categories of foreign workers.
(ii) Geographical mobility
397. Article 14(a) of Convention No. 143 expressly stipulates that national legislation may not restrict the right to geographical mobility of migrant workers lawfully within the territory, which they must enjoy from the beginning of their stay in the same conditions as national workers. Most countries point out that, although migrant workers in principle enjoy the right to geographical mobility, the existence of this right is conditional upon the issue of an employment authorization for the job concerned. This situation is not incompatible with Article 14(a) of Convention No. 143. In adopting this provision, it was the intention of the Conference to proscribe legislative provisions or administrative practices restricting the freedom of movement of foreign workers legally within the territory, such as those authorizing them to reside only in a given region or prohibiting their entry to certain areas. Article 14(a), on the other hand, does not prevent the imposition -- at least during the preliminary phase -- of certain restrictions on access to employment which may have an indirect effect on geographical mobility, such as work permits issued for a given post or employer or permits valid for a given region.
398. In federal States the principle of geographical mobility may raise certain difficulties when the constitutional system allows the constituent units freedom to admit or refuse to admit a foreigner to their territory, since foreign workers who are lawfully admitted to the territory of one unit of the federation may not be authorized to transfer their residence to that of another. In view of the flexible wording of Article 12 of Convention No. 143, a solution to these problems may be found by "methods appropriate to national conditions and practice", without affecting the division of powers between the federal State and its constituent units. In Austria and Switzerland, for example, the residence or work permit issued by the authorities is restricted in principle to a given Land or canton; after five years or ten years respectively, however, the migrant worker has the possibility of seeking work throughout the country.
(b) Restrictions necessary in the interests of the State
399. Under Article 14(c) of Convention No. 143 States may "restrict access to limited categories of employment or functions where this is necessary in the interests of the State". Unlike Article 14(a), which authorizes general restrictions on access to employment for specified periods, this provision allows foreign workers to be permanently excluded from certain categories of employment or functions.
400. In most countries, public service jobs are restricted to nationals, with some exceptions. For example, in Angola, foreigners can work in scientific and education fields, and in Cape Verde, in technical fields but not in others. In some countries, however, restrictions on the employment of foreigners are confined to certain specified posts in the fields of national defence and security.(42) Generally speaking, however, foreign workers do not appear to have access to the civil service, at least to permanent posts. In certain cases this exclusion may also extend to enterprises in the public sector.
401. The concept of "public service" may cover a wide range of activities, which may vary considerably from one country to another. This is also true of public enterprises. In these circumstances it might be useful for governments to review their law and practice in the light of the criteria mentioned in Article 14(c) of the Convention. This provision allows restrictions on the access of foreigners to employment provided that two conditions are fulfilled: (a) firstly, the exceptions must relate only to "limited categories of employment or functions" and (b) they must be necessary "in the interests of the State". The Convention thus envisages situations where the protection of the interests of the State justifies the restriction of certain employment or functions, by reason of their nature, to citizens of that State.
(c) Recognition of occupational qualification
402. The difficulties which foreign workers may face in
obtaining recognition of the occupational qualifications which they have acquired
abroad may in practice result in their being denied access to certain jobs and
to occupational advancement. It is accordingly important for States to make
use, as far as possible, of the possibility provided under Article 14(b) of
Convention No. 143, according to which they may "after appropriate
consultation with the representative organizations of employers and workers,
make regulations concerning recognition of occupational qualifications acquired
outside [their] territory, including certificates and diplomas". This point
will be discussed in further detail in paragraphs 531-536.
403. The content of conditions of work is described in Article 6(1)(a) of Convention No. 97 and Paragraph 2 of Recommendation No. 151. It consists essentially of remuneration, hours of work, holidays with pay, minimum age for employment, apprenticeship and training, vocational guidance and placement, advancement, security of employment, etc. Few legal or administrative provisions in the field of conditions of work draw distinctions based on nationality. In fact, in most cases conditions are governed by the labour code or other labour legislation which applies to national and foreign workers without distinction, pursuant to the general provisions concerning their scope. It appears that administrative discrimination against migrant workers is most likely to occur with regard to security of employment and vocational training.
(a) Security of employment
404. Equality of treatment in respect of security of employment, the provision of alternative employment, relief work and retraining is dealt with in Article 8(2) of Part I of Convention No. 143 and in Paragraph 2(d) of Recommendation No. 151. As regards security of employment, it is important that the guarantees stipulated by law, for instance in the event of unjustified dismissal or staff reductions, apply to foreign workers as well as nationals. The difficulties arising out of the inclusion of a provision on equality of treatment in Part I (Migrations in Abusive Conditions) of Convention No. 143 will be examined in paragraphs 591-597 of this survey. Where the legislation makes this protection contingent on a certain type of contract, such as contracts of indeterminate duration, it should be extended to foreign workers on the same terms as to nationals, subject to the temporary exceptions provided for by Article 14(a) of Convention No. 143. According to the available information, laws which make express distinctions in this field are rare: for example in Austria the legislation provides that foreigners, or at least those who are subject to work permit restrictions, should be the first to be dismissed in the event of staff reductions. As regards equality of treatment in respect of the provision of alternative employment, relief work and retraining, here again everything depends on the situation of the migrant worker: if the worker is a permanent resident he or she will enjoy the same advantages as nationals after a certain period of time has elapsed, while it would be impossible for a temporary resident to meet the residence requirement and hence they will have little chance of gaining access to these benefits.(43)
(b) Vocational training
405. Paragraph 2 of Recommendation No. 151 provides that the effective equality of opportunity and treatment which migrant workers and members of their families should enjoy should extend to access to vocational guidance and placement services (subparagraph (a)), access to vocational training and employment of their own choice (subparagraph (b)), and advancement in accordance with their individual character, experience, ability and diligence (subparagraph (c)). Some governments refer to practices which may have the effect of limiting the access of foreigners to vocational training: in Norway the access of foreigners to vocational training is subject to a residence requirement; in Canada (Province of Nova Scotia) migrant workers are required to pay fees for education and apprenticeship training, while Canadian residents of the province obtain them either free of charge or at a reduced rate. These two cases again raise the problem of the application of certain provisions of the Convention to temporary migrant workers, i.e. those recruited for an economic activity or a job which is limited in duration, who by definition are unable to meet the residence requirements laid down by legislation in order to benefit from certain entitlements. Lastly, in so far as certain jobs are not open to foreigners, either temporarily or permanently (Article 14(a) and (c) of Convention No. 143), vocational training for these jobs is of doubtful value.
Elimination of discrimination in practice and
promotion of equality of opportunity
406. The provision in Article 12(b) of Convention No. 143 that States shall "by methods appropriate to national conditions and practice [...] enact such legislation [...] as may be calculated to secure the acceptance and observance of the policy" of equal opportunity and equal treatment is modelled on a corresponding provision of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). Although Convention and Recommendation Nos. 111 do not cover discrimination on the basis of nationality, they do extend to grounds which may form the basis for discrimination in practice against migrant workers and their families. Beyond their foreign nationality, migrant workers risk being victims of prejudice on grounds of their race, colour, religion, national extraction or social origin.(44) For this reason, several of the legislative provisions and enforcement procedures considered in the General Survey of the 1958 instruments may be useful weapons in seeking to combat discrimination against migrant workers. Reference is accordingly made to paragraphs 161 to 168 of the last Special Survey on equality in employment and occupation (1996), which make it clear that, of the seven criteria which are formally prohibited by Convention No. 111, race, colour and national extraction are among the most common grounds of discrimination in employment or occupation today other than sex.
(a) Legislation prohibiting discrimination
407. Few laws and regulations examined by the Committee contain provisions setting forth the principle of equality of opportunity and treatment between migrant workers and nationals of the country of employment. However, most countries have adopted anti-discrimination legislation which, while it is primarily aimed at racial discrimination, applies to discrimination on the grounds of colour, race or ethnic or national origins and accordingly, as indicated in the preceding paragraph, may be relevant to the problems of certain immigrants who may face discrimination on these grounds rather than on the basis of their nationality.(45) In some cases, provisions expressly prohibiting discrimination on the grounds of nationality are contained in general texts, such as the Constitution(46) or the Labour Code(47) or specific ones.(48) Such prohibitions may relate to terms and conditions of employment generally, or to remuneration.
Provisions guaranteeing equal treatment
408. Another method of providing legal protection against
discriminatory treatment of migrant workers adopted in some countries is to
include in the legislation governing the employment of foreigners provisions
guaranteeing equal treatment with nationals in respect of conditions of employment,
or providing that authorizations to employ foreign workers will only be granted
to employers on condition that the workers concerned enjoy the same remuneration
and terms of employment as nationals, as in Belarus or China,
for example.(49) The Committee has noted the
existence of similar guarantees in collective agreements concluded between the
central organizations of employers and workers. In Belgium, for example,
discrimination in recruitment and hiring procedures is prohibited by collective
labour agreement No. 38ter concluded on 17 July 1998 between workers'
and employers' organizations(50) and by individual
collective agreements concluded with temporary work agencies and cleaning enterprises.
Realizing that the prohibition of discrimination is not enough in itself to
eliminate discrimination in practice even if enforcement machinery is properly
applied, some countries(51) have implemented
positive action programmes or corrective measures targeting categories of workers
who face disadvantages (see box 5.2).(52)
The recent Manual on achieving equality for migrant and ethnic minority workers , which is the final output of the ILO project "Combating discrimination against (im)migrant workers and ethnic minorities in the world of work", deals extensively with different kinds of positive action measures which are intended not only to prohibit discrimination, but to encourage the advancement of members of designated groups and to convince employers and other labour market gatekeepers 1 to adopt and implement schemes that ensure equal opportunities for all members of society by eliminating existing disadvantages. The measures outlined include:
Measures to encourage job
applications by members
Such measures seek to encourage members of designated groups to apply for jobs in general or for specific vacancies in order to increase the pool of candidates from which a company can choose. They include company presentations in schools and universities with a large number of minority students, vacancy advertisements in newspapers read especially by migrant or ethnic minority groups -- possibly translated into the most relevant migrant and ethnic minority languages (this measure can aim at potential applicants and/or their parents), and "networking" efforts targeted particularly at migrant and ethnic minority groups.
Measures to improve the qualifications of minority applicants
Rather than relying on the existing pool of applicants, these measures attempt to increase the number of potential job candidates by ensuring the availability of more qualified migrant and ethnic minority workers. Possible measures include pre-employment training or scholarships for training targeted primarily at designated group members who lack such skills, offering language courses in the host country's language, and management and leadership training for designated group members.
Measures to eliminate arbitrary barriers
This category of measures is closely related to the prohibition of indirect discrimination in particular, but further enhances this prohibition by adopting positive measures to bring about change more quickly and thoroughly. Measures which focus on the recruitment process include the elimination of tests and requirements which are not necessary to carry out the job or which are culturally biased, anti-discrimination training for labour market gatekeepers, the review of recruitment procedures and interviewing practices to ensure non-discriminatory treatment, and the inclusion of minority group members on selection boards. These measures also apply to promotions.
Job accommodation measures
These measures are also closely related to the prohibition of indirect discrimination in employment and focus on ensuring a non-discriminatory work environment. They include flexible working hours to allow, for example, the observance of religious traditions by designated groups, dress codes which accommodate cultural and religious imperatives and wishes of minority groups, procedures to deal with cases of discriminatory harassment in the workplace, and the provision of anti-discrimination training for co-workers.
This very useful Manual can be obtained from the International Labour Office in Geneva.
1 Persons involved in making "hiring and firing" decisions and who all share the basic characteristic that their decisions have far-reaching consequences for the employment prospects and careers of workers, such as personnel managers, trade union officials, staff of public and private employment or placement services, etc.
Source: A manual on achieving equality for migrant and ethnic minority workers (draft), op. cit., Ch. VII, s. 2.
409. A further form of legislative action against discrimination is the introduction of sanctions, in the form of imprisonment and/or a fine, for the refusal to employ or the dismissal of a worker by reason of his or her colour, origin or belonging or not belonging to a particular ethnic group, nation, race or religion. The burden of proof may however represent an insurmountable obstacle in the way of achieving a fair and equitable outcome in a case of alleged discrimination,(53) especially if indirect discrimination is involved,(54) which is often the case since this kind of discrimination is illegal in most countries. This difficulty was corroborated by the activity report of the Ombudsman against Discrimination in Sweden.(55) Although some countries,(56) as the Committee noted in 1996 in its Special Survey, have opted to ease the burden of proof in regard to discrimination on the ground of sex, the Committee has not seen any similar developments with regard to discrimination in general and on grounds of race, colour, national extraction or ethnic origin in particular. It has however noted that, without reversing the burden of proof, the legislation of some countries, for example section 2697 of the Civil Code of Italy, provides that the victims of discrimination may introduce statistical data in support of their allegation of discrimination, while courts in the Netherlands and the United Kingdom accept that empirical evidence could shift the burden of proof to the defendant, who must then provide legally acceptable reasons for the difference in treatment.(57) The Committee can only encourage governments in this direction,(58) given that these measures are likely to help migrant workers to defend themselves when they are the victims of discrimination in employment.
(b) Enforcement machinery
410. The enforcement of the provisions of labour legislation and criminal law designed to ensure equality would normally fall to the authorities responsible for ensuring their observance, in particular the labour inspection authorities, industrial relations bodies and the courts and of services responsible for approving contracts offered by employers to migrant workers, as in Cyprus, for example. For the effective enforcement of provisions of this kind on the initiative of an aggrieved individual migrant worker, what may be needed is advice and assistance to help the worker bring his or her complaint to the attention of the competent body. This subject will be dealt with below in paragraph 447.
411. Bilateral agreements concerning migration for employment normally contain provisions designed to ensure their application. In particular, they provide that the consular authorities of the country of origin of the migrant workers may present to the authorities of the country of employment any complaints and claims relating to the application of the agreement; and that a joint commission composed of delegates from the States parties may be set up to examine problems and seek solutions. Machinery of this kind provides a channel through which migrant workers can obtain the assistance of the authorities of their home country in having their cases investigated when provisions of bilateral agreements requiring equality of treatment are not respected.
412. As in its Special Survey of 1996 on equality in employment and occupation,(59) the Committee has observed from the information supplied by governments that specific machinery has been set up to secure the observance of general anti-discrimination legislation: (a) institutional bodies are set up which either concentrate on achieving equality in a specific area(60) or have a more general scope of activities.(61) They may have a role which is both advisory and promotional(62) or may have quasi-jurisdictional powers(63) which allow them to examine complaints lodged by victims of discrimination; (b) conciliation/ mediation;(64) and (c) codes of conduct.(65)
413. As can be seen from these examples, legislation is not in itself sufficient to outlaw discrimination.(66) It needs to be supplemented by effective machinery and practical measures, in particular because the migrant workers themselves, through ignorance or fear of reprisals and by reason of the very facts which lay them open to discrimination, may not be in a position to take the initiative to secure respect for the legislation. It is for this reason that procedures of the kind described above, under which independent persons or bodies are able to take the initiative in investigating violations and enforcing the application of the legislation, are a particularly useful supplement to normal procedures under which the initiative lies with the aggrieved person himself or herself.
414. Finally, no legislation can be considered effective if the victims do not make use of the protection offered by the law for fear of possible reprisals by the accused. This is particularly true in relation to discrimination in employment and occupation as a special dependancy relationship exists between the worker and the employer. Few migrant workers, for example, are likely to initiate a procedure for discrimination on the grounds of race against their employer for having been overlooked for promotion, as such an action carries a high risk of damaging the relationship with the employer. For this reason, it is important to include in anti-discrimination legislation, provisions specifically intended to protect victims of discrimination and persons called to witness, from potential reprisals of the employer, whoever he or she may be.(67) The Committee also considers that the creation of competent bodies specific to migrant workers, as in the Netherlands, United Kingdom and United States, to which migrant workers can present complaints, should be encouraged. In the Committee's opinion, specialized bodies may have the necessary expertise in the field of migration that bodies which deal with general matters may not have.
Measures designed to promote equality of
opportunity and treatment
415. The Committee has recalled on several occasions that the absence of discriminatory legislation, or even the existence of legislation prohibiting discrimination and providing reparations against infringements, is not sufficient to ensure equality of opportunity and treatment in practice. An active policy to secure acceptance and observance of the principle of non-discrimination by society generally, and to assist migrant workers and their families to make use of the equal opportunities offered them, are essential elements in the policy provided for in the 1975 instruments.
416. Article 12 of Convention No. 143 sets out three types of measures to be taken, by methods appropriate to national conditions and practice, to promote the effective observance of the policy of equality of opportunity and treatment. These include the contribution to be made by employers' and workers' organizations and other appropriate bodies, measures to inform and educate the public and educational programmes and other measures to assist migrant workers and their families to exercise their rights and share the advantages enjoyed by nationals. These three types of measures will be considered in the following paragraphs.
(a) Cooperation with employers' and workers
organizations and other bodies
417. Article 12(a) of Convention No. 143 calls on States to seek the cooperation of employers' and workers' organizations and other appropriate bodies in promoting the acceptance and observance of the national policy in respect of migrant workers.
418. An important means of securing such cooperation is to associate these organizations in the formulation of national policy in regard to immigrants and in measures to implement that policy. In a number of countries, employers' and workers' organizations are represented in a national body with general competence (economic and social councils, labour advisory councils, etc.) and/or in specialized bodies responsible for migrant workers,(68) which the government consults on such matters as immigration policies and practices, issues relating to the employment of foreign workers and measures to assist migrant workers and their families to adapt to the host society. The Committee noted with interest that in Belgium agreements have been concluded between the public authorities and the social partners specifically to combat discrimination against migrant workers.(69)
419. As well as collaborating with the public authorities, employers' and workers' organizations can themselves play an important part in promoting equality of opportunity and treatment for migrant workers.
420. The information obtained in the course of the preparatory work for the adoption of Convention No. 143(70) shows that trade unions may provide direct assistance to migrant workers, for example by setting up specialized offices to which they can come for advice on employment matters, or permanent committees to deal with occupational and social problems including such matters as housing and schooling, or by publishing brochures and periodicals in the principal immigrants' languages giving practical information on administrative formalities, working and living conditions, etc. The contribution which employers' and workers' organizations can make to the provision of social services for immigrants is indeed recognized in Paragraph 25(2) of Recommendation No. 151. Despite the growth in migration for employment which has occurred since the adoption in 1975 of Convention No. 143 and Recommendation No. 151, the Committee has received very little information on this question in government reports and in the comments received from employers' and workers' organizations. The Committee notes the concern of the World Confederation of Labour in relation to the represssion to which trade unionists and members of NGOs may be subjected while working for the protection of migrant workers.
421. Another means of action open to representative organizations is the inclusion of appropriate provisions in collective agreements as in Côte d'Ivoire.(71) Some collective agreements, for example, contain special provisions designed to cater for the particular needs of migrant workers (time off to attend language courses, possibility of observing religious festivals, etc.). These agreements may also be issued in the principal languages of the migrant workers affected by them.
422. Another aspect of the contribution which employers' and workers' organizations can make to national policy in respect of migrant workers is by informing and educating their members in order to gain their acceptance and support in the implementation of the policy: the attitudes of employers and of fellow workers at the workplace will indeed play a large part in determining the extent to which migrant workers in fact enjoy equal opportunities and equal treatment. It would seem appropriate that occupational organizations should be used as a channel for providing information for fellow workers, foremen and supervisors about the situation and the problems of migrant workers, a task assigned to the social services for migrants by Paragraph 24(e) of Recommendation No. 151. The social partners will be all the better equipped to provide support of this kind to the national policy if they are directly associated in the formulation of that policy. Although no reference has been made in governments' reports to measures taken to this end by national organizations, in their comments annexed to their Government's reports, the Employers' Confederation of Sweden(72) and the Confederation of Christian Trade Unions of Belgium(73) have described some of their activities in this field. The limited information provided on this point suggests that employers' and workers' organizations could be further encouraged to enhance their active role in creating positive attitudes among their members.
(b) Informing and educating the public
423. If migrant workers and their families are to adapt successfully to life in the host country, and enjoy effective equality of opportunity and treatment not only in respect of employment and occupation but also in respect of the other matters listed in Article 10 of Convention No. 143, it is necessary to ensure that the national policy designed to promote and to guarantee equality of opportunity and treatment between national workers and migrants lawfully within the territory is accepted and observed not only by employers and workers, but by civil society in general. Measures to inform and educate the public are aimed at: (a) improving awareness of discrimination in order to change attitudes and behaviour; and (b) taking account of the right of every migrant in a regular situation to equality of treatment and opportunity in employment. It is with this end in view that Article 12(b) of Convention No. 143 refers to promoting "such educational programmes as may be calculated to secure the acceptance and observance of the policy" and that Paragraph 4 of Recommendation No. 151 specifies that appropriate measures should be taken to foster public understanding and acceptance of the principles of equality of opportunity and treatment.
424. These provisions of the 1975 instruments are modelled on corresponding provisions in Convention and Recommendation Nos. 111. Since the grounds referred to in Convention No. 111(74) may be relevant to public attitudes to certain categories of migrants, the measures taken to combat prejudice on such grounds may also serve to combat prejudice against immigrants. The Committee accordingly refers to its last General Survey of 1988 and its Special Survey of 1996 on equality in employment and occupation, in which it considered measures to educate and inform the public with a view to securing acceptance and observance of national policies to promote equality of opportunity and treatment.(75) More recently, the European Union declared 1997 the "European Year Against Racism" with the aim of emphasizing the threat that racism, xenophobia and anti-Semitism represent for the observance of fundamental rights and the economic and social cohesion of the Community and raising awareness of the advantages of pursuing integration policies at the national level, in particular with respect to employment, education, training and housing. In order to achieve the goals set by this initiative, the European Union invited the 15 Member States to adopt specific measures at national and Community level, including in the fields of public information and awareness in order to combat the prejudice of which foreigners, among others, are victims. The European Year also led to the establishment of a European Monitoring Centre on Racism and Xenophobia on 2 June 1997. The Committee also notes with interest that Japan organizes every June, a month-long awareness-raising campaign on questions relating to migrant workers.
425. Other measures like those described in the 1988 General Survey were mentioned in the reports: the organization of conferences, seminars, workshops and debates on discrimination against foreigners;(76) research programmes on issues affecting the progress of equality of opportunity and treatment;(77) use of mass media, such as radio broadcasts, television programmes, publication of articles, brochures, newsletters, periodicals, advertisements, public information and awareness campaigns;(78) publication of practical guides, manuals;(79) etc.
426. Public information and education should not only cover non-discrimination policies in general but should also ensure that the national population accepts migrant workers and their families as fully fledged members of society.
(c) Educational programmes and other measures for migrants
427. An important means of promoting effective equality of opportunity and treatment for migrants is by equipping them to exercise their rights and to take advantage of the facilities offered to them in the host country. It is therefore essential, as is spelled out in Article 12(c) and (e) of Convention No. 143, that they should be fully informed of their rights and obligations, that they be given effective assistance in the exercise of their rights and that social policy should enable them to share in advantages enjoyed by nationals while taking account of any special needs they may have during their period of adaptation to the society of the host country.
428. Assistance to migrants at the time of arrival and during the initial period of adaptation has already been considered in paragraphs 131-288 above in connection with the reception of immigrants, where reference was made in particular to services designed to provide immigrants with detailed information on working and living conditions in the host country, to give them initial advice and assistance in settling in and obtaining access to services available to residents generally, and to make available interpretation and translation facilities.
429. Measures of this kind are an essential preliminary step. If, however, immigrants are to be enabled to share in the advantages enjoyed by nationals, as is specified in Article 12(e), measures are needed to assist them on a longer term basis. Some of these measures, concerning the promotion of equality of opportunity and treatment of migrant workers, also have a part to play in the integration of migrant workers and their families in the society of the country of employment and vice versa.(80) Since the Committee has already mentioned these other measures in different parts of this survey, and intends to discuss some of them in the following chapter, suffice it here to recall that the following measures come under a policy of promoting equality of opportunity and treatment, as well as being part of any social policy in favour of migrant workers: language training, further training and retraining, access to the national employment service, access to the courts, and access to social services.
431. Under Article 6(1)(b), of Convention No. 97, social security comprises "legal provision in respect of employment injury, maternity, sickness, invalidity, old age, death, unemployment and family responsibilities, and any other contingency which, according to national laws or regulations, is covered by a social security scheme". This clause also provides for certain arrangements as regards on the one hand "the maintenance of acquired rights and rights in the course of acquisition" (Article 6(1)(b)(i)), and on the other "benefits or portions of benefits which are payable wholly out of public funds, and [...] allowances paid to persons who do not fulfil the contribution conditions prescribed for the award of a normal pension" (Article 6(1)(b)(ii)). These arrangements relating to the principle of equality of treatment in terms of social security cannot be interpreted, however, as providing a legal basis permitting the automatic exclusion of a category of migrant workers from qualifying for social security benefits. In this respect, the Committee notes that in 1992 the Government of Australia requested of the Office an informal opinion(81) as to whether it is in keeping with Articles 6 and 11 of Convention No. 97 to exclude temporary migrant workers from social security benefits on the grounds that they could not satisfy residency requirements which were fixed by legislation. The Office replied that, in light of the preparatory work to the adoption of Convention No. 97: (a) the Convention covers all migrant workers, both those with permanent and temporary residence status and; (b) that Article 6(1) of Convention No. 97 stipulates that States should apply to immigrants lawfully within their territory, treatment no less favourable than that applicable to its own nationals, in respect of certain matters, including social security. The Office thus concluded that the imposition of residency requirements is not contrary to the Convention, in so far as this condition is applicable also to Australian nationals. However, on the other hand, the Office recalled that Article 6(1)(b)(ii) of Convention No. 97 permits exceptions to the equality of treatment arrangements in two situations: first, concerning benefits or parts of benefits which are payable solely from public funds, and second, benefits paid to persons who do not satisfy the conditions required for a normal pension. From this, it appears that it is not contrary to the Convention that temporary migrant workers are excluded from social security benefits relating to these two situations. In other words, the Convention does not provide a basis for the automatic exclusion of any given category of migrant workers from social security benefits. It should be pointed out that, unlike the English version, the French and Spanish texts of Article 6(1)(b), of Convention No. 97 do not mention "invalidity" among the contingencies covered. This omission is, however, of no consequence in view of the general terminology used in this clause, which also includes "any other contingency which [...] is covered by a social security scheme".
432. As the preparatory work clearly shows, the inclusion of social security among the fields to be covered by the policy of equality of opportunity and treatment provided for under Article 10 of Convention No. 143 merely restates a general principle already formulated by other instruments.(82) The intention of the Conference was thus not to go into the technical aspects of the question, still less to challenge the principles already laid down by other instruments. Equality of treatment as regards social security, as provided by Article 10 of the Convention, must therefore be considered in the light of the provisions of Article 6(1)(b), of Convention No. 97, which Convention No. 143 is designed to supplement. Account should also be taken of the provisions of the Equality of Treatment (Social Security) Convention, 1962 (No. 118), although there is one major difference between this instrument and Conventions Nos. 97 and 143. Based as it is on the principle of reciprocity, Convention No. 118 prescribes equality of treatment only for nationals of the countries which have ratified the Convention, whereas the provisions of Article 6 of Convention No. 97 and Part II of Convention No. 143 apply to migrant workers and members of their families, whether or not they are nationals of a country which has ratified the Convention in question.
433. It should be noted that Article 10 of Convention No. 143 lays down the principle of equality of treatment in respect of social security in a general way and does not therefore exclude non-contributory benefits.(83) Nevertheless, in the light of the intention expressed by the International Labour Conference, namely that the inclusion of social security in Article 10 of Convention No. 143 should not conflict with the provisions of the other Conventions dealing with this subject, it would be possible in the case of non-contributory benefits to allow special arrangements similar to those for example authorized under Article 6(1)(b)(ii) of Convention No. 97 and Article 4(2) of Convention No. 118.
Payment of benefits abroad
434. Part II of Convention No. 143 and Article 6 of Convention No. 97 apply only to migrant workers and members of their families lawfully within the territory of the country of employment. These provisions are therefore not designed to deal with the payment of benefits to beneficiaries residing abroad, although some countries allow this in principle, provided that reciprocity agreements have been concluded on this subject.(84) This question is however dealt with in Paragraph 34, subparagraphs 1(b) and (c), of Recommendation No. 151, at least in so far as it recalls that a migrant worker who leaves the country of employment is entitled, irrespective of the legality of his or her stay therein, to benefits which may be due in respect of any employment injury suffered, to any compensation for annual holidays which have not been used and to reimbursement of social security contributions which do not give rise to benefits.
435. The application of the principle of equality of treatment in respect of social security raises these complex technical problems which have already been discussed in a General Survey carried out by the Committee in 1977.(85) The conclusions of that survey remain generally valid. It should be noted, however, that certain States(86) indicated that equality of opportunity and treatment between nationals and non-nationals in relation to social security is not guaranteed. Concrete examples of the application of the principle of equality of opportunity and treatment in respect of social security between national and migrant workers can be found in certain comments which the Committee has addressed to member States which have ratified one and/or both of these Conventions.(87)
436. Article 6(1)(a)(ii), of Convention No. 97 stipulates that equality of treatment must be applied in relation to trade union membership and the enjoyment of benefits arising from collective agreements. Article 10 of Convention No. 143 binds governments to pursue a policy designed to promote and guarantee equality of opportunity and treatment in relation to "trade union rights". The content of these rights is described in greater detail in Paragraph 2(g) of Recommendation No. 151, which covers membership of trade unions and the exercise of trade union rights. This Paragraph also mentions eligibility for office in trade unions and in labour-management relations bodies, including bodies representing workers in the workplace.
437. In terms of trade union rights, in general, legislation and national practice recognize the right of foreign workers to join trade unions under the same conditions as nationals. However, much legislation contains more or less significant restrictions, relating to nationality and freedom of association: thus, certain States make citizenship a condition for taking office in a trade union,(88) or stipulate that a proportion of the members must be nationals;(89) in other States (or sometimes in these same States), trade union membership is bound to a condition of residence(90) or of reciprocity,(91) or both these conditions. The Committee considers that such restrictions may prevent migrant workers from playing an active role in the defence of their interests, in particular in sectors in which they represent a significant part of the workforce.
438. Furthermore, the Committee recalls Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which states "workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization". Paragraph 63 of the General Survey of 1994 on freedom of association and collective bargaining indicated that this right "implies that anyone residing legally in the territory of a given State benefits from the trade union rights provided by the Convention, without any distinction based on nationality".
439. Much legislation states that only nationals of the country can be elected to official trade union positions.(92) As the Committee indicated in its 1994 General Survey on freedom of association and collective bargaining, "since provisions on nationality which are too strict could deprive some workers of the right to elect their representatives in full freedom, for example migrant workers in sectors where they account for a significant share of the workforce, the Committee considers that legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country".(93) In this respect, the Committee recalls the numerous comments it has made on this issue, both under Convention No. 143 and Convention No. 87.(94) In some countries, the nationality requirement may only concern a proportion of trade union officials,(95) or is waived when an agreement of reciprocity exists between countries.
440. In relation to those countries in which eligibility is bound by conditions of residence(96) or by conditions of employment and residence,(97) or further by conditions of residence and reciprocity,(98) the Committee recalls that the principle referred to in Article 10 of Convention No. 143 remains that of equality of treatment without condition. In a number of observations which it has made in relation to the application of Convention No. 87, the Committee has invited governments to allow foreign workers to accede to official trade union positions, at least after a reasonable period of residence in the host country. In relation to Convention No. 143, the Committee concludes that the legislation of every member State which has ratified this instrument must permit foreign workers to be elected as trade union officials, at least after a reasonable period of residence, the aim of which continues to be the suppression of all conditions of residence.
441. The question of the exercise of trade union rights is more difficult to address. An examination of the information supplied by governments revealed the existence of legal restrictions founded on nationality, to the exercise of foreign workers' trade union rights, either as trade union officials or as members of an organization. In particular in respect of workplace conflicts, it should be kept in mind that discretionary powers are often at the disposition of the administrative authorities, in terms of deciding upon the expulsion of foreigners. According to the manner in which these powers are exercised, this may constitute a real barrier to the exercise of trade union rights for foreign workers. By way of an example, the Committee has established that in Argentina, according to section 95(b)of Act No. 22.439/81 on Migration and Encouragement of Immigration,(99) the Ministry of the Interior can expel any foreigner, regardless of his or her residency situation, if he or she undertakes activities which disrupt social peace, national security or public order. This provision is softened by section 86 which states that the Ministry of the Interior may waive section 85 for individuals who are married to an Argentinean, have an Argentinean parent, or have Argentinean children and have more than ten years' residency. It can be questioned whether the large scope of this section ("activities which disrupt social peace, national security or public order") do not constitute a serious threat to the exercise of trade union rights, in as far as potential sanctions can be imposed administratively and that the only possible recourse appears to be through the Minister and not the judicial authorities.
442. The inclusion of cultural rights in Article 10 of Convention No. 143 was decided during the second discussion of the draft instrument by the Conference. This reference would appear to have been introduced in order to give express recognition to the right of migrant workers to participate in the cultural life of the country and to maintain and develop their own cultural heritage in the same conditions as nationals. The inclusion of cultural rights in Article 10 of Convention No. 143 cannot be considered as anything more than the statement of a general principle whose purpose cannot be to regulate all the matters arising out of its application.
443. As regards the extent to which cultural rights also include the right to education, the Committee considered at the time of its first General Survey on migrant workers that the question of education did not in principle lie within the ILO's field of competence. Account is taken of educational matters by the ILO only in so far as the completion of certain studies constitutes a condition for access to certain occupations or professions, or to a given course of vocational training.
444. The inclusion of individual and collective freedoms in Article 10 of the Convention was the subject of lengthy discussions in the Conference Committee, since certain reservations had been made as regards political rights. The preparatory work shows clearly(100) what is meant by the term "individual and collective freedoms". This refers to freedoms such as freedom of assembly, information, opinion and expression, on which the full exercise of trade union rights depends, as stressed by the Conference in its 1970 resolution concerning trade union rights and their relation to civil liberties. This expression does not cover political rights, even if such rights are to some extent recognized for migrant workers in certain countries.(101)
445. Both Article 6(1)(a)(iii), of Convention No. 97 and Paragraph 2(i) of Recommendation No. 151 provide that equality of treatment should cover accommodation or housing.(102) In practice, the Committee notes that migrant workers' housing is often the responsibility of employers, as is the case in Saudi Arabia, where employers are required under the Labour and Workers' Statute to provide foreign workers they have recruited with decent housing, and in Singapore, where the Government has introduced schemes to encourage employers to improve the housing offered to their workers;(103) it may come under the responsibility of the State(104) or the migrants themselves.(105) In some countries, such as Canada (Province of Ontario) and Switzerland, migrant workers must meet residence requirements in order to obtain public housing.
446. Equality of treatment in respect of accommodation, as provided for by Convention No. 97, covers the occupation of a dwelling to which migrant workers must have access in the same conditions as nationals. When the Conference adopted Article 6(1)(a)(iii), of Convention No. 97, it was concerned with conditions of hygienic accommodation. A special clause to this effect was not, however, included in this provision, since it might have been interpreted as granting more favourable treatment to foreigners than to nationals. On the other hand, Article 6(1)(a)(iii), cannot be taken to refer to access to home ownership or consequently to the various forms of public assistance which may be granted with a view to facilitating property ownership. In these circumstances, the provisions of national legislation reserving for nationals the benefit of various subsidies and other forms of public assistance for the purpose of acquiring the ownership of their own homes, as well as national regulations limiting or restricting the right of foreigners to acquire immovable property, do not come within the scope of Article 6(1)(a)(iii), of Convention No. 97. The Committee notes, however, that in some countries(106) foreign workers are entitled to benefit from such assistance. This consideration would also appear to apply to Paragraph 2(i) of Recommendation No. 151, the provisions of which supplement the 1949 instruments.
447. In order for migrant workers to effectively exercise their rights to equality of treatment, it is important that they have access to the courts in the same conditions as nationals. Under Article 6(1)(d), of Convention No. 97 equality of treatment must apply in respect of "legal proceedings" relating to the matters referred to in the Convention. This clause is worded in sufficiently general terms to cover not only proceedings before the ordinary courts, but also proceedings before a specialized body competent in labour matters. It also covers general procedural rules, such as legal aid and the deposit of a security to guarantee the payment of costs, in so far as the dispute relates to matters covered by the Convention. Article 10 of Convention No. 143 contains no provisions on this subject but access to justice is a basic human right -- without which no other rights can be ensured -- which must be guaranteed to all, including migrant workers.(107) Generally speaking, it would appear that this right is recognized for migrant workers but, in view of the lack of specific information, the Committee is unable to assess the application in practice of this essential provision.(108) Finally, the Committee notes that in certain countries, such as France, Netherlands and the United Kingdom, trade unions or other organizations may represent foreign workers in order to defend their rights, including those who are illegally employed.
448. Equality of treatment in respect of remuneration may be threatened if the employment of a migrant worker is subjected to a special tax. For this reason, Article 6(1)(c) of Convention No. 97 also refers to the "employment taxes, dues or contributions payable in respect of the person employed". Australia asked the Committee whether the fact that employment contributions are set at a different rate depending on whether the person concerned resides in its territory runs counter to this provision of the Convention. Canada (Province of Quebec) also draws a distinction between non-residents,(109) who only pay tax on income from sources within the province and residents who are deemed to be taxable in Quebec regardless of the source of the income (in Quebec or elsewhere). The Committee considers that the provisions of Australian and Quebec legislation do not run counter to Article 6(1)(c) of Convention No. 97 in so far as the difference in treatment is based not on nationality, but on residence.
449. Paragraph 2 of Recommendation No. 151 provides in more general terms that migrant workers and their families should enjoy effective equality of opportunity and treatment in respect of "conditions of life", which include housing and the benefit of social services and educational and health facilities (Paragraph 2(i)) and also cover "rights of full membership in any form of cooperative" (Paragraph 2(h)).
450. From the examination of the reports, it appears that the application of the principle of equality of treatment between national and foreign workers raises fewer problems in regard to conditions of work than in regard to access to employment and occupation, social security and trade union rights, as well as recognition of the need to implement an active policy designed to promote and guarantee effective equality of opportunity and treatment for migrant workers, as specified in Article 10 of Convention No. 143.
451. The examination of government reports shows that it is not so much the principle of equality of treatment between national and migrant workers in a regular situation which poses a problem, as its application to all regular-status migrant workers without distinction as to the length of their stay. As will be seen in the conclusions, a number of countries -- in particular those which do not have a system of migration for permanent settlement -- mentioned as an obstacle to ratification the fact that a State which has ratified Part II of Convention No. 143 must implement a policy of equality of treatment and opportunity for all migrant workers in a regular situation, including temporary migrant workers, i.e. those who are not permanently settled in its territory and are required to leave once their employment or task comes to an end. Generally speaking, many of the rights afforded to migrant workers are only recognized after a given residence period, which migrant workers on time-bound jobs are, by definition, unable to fulfil.
452. Lastly, the Committee can only regret the fact that the large majority of reports did not supply information on the application in practice of the provisions of Conventions Nos. 97 and 143 on equality of treatment and opportunity, and merely referred to legal provisions on the subject. As the Committee has pointed out on numerous occasions, while it is essential to adopt provisions laying down equality of treatment and to repeal provisions which are incompatible with this policy, this is not enough in itself to guarantee equality of opportunity and treatment in practice.
1. "Probably the greatest contrast between the local labour force and the immigrant population is in the Gulf States. In Kuwait, for example, most national employees work for the Government. As a result, private sector manufacturing companies find it very difficult to recruit Kuwaitis at all, and the most arduous work is certainly left to foreigners. The Gulf conflict of 1990-91 prompted thoughts that the country should become more self-reliant but while the national composition of immigrants may have changed, the overall dependence on them has not." Stalker, op. cit., p. 95.
2. The ILO project entitled "Combating discrimination against (im)migrant workers and ethnic minorities in the world of work", 1990-98. To prove the reality of discrimination encountered by migrant workers in their quest for a job, the methodology designed by Prof. F. Bovenkerk (Testing discrimination in natural experiments: A manual for international comparative research on discrimination on the grounds of "race" and ethnic origin, Geneva, ILO, 1992) for the project involved "practice tests" where equally qualified (im)migrant/ethnic minority and national candidates apply for advertised vacancies and the ensuing recruitment process is monitored. The project's findings show discrimination in access to employment to be a phenomenon of considerable and significant importance in all countries covered by the research (Belgium, Germany, Netherlands, Spain and the United States). In at least one out of three application procedures migrants are discriminated against (see box 1.1 above for more details of this project).
3. For further details see Stalker, op. cit., pp. 96-97.
4. For example, domestic workers and agricultural workers, who make up a considerable proportion of women migrant workers throughout the world, are very often excluded from the scope of labour codes.
5. Among the numerous brochures published by the Ministry of Labour of Finland for migrant workers, the Committee noted with interest one entitled "An immigrant woman in Finland", intended to inform women migrants of the country's policy of equality between men and women, as well as their rights with respect to residence permits, citizenship, housing, public services, work, education, marriage, family problems, legal assistance, etc.
6. "Discriminating against ordinary [un- or semi-skilled] migrant workers or, worse, having foreigners work in illegal conditions appears to be attractive to some employers and some sections of society some of the time. However, it runs counter to fundamental beliefs concerning equity and human rights in the economic and social field, and it is bound to have a boomerang effect on national workers whose remuneration and working conditions will sooner or later be undermined by unlawfully employed migrants." Böhning, op. cit., p. 57.
8. For example: in Australia migration policy falls within the federal or Commonwealth jurisdiction alone, whereas the task of combating discrimination in employment is shared between the federal or Commonwealth Government and the governments of the constituent states and territories; Austria states that the implementation of the principle of equality between national and foreign workers is the responsibility of the Länder and that in some of them (Carinthia, Lower Austria, Vorarlberg, Vienna, Salzburg) equality is guaranteed only if there is a reciprocity agreement on the subject between Austria and the worker's country of origin; Belgium states that it is the federal State which is competent to enact legislation relating to the employment of foreign workers, while the application of these laws and regulations is the responsibility of the regions. The regions are also competent for vocational rehabilitation and further training, placement and back-to-work programmes for persons drawing unemployment benefit. The Flemish region stated that it was competent for training, cultural activities, level of employment and private and public placement, while the German-speaking region emphasized its competence for assisting and ensuring the integration of immigrants; Canada (Province of Quebec) stated that the Canadian Government issues migrant workers with residence permits for Quebec, and assigns them a social security number, but it is the Province of Quebec which issues them with a work permit; Italy states that the regions, provinces, communes and other local entities must take the necessary steps in pursuit of the objective laid down by the central State, which is to remove obstacles which hamper in practice the acknowledgement of rights and interests of foreigners, particularly with regard to basic human rights, housing and social integration; Mexico indicated that migration policy is a federal responsibility and that labour policy is partly a federal responsibility and partly the responsibility of the constituent entities of the Mexican State; Switzerland indicated that it is the cantons that are competent for the social integration of foreigners; the United States indicated that legislation relating to foreigners lies in the federal sphere, and thus lies with Congress. The constituent states may not adopt legislation on these matters which contravenes federal provisions or international agreements to which the United States is party.
9. Para. 8 of Recommendation No. 111 provides that with respect to immigrant workers of foreign nationality and the members of their families, regard should be had to the provisions of Convention No. 97 relating to equality of treatment and to those of Recommendation No. 86 relating to the lifting of restrictions on access to employment. Having been adopted subsequently, Convention No. 143 and Recommendation No. 151 are largely modelled on the definitions and terms of Convention No. 111.
10. Special Survey on equality in employment and occupation in respect of Convention No. 111 (Geneva, ILO, 1996).
11. For example: Bulgaria, Cyprus, Falkland Islands (Malvinas), Germany, Lithuania, Malta, Slovenia.
12. For example, by labour legislation: Angola, Antigua and Barbuda, Australia, Belarus, Benin, Cameroon, Canada (including the labour legislation of the provinces and territories), Central African Republic, Congo, Côte d'Ivoire, Finland, Germany, Hungary, Indonesia, Japan, Jordan, Republic of Korea, Mali, New Zealand, Philippines, Saudi Arabia, Togo and Tunisia; or by penal legislation: Finland.
13. For example: Mozambique (Decree No. 1/76 of 6 Jan. 1976).
14. For example: by collective agreements (Austria, Belgium, Côte d'Ivoire); bilateral agreements (all of the bilateral agreements on social security concluded by Luxembourg contain a provision on equality of treatment); multilateral agreements (in 1993, Canada, Mexico and the United States signed the North American Agreement on Labor Cooperation (NAALC) supplementing the North American Free Trade Agreement (NAFTA). The application of NAALC in Canada involved not only a federal decision but also the participation of the provinces. On 10 Feb. 1997 the Minister of Labour of the Province of Quebec signed an agreement with the federal Government to secure the implementation of NAALC in consenting provinces. The signatories of NAALC undertook to respect 11 principles relating to workers' rights and to promote their application in practice in their territory. Principle No. 7 concerns the elimination of discrimination in employment on grounds such as race, religion, age, sex, etc.; Principle No. 11 relates to the protection of migrant workers; court rulings (the Federal Tribunal in Switzerland); arbitration awards (Australia).
15. For example: Barbados, Luxembourg (with the exception of the European Community Regulation (EEC No. 1612/68) of the Council of 15 Oct. 1968 on freedom of movement for workers within the Community), New Zealand, United Kingdom (Isle of Man, British Virgin Islands, Jersey).
16. ILC, 60th Session, Geneva (June 1975), Report V(2), p. 19.
17. For example: Australia, Germany, Slovakia.
18. ILC, Record of Proceedings, 60th Session, Geneva (June 1975), p. 646, para. 74.
19. For example: Antigua and Barbuda, Barbados, Belgium, Cyprus, Czech Republic, Egypt, Jamaica, Mauritius, Oman.
20. For example: Albania, Japan (there are 27 categories of activities which a foreign worker can undertake, and for each of these, a specific period of residency is authorized. To change category, the migrant must obtain authorization).
21. For example: Austria, Belgium, Cyprus, Egypt.
22. For example: Austria, Bahrain, Brazil, Congo.
23. For example: Antigua and Barbuda, Austria, Côte d'Ivoire, Yemen.
24. For example: Brazil, Burkina Faso, United States.
25. For example: Angola (at least 70 per cent of the employees of an enterprise must be nationals), Chile (85 per cent of employees), Colombia (90 per cent of ordinary workers and 80 per cent of specialized workers), Nicaragua (90 per cent of workers), Panama (90 per cent must be nationals or have resided in the country for at least ten years; in the case of technicians the percentage shall not exceed 15 per cent), Peru (20 per cent of employees may be foreigners, accounting for 20 per cent of the wage bill), Venezuela (10 per cent of employees may be foreigners, accounting for 20 per cent of the wage bill).
26. For example: Belarus, Estonia (under 0.05 per cent), Mozambique, Singapore.
27. For further details on this point, see, for example, the observation addressed to Venezuela on this subject in Feb. 1995.
28. For example: Australia (two years, but only concerns permanent residents), Austria (from five or eight to ten years), Belgium (from two or three to four years), Croatia (three years), Finland (two years), Luxembourg (between four and five years), Netherlands (three years), Papua New Guinea (two years), Spain (three years), Sweden (three years), Switzerland (between five and ten years), United Kingdom (four years).
29. Germany has stated that this two-year period is not feasible, given the large number of persons currently unemployed (over 4 million).
30. In the United States, the law recognizes three basic categories of migrants: (a) immigrants or lawful permanent residents (Green Card holders); (b) non-immigrants, who are persons lawfully admitted to the United States for a specific purpose; and (c) illegal aliens, who are persons entering the country unlawfully or who have remained after their legal right to do so has expired. The rights of migrants for employment as of all other foreigners may differ according to their entry or visa classification.
31. For example: Kuwait, Lebanon, Mauritius, Saudi Arabia, South Africa, United Kingdom (Bermuda).
32. In this respect, the Committee recalls paragraph 4.1 of the guidelines on special protective measures for migrant workers in time-bound activities, adopted by the Tripartite Meeting of Experts on Future Activities of the ILO in the Field of Migration (Geneva, 21-25 April 1997), which states "tying time-bound migrants to a particular employer, occupation or sector is normal but, on human rights grounds, cannot be extended indefinitely. On economic grounds, too, the practice of tied employment in selected sectors should be strictly limited in time because it is tantamount to a measure of protection of employers, occupations or sectors benefiting from access to foreign workers at the expense of other employers in the same country or abroad".
33. For example: in Egypt a foreigner cannot occupy a position which was previously held by an Egyptian national; in Indonesia, the employer must recruit a national worker for every foreign worker recruited; in Peru, art. 1 of Legislative Decree No. 689 of 4 Nov. 1991 stipulates that "irrespective of their activity or nationality, employers shall give preference to hiring national workers". In the United Kingdom (Bermuda), an employer must advertise a job at least three times in the local newspapers before applying for authorization to hire a foreign worker, and the same job must be advertised locally every three years.
34. For example: Singapore, employers must pay a levy of $300 if the proportion of foreign workers exceeds 35 per cent and $450 if it reaches 45 per cent; Taiwan, China, also practices this policy. On the subject of special levies policies on employers employing foreign workers, the Committee reiterates the conclusions of the Tripartite Meeting on Social and Labour Issues Concerning Migrant Workers in the Construction Industry (Geneva, 4-8 March 1996) which dealt with the issue and adopted a policy which is opposed to their introduction in excess of actual administrative costs on the grounds that "Such a tax tends to provide an incentive for people to enter into illegal employment relationships, or it tends to be passed on to the migrant workers in the form of salary deductions or lower wages" para. 10 of the note on the work of the Meeting, GB.267/STM/3/1.
35. For example, priorities established in the framework of "Bahrainization", "Gabonization", "Congolization", "Ivoirization" employment policies.
36. For example: the Economic Community of West African States, the Southern African Customs Union, the Andean Community and the European Economic Area or European Union.
37. The Committee notes that the Canada/Newfoundland Atlantic Accord Implementation Act requires that preference be given in employment in offshore oil development activities to residents of Newfoundland and Labrador. Since this preference is based on residence and not on nationality, this implies that it also affects Canadians from other provinces and that, conversely, a foreigner who has resided in Labrador or Newfoundland for a certain period may also be given preference, unlike a Canadian who does not reside in either province.
38. For example: Belgium (the employment services of the Flemish region have adopted a Jobseekers Charter, one of the principles of which is equality of treatment among jobseekers. As for private placement offices in the region, they must adhere to a code of conduct which guarantees, inter alia, non-discriminatory treatment); Germany (Art. 3 of the Basic Law, concerning equality of treatment, is incorporated in the principles governing the placement of jobseekers).
39. For example: Czech Republic, Finland, New Zealand.
40. For example: in Angola, foreigners can only work in specified sectors, excluding the health and education domains, and in the United Kingdom (Bermuda), the Government states that there are two types of lists: the first, "restricted category", where migrant workers may be permitted to be engaged in work, subject to such limitation as the ministry may place on the specific category, i.e. building trades, artistes, bank teller, bartender, musician, entertainer, fisherman, technical salesperson, tourist retail salesperson, travel agent, consultant); and the second, "closed category", where migrant workers without strong Bermudian connections are not allowed to work (i.e. sales clerk (non-tourist retail), salesperson, office receptionist, airline ground hostess, labourer/general, painter, floor supervisor, wallpaper technician, carpet layer, taxi driver).
41. Para. 390.
42. For example: European Union nationals have the right to apply for any job in any Member State of the Union. However, some public service posts involving safeguarding public order or the interests of the State (armed forces, police, judiciary, tax administration, diplomatic service, etc.) may be restricted to nationals; the agreement on the settlement and movement of persons between Upper Volta and Mali sets forth the conditions in which the nationals of one country are treated on the same footing as nationals of the other in respect of public service jobs.
43. For example: Australia, Austria, Czech Republic, Germany, New Zealand, United Kingdom.
44. In this respect, the Committee recalls para. 297 of its Special Survey (1996), wherein it was suggested that nationality, among other criteria, should be included in the list of prohibited grounds for discrimination in the additional Protocol to Convention No. 111, which the Committee recommended adopting. For more details, see para. 32 of this survey.
45. In this regard, Title VII of the Civil Rights Act (1964) in the United States protects all individuals against all discrimination in employment based upon national origin, race, colour, religion and sex. According to the terms of this Act, the following may be considered as proof of discrimination (in so far, of course, as the employer cannot show that the actions were necessary for the accomplishment of the job in question): a rule stipulating that employees speak English throughout the duration of employment; refusal to hire or to promote an employee as a result of his or her accent or way of talking; stipulating that the employee or candidate speak fluent English; stipulating that US nationality is necessary (where the law does not do so); or to favour US workers in terms of promotion, etc. The Committee also notes that this same Act states that all employers must guarantee to their employees a workplace which is free from harassment based on national origin and they can be judged responsible for harassment practised by their agents and supervisory employees regardless of whether the acts were authorized or specifically forbidden by the employer.
46. For example: Bulgaria (art. 6), Russian Federation (art. 19).
47. For example: s.13 of the Labour Code (1997) of Poland.
48. For example: Australia (Racial Discrimination Act 1975, Racial Hatred Act 1995 and anti-discrimination laws adopted by constituent territories and states, such as the New South Wales Anti-discrimination Act 1977), Canada (Alberta's Human Rights, Citizenship and Multiculturalism Act), Netherlands (Equal Treatment Act 1994), New Zealand (Race Relations Act 1972), Sweden (Ethnic Discrimination Act 1994) and the United Kingdom (Race Relations Act 1976).
49. Belarus: s. 11 of the Draft Act on Foreign Labour Migration adopted on 20 May 1998 by the House of Representatives and approved by the Council of the Republic. China: Administrative regulations on employment agencies abroad and draft administrative regulations on the protection of the rights and interests of workers contracted to work abroad, and persons who emigrate in search of employment.
50. Under article 2bis of collective agreement No. 38ter, "an employer recruiting candidates shall not treat them in a discriminatory manner. During the procedure, the employer shall treat all candidates equally. He or she shall draw no distinction on the grounds of personal characteristics when the latter have no bearing on the job or the nature of the enterprise, except where this is authorized or required by legislative provisions. An employer shall not in principle draw a distinction on the grounds of age, sex, civil status, medical history, race, colour, national or ethnic extraction or origin, political or philosophical opinions, or membership of a trade union or other organization". With the adoption of this collective agreement, the provision prohibiting discrimination becomes prescriptive and legally coercive. According to the Confederation of Christian Trade Unions of Belgium, it is planned to make it mandatory by royal order, at the request of all the social partners.
51. For example: Australia, Belgium (Flemish region), Canada, Netherlands, New Zealand, United States.
52. For further details on this point, refer to J. Faundez: Affirmative action: International perspectives (Geneva, ILO, 1994); and J. Hodges-Aeberhard and C. Raskin (eds.): Affirmative action in the employment of ethnic minorities and persons with disabilities (Geneva, ILO, 1997); and A manual on achieving equality for migrant and ethnic minority workers, draft, op. cit., Ch. III, s. 7.
53. See para. 224 of the General Survey of 1988 on equality in employment and occupation.
54. As the Committee pointed out in para. 26 of its Special Survey of 1996 on equality in employment and occupation, "indirect discrimination refers to apparently neutral situations, regulations or practices which in fact result in unequal treatment of persons with certain characteristics. It occurs when the same condition, treatment or criterion is applied to everyone, but results in a disproportionately harsh impact on some persons on the basis of characteristics such as race, colour, sex or religion, and is not closely related to the inherent requirements of the job."
55. The activity report of the Ombudsman against Discrimination for the period 1 July 1995 to 30 June 1997 points out that it is often difficult to prove that ethnicity has been a factor in discrimination against a worker or jobseeker and considers that "the requirements for transferring the burden of proof to the employer should be much smaller than at present".
56. For example: France, Germany, Italy, Switzerland.
57. The Committee notes with interest the fact that the Council of the European Union recently adopted a Directive on the reversal of the burden of proof, although this only concerns discrimination in employment and occupation on the grounds of sex. See Directive 97/80/EC. According to art. 4(1) of this Directive, Member States, in accordance with their judicial systems must take the necessary measures to ensure that when an individual feels himself or herself to be a victim of the non-respect of the principle of equality of treatment, and has established, before a court or another competent jurisdiction, the facts which permit the presumption of direct or indirect discrimination, it becomes incumbent upon the defendent to prove that no violation of the principle of equality of treatment has occurred.
58. On this point see the Special Survey of 1996, paras. 297-302.
59. Paras. 225-229.
60. For example: Belgium (Centre for Equality of Opportunity and Combating Racism), Canada (Province of Ontario: Employment Equity Tribunal), Netherlands (Bureau for Combating Racism), New Zealand (Race Relations Conciliator), Sweden (Equal Opportunity Ombudsman, Ombudsman against Discrimination), United Kingdom (Commission for Racial Equality).
61. For example: Australia (Human Rights and Equal Opportunity Commission), Canada (Human Rights Commission), Netherlands (Commission on Equal Treatment), New Zealand (Human Rights Commission).
62. For example: Australia (National Advisory Committee on Discrimination in Employment and Occupation), Germany (Commissioner for Foreigners), New Zealand (Ministry of Pacific Island Affairs and Ethnic Affairs Service).
63. For example: Australia, Belgium, Canada, United Kingdom.
64. For example: New Zealand (Race Relations Conciliator), Sweden (Ombudsman against Discrimination).
65. For example: in Belgium, the Joint Committee on Temporary Work drafted a code of conduct for the prevention of racial discrimination under the collective agreement of 7 May 1996. Temporary work agencies adhering to this code undertake not to discriminate against temporary workers on grounds of skin colour, race, religion, ethnic origin or nationality either at the selection stage or when placing them with a user enterprise. The agreement also emphasizes the importance of increasing awareness among all of the partners involved in temporary work, i.e. not only temporary work agencies but user enterprises and the workers themselves.
66. In this respect, Sweden states that since the Ethnic Discrimination Act, 1994 entered into force and the Ombudsman against Discrimination was established, the number of ethnic discrimination cases brought before the labour courts was lower than expected when the Act was introduced; in view of this the Government set up a commission to review the 1994 Act and to make recommendations. In May 1998 the Government introduced a Bill based on the commission's recommendations, which may be summed up as follows: (a) the new Act will apply both to direct and/or indirect discrimination and to the whole recruitment process; (b) new obligations are imposed on the employer (duty of investigation and to take corrective measures in the event of allegations, ban on reprisals for complaints concerning ethnic discrimination, duty to take active measures for the promotion of ethnic diversity at work); and (c) it is proposed that the Ombudsman be empowered to make representations to the Anti-Discrimination Board requesting that an employer be subpoenaed to take active measures and that the enforcement of the Act be entrusted to the Ombudsman and the Anti-Discrimination Board. See also footnote 72 of this chapter.
67. For example: Netherlands (Equal Treatment Act 1994), United Kingdom (Race Relations Act, 1976) and the United States (Title VII of the Civil Rights Act, 1964) include such provisions in their legislation.
68. For example: see para. 344.
69. In Belgium (Flemish region) the social partners concluded an agreement with the public authorities with a view to bringing down the unemployment rate among migrants in this region to the average level for the region as a whole. Under the agreement positive action plans will be adopted jointly with sectors, enterprises and public institutions (such as placement services), as well as plans to promote training among migrants.
70. ILC, 59th Session (June 1974), Report VII(1), p. 26.
71. s. 44 of the Interprofessional Collective Convention of 20 July 1977 recalls s. 31.2 of the Labour Code which stipulates that all employers are obliged to ensure that equal work or work of equal value is rewarded with equal remuneration between workers regardless of their sex, national extraction, race, religion, social origin, etc.
72. The Swedish Employers' Confederation (SAF) states that it plays a very active role in combating discrimination in employment. It participated in the European Commission Working Group which drafted the Joint Declaration on the Prevention of Racial Discrimination and Xenophobia and Promotion of Equal Treatment at the Workplace in 1995 on the occasion of the Social Dialogue Summit held in Florence on 21 Oct. 1995. Pursuant to the Declaration, the parties have compiled a compendium of good practice which discusses impediments of various kinds but above all highlights positive examples and the benefits of equality of opportunity in the labour market. The publication also contains ideas and suggestions for changes. In Nov. 1997, at the central level the social partners agreed on a joint appeal to employers' associations and trade union organizations and to enterprises and employees to develop greater ethnic diversity in keeping with the needs of the operation and local conditions. To support efforts at the local level, the social partners have compiled a guide. In addition, during the spring of 1998, at central level the social partners decided to set up a joint council to follow, support and evaluate work for greater diversity in working life and against discrimination. On the other hand, SAF indicated that it takes a negative view of the proposed new Act against ethnic discrimination and regards as wishful thinking the supposition that the proposed legislation would result in an abatement of xenophobia or a lesser degree of discrimination, and that it is also opposed to Sweden ratifying Convention No. 97. Changes of attitude are best achieved -- it states -- by disseminating knowledge and creating an awareness which will help to heighten each individual's perception of the unfairness of discrimination. Changes of attitude are accomplished more effectively through joint efforts by government and parliament, employers and trade unions, political parties and immigrant organizations.
73. Following the publication of the ILO study entitled Discrimination in access to employment on the grounds of foreign origin: The case of Belgium (International Migration Papers No. 23, Geneva, ILO, 1998), undertaken as part of the project entitled "Combating discrimination against (im)migrant workers and ethnic minorities in the world of work" mentioned above (see note 2 to this chapter), the Confederation of Christian Trade Unions (CSC) of Belgium actively pushed for the adoption of collective agreement No. 38ter of 17 July 1998 strictly prohibiting discrimination in recruitment, and has since organized training sessions with its activists and published numerous public awareness brochures.
74. Under Art. 1(1)(a) of Convention No. 111, "the term 'discrimination' includes [...] any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation".
75. Paras. 231-236 of the General Survey of 1988 and para. 287 of the Special Survey of 1996.
76. For example: Sweden (the Ombudsman against Discrimination publishes brochures such as that entitled "Diversity pays", launches public awareness campaigns, the last of which was entitled "Competence can have a foreign surname" and carries out surveys on discrimination experienced by migrant workers, etc.); the United Kingdom (as part of the European Year Against Racism in 1997, ministers and representatives of employers' and workers' organizations took part in conferences on practical measures to ensure equality of treatment at the workplace).
77. For example: Norway commissioned a study carried out over three years to examine the labour market barriers encountered by migrants. This study showed that the high level of unemployment among this category of the population compared to the rest of the economically active population could be attributed to their lack of qualifications, language skills and also to the discrimination against them.
78. For example: United Kingdom.
79. For example: Finland.
80. For example: in Germany, while the mandate of the federal government official responsible for the integration of foreign workers and members of their families (Commissioner for Foreigners) covers the integration of these populations, it also includes combating inequalities of treatment which they experience, in particular in employment.
81. See footnote 40 (Ch. 3).
82. ILO, Record of Proceedings, 60th Session (June 1975), Geneva, p. 644, para. 53.
83. The Government of France states that it intends to submit to Parliament a proposal aimed at extending coverage of non-contributory benefits to foreigners in a regular situation.
84. For example: Belgium, Croatia, Luxembourg, Switzerland.
86. For example: Australia (prescribed period of residence), Kuwait, Qatar, United Kingdom.
87. For Convention No. 97, see observations concerning France (1996), Malaysia (1998), Zambia (1995); and for Convention No. 143, see observation concerning Kenya (1995).
88. For example, Algeria, Belarus, Czech Republic, Qatar, Slovakia, Thailand.
89. For example, Colombia (two-thirds of trade union officials must be of Colombian nationality) and Panama (75 per cent of officials).
90. For example, in Kuwait (migrant workers must have resided for five years in Kuwait in order to affiliate with a trade union and must present a certificate of good reputation and good behaviour), and in Lithuania (migrant workers must be permanent residents).
91. For example, the Philippines.
92. For example, in Austria (only nationals of the European Economic Area), Bolivia, Colombia, Djibouti, Ecuador, Finland (only nationals of Nordic countries and the European Union), Guatemala, Kuwait, Lebanon, Mexico, Morocco, Panama (the condition of nationality has been removed from the legislation but continues to be inscribed in the Constitution, thus art. 64 states that "the leadership of such associations must be reserved exclusively for Panamans"), Romania, Togo.
93. Para. 118.
94. For example, under Convention No. 143, comments have been addressed to Benin in 1992 and 1993 (it is noted that art. 82 of the new Labour Code has softened this condition and that it now suffices for migrant workers to be regularly resident in the country and to be in possession of his or her civil rights), and under Convention No. 87, comments were recently addressed to Bolivia (1998), Colombia (1998), Ecuador (1997), Finland (1997), Guatemala (1997), Mexico (1997), Panama (1997) and Romania (1997).
95. For example: Luxembourg (a maximum of one-third of foreign workers); Rwanda (the current draft Labour Code stipulates that a maximum of one-third of the members of the direction and administrative committee of a trade union organization may be composed of foreigners).
96. For example, the Central African Republic (two years), Chad, Guinea (five years), Mauritius (five years), Niger (three years), Rwanda (five years), Senegal, Venezuela (more than ten years).
97. For example, in Mauritania, eligibility for trade union office is reserved for Mauritanians; however, the draft Labour Code foresees that foreigners who have legally worked in the profession defended by the trade union for a period of five consecutive years may also be eligible.
98. For example, the Central African Republic, Niger and Senegal.
99. The Ministry of the Interior may order the expulsion from the Republic of any foreigner, irrespective of their residence status, who: "[...] (b) carries out, either in the country or abroad, activities affecting social peace, national security or public order of the Republic. An appeal shall lie against the decisions of the Ministry of the Interior before the Executive Branch, subject to the requirements and formalities laid down in section 80."
100. ILC, 60th Session (June 1975), Geneva, Report V(2), p. 17.
101. For example, the Treaty on the European Union affords all citizens of the Union the right to vote and stand as a candidate in municipal and European parliamentary elections in the host country under the same conditions as nationals.
102. See also paras. 277-282.
103. These include setting aside public housing units for rental and allowing companies to build dormitories to house foreign workers.
104. For example: Antigua and Barbuda, United Arab Emirates.
105. For example: United Kingdom (Bermuda).
106. In the European Union, equality of treatment between nationals and citizens of Member States of the Union with regard to housing applies both to the occupation of housing and access to home ownership. See in this respect Judgment No. 63/86 of 14 Jan. 1988 of the Court of Justice of the European Communities (Commission of the European Communities v. Italian Republic) in which "the Court declares that by permitting under various provisions of its legislation only Italian nationals to purchase or lease housing built or renovated with the help of public funds and to obtain reduced-rate mortgage loans, the Italian Republic has failed to fulfil its obligations under Arts. 52 and 59 of the EEC Treaty".
107. See paras. 296-301.
108. In this connection, the Confederation of Christian Trade Unions (CSC) of Belgium states that its legal service often intervenes before the labour tribunal in order to require payment of the minimum wage and that it is very difficult to intervene on behalf of temporary migrant workers who are nationals of States outside the European Union. It also stated that it has signed a protocol of collaboration with the Centre for Equality of Opportunity and Combating Racism, under which complaints submitted concerning racist behaviour on the labour market or in an enterprise are referred to the Centre, which decides jointly with the CSC whether legal proceedings should be taken on these complaints; Sweden: the Ombudsman against Discrimination stated that for the period from 1 July 1995 to 30 June 1997 he had received 126 written complaints, 40 per cent of which were lodged by job applicants and 60 per cent by employees. For different reasons, only one of these complaints was tried by the labour court during this period and was ultimately dismissed.
109. For foreign nationals, the Tax Law distinguishes between non-residents and "assumed" residents. Non-residents are considered to be those who have resided less than 183 days in Quebec.
Updated by HK. Approved by RH. Last update: 26 January 2000.