ILO Helpdesk: Questions and answers on business and labour migration

Labour migration is the term used to describe the movement/migration of people, from one place to another, for purposes of employment or finding work. Such persons are generally called “migrant workers”. Labour migration includes various types of migrant workers, ranging from the less skilled contract labourers to the semi-skilled and highly skilled migrants.

The ILO defines a “migrant worker” as a person who migrates, or has migrated, from one country to another, with a view to being employed by someone other than him/herself, including any person regularly admitted, as a migrant, for employment.[1]

In the context of labour migration, generally, the countries where migrants come from are called “sending countries” and the countries where people head towards are called “destination countries” or “host countries”.

[1] Migration for Employment Convention, 1949 (No. 97), Article 11 (1).

The tripartite agreed General principles and operational guidelines for fair recruitment set out both general principles for ensuring respect for the human rights of migrant workers (including those expressed in International Labour Standards) and operational guidelines which address responsibilities of specific actors in the recruitment process.[1]

The local recruitment agencies which hire migrant workers and supply them to the factory “should ensure that written contracts of employment are concluded, and that they are transparent and are understood by the worker”. The terms and conditions of a worker’s employment should be specified in an appropriate, verifiable, and easily understandable manner, and preferably through written contracts in accordance with national laws, regulations, employment contracts and applicable collective agreements. They should be clear and transparent and should inform the workers of the location, requirements and tasks of the job for which they are being recruited. In the case of migrant workers, written contracts should be in a language which the worker can understand, and should be provided sufficiently in advance of departure from the country of origin, should be subject to measures to prevent contract substitution, and should be enforceable. Workers informed consent to the terms of the contract should be obtained without deception or coercion.

Necessary information to be provided in advance should include:
(a) the full name of the worker as well as the date and place of birth, his family status, his place of residence and of recruitment;
(b) the nature of the work, and the place where it is to be performed;
(c) the occupational category in which he is placed;
(d) remuneration for ordinary hours of work, overtime, night work and holidays, and the medium for wage payment;
(e) bonuses, indemnities and allowances, if any;
(f) conditions under which and extent to which the employer may be authorised to make any deductions from remuneration;
(g) conditions regarding food if food is to be provided by the employer;
(h) the duration of the contract as well as the conditions of renewal and denunciation of the contract;
(i) the conditions under which entry and residence in the territory of immigration are permitted;
(j) the method of meeting the expenses of the journey of the migrant and the members of his family;
(k) in case of temporary migration, the method of meeting the expenses of return to the home country or the territory of migration, as appropriate;
(l) the grounds on which a contract may be prematurely terminated.[2]

The employer should “provide or facilitate effective access to grievance and other dispute resolution mechanisms in cases of alleged abuses in the recruitment process, and to appropriate remedies.

[1] The General principles and operational guidelines for fair recruitment are based on, inter alia, the following conventions which specifically address the rights of migrant workers: Migration for Employment Convention (Revised), 1949 (No. 97) ; Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) ; Private Employment Agencies Convention, 1997 (No. 181) ; Migration for Employment Recommendation (Revised), 1949 (No. 86) ; Migrant Workers Recommendation, 1975 (No. 151) ; Private Employment Agencies Recommendation, 1997 (No. 188) .

[2] Migration for Employment Recommendation (Revised), 1949 (No. 86) , Annex, Model Agreement for temporary and permanent migration for employment, including migration of refugees and displaced persons, Article 22(3).

Following the principles contained in relevant international labour standards and the General principles and operational guidelines for fair recruitment [1] , the migrant worker should not be charged for either element.

Nor should the migrant worker be required to pay the fees incurred for the services of the recruitment agencies and the levies imposed by the government. The Private Employment Agencies Convention, 1997 (No. 181) states in Article 7(1) that “Private employment agencies shall not charge directly or indirectly, in whole or in part, any fees or costs to workers.” The government may authorize exceptions, provided that they are “in the interests of the workers concerned, and after consulting the most representative organizations of employers and workers” [2] .

The General principles and operational guidelines for fair recruitment and
Definition of recruitment fees and related costs (Principles and Guidelines) echo these provisions:
Related costs are expenses integral to recruitment and placement within or across national borders, taking into account that the widest set of related costs are incurred for international recruitment. These costs are listed below and may apply to both national and international recruitment. Depending on the recruitment process and the context, these cost categories could be further developed by the governments and the social partners at the national level. It is recognized that the competent authority has flexibility to determine exceptions to their applicability, consistent with relevant international labour standards, through national regulations, and after consulting the most representative organizations of workers and employers. Such exceptions should be considered subject, but not limited, to the following conditions:
i. they are in the interest of the workers concerned; and
ii. they are limited to certain categories of workers and specified types of services; and
iii. the corresponding related costs are disclosed to the worker before the job is accepted.
All three conditions should be met.

[1] ILO, General principles and operational guidelines for fair recruitment.
[2] Private Employment Agencies Convention, 1997 (No. 191), Article 7 (2).

No. ILO standards explicitly state that a migrant worker should not be required to pay a deposit to obtain a post. All work relationships should be founded on the mutual consent of the contracting parties. This implies that both may leave the work relationship at any moment, subject to giving reasonable notice in accordance with national law or a collective agreement. If the migrant worker cannot withdraw his/her consent without fear of suffering a penalty, the work may be considered to be forced labour, starting from the moment he or she has been denied the right to stop working.

Withholding and non-payment of wages, including for deposit, constitutes a restriction that may prevent the workers from leaving if they change their minds. Therefore, migrant workers should not be required to pay a deposit, either upfront, or to pay back the money the employer paid for the deposit on their behalf.

The relevant international labour standards and other normative instruments concerning migrant workers’ rights express the key principle that a worker should not be charged fees. ILO encourages all companies to incorporate this key principle into their human resources policies, as well as their code of conduct for suppliers.
There are no provisions that require employers who adopt such a policy also to pay retroactively the fees of any previously recruited migrant workers. Companies could nonetheless consider whether it would be possible and reasonable to do so. This would depend, of course, on the company’s particular circumstances (e.g., a relatively small number of workers concerned, relatively low fees); and perhaps be time-bound (e.g., setting a cut-off date of a maximum period of time that the worker was recruited prior to implementation of the policy).

In some cases where the migrant worker has had to pay a recruitment fee, he or she may have incurred a debt, which is one of the ILO indicators that point to the possible existence of a case of forced labour. The ILO Protocol to the Forced Labour Convention, 1930 (No. 29) specifies in Article 4(1) that “all victims of forced or compulsory labour, irrespective of their presence or legal status in the national territory, [should] have access to appropriate and effective remedies, such as compensation.” Retroactive payment of recruitment fees to migrant workers in situations of forced labour may be part of appropriate and effective remedies.

Exemptions to the rule that private employment agencies shall not charge any fees or costs to workers (Article 7(1) of Convention 181) are authorized in the interest of the workers concerned in respect of certain categories of workers, as well as specified types of services provided by private employment agencies (Article 7(2)). If a Government makes use of this flexibility device, it will have to provide information on such authorized exceptions and give the reasons therefore (Article 7(3)).

The Committee of Experts indicated in the 2010 General Survey concerning employment instruments (paragraph 334) that making use of the exemptions of Article 7 [1] is subject to:
(a) Consultation – Prior to the authorization of the exceptions to charge fees or costs, the most representative organizations of employers and workers have to be consulted.
(b) Transparency – Member States are required to create an appropriate legal framework indicating that the authorization is limited to certain categories of workers, or specific types of services, and that it constitutes an explicit exception. Additionally, it is necessary for the fees and costs to be disclosed.
(c) Reporting – Article 7, paragraph 3, of Convention No. 181 requires member States, as part of their reporting obligations under article 22 of the ILO Constitution, to provide to the Office with information and give the reasons for making use of the exceptions.

[1] Private Employment Agencies Convention, 1997 (No. 181), Article 7.

Yes. The definition of “migrant worker” set out in the Migration for Employment Convention (Revised), 1949 (No. 97) [1] and Part II of Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) [2] applies to the entire active population, with the exception of self-employed workers.[3] A “migrant for employment” is defined as “a person who migrates from one country to another with a view to being employed otherwise than on his own account and includes any person regularly admitted as a migrant for employment”.

The services of the migrant worker are retained by an agent under a contract of mandate, and is then outsourced to the employer (the “user” enterprise). The use of a contract of mandate, which is a civil contract providing more flexibility than a traditional employment contract, is not necessarily dispositive of the true nature of the relationship.

The Employment Relationship Recommendation, 2006 (No.198) [4] affirms the principle of the “primacy of the facts”. This means that the determination of the existence of an employment relationship should be guided “primarily by the facts relating to the performance of work and the remuneration of the worker, notwithstanding how the relationship is characterised in any contrary arrangement, contractual or otherwise, that may have been agreed between the parties”.

The migrants should be considered workers where an employment relationship exists. This determination does not necessarily depend on the type of work permit or other external factors, but rather on the actual relationship between the employer and the workers in question. Paragraphs 12 and 13 of Recommendation No. 198 provide guidance on how to determine the existence of an employment relationship, based on certain conditions, including supervision and dependence.

The Private Employment Agencies Convention, 1997 (No. 181) also is directly relevant to this question. Article 1(1) of the Convention defines private employment agencies to include any natural or legal person, independent of the public authorities, which provides “(b) services consisting of employing workers with a view to making them available to a third party, who may be a natural or legal person (referred to as a “user enterprise”) which assigns their tasks and supervises the execution of these tasks”. Accordingly, the “agent” described in the query would constitute a private employment agency. The “user enterprise” would be your enterprise.

[1] Migration for Employment Convention (Revised), 1949 (No. 97)
[2] Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143)
[3] General Survey, Promoting fair migration , 2016, para. 103.
[4] Employment Relationship Recommendation, 2006 (No. 198)

Yes. With respect to scope of application, the Hours of Work (Industry) Convention, 1919 (No. 1) refers to “persons employed in any public or private industrial undertaking”. The provisions establishing limits on working time are applicable to all workers, including migrant workers.

Article 4 of Convention No. 1 addresses shift work. In case of continuous processes working by a succession of shifts, a 56-hour weekly maximum limit on average may be applied. Temporary increases of the regular working hours are permitted, including for shift workers, but only in case of an accident, urgent work to be done to machinery or plant, or in case of "force majeure". Averaging of work hours for shift work may also occur using an undefined period, but only in exceptional cases and where there is an agreement between the workers’ and employers’ organizations, which has been transformed to regulations by the competent authority.

Migrant workers (who are the type of workers being recruited through the private placement agency per the facts laid out in the question) should be treated no less favourably than nationals in respect of elements such as remuneration, hours of work and overtime arrangements.[1]
[1] Migration for Employment Convention (Revised), 1949 (No. 97), Article 6.

If pay differentials are indeed based on individual skills sets, reflected in different jobs being performed, then that is not discrimination. If the lower wage rate for migrant workers is based on the assumption that all migrant workers are inherently less productive than permanent workers, this would be discriminatory. For this, the user enterprise needs to undertake further due diligence.

There could be two additional elements for the pay differential: fees presumably being deducted to cover the profit margin of the agency; and the cost of accommodation provided by the agency. Concerning fees deducted, the Private Employment Agencies Convention, 1997 (No. 181) sets out the principle that “private employment agencies shall not charge directly or indirectly, in whole or in part, any fees to workers”. These fees should be paid by the user employer; and it is important to verify that the migrant workers are not being charged.

If the agency is deducting from the migrant workers’ wages the cost of accommodation provided by the agency, the migrant workers should have the option to live elsewhere and the user company should be verifying that the amounts deducted for accommodation are in line with market rates for accommodation of similar size, location, condition and utilities provided.

Forced or compulsory labour is any work or service that is exacted from any person under the menace or threat of a penalty, and which the person has not entered into of his or her own free will.[1]

Forced labour is a violation of the basic human right to work in freedom and freely choose one’s work.

Two elements characterise forced or compulsory labour: threat of penalty and work or service undertaken involuntarily.

The key element in many situations of forced labour is coercion—forcing people to work when they do not freely consent. Migrant workers may be coerced through withholding of their passports or identity documents. The employer may be holding the workers’ identity documents for safekeeping. In such cases, the workers must have access at all times to the documents, and there should be no constraints on the ability of the worker to leave the enterprise.

[1] Forced Labour Convention, 1930 (No. 29) , Article 2.

Retaining the identity documents of migrant workers does not, of itself, constitute forced labour. Nonetheless, depriving workers of their passports or identity documents restricts their freedom of movement and consequently increases their risk of becoming victims of forced labour. Therefore, the confiscation of passports or other identity documents of migrant workers is considered to constitute an abusive practice, whether undertaken by an employer, recruitment agency or the government.

You may wish to consider encouraging your supplier to request on behalf of their workers that the passports be returned. If the government denies the request, the supplier could seek support from the national employers' and workers' organizations to raise concerns with the government.

Migrant workers should have the right to leave the country without the permission of the employer.[1]

As a basic principle, documents should stay in the possession of the migrant worker. If passports or travel documents are stored by the employer, this can only be done in exceptional circumstances and for reasons of safekeeping. Furthermore, they may be stored by the employer only upon the request and with the consent of the worker, which should be genuine.
If the employer is holding the workers’ identity documents, the workers must have access at all times to the documents, and there should be no constraints on the ability of the workers to leave the enterprise. The fact that migrant workers requesting their passports should be accompanied by a senior company official raises questions about the actual possibility of the worker to access his or her passport in practice. A migrant worker should have access to his or her passport for whatever reason and not only for reasons of visa extension.

ILO promotes as good practice the establishment of private lockers to which only migrant workers have access. In the ILO Better Work Programme many employers have already set up such lockers and the experience has been very positive.

The national employers’ organization of the country concerned may provide further information. The International Organization of Employers (IOE) provides the full list of national employers’ organizations.
The International Trade Union Confederation has a migrant workers network in numerous countries and may also be a further source of information.

[1] The preamble of the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) affirms "the right of everyone to leave any country [...] as set forth in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights"

Migrant workers should have the right to leave the country without the permission of the employer. As a basic principle, documents should stay in the possession of the migrant worker.

If passports or travel documents are stored by the employer, this can only be in exceptional circumstances and for reasons of safekeeping. Furthermore, they may be stored by the employer only upon the request and with the consent of the worker, which should be genuine.

If the employer is holding the workers’ identity documents, the workers must have access at all times to the documents, and there should be no constraints on the ability of the workers to leave the enterprise. The fact that migrant workers requesting their passports should be accompanied by a senior company official raises questions about the actual possibility of the worker to access his or her passport in practice. A migrant worker should have access to his or her passport for whatever reason and not only for reasons of visa extension.

The worker must have access to his or her identity documents at all times, this includes cases where the worker representative is holding the identity papers. You may wish instead to consider providing each worker with a secure place, such as a locker, where he or she can keep these documents.

Deciding whether work is performed voluntarily often involves looking at external and indirect pressures. Withholding part of a worker’s salary as a deposit would constitute such a pressure.

Even if the employer has paid the levy for the foreign worker, requiring repayment of the levy attributable to the unfulfilled part of the contract should not be allowed, as no fees or costs for recruitment should be charged directly or indirectly, in whole or in part, to the workers.[1]

[1] Private Employment Agencies Convention, 1997 (No. 181) , Art 7.1.

The key element in many situations of forced labour is coercion—forcing people to work when they do not freely consent. Migrant workers may be coerced through debt and other forms of bondage caused by high recruitment or transportation fees imposed on the worker. The requirement to post a deposit also acts to compel the worker to stay. Both practices could be considered as evidence of forced labour.

Yes. Migrant workers, regardless of their status, are first of all workers. As such, they have rights, including freedom of association – the right to form or join a trade union. It is also important to remember that, unless specified otherwise, all standards adopted by the ILO apply to migrant workers.

When workers are not interested to join unions, the unions should be concerned. They should find ways and provide services that would attract such workers. It is question of how a union would go about attracting these workers to be part of the union. The ILO provides for rights of workers to join or not to join unions. It is voluntary. Not being inclined to join a union is not a violation of freedom of association.

As far as the ILO is concerned, the requirements in terms of numbers to form a union should be left to the union to decide. It should be part of the union constitution that spells out how they would hold their elections, what would be the composition of the executive, etc. The law should not interfere in such matters and should facilitate trade union independence.

There is also a manual for trade unions for organizing migrant workers.[1]

[1] Manual, In search of Decent Work – Migrant workers’ rights, 2008 .

The ILO has noted that the “restrictions on the right to organize of certain categories of workers, such as migrant workers…. , domestic workers …., workers in export processing zones (EPZs) ……., workers in the public service ….., agricultural workers ….. , or workers in the informal economy …. are not compatible with the realization of [the] principle and right” [of freedom of association].[1]

There are two possible levels from which the company in this situation might choose to take action:
encouraging and supporting suppliers to respect workers’ rights to the fullest extent permitted under national law; and
in association with other employers, encouraging the Government to amend the law to bring it into line with the relevant international labour standards.[2]
1. Encouraging and supporting suppliers
The company could have a dialogue with the supplier about why the company values respect for the right of freedom of association; and why it is also important and beneficial for the supplier to respect the right of workers to organize to the full extent permitted by law. The company could provide assistance to the supplier to find ways to allow the migrant workers to collectively express their concerns and have a dialogue with the supplier at the enterprise level which is at the same time consistent with national law.
For instance, collective bargaining does not necessarily require a trade union representative, only that the appointed representatives be genuinely representative of the workers and their interests. The supplier might under national law still be able to bargain collectively with workers’ representatives even if there is no trade union representation of migrant workers allowed under national law. A local industrial relations specialist who knows the national labour law may be able to provide more specific advice.

2. Encouraging the Government to amend the law
Effective and respectful dialogue at the workplace is often a valuable practice for everybody concerned and may lead to mutually agreed solutions. Such dialogue normally does not violate any law. However, it does not in itself satisfy the requirement to respect the right to freedom of association. Forming and belonging to their own independent organizations are core to the fundamental right to freedom of association of workers and employers, and the ILO promotes respect for this in all member States. The ILO also promotes compliance with national law. When there is a conflict, ILO encourages employer and worker organizations to engage in dialogue with the Government on how to bring the law into conformity with the fundamental principles and rights at work. Not being allowed to form unions would be a serious breach of freedom of association, and the ILO would encourage States with legislation preventing workers from enjoying that right to change the law.
The company subsidiary operating in the country in question may wish to consider becoming involved with the local employers’ organization, to engage in dialogue with the Government about why, from an employer’s perspective, it is important to respect freedom of association for all workers, including migrant workers. This process could help substantially to further encourage the Government to bring the law into line with international labour standards concerning freedom of association.

[1] Review of annual report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, 2008 , GB.301/3, paragraph 36.
[2] Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) , Article 2.

National social security systems are government structures; the responsibility of the enterprise is to pay contributions in accordance with national law.

Social security coverage for nationals of a country working abroad and portability of entitlements and benefits are covered by Equality of Treatment (Social Security) Convention, 1962 (No. 118) (ratified by France but not by Switzerland) and Maintenance of Social Security Rights Convention, 1982 (No. 157) ratified by neither countries) (accompanied by Recommendation No. 167). Convention No. 118 requires a ratifying country to cover non-nationals who are residing and working in that country under the same conditions as its own nationals, as per the relevant provisions of its legislation. Convention No. 157 would, broadly, require ratifying countries to ensure the portability of social security rights in course of acquisition (contributions) and acquired rights (benefits) between home and host countries when workers move across borders, subject to the conclusion of bilateral/multilateral agreements between the countries concerned.

The company should obey the law, including laws requiring them to collect and forward the workers’ social security contributions. This should be done in a transparent manner and workers should be aware of their rights within the social security system.

The ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy (MNE Declaration) stresses the importance of all the parties concerned to respect the sovereign rights of States, obey the national laws and regulations, give due consideration to local practices and respect relevant international standards.[1] This includes legal obligations concerning social security.[2]

Deducting workers’ legally mandated contributions to social security schemes from their wages is also consistent with the provisions of international labour standards,[3] provided that the workers are informed of the amounts deducted.[4]

If the social security scheme is comprehensive, the migrant worker will benefit directly from many of the provisions, such as medical care, sickness benefit, unemployment benefit and maternity benefit. Concerning pension benefits, a mechanism may exist for the migrant worker returning to his or her country of emigration to receive back his or her pension contribution or to have the pension benefit paid abroad.[5] Similar schemes may exist for internal migrants returning to their home province. This is an issue of government administration of the social security scheme, beyond the ability of a particular company to address.

[1] MNE Declaration, para. 8.
[2] Ibid. , para. 25.
[3] Protection of Wages Convention, 1949 (No. 95), Article 8(1).
[4] Protection of Wages Convention, 1949 (No. 95), Article 8(2).
[5] Equality of Treatment (Social Security) Convention, 1962 (No. 118) and Maintenance of Social Security Rights Convention, 1982 (No. 157) .

In providing worker[1] housing, the objective should be to ensure “adequate and decent housing accommodation and a suitable living environment”[2] for workers. This includes upkeep, improvement and modernisation of housing and related community facilities.[3]

It is “generally not desirable that employers should provide housing for their workers directly”.[4] Employers are encouraged to help their workers to obtain housing through autonomous private agencies, public housing schemes, or cooperatives.[5] This is because workers living at the work site on property owned or controlled by the employer tend to be less integrated into the local community, and more dependent on the employer. However, certain circumstances, such as when an undertaking is located far from normal centres of population, or where the nature of the employment requires that the worker should be available at short notice may require the employer to provide housing for his or her workers.[6]

If housing is provided by the employer “the fundamental human rights of the workers, in particular freedom of association, should be recognised.”[7]

Arrangements where accommodation and communal services are provided as payment for work should take care to ensure that the interests of the workers are
protected. If rent is charged, it should not cost the worker more than a reasonable proportion of his or her income.[8]

[1] Workers' Housing Recommendation, 1961 (No. 115) . The section entitled “Suggestions concerning methods of application,” Part I, paragraph 5, encourages “equality of treatment between migrant workers and national workers”. Therefore, this guidance applies equally to migrant workers and national workers.
[2] R. 115 , General Principles, Part II, paragraph 2.
[3] R. 115 , paragraph 3.
[4] R. 115 , Part IV, paragraph 12(2).
[5] R. 115 , Part IV, paragraph 12(1).
[6] R. 115 , Part IV, paragraph 12(2).
[7] R. 115 , Part IV, paragraph 12(3a).
[8] R. 115 , Part II, paragraph 4, Part IV, paragraph 12(3c) and (4).