June 1997 Volume 4 Number 6
ILO: Protecting Vulnerable Migrants
The ILO held a week-long seminar April 21-25, 1997 to formulate guidelines for the protection of "the most vulnerable" migrant workers: temporary foreign workers who fill seasonal or temporary jobs abroad, workers recruited for overseas jobs by private and fee-charging agents, and students, trainees, and other persons who are primarily abroad for a purpose other than employment. ILO guidelines are fairly specific standards adopted by consensus that have moral force, for example, after five years of returning as a seasonal worker, a migrant should be offered immigrant status. They are used within governments and between governments to deal with temporary workers.
The background paper prepared for the seminar estimated that in 1995 there were 36 to 42 million non-nationals scattered around 200 countries world wide, including 11 to 13 million in Europe (nine million in Western Europe), eight million in North America (the US labor force includes 13 million foreign-born workers, but some are naturalized US citizens), six to seven million in Africa, six million in the Arab states, three to five million in Central and South America, and two to three million in south and east Asia. These foreign workers are accompanied by 44 to 55 million dependents.
According to the ILO, there are three major types of work-related migration:
1. immigration for economic/employment related reasons,
2. guest workers or temporary foreign workers who fill permanent jobs, and
3. temporary foreigners who fill temporary jobs (seasonal farm workers), who have a time-limited purpose for being in the country (entertainers or project-tied workers) and persons abroad for a non-work purpose who can also work.
ILO Convention 97 (1949) establishes standards for foreigners employed in permanent jobs and Convention 143 (1975) deals with unauthorized workers. The texts of ILO Conventions are available at: http://ilolex.ilo.ch:1567/public/english/50normes/infleg/iloeng/convq.htm
The seminar was devoted to exploring protections for the third or double temporary type of migrant--the argument was that protections tend to increase with length of stay, leaving short-term migrants unprotected and some double temporary migrants are not covered by national labor laws. Migrants excluded from the discussion included petty traders, diplomats and maids.
New Temporary Workers
The issues of concern to double temporary migrants while abroad include housing, wages, social security and other benefits, and conditions of employment, and the ability to convert to immigrant status or have family members visit them while abroad. The ILO proposed guidelines in several areas, including:
1. Housing. Governments should be responsible for assuring that appropriate housing is available, especially for workers unable to find such housing on their own, such as seasonal farm workers and project-tied construction workers, for example, this recommendation rules out the payment of housing allowances in lieu of providing housing.
2. Job Changes. Temporary migrants, including seasonal and project-tied workers, should be able to switch employers during their initial stay and switch jobs/industries, if they are permitted to stay after the season/project is completed. Such migrants should have full labor market freedom after five years of temporary work, for example, returning for three months each year for five years would shift the migrant from non-immigrant to immigrant.
3. Wages and unions. That all types of migrants obtain equal wages for equal work and that their employers deposit bonds equivalent to one month's pay in accounts supervised by tripartite employer, employee and government representatives that make payments to migrants who are denied wages and benefits. Migrants should also be able to form or join unions without discrimination.
4. Family members. That most temporary migrants should be permitted to bring their families with them while abroad, for example the decision should be left to the migrant as to whether family members should join the worker abroad.
5. Social Security. For many workers, the right to benefits provided under social security systems, including health care and payments when injured or unemployed, is their most important asset. The ILO recommends that double temporary migrants and their employers should usually contribute to host social security systems and have the same rights as other workers to draw benefits.
6. Returns. The ILO endorses the use of incentives, such as pre-paid return tickets and wage deductions that are refunded in the country of origin, and disincentives, such as blacklisting workers who fail to return, to ensure that workers are truly temporary.
Seasonal Workers. Housing is a major issue for seasonal workers, who in both developed and developing nations are often placed in whatever housing is available on farms and other work place. If countries establish rules that require the provision of (good) housing, employers may avoid obtaining workers through the government program, thereby adding to illegal immigration and underground foreign worker employment.
If foreigners are permitted to enter a country to fill a vacant job, they are usually required to remain in that job--tied to one employer, industry and area--for the duration of their stay in the country. Tying the worker to the vacant job promotes the goal of minimizing competition between unskilled native and foreign workers, but it also makes the foreign worker dependent on his employer, which can lead to exploitation.
In most countries, foreign seasonal workers are guaranteed at least local minimum or prevailing wages, but they are not generally permitted to have their families join or visit them in industrial countries. Most must leave the country within 12 months.
Seasonal workers are often employed in industries such as agriculture that are exempt from some labor laws and protections, so that, for example, national law that does not protect the right of farm workers to join unions also fails to provide collective bargaining rights for seasonal foreign workers employed in agriculture.
Project-Tied workers. Project-tied workers move with their home-country employer to another country, or they join a contractor there, carrying out a one-time task for two or three years such as building a bridge. In some cases, employers are required by the government where the project is located to post bonds to assure the exit of the workers, or to hold their workers' passports while they are abroad.
Most project-tied workers remain employees of their home-country employer while abroad, and are paid in the home currency, with perhaps a local currency supplement. This employee-temporarily-posted-abroad reasoning also leads to their exclusion from the social security systems of most of the countries where they work on projects.
Project-tied workers' wages are often considerably lower than the wages of similar local workers--this is why they are working on the project--and they are often housed on or near the work site in conditions that make the accompaniment of family members difficult.
Special-Purpose Workers. Special-purpose workers are a catch-all category that includes people transferred within multinational companies, athletes and entertainers, and professionals such as professors who work temporarily abroad.
The usual presumption is that the special skills and company ties of special-purpose workers afford them a degree of protection that less-skilled workers may not have, so that, for example, housing is either arranged for such workers or they have sufficient earnings to obtain their own housing without difficulty. In most cases, special-purpose foreign workers are permitted to bring their families with them and, in most cases, there are relatively relaxed rules on length of stay and returns are not policed in a thorough-going way.
Service Providers. Most persons who cross national borders to provide accounting or other services, and who have the necessary host-country licenses and certificates, have sufficient earnings that they do not encounter significant problems with housing, etc.
Students and Trainees. Foreign students and trainees are presumed to be in the host country for purposes other than employment for wages and, since education and training is often associated with large institutions or firms that are also educating or training local students and trainees, housing and other living issues are normally handled on a non-discriminatory basis. However, if an institution or firm has only or mostly foreigners, they may be offered less-than-standard facilities.
Many countries restrict the rights of foreign students and trainees on the labor market, limiting, for example, foreign students to on-campus jobs, or jobs found through the educational institution, and permitting trainees to be paid less than minimum wages. Many countries exempt foreign students and trainees from social security taxes and benefits. Rules on converting from student/trainee to foreign worker or immigrant vary widely across countries.
Regulating Labor Brokers
The ILO notes that an ever-increasing number of migrant workers are going abroad with the help of fee-charging private labor brokers or agents. Fees are often equivalent to two to four months wages for a two-year contract, for example, a Filipina to work as a maid in the Middle East. This raises several issues, including cases of migrants being exploited by agents who require up-front fees for non-existent jobs, agents who deceive workers about the jobs they will do, like women who think they will be dancers but are forced into prostitution and agent control over workers by holding their passports while they are abroad, changing the wages and terms of employment, or otherwise abusing migrants.
The ILO explains that the wage gap that motivates international labor migration also provides opportunities for agents to profit from the gap between what a foreign employer will pay to hire a migrant, and the wage that a migrant is willing to accept--the larger the wage gap, and the larger the supply of workers who want to emigrate relative to the number of foreign jobs, the higher the fees that agents can charge.
Virtually all countries have no-fee employment services or exchanges to match workers with jobs. However, government employment services tend to play significant roles in placing migrant workers only when there is a bilateral agreement between sending and receiving countries. There is also a secular trend that, in most countries, employment services play ever smaller job matching roles.
The ILO and most member countries have recognized that private labor brokers can improve the efficiency of the labor market, but they also recognize that labor brokers need to be regulated, especially those that move migrants from one country to another for what is often a one-time transaction. Thus, some countries prohibit private labor brokers, but most permit them to operate and attempt to regulate their activities by requiring them to obtain licenses, to submit the contracts that migrants sign to governments for review and to regulate the fees that brokers can charge migrants.
The ILO recommended that:
1. Wherever possible, migrant recruitment should be arranged through bilateral agreements that rely on the public employment services in sending and receiving countries.
2. If private labor brokers are involved in labor migration, their activities and fees should be regulated, so that they do not, for example, advertise and accept fees for non-existent jobs, charge excessive fees or change contracts or hold the worker's passport.
3. Private labor brokers should be licensed and required to post a bond that can be used to repay migrants who are cheated by brokers. Sending countries may want to require agents to have the contracts that they offer migrants reviewed by a government agency, and to regulate broker fees. Sending countries should encourage self-regulation of brokers by , for example, promoting associations whose members agree to abide by these standards in exchange for the right to advertise their compliance.
The ILO likes member nations to ratify worker-protection conventions so that possible violations can be investigated and dealt with expeditiously. Charges that a member nation is violating a convention that it has ratified can be dealt with by the ILO assembling a committee of experts and investigating the incident. This occurred in 1981 when several worker delegates to the ILO charged that the Dominican Republic was violating the rights of Haitian migrant workers under ILO forced labor Conventions 29 and 105.
The ILO has two major conventions dealing with migrant workers, Number 97, the Migration for Employment Convention (1949), and Number 143, the Migrant Workers Convention (1975). Convention 97 was approved to promote the transfer of surplus manpower across national borders in post-war Europe and it calls for equal treatment of migrant and native workers in wages, rights to organize and access to employment services. Convention 143 was approved after most European countries stopped guest worker recruitment in the early 1970s and was aimed at discouraging labor smuggling and illegal alien employment while improving conditions for settled migrant workers. ILO Conventions 118 (1962) and 157 (1982) deal with the rights of migrants to social security.
Relatively few countries have ratified these ILO conventions--in 1996, Convention 97 was ratified by 40 countries, and Convention 143 by 17. Migrant sending countries are most likely to ratify these conventions; only 14 major migrant receiving countries by 1990 had ratified Convention 97, and five had ratified Convention 143.
To protect migrant workers from exploitation--defined as excessive fees charged to migrants, false promises, arbitrary deductions from wages, and expulsion without due process--the ILO proposes to encourage the ratification of Conventions 97 and 143, provide technical and advisory services and where there are "widespread and persistent exploitative practices," to carry out "pattern or practice" studies in countries.
However, temporary workers in temporary jobs are excluded from Conventions 97 and 143, hence the seminar to draw up guidelines to protect them.
The ILO seminar was a meeting of technical experts appointed by governments, employers and unions to approve guidelines that, for example, governments might use to negotiate the bilateral labor migration agreements preferred by the ILO. There were many concerns raised by participants, including:
1. That the proposed guidelines excluded the "most vulnerable" migrants, including maids and illegal workers.
2. Unauthorized migrants are often substitutes for legal migrants and, with illegal immigration increasing, does it make sense to call for more protections for double temporary workers that will raise their costs and encourage some employers to prefer illegals?
3. The guidelines developed by the experts in April will be approved formally by the ILO's Governing Body in November, 1997, and they will be accessible on Internet.