Our Topics:
The ASEAN has adopted an agreement to proceed with the drafting of an ASEAN Instrument on the Migrant Workers targeted to be completed by around 2010-11. Currently, four drafters from Philippines, Malaysia, Thailand and Laos have been appointed to draft the instrument to be submitted to the ASEAN SLOM over the next 2 years.
In response, civil society organizations including ASETUC have set up a network Taskforce on ASEAN Migrant Workers to draft the civil society proposed instrument which have been submitted to the drafting committee, ASEAN Committee on Migrant Workers (ACMW).
Attached please find a draft key trade unions’ response to ASEAN Migrant Workers:
1. Protect the labour rights and decent work standards for migrant workers
All migrant workers are entitled to protection of their core labour rights regardless of their status in the country of employment. The International Labour Organisation has designated 8 Conventions as core to the protection of the rights of all workers (these are Conventions No.100: Equal Remuneration Convention; No.111: Discrimination (Employment and Occupation) Convention; No.138: Minimum Age Convention; No.182: Worst Forms of Child Labour Convention; No.87: Freedom of Association and Protection of the Right to Organise Convention; No.98: Right to Organise and Collective Bargaining Convention; No. 29: Forced Labour Convention, and No.105: Abolition of Forced Labour Convention.) In addition, ILO Conventions No. 97 Migration for Employment Convention (Revised) and No. 143 on Migrant Workers (Supplementary Provisions) Convention provide specific protection to migrant workers. Convention No. 181: Private Employment Agencies Convention, 1997 is also of particular relevance to the protection of migrant workers. ASEAN member States should ratify and effectively implement all instruments that provide protection of the labour rights of migrants.
Access to decent work is an essential element of protecting the human rights of migrant workers, and ASEAN member States are urged to provide opportunities to all migrant workers to obtain decent and productive work in conditions of freedom, equity, security and human dignity.
2. Protect all migrant workers from abuse and exploitation at work
All migrant workers, regardless of their legal status, should be protected from discrimination in employment and occupation. Domestic labour legislation should apply to all migrant workers, in particular in the areas of employment, maternity protection, wages, occupational safety and health and other conditions of work.
Specific protections should be established in domestic legislation to protect the labour rights of migrant workers in certain sectors, including agriculture, construction, mining, and the tourism and hospitality industry.
ASEAN member states should ensure that all migrant workers, irrespective of their legal status, are protected from conditions of forced labour, including debt bondage and trafficking. Lack of formal permission to work is a strong indicator of vulnerability to exploitation.
ASEAN member States should put an end to the common practice on the part of employers of arbitrarily and unlawfully withholding, in part or whole, the salaries of migrant workers.
All migrant workers, regardless of their status, should have effective protection of their right to work and should obtain legal recognition and protection as workers. All migrants, regardless of their status should have access to decent working conditions, including humane workload and work hours, safe and healthy work environment, adequate salaries and compensation, and sufficient leisure time and annual leave. ASEAN member States should institute legislative and administrative measures aimed at preventing harassment or violence in the workplace, restriction of movement, debt bondage, forced labour.
ASEAN member States should ensure labour inspection of all workplaces that employ migrant workers, in order to effectively monitor their working conditions and supervise compliance with employment contracts.
3. Hold accountable recruiters and employers of migrant workers for human rights abuses
Employers of migrant workers include large transnational corporations and small sub-contractors, factories that employ thousands of irregular migrant workers and private individuals who employ domestic migrant workers in their homes. Recruitment agencies are also important private actors that are involved in violating the human rights of migrant workers. Transnational companies engage sub-contractors to recruit migrant workers, and often turn a blind eye to the human rights situation in which these migrants live and work, using a legal fiction to distance themselves from responsibility for this abuse. Migrant workers often pay significant sums of money to sub-contractors and recruitment agencies for jobs and salaries that do not exist; and on arrival in the country of destination are forced to work off their debt in highly abusive conditions without legally enforceable contracts or work visas.
ASEAN member States should ensure that all employers of migrant workers are effectively held accountable for abuse of the human and labour rights of migrant worker employees. ASEAN member States should practice due diligence to ensure that private actors are not able to violate the rights of migrants with impunity. States should ensure that employers of migrant workers are effectively prohibited from engaging in abusive practices, including holding the passports/identity documents of migrant workers, denying migrant workers the right to freedom of movement, and illegally confining workers in inadequate and abusive living conditions.
ASEAN member States should monitor the practices of recruitment and brokerage agencies to ensure protection of the rights of migrant workers. In particular, recruitment agencies should not be permitted to recruit, place or employ migrant workers in jobs where they will be subject to unacceptable hazards and risks or human rights abuse. Fees or other charges for recruitment and placement should not be borne, directly or indirectly, by migrant workers. Recruitment agencies that violate the human rights of migrant workers should be effectively prohibited from operating, and sanctions should be placed on abusive agencies, including the permanent suspension of operating licences and individual criminal sanction where appropriate.
Corporate codes of conduct that voluntarily bind private corporations to upholding fundamental human rights standards should pay due attention to the needs and particular circumstances of migrant workers employed, directly or indirectly, by the corporation. ASEAN member States should ensure that robust legislation is put in place to protect migrant workers from abuse by employers, whether transnational corporations or national companies.
Employers should put in place appropriate and accessible complaints channels through which migrant workers can seek remedies without discrimination, intimidation and retaliation.
4. Recognize domestic work as work and protect migrant domestic workers
The particular vulnerabilities of migrant domestic workers (especially women and children domestic workers) require specific attention, including the fact that their workplace is in the private sphere and, consequently, they live and work in isolation. In addition, the fact remains that there is currently no standard definition of ‘domestic work’ that is agreed upon by the international community, and consequently limited protection tools have been created specifically for the protection of domestic workers. Domestic work, most often carried out by women and girls, is undervalued and unrecognised, and accordingly accorded little protection.
ASEAN member States should recognize, in law and practice, domestic work (household work) as work, and accord migrant domestic workers the protection of the law as provided in international labour and human rights standards. Without legal recognition and protection, domestic workers are vulnerable to exploitation and discrimination.
Governments should ensure fulfilment of the specific needs of women migrant domestic workers, including: the right to integrity of their body and soul, free from all forms of physical, psychological, and sexual violence in their workplace and residence; the right to obtain reproductive health services and the right to obtain aid, assistance, and empowerment when they experience violence.
5. Protect the right of migrant workers to freedom of association and expression
Protection of the right to freedom of association can enable migrant workers collectively to expose human rights abuses perpetrated against them, and to seek redress for such abuses. Freedom of expression is also of fundamental importance to migrants. Many migrants, because of the precarious nature of their situation, are too afraid to speak out for themselves. It is therefore also vital to safeguard the right to freedom of expression for human rights defenders who speak out for migrant workers and their families.
All migrant workers, regardless of their status or sector of work, should be guaranteed their right to freedom of association in both formal and informal networks. Migrant workers should be allowed to form and join trade unions. Those who join trade unions should have the right to hold office and to participate without discrimination in all of the activities of the trade union.
