This article has been written by Ms. Rahila Sharif, a Fifth-year student of Vivekanand Education Society’s College of Law, Mumbai.

 

ABSTRACT:

This comprehensive article explores the legal protections and employment opportunities for migrant workers, delving into the historical context of migration, the evolution of labor rights, and the contemporary challenges faced by migrant populations. The discussion encompasses international legal frameworks, national legislation, and the changing patterns of labor migration in Asia. The article also examines the impact of the COVID-19 pandemic on migrant workers and provides a set of recommendations to strengthen the enforcement of labor rights, improve recruitment practices, and foster inclusive employment policies. Emphasizing the importance of international collaboration, corporate social responsibility, and public awareness, the article advocates for a holistic approach to safeguarding the rights of migrant workers.

KEYWORDS:

Migration, Migrant Workers, Labor Rights, International Labor Organization (ILO), Legal Protections, Employment Opportunities, Globalization, Human Rights, Forced Labor, Discrimination, COVID-19 Impact, Enforcement Mechanisms, Recruitment Practices, Inclusive Employment Policies, International Collaboration, Corporate Social Responsibility, Public Awareness.

 

INTRODUCTION:

Migration has been an essential component of human history as it has shaped economies and communities due to the blending of different cultures. Over the past few decades, financial and economic movement has become increasingly common. Millions of people move from poor to industrialized nations in search of better living conditions and economic opportunities. Approximately 3.6% of the world’s population, or 281 million people, are believed to be living outside of their nation of origin. Many of these migrants have varied degrees of coercion involved in their journey. While many migrants opt to leave their home countries each year, an increasing number are compelled to flee due to a variety of complex factors, such as poverty, lack of access to healthcare, education, water, food, housing, and the effects of climate change and environmental degradation, in addition to more “traditional” causes of forced displacement like persecution and conflict. 

A new class of industrial workers entered the global economy with the start of the industrial revolution in the 18th and 19th centuries. During the Industrial Revolution, labor and capital were the two primary production inputs. Producers, owners, and workers arose in the private economy as a result. It was essential to uphold labor standards for workers and provide them with welfare amenities in accordance with those standards in order to ensure the welfare of society. Because of this, the 1919 Treaty of Versailles established the International Labour Organization. The Universal Declaration of Human Rights was ratified by the UN General Assembly following the Second World War. The 1948 Universal Declaration of Human Rights is the most significant foundational international document that shapes the social, economic, and political policies of many industrialized and developing nations worldwide. However, many nations around the world have human rights written into their constitutions. The principles and rights at work of the International Labour Organization state that fundamental rights are crucial for the working class in the global economy.

The International Labour Office (ILO) estimates that 90 million men and women were migrant workers in 2005, out of the approximately 200 million migrants worldwide. According to the UN Population Division, 53 million foreign nationals, over half of whom are employed, migrated to Asia in 2005.

In the past, cross-border movements in Asia have been informal. The governments of recipient countries, in particular, have worked to normalize migratory flows. Nonetheless, there has been a sharp decline in the number of Asian men and women using government-sponsored programs to travel abroad for work. Like in other regions of the world, private middlemen and recruiting organizations are increasingly in charge of organizing migration in the region. The bulk of recruitment agencies are small-scale, frequently unregistered businesses, while others are big corporations. This increases the possibility of discriminatory hiring practices and rights violations for migrant workers. Concerns about migrant workers being exploited and abused as well as worries about public order and national security are being stoked by the new forms and dimensions of irregular migration in the region, which includes human trafficking and smuggling. More Asian workers are currently finding employment in other Asian nations, according to recent trends. These workers come from both established source nations like Bangladesh, Cambodia, Lao PDR, and Viet Nam, as well as from growing nations like India, Pakistan, the Philippines, Indonesia, and Sri Lanka. Japan, the Republic of Korea, Malaysia, Singapore, Thailand, Brunei Darussalam, Hong Kong Special Administrative Region (China), and Taiwan (China) are some of the major recipient nations in Asia.  

The patterns show a change from the conventional outflow of Asian migrant laborers over the previous 20 years, which was towards destinations in the Middle East. In addition to the millions of South and Southeast Asians in the Middle East, Europe, or the United States, many of the 25 million migrant workers in Asia work in neighboring countries. Examples include Indonesians in Malaysia, Cambodians, Laotians, and ethnic Burmese, as well as indigenous and tribal peoples from Myanmar in Thailand, Afghans in Pakistan, Nepalese and Bangladeshis in India, Samoans and Kiribatians in New Zealand. The region’s indigenous and tribal populations have been migrating and urbanizing more as a result of diminished economic prospects, land loss, and trafficking vulnerability. In Asia, the majority of labor migration is categorized as transient. The majority of migrant laborers depart on one- to two-year fixed-term contracts. Low- and semi-skilled migrant workers, such as those employed in manufacturing, construction, domestic service, and entertainment, make up the majority of the migrant flow. Asia is a prime example of the global trend toward feminization of migration, with half of all workers seeking employment abroad being women. Many of these women are migrant workers traveling abroad on their own, particularly those from Cambodia, Lao PDR, Myanmar, Indonesia, the Philippines, and Sri Lanka. 

Across the world, the violation of labor rights by employer companies is a grave concern. Various issues have propped up over the years regarding labor rights for migrant workers as more and more migrant workers were exposed to exploitation. The fact that migrant workers do not have both economic independence and social security makes them particularly susceptible. When such workers lose their jobs, there are significant risks involved. The present article attempts to venture into the international legal standards governing the rights of migrant workers, international policy suggestions regarding the same and the employment opportunities.

 

MIGRANT WORKERS:

People who relocate to seek employment outside of their hometown or nation of origin are known as migrant workers. “Domestic” or “internal” migrant workers are those who relocate within their own nation in search of employment. People who relocate abroad in search of employment are frequently referred to as “foreign” or “international” migrant workers. When the admission and work activities of migrant workers are compliant with the immigration regulations of the nation in which they are employed, they are classified as “regularly admitted” or “regular migrant workers.” Migrant workers are referred to be “irregular” or “undocumented” when they work without having a regular entrance or without being able to provide documentation of their regular entry. Although irregular migrant workers may not necessarily be ‘regularized’ only because they have been working, they are still entitled to their human rights at work.

Workers who migrate internationally can do so for seasonal or temporary employment as well as permanent residency. These workers may relocate as a result of government-sponsored initiatives, commercial recruitment plans (such as those using private recruitment agencies), or independent job searches. The migrant worker has been “smuggled” if their unauthorized admission into the foreign nation was intentional and supported by someone who stands to gain financially from their breach of immigration regulations. The individual has been “trafficked” if the unauthorized entry is the consequence of fraud intended to take advantage of them rather than a consensual exchange. Nonetheless, regular migratory laborers may also fall prey to human trafficking.

 

THE INTERNATIONAL LABOUR ORGANIZATION (ILO):

In 1919, the International Labour Organization (ILO) was founded. An organization within the UN system dedicated to social justice, the ILO works to advance decent work for men and women worldwide, irrespective of their gender, race, or social origin. The ILO uses information sharing, technical cooperation, and standard-setting to achieve this goal. The ILO is a tripartite organization, which sets it apart from other UN bodies.

It is made up of three partners in addition to governments: employers, employees, and governments. At the International Labour Conference, the government of each country casts two votes, while the representatives of employers and workers each cast one vote. The International Labour Organization is based on communication and collaboration between these three groups. 

1. The International Labour Conference,
2. The Governing Body, and 
3. The International Labour Office are the three primary organs of the ILO.

• The International Labour Conference (ILC):-

The ILO’s main policy-making body is the International Labour Conference (ILC).  It offers a platform for discussion and debate of significant labor and social issues. Tripartite delegates from every member state convene in June of each year to deliberate, approve, and oversee the implementation of global labor standards. The Governing Body’s members are chosen, and the budget is approved by the ILC.

A delegation from each member state is made up of two representatives from the government, one each from the employer and worker organizations, and their respective advisors. Numerous government delegates hold the position of cabinet minister, overseeing labor matters inside their respective nations. The national organizations of employers and workers that are the most represented are consulted when nominating employer and worker delegates. Each delegate is endowed with equal rights, including the freedom to vote and express oneself. Delegates from employers and workers may occasionally vote against each other or against the representatives of their government. Nonetheless, despite the diversity of opinions, judgments are nonetheless made by substantial majorities, sometimes even unanimously. At the Conference, prime ministers and heads of state also speak.

• The Governing Body:-

The International Labour Office’s executive council, often known as the “board of directors,” is known as the Governing Body. It examines the ILO budget and program for ILC approval. Along with setting the conference’s agenda, it also chooses the ILO’s top executive officer, the Director-General, to serve a five-year term. There are 56 members of the Governing Body: 28 are representatives of the government, 14 are employers, and 14 are workers. 10 governments have permanent representatives on the Governing Body, with the remaining governments being chosen.

  iii)      The International Labour Office:-

The International Labour Office serves as the ILO’s permanent secretariat and central hub for all of its operations, including publications, technical assistance, research, and investigations. The organization has 58 field offices in addition to its office headquarters in Geneva.

ILO offers technical support pertaining to international labor standards and helps its member states ratify and implement them. Domains including microfinance, social security, occupational safety and health, working conditions, labor administration, industrial relations, labor inspection, and the reform of labor laws, fundamental principles and rights at work, employment policies, labor market information, enterprise development, and vocational training.

 

INTERNATIONAL LABOUR STANDARDS:

International labor standards serve as a common benchmark for identifying accomplishments in social and economic development. They set forth fundamental ideas, clarify the obligations and rights of both employers and employees, define policy goals, delineate potential courses of action, and offer advice on appropriate tactics and protocols. The goal of international labor standards is to support fair employment opportunities for laborers from all backgrounds. They take the legal form of either: 

Conventions and Protocols: are legally binding international treaties that can be accepted by member states and provide the fundamental guidelines that ratifying nations must adhere to. Recommendations: authoritative, non-binding guidelines that take effect immediately upon acceptance at the International Labour Conference and do not require ratification.

The governments of the ILO, as well as employers’ and workers’ organizations from the member states, engaged in lengthy discussions to reach an agreement on conventions that outlined the minimal criteria. Recommendations offer more detailed instructions for international advocacy as well as national law and practice. Recommendations typically support and enhance a convention, but they can also stand alone and not be connected to any particular convention.

International labor standards serve as a reliable source of guidance on matters pertaining to the workplace in the modern world, enabling work to continue its role as a tool for uplifting people out of poverty while giving economies the leeway they need to make the necessary corrections to increase productivity and income levels. Currently regarded as current are 76 international labor conventions, 5 protocols, and 79 recommendations.

ESSENTIAL VALUES AND RIGHTS IN THE WORKPLACE:

It has become widely accepted in recent years that certain norms serve as the cornerstone of just social and economic growth. Governments, employers’, and workers’ organizations adopted a Declaration on Fundamental Principles and Rights at Work and its Follow-up in 1998 to help ILO member states deal with the competitive pressures of global economic integration and guarantee that the values underlying these standards as outlined in the ILO Constitution are acknowledged, respected, and realized everywhere.

Four topics are covered under the Fundamental Principles and Rights at Work:

• The freedom of organization and the right to collective bargaining;
• The abolition of all forms of forced or required labor;
• Child labor should be effectively outlawed, and 
• Discrimination in the workplace should end. 

 

RIGHTS OF MIGRANT WORKERS:

The freedoms and rights expressed in international labor standards—which are currently the most pertinent to migrant workers—are among the rights of migrant workers that are addressed here. The ILO Declaration on the Fundamental Principles and Rights at Work defines the four main principles and rights that apply to all stages of migration. These are the first rights that are grouped based on the stages of the migration process.

Next, the rights related to each step of migration are covered, including those related to pre-departure and travel, arrival, employment, social and civil rights in the host nation, and return and repatriation.

• Fundamental Principles and Rights at work:-

There are four primary categories of rights and principles that are applicable to all workers, regardless of their nationality or immigration status, according to the ILO Declaration on the Fundamental Principles and Rights at Work. The subsequent four Rights and principles must be upheld throughout the whole immigration process, including in nations where the relevant Conventions have not been ratified by the government.

1. Trade union right-

The ILO Constitution, ILO Declaration, and international labor conventions protect workers’ rights to establish or join organizations that defend their professional interests. These conventions prohibit discrimination based on nationality or status. Migrant workers have the right to form and join unions, engage in collective bargaining, elect representatives, use arbitration, and strike. They should be allowed to stand for office in trade unions and labor-management relations bodies after a minimum residence period. They should also enjoy civil liberties like freedom of person, opinion, expression, assembly, fair trial, and property protection.

 

1. Freedom from forced labor-

Work should be based on choice and incentive, not coercion or threat. Migrant workers should not be forced to work under threat of sanction, physically confined, or have the ability to terminate their employment. Discipline against migrant workers should not take the form of compulsory work performance. Migrant workers who participate in a lawful strike should not be forcibly returned to work. This principle applies to all workers, including migrant workers, irrespective of their status. Migrant workers are particularly vulnerable to coercion, such as hazardous work, excessive overtime, or unlawful practices. Threats used to extract work or services include deportation, physical abuse, withholding of wages, and retention of identity documents. In 2001, the Committee of Experts on the Application of Conventions and Recommendations (CEACR) requested all governments to include reports under the Forced Labour Convention, 1930, on measures to prevent, suppress, and punish trafficking in persons for exploitation.

1. Freedom from child labor:

Migrant children and their families should not be admitted to employment or work before reaching the minimum age specified by national law. The minimum working age should not be lower than 15 years for regular, full-time work, or 14 years if the country’s economic and educational infrastructure is not sufficiently developed. For hazardous work, the minimum age should not be lower than 18 years. Public authorities should maintain an effective birth registration system and issue birth certificates to children of migrant workers. These children are often vulnerable to child labor, including trafficking, debt bondage, sexual exploitation, and hazardous work conditions.

1. Freedom from discrimination:

Countries have the right to admit migrant workers under certain conditions, but these should not be discriminatory based on race, color, sex, national extraction, social origin, religion, or political opinion. Discrimination should be prohibited, including ‘shading’, discrimination based on sex and gender stereotypes, and protective measures that limit women’s access to safe and productive migrant work. Migrant workers often face multiple forms of discrimination at every stage of migration, which can lead to cumulative disadvantages. Therefore, multiple forms of discrimination must be identified and addressed simultaneously.

• Pre-departure and during the journey:-

Due to the difficulty of traveling abroad and the lack of reliable information about jobs and working conditions there, migrant workers are vulnerable to exploitation before they ever leave their home countries. They struggle to discern between legitimate recruitment firms and dishonest agents or organized crime, are frequently overpaid for paperwork, and are made to go through procedures that violate their human rights. There is a high risk of human trafficking, particularly for young women and children.

Migrant workers are entitled to several rights both prior to leaving their home countries and throughout their travels to the destination country. Among them are:

 

1. Information about living and working conditions: 

Migrant laborers are entitled to information, given in their native tongue or dialect, regarding the overall living and working conditions in the country they intend to migrate to. This information ought to be freely given and used to counteract deceptive advertising.

 

1. Recruiting:

Free recruiting services should be provided by public authorities, potential employers, and approved private organizations, provided that the relevant governmental agency has given its previous approval. Employment agreements shouldn’t go against the legally recognized rights of migrant workers, such as failing to include clauses prohibiting union membership, marriage, pregnancy, or pregnancy testing.

 

iii. Facilitated departure:

Free support with the practical and administrative procedures necessary for migrant workers to leave their country of origin should be given.

 

1. Medical care:

Prior to departure, throughout the trip, and upon arrival, migrant workers and their families are entitled to medical evaluations and attention. Employees must not be subjected to mandatory or non-confidential medical testing, nor should their employment status be affected by test results.

 

1. Free travel:

Employers who hire or recruit migrant laborers shouldn’t make them pay for their own or their families’ transportation. Travel plans, however, frequently result in unethical hiring practices.

• Upon arriving:-

It might be intimidating for migrant workers to travel abroad, particularly if it’s their first time. If they are not fluent in the language of the new nation, it is much more frightening. Before departing, orientation services and briefings must to be given as they are frequently essential. Along with other practical help, migrant workers typically require language orientation upon arrival.

• During Employment and Employment opportunities:-

Migrant workers are often vulnerable and subject to serious rights violations while working and living abroad. Member States should pursue a national policy to promote equal opportunity and fair treatment in employment for migrant workers and their family members who are lawfully residing within their territory. Migrants should enjoy equal treatment in terms of remuneration, working conditions, health and safety, employment opportunities, job security, and job promotion. Remuneration should be based on the objective characteristics of a job, such as skills, knowledge, working conditions, and responsibilities.

 

Migrant workers should also enjoy equal treatment in terms of working conditions, including hours of work, rest periods, overtime arrangements, holidays with pay, apprenticeship and training, protection against toxic substances or dangerous machinery, noise and vibration, violence and sexual harassment at work, welfare facilities, and other benefits.

 

Migrant workers should be granted free choice of employment after a maximum of two years of lawful residence in the host country for the purpose of employment. Job security should be guaranteed, and migrant workers should not be discriminated against if the workforce has to be reduced, such as due to redundancy.

 

Job promotion should be given the same opportunities for migrant workers, with equal opportunities for women and men. This will help ensure that migrant workers have equal opportunities for success and advancement in their chosen careers.

• Civil and social rights in the receiving nation:

Migrant workers and their families should be granted social and civil rights while working in a host country. These rights include citizenship and property rights, equal treatment in education and culture, and the right to participate in the cultural life of the host country. Migrant workers should also have the right to transfer part of their earnings and savings to their home country, contributing to the welfare of their family members. Social services should be provided to help migrant workers adapt to their new environment, including information, services, and facilities in education, vocational training, language training, health services, legal aid, social security, housing, transport, and recreation. These services should be offered in the native language of the workers, with interpretation and translation facilities provided free of charge.

• Repatriation and return:

Foreign migrant workers often return to their home country voluntarily and in an orderly manner, often due to higher wages in the host country. However, there are few provisions in sending or receiving countries to protect migrant workers regarding return and repatriation.

 

Repatriation based on illness or injury is considered unacceptable discrimination. Migrant workers have the right to appeal against arbitrary decisions, including reinstatement, time to find alternative employment, and compensation for wage loss. They also have the same rights to legal aid and the assistance of an interpreter.

 Returning migrants in their home country have the right to outstanding remuneration, severance pay, compensation for holidays not taken, and reimbursement of social security contributions. They should enjoy equal treatment with national workers regarding access to courts and legal assistance. They should have a reasonable period of time to remain in the country to seek and obtain a remedy for outstanding remuneration and benefits.

 Returning migrants in their home country have the right to assistance, including unemployment benefits and assistance in obtaining work. They should also be exempt from customs duty on their personal possessions, including hand tools and portable equipment. Reintegration can pose challenges, especially for women, as they may face harassment, unclear extortions, family problems, and economic problems. Many migrant workers are often pressured to re-migrate for jobs overseas, and trafficking victims face the danger of being re-trafficked.

 

IMPACT OF COVID-19 ON THE MIGRANT WORKERS:

The COVID-19 pandemic has severely impacted the global economy, particularly migrant workers who face numerous hardships, including job cuts, unemployment, reduced wages, health issues, inadequate living conditions, lack of electricity, and clean water. The lockdown has dislocated the migrant population, forcing thousands to walk miles to their home villages, and some have even died on their way back. Migrant workers’ rights have been overlooked due to the lack of timely governmental action. Major hardships faced by migrant workers include job cuts, unemployment, pay cuts, health issues, inadequate living conditions, lack of electricity, and clean water. They are still stranded in foreign countries without proper repatriation processes, and social distancing norms have been breached due to the lack of space in temporary rehabilitation centers. The health of migrant workers’ children is at risk, and their mental and emotional well-being is compromised. The pandemic has also affected families who depend on remittances sent by migrant workers.

RECOMMENDATIONS:

• Strengthening Enforcement Mechanisms: Advocate for enhanced enforcement of existing international and national labor laws that protect migrant workers. Governments should invest in robust monitoring systems, ensuring that employers adhere to regulations and swiftly addressing any violations. Strengthening penalties for non-compliance can act as a deterrent and foster a culture of respect for labor rights.

 

• Improving Recruitment Practices: Work towards standardizing and regulating recruitment processes to curb exploitative practices. Establishing transparent and ethical recruitment mechanisms, including the verification of recruitment agencies, can help mitigate the risks of deceptive practices that often leave migrants vulnerable to abuse.

 

• Promoting Access to Legal Support: Encourage the development of accessible legal support services for migrant workers. This includes providing information in multiple languages, facilitating affordable legal representation, and establishing channels for reporting abuses. Empowering migrants with knowledge of their rights and avenues for recourse is essential for the effective protection of labor rights.

 

• Fostering Inclusive Employment Policies: Call for the implementation of inclusive employment policies that ensure equal treatment for migrant workers. Governments and businesses should actively work towards eliminating discriminatory practices, ensuring that migrants receive the same benefits, wages, and working conditions as their local counterparts.

 

• Investing in Skills Training and Integration Programs: Advocate for the creation of comprehensive skills training and integration programs. These initiatives can help migrants adapt to their new work environments, bridge language gaps, and foster a sense of community. Investing in the well-being and integration of migrant workers contributes to a more harmonious and productive workforce.

 

• International Collaboration and Information Sharing: Emphasize the importance of international collaboration among governments, NGOs, and businesses to share best practices and coordinate efforts. By learning from successful initiatives in different regions, countries can develop more effective strategies to protect the labor rights of migrants and address common challenges.

 

• Corporate Social Responsibility (CSR) Initiatives: Encourage businesses to adopt and implement strong CSR initiatives that prioritize the fair treatment of migrant workers. This includes conducting due diligence in their supply chains, promoting ethical employment practices, and actively participating in initiatives that advance the well-being of migrant workers.

 

• Public Awareness Campaigns: Support public awareness campaigns aimed at dispelling myths and reducing prejudice against migrant workers. Fostering a positive perception of migrants can lead to increased social inclusion and support for policies that protect their labor rights.

 

CONCLUSION:

In conclusion, the protection of labor rights for migrants is a multifaceted challenge that demands a coordinated effort from international organizations, governments, and businesses. While significant strides have been made in establishing legal frameworks, there is a persistent need for effective enforcement mechanisms. Providing migrants with fair employment opportunities and addressing the challenges they face is essential for creating a global workforce that values dignity, equality, and respect for all workers, regardless of their origin. Continued collaboration on both national and international levels will play a pivotal role in achieving these goals and ensuring that migrants contribute to, and benefit from, the global economy in a just and sustainable manner.

 

REFERENCE:

https://www.ilo.org/wcmsp5/groups/public/—asia/—ro bangkok/documents/publication/wcms_146244.pdf

https://www.ohchr.org/en/migration/about-migration-and-human-rights

https://www.ilo.org/global/about-the-ilo/how-the-ilo-works/international-labour-conference/lang–en/index.htm

https://www.ohchr.org/en/instruments-mechanisms/instruments/international-convention-protection-rights-all-migrant-workers#:~:text=Migrant%20workers%20and%20members%20of%20their%20families%20shall%20have%20the,social%2C%20cultural%20and%20other%20interests.

https://www.ilo.org/global/standards/subjects-covered-by-international-labour-standards/migrant-workers/lang–en/index.htm

https://www.ihrb.org/focus-areas/migrant-workers/why-labour-law-protections-for-migrant-workers-are-at-the-heart-of-the-dhaka-principles-for-migration-with-dignity-reflections-from-ilo

https://bhr-navigator.unglobalcompact.org/issues/migrant-workers/

https://www.ohchr.org/en/migration?gclid=Cj0KCQiAtaOtBhCwARIsAN_x-3IgL9P935JENmdFz2otrgBv-eVtQAR5UL861i6n80Ba3L0olxefi6MaAmJvEALw_wcB

https://publications.iom.int/system/files/pdf/migrants_human_rights.pdf

https://www.migrationdataportal.org/themes/migrant-rights