Solicitud directa (CEACR) - Adopción: 2008, Publicación: 98ª reunión CIT (2009)

Article 1 of the Convention. Basic human rights of all migrant workers. The Committee notes the Government’s statement that effect is given to this provision through the ratification of Conventions and the inclusion of fundamental principles in the Labour Code applicable to all workers. The Committee requests the Government to provide information, including cases brought before the courts or other bodies, on the measures taken to ensure that the basic human rights of all migrant workers, including those in an irregular situation are ensured both in law and in practice.

Articles 2 to 7. Measures to address irregular migration and illegal employment. The Committee notes from the report of the UN Special Rapporteur on the rights of migrants (E/CN.4/2006/73/Add.2) that Burkina Faso is becoming mainly a country of transit and that in recent years irregular migration has become a real problem as is being illustrated by the problem of migrants returning from the Libyan Arab Jamahiriya which is sending more and more nationals from other countries to Burkina Faso. The Committee notes the Government’s indication that measures to detect illegal employment of migrants consist essentially of the employer’s obligation to submit the contracts of employment of migrant workers to the approval of the labour inspectorate (sections 64 and 72 of the Labour Code), and the control of enterprises by the inspectorate. It also notes that section 64(4) provides that refusal of the approval renders the contract null and void and entitles the worker to the payment of damages and interests. The Committee asks the Government to provide detailed information on the following: (a) the number of violations detected by the labour inspectorate of sections 64 and 72 of the Labour Code; (b) the sanctions imposed on employers violating these provisions; and (c) any cases in which migrant workers have received damages following a refusal of the approval of their contract of employment. Please also indicate any other measures taken or envisaged under Articles 2 to 7 of the Convention to prevent and combat migration in abusive conditions.

Consultation of organizations of employers and workers. With respect to the amendment of Decree No. 74/350/PRES/FPT of 14 September 1974, the Committee notes the Government’s statement that it will transmit any amended text as soon is it is adopted. The Committee recalls the Government’s obligation under Article 2(2) of the Convention to consult organizations of workers and employers and hopes that the Government will act effectively in the future to ensure that employers’ organizations are being represented on the Standing National Committee on Migration Issues.

Article 9(3). Costs of expulsion. The Committee notes the Government’s statement that the notion of regular or irregular workers does not exist in Burkina Faso and that the employment of migrant workers is only subject to the authorization of the competent authority. The migrant worker, even in the case where a work permit has been refused, continues to benefit from the right of residence. It also notes that section 64 of the Labour Code, 2004, no longer mentions the repatriation of the migrant worker in the case of an approval for the work permit being refused. While noting these explanations the Committee, recalling paragraph 310 of the General Survey on Migrant Workers, 1999, asks the Government to indicate the instances in which migrant workers can be expelled from the territory and the costs borne by them. Please also indicate the legal provisions in this regard.

Articles 10 and 12. National policy to promote equality of opportunity and treatment. The Committee notes the Government’s statement that there is no national policy concerning equality of opportunity and treatment with respect to migrant workers but that migrant workers are covered by the provisions of the Labour Code, 2004. The Committee wishes to point out that while the adoption of legislation is an important part of a national policy on equality, such a policy also requires the Government to undertake active measures to promote and implement equality of opportunity and treatment in practice. Such measures are described in Article 12 of the Convention and in the Migrant Workers (Supplementary Provisions) Recommendation, 1975 (No. 151). Recalling that such measures may be adopted progressively, the Committee hopes that the Government will make every effort to explore further measures to promote equality between migrant workers and nationals and to keep the Committee informed of any progress made in this regard.

The Committee notes the Government’s statement that sections 4, 5 and 6 of Order No. 98/TFP/PMO/FPR of 15 February 1967 have not been amended but that section 4 has not been applied in practice and until now no approval for a contract of employment of a migrant worker has been refused. Considering that the abovementioned provisions are not being applied in practice, the Committee encourages the Government to reconsider its position concerning Order No. 98/TFP/PMO/FPR of 15 February 1967, and to revise the text so as to reflect national practice and to ensure that the Convention is fully applied.