Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

Article 9(1) and (2) of the Convention. Rights arising out of past employment. The Committee recalls that, pursuant to Article 9(1) and (2) of the Convention, migrant workers in an irregular situation shall enjoy equality of treatment for themselves and their families in respect of rights arising out of past employment as regards remuneration, social security and other benefits, and shall have the possibility to present their case to a competent body, either themselves or through their representative, in the case of a dispute regarding these rights. The Committee previously raised issues relating to the difficulties encountered by migrant workers whose contracts of employment were declared null and void to claim their rights arising out of past employment, such as remuneration and social security. The Committee considered that the possibility of recourse to labour inspectors did not afford migrant workers adequate protection, in accordance with the terms of Article 9(1) of the Convention. The Committee notes the Government’s reply that recourse to the labour inspectors is the only way for these workers to claim their rights, and that no complaints have been received from migrant workers in an irregular situation. The Committee asks the Government to take the necessary legislative measures to establish that migrant workers who have been unable to regularize their situation are not deprived of their rights that have been lawfully acquired, and that they and their families enjoy equality of treatment with migrant workers lawfully admitted into the country in respect of rights arising out of past employment as regards remuneration and social security. The Government is also requested to examine any obstacles faced by such migrant workers to submit claims to the labour inspectorate in relation to rights derived from past employment and the progress made in this regard.

Article 10. Exercise of trade union rights. The Committee recalls its previous observation requesting clarification as to whether section 10(1) and (2) of the Labour Code providing that foreign nationals are required to have resided for not less than five years in the territory before being allowed to establish a trade union and take positions of responsibility for its administration or leadership, also makes the possibility for foreign nationals to join a trade union subject to this requirement. The Committee notes the Government’s statement that section 10(2) will be addressed in the context of the revision of the Labour Code. Recalling the Government’s previous statement that membership in a trade union is free for both nationals and migrant workers, the Committee requests the Government to ensure that the new Labour Code explicitly provides for the right of foreign workers to join a trade union on an equal footing with nationals, without being subject to any residence requirements or other preconditions.

The Committee is raising other points in a request addressed directly to the Government.