Demande directe (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 143) sur les travailleurs migrants (dispositions complémentaires), 1975 - Tadjikistan (Ratification: 2007)

Autre commentaire sur C143

Demande directe

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The Committee notes the Government’s second and rather general report on some legislative and policy measures that have been taken regarding its labour migration policy and the protection of Tajik workers abroad. The Committee notes with interest that Tajikistan has ratified the United Nations Convention on the Protection of the Rights of All Migrant Workers and their Families, 1990, and that, in this context, the Government has submitted detailed information to the Committee on the Protection of the Rights of All Migrant Workers and Members of their Family (CMW), which is of relevance to the application of Convention No. 143 (CMW/C/TJK/Q/1/Add.1, 14 February 2012 and CMW/C/SR.188, 27 April 2012). The Committee notes that the country is mainly a country of emigration, with mostly young male Tajik men going abroad to be employed in temporary and seasonal work, primarily in the Russian Federation. Regarding immigration, there were 4,000 foreign nationals in the country from 47 countries in 2011. Please provide statistical information, disaggregated by sex and nationality, on migration flows from and to Tajikistan, notably the number of foreign workers lawfully in the country and those who have entered Tajikistan for employment in an irregular situation, as well as the number of Tajik citizens leaving to seek employment abroad either under regular or irregular conditions.

The Committee notes from the CMW concluding observations that the Government has adopted a number of orders and decisions giving effect to the Convention (CMW/C/TJK/CO/1, 16 May 2012), the texts of which have not been provided. The Committee also notes that a draft Law on Labour Migration of Citizens of the Republic of Tajikistan is being developed and that comments have been sought from the ILO Office. The Committee will undertake a more detailed examination of all the relevant constitutional and legislative provisions once the draft bill on migration of Tajik workers abroad is adopted. The Committee hopes that the new migration legislation will be in line with the provisions of the Convention and requests the Government to provide a copy of the final text as soon as it is adopted. The Committee further requests the Government to indicate whether the following legislative texts, rules and regulations, as well as government decisions, are still giving effect to the Convention, and provide copies of the texts with an indication of the relevant provisions (in one of the official ILO languages): The concept of the state migration policy of the Republic of Tajikistan of 8 October 1998; Decree No. 615 of the President of the Republic of Tajikistan of 24 January 2009 on migration quota and engagement of the foreign labour force in the Republic of Tajikistan in 2009; Government Decision No. 242 of 9 June 2001 on the concept of labour migration of the citizens of the Republic of Tajikistan abroad; Government Decision of 1 August 2008 on the emigration registration of citizens of the Republic of Tajikistan; and the Joint Order of the Ministry of Internal Affairs and the Ministry of Education on Education of Migrant Workers in vocational training initiatives in 2012.

Article 1 of the Convention. Basic human rights of all migrant workers. The Committee notes that section 3 of the Law on the Legal Status of Foreign Citizens, 1996, provides that foreign citizens shall enjoy the same rights and freedoms as citizens of Tajikistan, unless otherwise provided by the national legislation and the Constitution, but that citizens of those states where rights and freedoms of Tajik citizens are deliberately restricted, the State shall establish reciprocal restrictions. The Committee further notes that section 15 of the Law grants the right to join trade unions to foreign citizens permanently residing in the country, unless its contradicts the statutes of these organizations and the national legislation. The Committee recalls that Article 1 of the Convention requires the Government to undertake to respect the basic human rights of all migrant workers, irrespective of their migrant status. Also, Article 1 of the Convention is not based on reciprocity. The Committee requests the Government to clarify whether temporary migrant workers residing in the country have the right to join trade unions and in which situations foreign citizens permanently residing in the country do not enjoy this right. Please also indicate how the basic human right to join trade unions is being guaranteed to migrant workers in an irregular situation. The Committee also requests the Government to provide information on the practical application of section 3 imposing reciprocal restrictions on rights and freedoms of citizens from states where rights and freedoms of Tajik citizens are being deliberately restricted.

The Committee notes that the National Strategy on International Labour Migration of Tajikistan citizens for 2011–15 aims, among others, to develop effective forms and methods of migration based on broadening economic freedom, respect for human rights and developing bilateral and multilateral international relations, and to establish mutually acceptable relations on these issues with employers of host countries. The Committee notes that the Tajik Migration Service established in 2011 is acting as liaison office for Tajik workers abroad and that efforts are being made, through bilateral agreements and meetings with law enforcement authorities of the Russian Federation, to improve protection of the rights of Tajik workers. The Committee asks the Government to provide information on the practical application of the National Strategy on International Labour Migration of Tajikistan citizens for 2011–15, as well as any other measures taken or envisaged and the results achieved with respect to protecting the human rights of its nationals abroad.

Article 2. Identifying illegal employment and migration in abusive conditions. The Committee asks the Government to provide information on any measures taken or envisaged to determine systematically whether there are any illegally employed migrants in the territory and whether migrants for employment depart from, pass through or arrive in the country in abusive conditions as defined in Article 2(1) of the Convention. The Committee encourages the Government to make special efforts to collect on a regular basis statistical data on irregular migration flows and illegally employed migrants, and to provide information on any progress made.

Article 3(a) and (b). Measures to prevent and address irregular migration and the illegal employment of migrant workers. The Committee notes with interest that Tajikistan has ratified the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (Trafficking Protocol). The Committee further notes that the migration policy of Tajikistan is aimed at preventing the growth of irregular migration by establishing an appropriate regulatory and legal framework, and that a number of measures have been taken to combat trafficking in persons, including the adoption of the Human Trafficking Act, 2004, and the creation of the Government interdepartmental Commission on Combating Human Trafficking. The Committee asks the Government to provide full information on the measures taken to address trafficking in persons, including on measures to suppress clandestine movements of migrants for employment and illegal employment of migrants, and against the organizers of such movements and against those who employ workers who have immigrated under irregular conditions. Please provide further information on the nature of the research undertaken in the context of bilateral cooperation and its outcome.

Article 4. Measures to establish systematic contact and exchange of information with other States. Please provide information on the measures taken at national and international level to establish contact and exchange information on illicit or clandestine movements of migrants for employment and measures taken to prevent and eliminate abuses and the results achieved.

Article 5. Authors of trafficking for labour purposes. The Committee asks the Government to indicate the arrangements on the national or international level by which authors of labour trafficking can be prosecuted whatever the country from which they exercise their activities.

Article 6. Legislative provisions for the effective detection of the illegal employment of migrant workers and effective administrative, civil and penal sanctions in respect of illegal employment and organizing clandestine movements of migrants. The Committee notes the Criminal Code provisions contained in sections 130 (Trafficking in Human Beings) and 132 (Recruitment of Persons for Exploitation). It requests the Government to provide information on any legal proceedings which have been instituted under these sections of the Criminal Code, indicating the penalties imposed on perpetrators. The Committee asks the Government to indicate whether any administrative, civil or penal sanctions have been imposed against those organizing clandestine movements of migrants generally, or those illegally employing migrants.

Article 7. Consultations with employers’ and workers’ organizations. The Committee notes that the Government refers to the cooperation agreements concluded by the Federation of Trade Unions of Kazakhstan, with the Federation of Independent Trade Unions of Tajikistan and with the Federation of Trade Unions of Kyrgyzstan regarding the protection of the rights of migrant workers. The agreements include provisions regarding the following: guaranteeing the rights of each migrant, irrespective of nationality, to express their faith at work, freedom of choice of work and occupation and the right to fair working conditions; introducing a socially just system of remuneration, organization of work and hours of rest; respecting labour legislation, regulations and standards for the protection of work and social security; working together with State authorities to eliminate forced labour of migrants; and guaranteeing equal opportunities and treatment of migrant workers. The Committee notes that the Federation of Independent Trade Unions of Tajikistan intends to sign similar agreements on the rights of migrants with professional associations in other Commonwealth of Independent States (CIS) countries. The Committee requests the Government to continue to provide information on cooperation agreements between workers’ organizations and to provide information on how the consultation of workers’ and employers’ organizations and their possibility to take initiative is being ensured with regard to laws and regulations and other measures provided for in the Convention, particularly those designed to prevent and eliminate migration in abusive conditions.

Article 8(1) and (2). Legal status in the event of loss of employment. Right to alternative employment, retraining and relief work. The Committee requests the Government to provide information on the legislative provisions and other measures taken to ensure that migrant workers who have lost their employment enjoy equal treatment with nationals in respect of guarantees of security of employment, the provision of alternative employment, relief work and training, in accordance with Article 8(2) of the Convention.

Article 9. Equality of treatment in respect of the rights arising out of past employment. The Committee requests the Government to provide information, including reference to the relevant legislation, on the measures taken to ensure that irregular migrant workers enjoy equality of treatment with regularly admitted and lawfully employed migrants in the country in respect of the rights arising out of past employment, as regards remuneration, social security and other benefits. The Committee further requests the Government to provide information on any cases concerning breaches of equality of treatment brought before courts of law and the final decisions handed down, and to indicate whether migrant workers contesting the expulsion are permitted to remain in the country for the duration of the case.

Articles 10 and 12. National policy on equality of opportunity and treatment. The Committee notes that section 7 of the Labour Code prohibits “any distinctions, preference or refusal to hire a worker on the basis of nationality, race, skin colour, sex, age, religion, political opinion, place of birth, national or social origin resulting in violation of the principle of equality of opportunity at work”. It notes that these provisions appear to protect migrant workers lawfully in the country against discrimination only at the recruitment stage. The Committee recalls that Article 10 requires the Government to declare and pursue a national policy designed to promote and ensure equality of opportunity and treatment in employment and occupation, social security, trade union and cultural rights and individual and collective freedoms for migrants and members of their families lawfully in the country. Article 12 of the Convention specifies the measures to be taken in the framework of a national policy on equality of opportunity and treatment. The Committee asks the Government to provide information on the adoption and implementation of a national equality policy as envisaged in Article 10, as well as any practical measures, including educational programmes, taken or envisaged by which the national policy on equality between migrant workers lawfully in the territory and nationals is being implemented and observed.

Article 14. Free choice of employment. The Committee notes that pursuant to section 14 of the Law on the Legal Status of Foreign Citizens, foreign citizens may not take certain offices or be engaged in certain labour activity, if the national legislation provides that such a labour activity, or appointment or engagement requires affiliation to the citizenship of the Republic of Tajikistan. The Committee requests the Government:

(i) to indicate the restrictions imposed on foreign citizens to enjoy the free choice of employment and the maximum period imposed;
(ii) to supply information on any measures taken to regulate the recognition of occupational qualifications acquired outside the territory and how workers and employers’ organizations are being consulted in this regard; and
(iii) to indicate the categories of functions or employment to which access is restricted for foreign workers.

Geographical mobility. The Committee notes that under section 19 of the Law on the Legal Status of Foreign Citizens “restrictions on movement within the territory and choice of place of residence shall be permitted, if it is necessary for national security, protection of public order, health or morality of population, protection of rights and lawful interests of citizens of the Republic of Tajikistan and other persons”. Recalling that the right to geographical mobility must be ensured whatever the duration of residence or employment, the Committee asks the Government to clarify the practical meaning of the restrictions imposed on freedom of movement of foreign citizens under section 19 of the Law on the Legal Status of Foreign Citizens.

Article 15. Bilateral and multilateral agreements. The Committee notes that the Government is giving priority to establishing a system of organized recruitment of migrant workers, which includes training for Tajik workers. It notes that efforts are being taken to implement more effectively the agreement between the Government of the Russian Federation and the Government of the Republic of Tajikistan concluded on 16 April 2004 through practical steps such as the setting up of multipurpose centres in both States to provide a range of services to employers and migrants, and cooperation with respect to organized selection, the Committee notes that training and recruitment of Tajik citizens in the Russian Federation. Discussions are also ongoing regarding draft agreements with the Russian Federation and neighbouring countries on labour migration and social protection of migrant workers and members of their families, and a draft agreement between the CIS on the common principles and mechanisms for the organized recruitment of migrant workers in the CIS is in the making. The Committee requests the Government to continue to provide information on any bilateral and multilateral agreements concluded, including copies of the relevant texts or a summary in any of the official languages of the ILO as well as on their practical implementation and their impact.

Parts III to V of the report form. The Committee notes the establishment of the Migration Service. So that the Committee can assess fully how the Convention is being applied in practice, the Committee would be grateful if the Government would supply information on the specific activities carried out by the competent authorities to give effect to the provisions of the Convention. Please also provide copies of any relevant studies or surveys that have been undertaken on any of the matters referred to in the Convention.