Demande directe (CEACR) - adoptée 2013, publiée 103ème session CIT (2014)

Convention (n° 143) sur les travailleurs migrants (dispositions complémentaires), 1975 - Chypre (Ratification: 1977)

Autre commentaire sur C143

Observation

Demande directe

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Articles 1 of the Convention. Basic human rights. The Committee asks the Government to provide information disaggregated by sex, nationality and sector of activity on the number of migrant workers, in a regular or irregular situation, and on the measures adopted by the Department of Labour, the Equality Authority and Anti-Discrimination Body or other bodies to ensure full respect for their basic human rights.

Articles 2 to 7. Measures to detect, to prevent and suppress irregular migration and the illegal employment of migrant workers. The Committee notes the Anti-trafficking in Persons and Protection of Victims Law No. 87(I) of 2007, and the measures taken, including the Aliens and Immigration (Amendment) Law No. 41(I) of 2012, with a view to harmonizing the national legislation with the Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals. It also notes the legislative measures taken by the Government to regulate the licensing and operation of private employment agencies. Further, the Government states that as of April 2009, the Ministry of Labour and Social Insurance has set up an inspection system mechanism with inspectors in each district whose main responsibility is to inspect workplaces on grounds of illegal or undeclared work. The Committee notes from the Government’s report that in 2011, 1,402 foreigners were found to be illegally employed (compared to 1,617 in 2009) and that 1,114 employers were prosecuted for illegal employment of foreigners (1,208 in 2009). In 2011, 2,193 employers were inspected (compared to 2,568 in 2009) and 303 third country nationals were found to be employed in an irregular situation (compared to 520 in 2009). Notwithstanding these measures, the Committee notes that, in its concluding observations of 2013, the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW) expressed concern at the low conviction rate for traffickers, whereas the number of identified trafficking victims is high, as well as the limited assistance provided to victims by the existing shelter and to those victims who are unable or unwilling to cooperate with the prosecution authorities. CEDAW also expressed concern at the prevalence of trafficking for the purpose of sexual and labour exploitation of migrant women and the insufficient enforcement of the regulatory framework expressed, as well as the negative repercussions of the new visa regime on migrant women coming from the European Union (EU) countries who are increasingly trafficked for exploitation in private apartments (CEDAW/C/CYP/CO/6-7, 1 March 2013, paragraph 19). The Committee asks the Government to provide information as follows:

(i) the legal proceedings instituted, the infringements noted and sanctions imposed on employers found to be in violation of the legal provisions relating to workers’ statutory rights vis-à-vis undocumented foreign workers;
(ii) the effect of the inspection activities on migrant workers found in an irregular situation;
(iii) the measures taken to detect, prevent and suppress trafficking in persons for exploitation in private households;
(iv) the nature and number of the infringements notes and administrative, civil and penal sanctions imposed in respect of the illegal employment of migrants, and in respect of the organization of irregular migration, including trafficking in persons. Please also indicate the arrangements on the national or international level by which the authors of trafficking in persons can be prosecuted whatever the country from which they exercise their activities;
(v) any measures taken for systematic contact and exchange on irregular migration with States other than those of the European network, and the consultation of representative organizations of workers and employers with respect to any legislative and policy measures provided for in the Convention to prevent and eliminate migration in abusive conditions.

Article 9. Rights arising out of past employment of migrant workers in an irregular situation. The Committee notes from the Government’s report that complaints submitted to the Department of Labour indicated a downward trend: in 2008, 1,658 complaints were submitted; in 2009, 1,590 complaints; in 2010, 1,515, while in 2011, the number of complaints decreased to 1,175. The complaints examined during these years were 1,003, 1,098, 1,081 and 799 respectively. The Committee asks the Government to continue to supply information on complaints submitted to the Department of Labour and indicate whether these were submitted by the worker or the employer and dealt with rights arising out of past employment with respect to remuneration, social security or other benefits. The Committee would be grateful if the Government could furnish copies of legal decisions ordering the payment of outstanding wages to migrant workers found to be illegally employed for the period worked. Please also specify any other measures taken by the Department of Labour Relations to ensure that third-country nationals in an irregular situation can claim their rights arising out of past employment in accordance with Article 9 of the Convention.

Article 8. Legal status in the case of loss of employment. The Committee asks the Government to provide information on the legal status of third-country nationals lawfully in the country who lose their employment before their employment contract has expired, and their right to enjoy equality of treatment with nationals in terms of security of employment, the provision of alternative employment, relief work and retraining.

Articles 10 and 12. National equality policy. The Committee notes the Government’s statement that the number of migrant workers from EU countries and (third) countries has continued to increase in all sectors of the economy and constitutes 20 per cent of the workforce. The Committee notes the legislative framework on non-discrimination and equality, the Action Plan for the Integration of Immigrants who are Legally Residing in Cyprus (2010–12), which has “employment, training and trade unions” as one of the priority areas for action. It also notes the Strategy on the Employment of Foreign Workers (2007), which contains provisions regarding equal treatment between local and foreign workers as regards terms and conditions of employment, and the engagement of the workers’ and employers’ organizations in the formulation and application of the Strategy. The Committee is nonetheless aware of the impact of the economic crisis on the national labour market, including job cuts and downsizing in important sectors such as tourism (hotel and restaurants) and construction. The Cyprus Equality Authority has also found violations of the principle of equality of treatment in the hotel industry. The Committee asks the Government to provide information on the proactive measures taken or envisaged to ensure the observance of the principle of non-discrimination and equality of opportunity and treatment in practice, and to assist migrant workers and their families to make use of the equal opportunities offered to them, in line with the measures set out in Article 12 of the Convention. In this regard, please provide information on the measures taken, and their impact, to implement the Action Plan for the Integration of Migrants and the Strategy on the Employment of Foreign Workers, and on the involvement of workers’ and employers’ organizations in this context.

Article 14(a). Free choice of employment and employment restrictions. The Committee notes that the Strategy on the Employment of Foreign Workers targets temporary migration of third-country nationals and contains provisions regarding a maximum percentage of third-country nationals of the employed population (set at 7 per cent in 2008) and the distribution of the maximum percentage by sector of economic activity. It further notes from the information provided by the Government that the temporary work permit of third-country nationals is tied to a specific occupation and the employer mentioned in the employment contract, and that the worker is not allowed to change employer and place of employment without permission of the competent authorities (The Brochure of Rights and Obligations on Foreign Employees) (Third Country Nationals) of the Department of Labour. However, the Government also indicates that third-country nationals have the right to change employer after the first year of employment and the expiration of the employment contract but that this right is limited to the same occupation or economic activity. The Committee recalls that Article 14(a) of the Convention allows States to make the free choice of employment subject to temporary restrictions only during a prescribed period which may not exceed two years. While taking due note of the legislative and policy measures allowing nationals of the EU and of the European Economic Area (EEA), as well as third-country nationals with long-term residence free access to employment, the Committee nonetheless considers that restricting the right to change employment to a specific occupation or economic activity limits the access of migrant workers to employment beyond the period permitted in Article 14(a) of the Convention. The Committee therefore asks the Government to bring its law and practice into line with the Convention and take the necessary steps to amend the legislation to ensure that third-country nationals who have resided in the country for two years enjoy equality of treatment with nationals as regards access to employment, and to provide information on any steps taken in this regard. The Committee also asks the Government to indicate whether the maximum percentages of third-country nationals of the employed population and by sector of economic activity affects third-country nationals already residing in the country and seeking employment. Please provide information, disaggregated by sex and nationality on the number of third country nationals with employment and residency permits exceeding two years.

Article 14(b). Recognition of diplomas and qualification. The Committee notes that Law No. 31(I) of 2008 on recognition of professional qualifications harmonized the national legislation with the Directive of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (2005/36/EC). The Committee understands that the Equality Authority is examining bureaucratic obstacles and non-recognition of diplomas of competent institutions from certain EU countries, for example in the nursing sector, and asks the Government to provide information, including any studies or surveys, on any obstacles encountered in practice regarding the recognition of diplomas and qualifications of EU citizens and third-country nationals. Please also indicate the relevant legislation regarding recognition of professional qualifications of third-country nationals.

Article 14(c). Restrictions in the interest of the State. The Committee notes that the Law on Foreigners and Immigration provides for equal treatment of third-country nationals with a long-term residence permit with nationals in respect of access to wage employment and independent professional activities, as long as these activities do not concern, even occasionally, the public service (section 18JG(1)(a)). With respect to EU citizens, the Committee notes that pursuant to section 31(a) of the Public Service Law 1990–2006 they can be appointed to the public service provided that the post is not one that involves the exercise of public authority and the responsibility for the safeguarding of the general interests of the State. However, it also notes from information published on the website of the European Commission that there appear to be no EU nationals in public service, except in the area of public education, and that language requirements represent a serious obstacle for the access to employment of EU migrant workers ((European Report: Freedom of Movement of Workers 2010–11, pages 68 and 79). The Committee asks the Government to take the necessary steps to ensure that restrictions on the access of third-country nationals to employment are related to “limited categories of employment and functions” and necessary “in the interest of the State” in line with Article 14(c) of the Convention. It also requests the Government to specify the type of posts that involve the exercise of public authority and the responsibility for the safeguarding of the general interests of the State. Please also provide information on the nature and number of complaints against public sector institutions regarding unequal treatment, including those related to language requirements of EU citizens, with respect to employment addressed by the Equality Authority.

Enforcement. The Committee notes that foreign workers can file a complaint with the regional offices of the Department of Labour Relations with respect to violations of terms and conditions of employment. With regard to complaints submitted to the Equality Authority, the Committee notes that in its 2010 Annual Report, the Equality Authority drew attention to the low number of complaints submitted by foreigners taking into account the large number of foreigners working in Cyprus and the possible difficulties that exist for them in claiming their rights in the field of employment and work (Cyprus Equality Authority, Annual Report 2010, page 42). The Committee notes from the Authority’s Annual report for 2011 that the percentage of European citizens submitting complaints rose to 15 per cent (11 per cent in 2010), while the percentage of immigrants from third countries submitting complaints rose to 14 per cent (from 11 per cent in 2010). The Committee also notes that Law No. 58(1)/2004 on Equal Treatment in Employment and Occupation, while protecting all persons from discrimination based on racial or ethnic origin in employment, does not cover differences in treatment based on nationality (section 5) but that “national origin” is included in the mandate of the Equality Authority (Law on Combating Racial and other Discrimination (Ombudsman) Law No. 42(I) of 2004). The Committee asks the Government to clarify whether nationality-based discrimination is actionable under Cypriot law, and to provide information on the type and number of complaints submitted to the regional offices of the Department of Labour Relations and the Equality Authority relating to discrimination based on nationality or national origin, as well as race and ethnic origin, relating to employment and occupation. Please also provide information on any measures taken to strengthen the ability of foreign workers to claim their rights in respect of non-discrimination and equality of opportunity and treatment.