Observation (CEACR) - adoptée 2015, publiée 105ème session CIT (2016)

Repetition

The Committee notes the observations from the International Trade Union Confederation (ITUC) of 31 August 2011 and 31 August 2012, as well as the Government’s reply to these observations received on 5 December 2012.

Articles 1(1), 2(1) and 25 of the Convention. 1. Trafficking in persons. The Committee previously requested information on the application of the Human Trafficking and Transportation (Control) Act of 2007 in practice, as well as on the measures taken to prevent, suppress and punish trafficking in persons.

The Committee notes the statement in the ITUC’s communication that the Government should take action to enforce the provisions of the Human Trafficking and Transportation (Control) Act of 2007. The ITUC also states that the legal framework should be reviewed to ensure that those involved in trafficking and forced labour can be effectively prosecuted and that the punishments are commensurate with the crimes committed.

The Committee notes the Government’s statement that the Ministry of Women, Children and Social Welfare is reviewing the progress of the National Plan of Action (NPA) against trafficking in children and women, in close collaboration with development partners and other key stakeholders. The Government also indicates that it is implementing a country programme on trafficking in persons, in close collaboration with various NGOs, focusing on prevention, prosecution and protection mechanisms. However, the Committee notes with concern the absence of information in the Government’s report on the application of the Human Trafficking and Transportation (Control) Act of 2007. The Committee further notes that the Committee on the Elimination of Discrimination against Women (CEDAW), in its concluding observations of 11 August 2011, expressed concern about the lack of effective implementation of the Human Trafficking and Transportation (Control) Act, 2007 (CEDAW/C/NPL/CO/4-5, paragraph 21). The Committee urges the Government to strengthen its efforts to combat trafficking in persons, including within the framework of the NPA against trafficking in children and women, and to provide information on the specific measures taken in this regard. It requests the Government to provide, in its next report, information on measures taken to enforce the Human Trafficking and Transportation (Control) Act of 2007 in practice, and on the impact achieved, particularly the number of investigations, prosecutions and convictions. Moreover, recalling that Article 25 of the Convention provides that the illegal exaction of forced or compulsory labour shall be punishable by penalties that are really adequate and strictly enforced, the Committee requests the Government to provide information on the specific penalties imposed on persons convicted under the Human Trafficking and Transportation (Control) Act, 2007.

2. Vulnerability of migrant workers to conditions of forced labour. The Committee previously noted the ITUC’s communication which outlined migrant workers’ vulnerability to trafficking and forced labour. The Committee requested information on the measures taken to protect migrant workers from exploitative practices amounting to forced labour.

The Committee notes that the ITUC, in its more recent communications, expresses concern that recruitment agencies and brokers are involved in the trafficking of Nepalese migrant workers and their subsequent exploitation in conditions of forced labour. The ITUC refers to a study of returned migrant workers, which found that recruitment agencies were routinely involved in the trafficking of migrant workers: the majority of migrant workers interviewed for this study were deceived concerning a substantial aspect of their employment terms, and many faced high recruitment fees and subsequent debt, the confiscation of their passports, threats, physical and verbal abuse. The ITUC states that the Government has not taken appropriate action in its own jurisdiction to reduce and eliminate the incidence of forced labour and highlights that the effective enforcement of the Foreign Employment Act would significantly reduce migrant workers’ vulnerability to forced labour. While the Foreign Employment Act regulates the activities of recruitment agencies, this Act is not effectively enforced to punish recruitment agencies who repeatedly violate the Act. The ITUC states that the Government has failed to adequately monitor and punish recruitment agencies for failing to comply with their responsibility under the Foreign Employment Act and that, despite widespread violations, only 14 recruitment agencies have been fined under the Act. The ITUC also indicates that, while in August 2012, the Government banned women under the age of 30 from migrating for domestic work in Kuwait, Qatar, Saudi Arabia and the United Arab Emirates, these bans are likely to have the unintended outcome of increasing risks for these women who will continue to seek work through informal routes. Furthermore, the ITUC states that the measures taken by the Government to combat trafficking have not addressed the wider problems of trafficking for labour exploitation which affects migrant workers. The ITUC further alleges that complaints and compensation mechanisms are largely inaccessible to most migrant workers. Lastly, the ITUC references a research study which indicated that the several heads of recruitment agencies admitted to paying bribes to government officials. The ITUC states that the Government must establish an independent body to carry out a prompt, thorough and impartial investigation into allegations of bribery and corruption relating to migration for foreign employment, including of government officials.

The Committee notes the Government’s statement that, in collaboration with the ILO, the Ministry of Labour and Transport Management implemented a project entitled “Protection of Nepalese migrant workers from forced labour and human trafficking” from June 2009 until September 2011. The Government states that major accomplishments of this project include: (i) the translation and promotion of ILO Conventions related to forced labour; (ii) the revision of the foreign employment regulations; (iii) increased compensation for migrant workers who are victims; (iv) strengthening of the data and information system in the Department of Foreign Employment and Foreign Employment Tribunals; (v) trainings for the concerned government officials and stakeholders on issues of forced labour, human trafficking, the monitoring of recruitment of migrant workers and the role of labour attachés; and (vi) partnerships with the association of foreign employment recruitment agencies to promote ethical recruitment procedures and the implement its code of conduct. The Committee also notes the implementation of an ILO project entitled “Preventing trafficking of women and girls for domestic work” from November 2011 to June 2012. According to information from the ILO Special Action Programme to Combat Forced Labour (SAP FL) of August 2012, results from this project include: (i) awareness raising on safe migration and trafficking as well as training to women and girls on these subjects; (ii) the production and distribution of 13,000 brochures and 9,000 posters on safe migration and the risks of human trafficking and forced labour for domestic work; (iii) the provision of training to governmental and non governmental representatives on anti-trafficking; (iv) preliminary steps towards developing a skills-building programme to at-risk or former victims of trafficking; and (v) training for law enforcement officials on countering trafficking for forced labour. Furthermore, the Committee notes that in its reply to the ITUC observations, the Government outlines a series of measures it has taken to protect migrant workers. These include awareness-raising measures; an action plan to highlight fraudulent activities in foreign employment; memoranda of understanding signed with major destination countries; as well as an effort to set up the scales of minimum wages of Nepalese migrant workers.

The Committee takes due note of the measures taken by the Government. However, the Committee notes that CEDAW, in its concluding observations of 11 August 2011, expressed concern about the situation of Nepalese women migrant workers and in particular, the fact that a large number of Nepalese women are undocumented, which increases their vulnerability to sexual exploitation, forced labour and abuse. It also expressed concern at the limited initiatives to ensure pre departure information and skills training as well as the lack of institutional support both in Nepal and in countries of employment to promote and protect the rights of Nepalese women migrant workers (CEDAW/C/NPL/CO/4-5, paragraph 33).

The Committee recalls the importance of taking effective action to ensure that the system of the employment of migrant workers does not place the workers concerned in a situation of increased vulnerability, particularly where they are subjected to abusive employer practices, such as retention of passports, non-payment of wages, deprivation of liberty and physical and sexual abuse. Such practices might cause their employment to be transformed into situations that could amount to forced labour. The Committee therefore urges the Government to pursue its efforts to ensure that migrant workers are fully protected from abusive practices and conditions that amount to the exaction of forced labour, including through the effective application of the Foreign Employment Act. The Committee requests the Government to provide, in its next report, information on the application of the Foreign Employment Act in practice, particularly the number of violations reported, investigations, prosecutions and the specific penalties applied. Expressing its concern at allegations of complicity of government officials, the Committee urges the Government to redouble its efforts to ensure that perpetrators of trafficking in persons and forced labour of migrant workers, and complicit government officials, are investigated and prosecuted and that sufficiently effective and dissuasive penalties are imposed in practice. Lastly, the Committee requests the Government to continue to provide information on steps taken in this regard, particularly on measures adopted specifically tailored to the difficult circumstances faced by migrant workers, including measures to prevent and respond to cases of abuse of migrant workers and to grant them access to justice, as well as to other complaints and compensation mechanisms.