Demande directe (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention (n° 143) sur les travailleurs migrants (dispositions complémentaires), 1975 - Philippines (Ratification: 2006)

Autre commentaire sur C143

Demande directe

2022
2012
2009

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The Committee notes the Government’s reports received in 2017 and 2021, and its report on the Migration for Employment Convention (Revised), 1949 (No. 97) which contains information relevant to the application of Convention No. 143.

Article 1 of the Convention. Basic human rights of all migrant workers. In reply to the Committee’s previous comment, the Government indicates, in its reports, that the pre-employment and pre-departure orientation seminars delivered by the Philippine Overseas Employment Administration (POEA) and the Overseas Workers Welfare Administration (OWWA) provide overseas Filipino workers with a basic overview of labour laws, employment contracts and rights as foreign workers, country-specific information, understanding local culture and customs, best financial practices to make the most out of their overseas employment, and the mechanisms to request assistance from Philippine Embassies and Consulates. The Committee further notes, the Government’s indication that, in February 2017, the Department of Labor and Employment (DOLE), through the International Labor Affairs Bureau, established a 24/7 Assistance to Migrants and their Families Desk (AMD), which was renamed the Overseas Filipino Workers’ Command Centre, to serve as the central referral action hub for all migrants’ concerns needing immediate action and assistance. The Centre is open for walk-ins and also available for email, text, and telephone requests, and is accessible through social media and online messaging platforms. However, the Committee notes that the Government’s reports are silent on the issue of migrant workers in an irregular situation, and recalls that under Article 1 of the Convention, the basic human rights of all migrant workers, including those in an irregular situation, must be protected. Noting the absence of information provided in this regard, the Committee requests the Government to provide information on: (i) the percentage of overseas Filipino workers that participated in the pre-departure, pre-employment and post-arrival orientation seminars organized by the various institutions, and on whether these orientations include information on the available mechanisms for complaints and redress in the country of origin; (ii) any measures taken to ensure respect of basic human rights of migrant workers in an irregular situation; and (iii) the practical application of section 4 of Republic Act (RA) No. 10022, including the list of host countries determined on the basis of this provision.

Household service workers. With reference to its previous comment, the Committee notes that the Government does not explain the reasons for imposing an age limit of 23 years for the deployment of household workers. The Committee therefore reiterates its requests that the Government explain the reasons for imposing an age restriction on the deployment of household service workers and to indicate whether such age restrictions have been imposed on other, male predominant, sectors in which Filipino overseas workers are deployed. Please also indicate whether any consideration is being given to lifting the age restriction on the employment of household service workers, with a view to ensuring respect for the basic human rights of all workers, including the right to non-discrimination, and to report on any progress made in this regard. Finally, the Committee requests the Government to provide specific information on the measures taken to ensure protection of human rights of female overseas workers, including of household service workers, and their impact.

Restrictions on trade union activities. The Committee notes the Government’s indication, in reply to its previous comment, that House Bill No. 4448, “An Act Allowing Aliens to Exercise their Right to Self-Organization and Withdrawing Regulation of Foreign Assistance to Trade Unions, amending for the purpose the Labour Code”, proposes to amend the Labor Code so as to allow all migrant workers and foreign organizations to engage in trade union activities in the Philippines. However, as noted in the observation it adopted in 2020 on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the proposed amendment has been pending for 10 years and no substantial progress has been made to adopt the pertinent legislation. The Committee also notes, from the Government’s fifth periodic report under the International Covenant on Civil and Political Rights (ICCPR), that the Government explains the absence of any amendment made to the law by stating that the principle of reciprocity is a universally accepted principle in international relations (CCPR/C/PHL/5, 3 October 2019, para. 98).The Committee recalls that Article 1 of the Convention is not subject to reciprocity, and applies to all migrant workers, including those in an irregular situation; the basic human rights referred to in this article including freedom of association and the right to organize (General Survey on migrant workers, 1999, paragraphs 296–297). The Committee refers to its comment on Convention No. 87 and requests the Government to take the necessary steps to amend sections 269 and 272(2) of the Labour Code without delay.

Article 2. Measures to detect migration in abusive conditions, and illegal employment of migrants. With reference to its previous request, the Committee notes the statistics provided by the Government in its reports. It notes that, as of December 2013, 1,161,830 overseas Filipinos (11.3 per cent of the total estimated number of overseas Filipinos) were in an irregular situation (they were 704,916 – or 8 per cent – in December 2010). The Committee further notes the Government’s indication that the Bureau of Immigration is the main government agency looking into the existence of illegally employed migrants, but that no information is provided by the Government on the number of irregular migrant workers present in the Philippines. The Committee requests the Government to provide information on the activities of the Bureau of Immigration and the Legal Assistant for Migrant Workers’ Affairs in detecting migration in abusive conditions; as well as statistical information, disaggregated by sex, on: (i) the number of foreign workers that have entered or are employed in the Philippines in an irregular situation; and (ii) the number of overseas Filipino migrant workers in an irregular situation. Noting the absence of information provided in this regard, the Committee again requests the Government to: (i) indicate how workers’ and employers’ organizations are being consulted and enabled to furnish information; and (ii) confirm that, through the shared government information system, it is able to effectively detect whether any migrant workers depart from, transit or arrive in the country in abusive conditions, or are illegally employed.

Articles 3 and 4. Measures to prevent and address irregular migration and the illegal employment of migrant workers. With reference to its previous comment, the Committee notes the Government’s information on the amendment, in 2016, of the POEA Rules and Regulations Governing the Recruitment and Employment of Land-based and Sea-based Overseas Filipino Workers, which set out the policy on illegal recruitment and enumerate the requirements and processes for recruitment agencies to secure licenses and legal assistance to overseas Filipino workers, among others. The Government further indicates that the Inter-Agency Council Against Trafficking (IACAT) has a total of 24 task forces (2 national, 16 regional and 6 port-based task forces). The Committee welcomes the Government’s indication that, in 2013, the Commission on Filipinos Overseas (CFO) became a permanent member of the IACAT. The Committee also notes, from the Government’s report on Convention No. 97, that the POEA has been conducting seminars to raise awareness and educate against illegal recruitment and trafficking in persons among key stakeholders, including law enforcers and prosecutors. It has also developed several informational materials such as printed flyer posters discussing preparations to work abroad, identifying illegal recruiters and their modus operandi and replying to frequently asked questions on overseas employment, among others. It launched different social media campaigns and audio visual presentations to cater to wider audiences, providing tips on the legal procedure to apply for overseas employment and on how to avoid illegal recruitment.The Committee notes, however, that no information is provided on the activities of the IACAT and the other institutions responsible for preventing and addressing migration in abusive conditions. The Committee therefore again asks the Government to provide information on: (i) the activities and measures taken by the various institutions, including the CFO, the IACAT, the Migrant Workers’ and Overseas Filipinos Resource Centres (MWRC) in the host countries, the POEA, the Bureau of Immigration, the Philippines Centre of Transnational Crimes and the Interpol Department to prevent and address migration in abusive conditions and against the organizers of such movements, including measures to enhance cooperation and mutual assistance among foreign countries; (ii) the results achieved by the said measures; and (iii) any specific legal and practical measures adopted against those who are employing workers who have migrated under irregular conditions into the Philippines.

Article 5. Authors of trafficking for labour purposes. The Committee notes, from the Government’s report on the ICCPR, the organization of the 5th Bilateral Meeting between the Philippine National Police and the Royal Malaysian Police, held in May 2017, as part of the Government’s efforts to cooperate with foreign governments to combat human trafficking. The Government also mentions that, with support from the ILO and the Australia-Asia Program to Combat Trafficking in Persons (AAPTIP), it conducted the ASEAN Regional Workshop on Effective Investigation and Prosecution of Trafficking in Persons for Labour Exploitation in June 2017. The workshop focused on sharing and documenting regional and national best practices; on proper identification of cases; on investigation and prosecution of trafficking in persons cases involving labour trafficking; and on available legal remedies for migrant workers (CCPR/C/PHL/5, 3 October 2019, para. 70(l) and (m)). The Committee welcomes these efforts and requests the Government to provide information on: (i) any new arrangements at national or international level to ensure that traffickers for labour purposes can be prosecuted regardless of the country they operate from; and (ii) the concrete results achieved by this international cooperation in terms of international investigations and prosecutions.

Article 6. Civil, penal and administrative sanctions. The Committee notes the Government’s indication, in reply to its previous comment, that, between 2011 and 2015, the POEA filed 715 cases of illegal recruitment with the Department of Justice for the conduct of preliminary investigations. POEA lawyers appeared as special counsels during preliminary investigations in 325 of these cases and as special collaborating prosecutors in 48 cases filed in court. The Government also indicates that, between 2010 and 2015, 48 establishments were ordered to close by the POEA Administrator for engaging in illegal recruitment practices; and that the IACAT reported 238 convictions for violation of the anti-trafficking law, involving 262 convicted persons. The Committee requests the Government to continue to provide information on (i) any proceedings regarding illegal recruitment and trafficking in persons (indicating the details of the case, the outcome of the proceeding and any remedies granted and penalties imposed); and (ii) the number of licences of private recruitment agencies that have been suspended, cancelled or revoked because of illegal recruitment practices.

Article 7. Consultation with employers’ and workers’ organizations. The Committee notes the Government’s general indication that the POEA has been convening tripartite meetings and promoting inclusive participation of all its stakeholders, whether workers’ or employers’ representatives. The Government also mentions that the Overseas Landbased Tripartite Consultative Council (OLTCC) and the Maritime Industry Tripartite Council (MITC) have been involved on issues relating to migrant workers. The Committee requests the Government to provide: (i) information on the results achieved by these tripartite meetings, in terms of preventing and eliminating migration in abusive conditions; and (ii) additional information on how employers’ and workers’ organizations, from the Philippines or in host countries, are being consulted with respect to measures taken to prevent and eliminate migration in abusive conditions referred to in Article 2 of the Convention, and their possibility of taking initiatives to this end.

Article 8. Legal status in the case of loss of employment. In reply to the Committee’s previous request, the Government merely states that termination from employment of foreign workers does not automatically classify their stay as illegal or irregular. The Committee requests the Government to provide information on: (i) how sections 40 and 41 of the Labour Code are applied in practice, and if a migrant worker who loses his employment automatically loses his work or residency permit; and (ii) the measures taken to ensure that migrant workers enjoy equality of treatment with nationals, in particular with respect to guarantees of security of employment, the provision of alternative employment, relief work and retraining (Article 8(2) of the Convention).

Article 9(1), (2) and (3). Equality of treatment in respect of rights arising out of past employment. The Committee notes the absence of information provided on this point and reiterates its request that the Government indicate the specific provisions in the national legislation ensuring that: (i) migrant workers whose situation cannot be regularized enjoy equality of treatment with respect to rights arising out of past employment as concerns remuneration, social security and other benefits; (ii) the workers concerned have the possibility to present their case to a competent body; and (iii) the costs of expulsion are not borne by the migrant workers or their family.

Article 11. Definition of migrant worker. In reply to the Committee’s previous request, the Government indicates that the maximum periods for the purpose of Article 11(2)(b) and (e) of the Convention, is the period for which a person enters the country for tourism or business without the need for a visa, which for most countries is a maximum period of 30 days. The Committee requests the Government to confirm that beyond 30 days and after obtaining a working visa, the worker becomes covered by the Convention.

Article 14(a). Free choice of employment. With reference to its previous comment, the Committee notes the Government statement that the employer’s name is indicated in the Alien Employment Permit (AEP) Card and that therefore, any transfer of employment within the validity period of the AEP requires its cancellation and issuance of a new one that reflects the new employer or company. The Committee recalls that Article 14 of the Convention allows for general restrictions on the free choice of employment for a period not exceeding two years and considers that provisions which prohibit the transfer of a work permit to another employer run counter to the principle of equality of treatment between foreign and national workers, when continuing past the maximum period of two years (see the General Survey on Promoting fair migration, 2016, para. 354-359). The Committee therefore once again requests the Government to indicate whether any employment restrictions exist on foreign nationals with respect to the free choice of employment beyond the two-year period permitted under Article 14(a) of the Convention.

Article 15. Bilateral agreements.The Committee refers to its comments on Convention No. 97 and requests the Government to continue to provide information on the conclusion of bilateral agreements and other arrangements, including information on their impact.

Practical application and enforcement. The Committee notes, from the concluding observations of the United Nations Committee on the Protection of the Rights of All Migrant Workers (CMW), that the existence of several departmental information systems results in a lack of centralized disaggregated data to evaluate the effective implementation of the measures in place, particularly with regard to Filipino migrant workers abroad and their conditions of employment, the situation of returnees, migrants in transit, women and unaccompanied child migrants and foreign migrant workers, including seasonal migrant workers (CMW/C/PHL/CO/2, 2 May 2014, para. 18). The CMW also expressed its concern over the persistence of some obstacles to access to justice, including delays in proceedings, corruption and abuse of authority, such as in the cases of exploitation of distressed Philippine women workers abroad by some foreign service, labour and welfare personnel. It further expressed concern over the lack of legal assistance in cases of illegal recruitment, the limited access to the Legal Assistance Fund, and the low number of complaints reported to the POEA and the Philippine Overseas Labour Office. Finally, the CMW noted the insufficient numbers and the inadequate awareness of the diplomatic and consular staff abroad about the remedies available in countries of employment (CMW/C/PHL/CO/2, para. 24). The Committee requests the Government to provide information on: (i) any measures envisaged to centralize the collected data on migrant workers in order to better assess the situation, identify issues and support migrant workers; (ii) the practical application of the provisions of the Convention, including on any inspection activities carried out by the POEA, and the number and nature of contraventions reported and penalties applied concerning illegal recruitment, migration in abusive conditions and trafficking in persons; and (iii) any complaints submitted to the competent authorities by Filipino migrant workers or foreign workers in the Philippines, who are in an irregular situation, regarding non-respect of their basic human rights, and the available mechanisms for redress.