COMMITTEE ON PROTECTION OF RIGHTS OF MIGRANT WORKERS HOLDS ROUNDTABLE DISCUSSION ON THE RIGHT TO FREEDOM OF ASSOCIATION FOR MIGRANT WORKERS

The Committee on the Rights of All Migrant Workers and Members of Their Families marked Labour Day this morning by holding a roundtable discussion on the right to freedom of association for migrant workers, during which representatives of intergovernmental organizations and labour unions addressed the importance of the right to freedom of association for migrant workers, including those in an undocumented situation.

Abdelhamid El-Jamri, Chairperson of the Committee, said that in its consideration of States’ reports, the Committee had noted that many migrant workers faced obstacles in exercising their right to freedom of association, and in particular, their right to join and form trade unions. He also noted that the right to association varied from country to country. The roundtable was an opportunity to call on States parties to take the necessary legislative measures to provide for the rights of migrant workers to be part of and form trade unions.

Ngonlardje Mbaidjol, Special Adviser to the High Commissioner for Human Rights, said that non-discrimination and equality of opportunity and treatment for all workers were central principles cutting across labour standards and human rights treaties. The reality for migrants, especially irregular and undocumented migrants, was often of discrimination and at times exploitation and abuse. The right to freedom of association and the right to join and form trade unions were essential rights to ensure that workers could organize themselves to promote and defend their rights.

Cleopatra Doumbia-Henry, Director of the International Labour Standards Department at the International Labour Organization, said that the International Labour Organization had at its core the protection of workers, as well as the protection of the human rights of migrant workers. The right to freedom of association was enshrined in the 1919 International Labour Organization Convention. The effective application of trade union rights of migrant works remained a challenge and the current economic crisis had even further increased the need for vigilance.

Wol-San Liem International Solidarity Coordinator at the Migrants Trade Union of South Korea, said that her organization, founded in 2005 by undocumented migrant workers, was an independent union for migrant workers and its current members were both documented and undocumented. Migrants Trade Union was unique and had a great significance for several reasons. It demonstrated that migrant workers could and should be unionized. It had also been a leading voice calling for an end to crackdown against undocumented migrants and fighting regressive revision in labour and immigration legislation affecting both documented and undocumented migrant workers.

Marion Hellmann, Assistant Secretary-General of Building and Wood Workers’ International, noted that when migrant workers had the right to create unions they could improve their situation and start negotiating fair wages with their employers. Decent work should be available for all and everywhere. Migrant workers had the right to be treated like all other workers. He also noted that trade unions had been hesitant in the past to help migrant workers to organize, but this situation was changing now.

When the Committee reconvenes this afternoon at 3 p.m. it is scheduled to adopt its concluding observations and recommendations on the four country reports which it considered during the session and to adopt its annual report, before closing its tenth session.

Statements by Panellists in Roundtable

ABDELHAMID EL-JAMRI, Chairperson of the Committee, said that the Committee was currently holding its tenth session, during which they had reviewed four States parties’ reports. The Committee had become accustomed to work on the issue of the promotion of the Convention. During their sessions, they were also taking time to reflect on various themes related to migrant workers in order to help to make headway in the promotion of the Convention; this was the goal of the current roundtable.

In its consideration of States reports, the Committee has noted that many migrant workers faced obstacles in exercising their right to freedom of association, and in particular, their right to join and form trade unions, said Mr. El-Jamri. He also noted that the right to association varied from country to country. In northern countries for example, the right to association for migrant workers was existent while it was not the case in other countries. It was important for unions to take into account the specificities of migrant workers.

Mr. El-Jamri said that the roundtable was also an opportunity to call on States parties to take the necessary legislative measures to provide for the rights of migrant workers to be part of and to form trade unions. It was important to meet today to celebrate the first of May and to discuss the right to freedom of association for migrant workers.

Mr. El-Jamri also called on professional organizations to provide solidarity. Migrant workers played an important role in host countries and in development. Migrant workers were not only arms that provided work: they were also human beings.

Ngonlardje Mbaidjol, Special Adviser to the High Commissioner for Human Rights, thanked the Committee on behalf of the High Commissioner for Human Rights for taking the initiative of organizing the roundtable. Non-discrimination and equality of opportunity and treatment for all workers were central principles cutting across labour standards and human rights treaties. The reality for migrants, especially irregular and undocumented migrants, was often of discrimination and at times exploitation and abuse.

The right to freedom of association and the right to join and form trade unions were essential rights to ensure that workers could organize themselves to promote and defend their rights. This was all the more important for particularly vulnerable categories of workers, including migrant workers, said Mr. Mbaidjol. Freedom of association and the effective recognition of the right to collective bargaining was one of the four core labour standards recognized by the International Labour Organization. Similarly, the Universal Declaration of Human Rights stated that everyone had the right to form and join trade unions for the protection of their interests.

Further, all human rights bodies agreed that all migrants, irrespective of their immigration status, should enjoy the right to join trade unions and defend their interests, noted Mr. Mbaidjol. In spite of the guarantees provided for by the international human rights standards, the laws in some countries limited the right to form and join trade unions only to citizens or only documented migrants. National laws sometimes also included restrictions on involvement in trade union activities for workers in the informal sector, where migrants were significantly present. Human rights treaty bodies had expressed concerns about the limitations to the right to form and join trade unions for migrant workers.

Migrant workers did not only suffer from legal obstacles to the right to form and join trade unions, said Mr. Mbaidjol. Human rights mechanisms had expressed concern at attacks against migrants, including arrests, detentions and exportations, for their engagement in trade union activities. The implementation of the rights of migrant workers to form and join trade unions remained problematic, both in terms of legislation and practice. There were also some grey areas, especially with regard to non-documented or irregular workers which could benefit from further analysis and guidance from the Committee, in close cooperation with other treaty bodies and International Labour Organization mechanisms.

Cleopatra Doumbia-Henry, Director of the International Labour Standards Department at the International Labour Organization, said that today was a special day; it was Labour Day. This year was also special as the International Labour Organization was celebrating its 90th birthday. The International Labour Organization had at its core the protection of workers, as well as the protection of the human rights of migrant workers. The right to freedom of association was enshrined in the 1919 International Labour Organization Convention. In 1998, the International Labour Organization adopted a Declaration of Fundamental Principles and Rights at Work, which had further reaffirmed freedom of association as a core enabling right.

International instruments consecrated the rights of migrant workers and particularly the right to freedom of association, said Ms. Doumbia-Henry. Article 2 of International Labour Organization Convention 87 embodied the general principle of freedom of association for all workers. It was designed to give expression to the principle of non-discrimination in trade union matters and the words “without distinction whatsoever” used in this Article meant that freedom of association should be guaranteed without discrimination of any kind. The only permissible exception to Convention 87 concerned the armed forces and the police.

The International Labour Organization had also found that sectors such as agriculture, domestic services and export processing zones often employed a large proportion of migrant workers and the International Labour Organization supervisory bodies had reaffirmed that workers employed in these sectors should not be excluded from their right to freedom of association, said Ms. Doumbia-Henry.

A key principle relating to freedom of association was the protection against anti-union discrimination, embodied in Article 1 of International Labour Organization Convention 98. Anti-union discrimination was one of the most serious violations of freedom of association, as it might jeopardize the very existence of trade unions, noted Ms. Doumbia-Henry. Respect for freedom of association at the workplace went hand in hand with respect for the basic civil liberties and human rights inherent to human dignity.

Concerning the challenges ahead, Ms. Doumbia Henry said that the effective application of trade union rights of migrant works remained a challenge and the current economic crisis had even further increased the need for vigilance. Also, some countries imposed excessive restrictions for migrants to hold posts in trade unions. The International Labour Organization supervisory bodies had requested Governments to amend their legislation in order to ensure full respect of the right of migrant workers to freedom of association.

Despite the clear difficulties, Ms. Doumbia-Henry said that they had seen change. This was positive and one had to also look at the positive aspects. As an example of good practice, she cited Austria where the industrial relations act had been amended to allow foreign workers to stand for election in works councils. Other positive developments in this regard had been noted in Lesotho, Spain and Kuwait.

The International Labour Organization was also pleased with the action taken by trade unions. One example was the UNI Passport initiative that was launched by Union Network International which allowed a migrant worker who was already a member of a union in his or her country of origin to be hosted by a UNI member union in the host country. The International Labour Organization had also promoted freedom of association of migrant workers through the publication of a trade union manual on migrant workers’ rights and other initiatives. The International Labour Organization also stood ready to cooperate further with Governments, said Ms. Doumbia-Henry, as well as with workers’ and employers’ organizations, as well as with the Committee on Migrant Workers.

Wol-san Liem, International Solidarity Coordinator at the Migrants Trade Union of South Korea, said that her organization, founded in 2005 by undocumented migrant workers, was an independent union for migrant workers and its current members were both documented and undocumented. The Migrants Trade Union was unique and had a great significance for several reasons. It demonstrated that migrant workers could and should be unionized. It was also a leading voice calling for an end to the crackdown against undocumented migrants and fighting regressive revision in labour and immigration legislation affecting both documented and undocumented migrant workers.

However the Migrants Trade Union also faced considerable challenges, mainly from the negative and repressive stance of the Republic of Korea’s Government towards migrant workers and migrant unionization. As the majority of members and officers of Migrants Trade Union were undocumented, the constant threat of immigration raids created a condition of constant fear and insecurity, as they might be stopped on the street and harassed at any time. In a situation where having to hide from immigration officers on a regular basis could be considered a condition of labour, migrant workers often did not venture far from their homes and factories. It was also challenging to call for union meetings in such conditions and union members were also afraid to speak in public, said Ms. Liem.

The South Korean Government had also carried out direct attacks against the union in the form of refusing to acknowledge the legal union status of the Migrants Trade Union and by targeting arrests and deportation of union leadership. After the South Korean Ministry of Labour had effused to register the Migrants Trade Union, the union had initiated a legal battle, suing for recognition, said Ms. Liem. The Ministry’s position had been initially upheld in a district court decision but had then been overturned by the Seoul High Court. The Ministry had nonetheless appealed this decision to the Supreme Court, where a final decision was pending.

The Migrants Trade Union had started to make use of International Labour Organization and the United Nations complaint mechanisms, said Ms. Liem. In March 2009, the International Labour Organization’s Governing Body had adopted an interim recommendation, in which it recalled the general principle according to which all workers, without distinction whatsoever, should have the right to establish and join organizations of their own choosing. The International Labour Organization Committee on Freedom of Association also recommended that the Republic of Korea’s Government avoid in the future measures which involved a risk of serious interference with trade union activities such as the arrest and deportation of trade union leaders shortly after their election to trade union office and while legal appeals were pending. The Government had however not recognized those rulings.

The Migrants Trade Union’s story carried examples about what it meant to organize in the midst of immigration raids and Government repressions. In addition to demonstrating the hardships that union members and activists had to endure, including everyday fear, brutal arrest, detention and deportation, this was a lesson about the need for flexibility and creativity in organizing strategy, said Ms. Liem. An organization could not become truly effective in protecting migrant workers’ rights until their basic right to freedom of association was respected.

Marion Hellmann, Assistant Secretary-General of the Building and Wood Workers’ International, said that the organization was part of the International Trade Union Confederation, which was working as a global union of federations such as his organization, which counted some 350 trade unions members in the building, building materials, wood, forestry and allied sectors.

During a recent visit in Dubai, Mr. Hellmann had been able to witness what currently was one of the places in the world with the most building sites. Around 30,000 cranes could be seen in the city. He had been impressed by the efforts of the Government to care for migrant workers. However, these were still enduring hardships such as an average workday of ten hours per day and very low salaries. Further, they did not enjoy the right to organize themselves. If they had the right to do so they could improve their situation and start negotiating fair wages with their employers.

Decent work should be available for all and everywhere, stressed Mr. Hellmann. His organization had a right’s based approach to address these issues and they looked at the workplace not only as a workplace but also as a home. His organization was conducting negotiations and campaigns but was also networking and organizing workers worldwide, including migrant workers. He noted that migrant workers were paid less and this created social dumping. Migrant workers had the right to be treated like all other workers.

His union was negotiating with employers, governments and unions to improve the situation of migrant workers, said Mr. Hellmann. They were conducting awareness campaigns for workers and migrant workers. He also noted that trade unions had been hesitant in the past to help migrant workers to organize, but this situation was changing now. When there was no right to organize and no right to collective bargaining, there was no democracy.


Interactive Discussion

In the ensuing discussion between the panellists, Committee Experts, Member States representatives and representatives from the civil society, Venezuela underscored the fact that migrants had to be treated as human beings. Guatemala congratulated the Committee for the initiative to hold this very important meeting and wondered how it was possible to accredit migrants in an irregular situation in a union, without undermining the legitimacy of the union. One Committee Expert wondered if the best practice was to let migrant workers organize their own trade unions or rather to allow them to participate in the existing trade unions. How could the Committee help migrant workers to unionize themselves?

Ms. Doumbia-Henry said that it was important to combine the efforts of the whole United Nations system around these challenges. She noted that while it was important to protect all rights of migrant workers, some had no issue to provide for occupational safety and health as having a group of ill workers often meant a loss of money. However rights such as the right to create a union were often seen as a threat to the employer and to the host country. It was thus important to send a clear message concerning the hierarchy of human rights.

The Dominican Republic said that it might be good to redouble efforts in order to promote the Convention and to convince non-member states that the Convention was a sound document for the promotion of human rights.

Concerning the issue of undocumented workers, Mr. Hellmann noted that in some countries there were non-governmental organizations helping such persons with legal advice, so that they were able to bring their issues to court. In fact, these cases were rather bringing the employer to court as they were the ones that were creating an exploitation situation which had to be addressed.

Mexico underscored the vulnerability of undocumented migrant workers and said that it was important to protect them. What had the International Labour Organization done in specific cases in order to provide assistance to the trade unions?

A Representative of the International Catholic Migration Commission wondered what had been the engagement of countries of origin to protect their nationals abroad and what their responsibility and role was in protecting their nationals abroad.

Mr. Mbaidjol noted that very often the right to freedom of association was not recognized and that migrant workers in an irregular situation very often found themselves in hiding.

Ms. Doumbia-Henry said that the International Labour Organization had reviewed the complaints in the Republic of Korea case and that it was due to return to the case this November, after the matter had been dealt with by the Republic of Korea’s Supreme Court. On the issue of sending countries’ awareness-raising was important and the International Labour Organization was providing specific guidance to sending and receiving Government.

Thailand addressed the issue of trafficking and Ms. Doumbia-Henry said that the International Labour Organization had been working a lot on this issue. They had a major programme on trafficking and had also addressed the issue through the two existing International Labour Organization Conventions on Forced Labour and the Supervisory Bodies were particularly vigilant to this issue.

Conclusions

Ngonlardje Mbaidjol, Special Adviser to the High Commissioner for Human Rights, stressed the fact that it was crucial that multilateral efforts be put in place to advance this agenda. The role of the Office of the High Commissioner for Human Rights was very clear, in the sense that the servicing of the existing systems of protection was something they wanted to share with a broader participation. Freedom of Association was a clear manifestation that rights could be respected if one allowed persons to get together to defend their rights.


WOL-SAN LIEM, International Solidarity Coordinator of the Migrants Trade Union of South Korea, said that from the perspective of someone from the ground, who was writing the complaints, they sometimes wondered why they did this and why they took the time to do it. But today’s discussion had affirmed to her the importance of the instruments in place. She had also been moved and encouraged by the good practices she had heard about today. They had always hoped that their case would not only be about their union and the Republic of Korea, but that it would set a precedent for all migrant workers around the world.

MARION HELLMANN, Assistant Secretary-General of Building and Wood Workers’ International, said that the Committee on Migrant Workers, the International Labour Organization and the Office of the High Commissioner for Human Rights were all doing great work. But the crucial issue remained the implementation and the promotion of the international instruments. It was important to go forward so that things started to move.

ABDELHAMID EL-JAMRI, Chairman of the Committee said that they had looked at various mechanisms today and everyone had expressed concern about the right of freedom of association for migrant workers. Many parties were working to accomplish this right at different levels: from non-governmental organizations to international organizations. But there was perhaps a lack of communication between all groups that were working on this same issue. He proposed to develop a stockpile of arguments they could use when discussing this issue with Governments of countries where this right was not provided for.

Everyone had noted that there was a real difficulty for migrants to access freedom of association. Further there was the issue of undocumented migrant workers. One had to understand that if there were irregular workers, it was because there was a market for that. It was important to look also as to why certain countries closed their borders and thus opened the door for irregular workers. Migrants played a key role in the country, even if they were irregular workers. The issue of freedom of association should not be separated from other rights. All countries, host, transit and receiving countries had an important role to play. It was important to achieve the universal ratification of all three conventions protecting migrant workers. Only then there would be real accountability.



For use of the information media; not an official record


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