The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Article 2, defines a migrant worker as “a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national.” The International Labour Organization (ILO) has noted that:
“The growing pace of economic globalization has created more migrant workers than ever before. Unemployment and increasing poverty have prompted many workers in developing countries to seek work elsewhere, while developed countries have increased their demand for labour, especially unskilled labour. As a result, millions of workers and their families travel to countries other than their own to find work. At present there are approximately 232 million migrants around the world, representing 3,1 per cent of the global population. Women make up almost half of migrants. It is estimated that one in eight migrants are between the age of 15 and 24. Migrant workers contribute to the economies of their host countries, and the remittances they send home help to boost the economies of their countries of origin. Yet at the same time migrant workers often enjoy little social protection, face inequalities in the labour market and are vulnerable to exploitation and human trafficking. Skilled migrant workers are less vulnerable to exploitation, but their departure has deprived some developing countries of valuable labour needed for their own economies.”
Stories of abuse of migrant workers surface regularly across the world. Migrant workers in certain sectors or working in certain states, and in particular those who are undocumented, face specific challenges. Migrant domestic workers, i.e. migrant workers who perform work within an employment relationship in or for a private household or households, are particularly vulnerable to exploitative working conditions which may reach the intensity of slavery or slavery-like conditions, as well as to discrimination, verbal, physical or sexual abuse, and have limited if any access to social protection. Female migrant domestic workers in particular are also vulnerable to sexual and gender based violence and are unable to freely move in and out of the work place. Migrant workers in the fishing industry are particularly at risk as they might work in international waters beyond the jurisdiction of any state, or may operate under specific visa requirements in territorial waters which prevent them from being able to effectively seek support for human rights abuses. Migrant workers in the Gulf countries often have to pay recruitment fees and are subjected to a sponsorship system, which restricts them from changing employers, they often face harsh working and living conditions and are generally prohibited from organising. Recently the government of Qatar and the ILO entered into an agreement to reform the current system.
The key international standards and mechanisms ensuring protection for migrant workers include:
The UN Guiding Principles on Business and Human Rights (UNGPs), Commentary to Guiding Principle 3, highlights that a state, in providing guidance to business enterprises, “should advise on appropriate methods, including human rights due diligence, and how to consider effectively issues of … migrant workers and their families.” The Commentary to Guiding Principle 12 highlights that businesses, in addition to the core human rights standards, may need to consider United Nations instruments on migrant workers and their families.
An important role in protecting migrant workers from abuse can also be played by National Human Rights Institutions (NHRIs). For example, the Asia Pacific Forum has noted that some NHRIs in the region “have established outreach and monitoring programs and some have developed formal Memorandums of Understanding with other NHRIs in the region to strengthen the protections available to migrant workers.”
The UK Gangmasters and Labour Abuse Authority, established by legislation, maintains a licensing scheme which regulates businesses who provide workers to the fresh produce supply chain and horticulture industry, to make sure they meet the employment standards required by law. This industry contains a number of migrant workers in the UK, especially seasonal workers. New Zealand have established a Recognised Seasonal Employer Policy which establishes a formal mechanism for employers to recruit workers to plant, maintain, harvest or pack crops, and formal visa system for the workers, and provides information on human rights protections for all parties.
In the 2030 Agenda for Sustainable Development, migrant workers are explicitly referred to in SDG target 8.8 on protecting labour rights and promoting “safe and secure working environments for all workers, including migrant workers, in particular women migrants, and those in precarious employment”. Target 10c aims to “reduce to less than 3 per cent the transaction costs of migrant remittances and eliminate remittance corridors with costs higher than 5 per cent”. ODI’s publication, Migration and the 2030 Agenda for Sustainable Development draws linkages between the 2030 Agenda recognising the relevance of multiple SDGs for migrant workers. SDGs on equality and non-discrimination (SDGs 5 and 10, and target 16b) are also of direct relevance.
Data disaggregation is the main approach suggested in the 2030 Agenda to monitor unequal progress for different population groups and can help identify challenges specifically relating to migrant workers not only in relation to SDGs 8 and 10 but also in relation to other SDGs, and find solutions to those challenges. The 2030 Agenda includes a specific target (SDG 17.18) to, by 2020, enhance capacity-building and significantly increase the availability of high-quality, timely and reliable data disaggregated by income, gender, age, race, ethnicity, migratory status, disability, geographic location and other characteristics relevant in national contexts. There are significant challenges associated with data disaggregation as well as a significant lack of data. Businesses can help fill some of these gaps through their reporting on relevant issues.
8) Decent Work and Economic Growth
No references.
What National Action Plans say on Migrant workers
Belgium
There is no explicit reference to migrant workers in the Belgian NAP.
Perform a series of actions aimed at the protection and defence of human and labour rights of migrants through:
The identification of migrants that may benefit from State programmes on labour matters.
Training and awareness actions regarding the rights of migrants in the labour market for civil servants, unions and migrant associations.
Action Point 3.2 (page 36)
The Ministry of Social Development will:
Prepare, through the Division of Social Policy of the Under-Secretariat of Social Evaluation, a statistical report about the socio-economic situation of risk groups including migrants, youth, disabled people, women and indigenous peoples, based on the Socio-Economic Qualification (SEQ) including income generated by work, capital and pensions, contained in the Household Social Register, divided by territory (regional division). This has the purpose of having available information regarding vulnerable groups within certain territory.
Migration approach: It is the approach of policies that take into account the migration phenomenon given its effects on the social, cultural, environmental and economic context. As of April 2020, Colombia has received more than 1,825,000 migrants, which has had a direct effect on the labour market and the business environment in Colombia. This leads to the need for this document to take this vision into account.
Most serious infringements of working conditions [page 16-18]
“Implements Principles 1, 2 and 8
Even in advanced countries, we come across cases where employees find themselves in a highly vulnerable position and are required to put up with undignified working conditions, and where their employer, for instance, refuses to pay them. The victims of this abuse are frequently foreign nationals as they have limited opportunity to defend themselves. Evidence of such practices can also be found in the Czech Republic. [The footnote states that “In 2008, an organised group was detected that had been recruiting farmworkers abroad. These recruits, sometimes working between 12 and 18 hours a day, were paid only a fraction of the wages they had been promised (Judgment of the Supreme Court 7 Tdo 1261/2013 of 12 March 2014). In 2009, there was a case where at least 22 construction workers were found to have been enslaved for up to 2 years (Judgment of the Supreme Court 4 Tdo 366/2013 of 14 May 2013). Between 2009 and 2011, there were several cases of large-scale labour exploitation involving up to several hundred workers in the forestry sector (Finding of the Constitutional Court II. ÚS 3436/14 of 19 January 2016 and Finding of the Constitutional Court I. ÚS 3196/12 of 12 August 2014).”] Those working in other people’s households are another risk group. Such actions have fallout for employees, for the state (which is robbed of taxes and insurance contributions), and for honest businesses, who cannot compete with such labour.
Whereas minor cases of labour-law violations are subject to checks by labour inspection bodies, more serious cases can be prosecuted as crimes. However, for these modern-day unfair practices to be detected and prevented effectively, there needs to be coordinated cooperation between many state bodies and social partners. There may be numerous labour-law violations in supply chains, via temporary employment agencies, or at entities that act as recruiters but do not hold a permit to do so. To make it possible to stamp out these most serious forms of abuse, businesses themselves should pay attention to working conditions at their partners and, if they detect any breaches of the law, they should either demand that corrective action be taken or sever ties. The state’s role here is to create a functioning labour market that will not cater to illegal practices. This does not mean just the repression of the perpetrators, but also the shaping of conditions conducive to the legal employment of foreign nationals.
Current state of play:
The Czech Republic has ratified the International Labour Organisation’s Private Employment Agencies Convention (Convention No 181).
Directive 2008/104/EC on temporary agency work, regulating this area at EU level, and Directive 2009/52/EC providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals have been transposed into Czech law.
A methodological guideline of the Inspector General of the State Labour Inspectorate Authority has been issued to harmonise inspection procedures in checks focusing on temporary agency work.
The constituent elements of misdemeanours and administrative offences in labour law are being clarified.
A law is being drawn up that will tighten conditions for the establishment and operation of temporary employment agencies. Users drawing on the services of such agencies are to be made co-responsible for the observance of commensurable wage and working conditions for temporary employees, and compulsory deposits are being introduced for each agency.
The Ministry of Labour and Social Affairs hosts the Interministerial Body to Combat the Illegal Employment of Foreign Nationals, which plays a coordinating role, and the Economic and Social Agreement Council’s Working Party on the Mediation of Employment by Temporary Employment Agencies.
A Concept for the Prevention of the Labour Exploitation of European Union Citizens in the Czech Republic has been produced.
Czech law contains procedures to help victims of human trafficking to legalise their stay [E.g. Section 42e of Act No 326/1999 on the residence of foreign nationals in the Czech Republic and amending certain acts, as amended] and to find work. [E.g. Section 97(d) and Section 98(p) of Act No 435/2004 on employment.] Although victims can take their claims to the civil courts, lawsuits tend to be lengthy and arduous for someone who cannot speak the language, is unfamiliar with the legal system, and does not have the money for a lawyer. In criminal proceedings, victims may be represented by an agent, such as a non-profit organisation. [Section 50 of Act No 141/1961 on criminal proceedings (the Code of Criminal Procedure).]
Under the National Strategy to Combat Human Trafficking in the Czech Republic 2016-2019, an analysis is being conducted of flaws in selected labour-law regulations that could pander to an exploitative working environment (Task 1 of the National Strategy).
Tasks:
Focus, via labour inspection bodies, on unravelling the illegal employment of foreign nationals and running checks on temporary employment agencies and other entities acting as recruiters without the necessary permit.
Coordinator: Ministry of Labour and Social Affairs
Deadline: Running
Evaluate the implementation of Directive 2009/52/EC providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals. The evaluation will include an analysis of the extra administrative burden and the ramifications for businesses.
Coordinator: Ministry of the Interior
Co-coordinator: Ministry of Labour and Social Affairs
Deadline: 31 December 2022
Assess whether illegal employment is genuinely being earnestly prosecuted.
Coordinator: Ministry of Labour and Social Affairs
Deadline: Running, with a comprehensive assessment on 31 December 2022
Make arrangements to raise foreign nationals’ awareness of their labour rights and obligations.
Coordinator: Ministry of Labour and Social Affairs
Deadline: Running
Raise law enforcement agencies’ awareness of issues specific to human trafficking, with a stress on victim protection and the non-punishment principle (i.e. the impunity and protection of those who have been forced into criminal activity). Take this principle into account in the preparation of legislation that may touch on human trafficking and modern-day slavery.
Coordinators: Ministry of the Interior, Ministry of Justice
Deadline: Running”
Representation in court, legal assistance [page 44]
“Even today, a trade union organisation may represent its members and associations may, in the course of their activities, represent victims of discrimination or foreign nationals in labour cases. It is worth considering expanding opportunities for representation by those organisations in the future.”
Increasing the use of labour and social clauses in public contracts [page 16]
“Part of the foundation of the Danish labour market model is that work performed in Denmark must be performed on Danish pay and working conditions. In this, the authorities hold an important role in ensuring that underpaid foreign labour does not occur in public projects. The Government wants to ensure fair and reasonable pay and working conditions in accordance with ILO Convention 94 by increasing the use and better enforcement of labour clauses in public contracts (GP 5).
The following initiatives are planned:
The current labour clause threshold value of approximately DKK 37.5 million for public construction projects included by the labour clause requirement will be abolished. In the future, governmental contracting authorities (including companies that are fully owned by governmental authorities and not in competition) must use labour clauses in all public tender calls for construction projects.
Furthermore, it has been agreed that Danish municipalities and regions in the future will use labour clauses to a further extent in the same manner as governmental contractors.
Finally, more and better information on the use of labour clauses will soon be available in written form and on the internet.
The Government also wants to increase the voluntary use of social clauses in connection with public tenders. Many public authorities already use or are considering using social clauses. To assist with this work, a number of cases will be prepared to demonstrate how companies and municipalities work with social clauses in practice (GP 5).”
2. Non-Judicial Mechanisms – At the International Level
2.4 The European Social Charter
In order to promote and guarantee social rights not covered in the European Convention on Human Rights, the Council of Europe drew up the European Social Charter, which was adopted in Turin in 1961. Significantly, the 1961 Charter covers … the right to protection and assistance for migrant workers and their families.
Protection within states’ own territory – challenges within Germany [page 15-16]
The current situation
“People in vulnerable situations pose a particular challenge in Germany as elsewhere. These include migrants and, in general, employees in precarious work. These groups of people are exposed to a high risk of labour exploitation. The introduction of a general statutory minimum wage in Germany has established an effective instrument against excessively low wages. Since 1 January 2015, a minimum hourly wage of €8.50 has been payable, and its rate is to be adjusted every two years by an independent commission. The minimum wage has increased the earnings of four million people, whose income has risen by an average of 18%.
People who are affected by or at risk of labour exploitation need information about their rights and assistance in enforcing them. In recent years, advice and contact centres have been created in various parts of Germany, some with national and some with regional funding. With support from the Federal Government and the European Social Fund (ESF), for example, the German Trade Union Confederation (DGB), through a project called “Faire Mobilität” (fair mobility), provides such advice to employees, especially those from the EU Member States in Central and Eastern Europe. There is no permanent nationwide advisory structure yet for employees from all geographical origins and occupational sectors. In the fight against human trafficking and exploitative employment, Germany is also bound by EU Directive 2011/36/EU and has ratified both the Council of Europe Convention of 2005 on Action against Trafficking in Human Beings and the Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children. To coordinate the diverse activities designed to combat human trafficking, the Federal Government established the Federal Working Group on Trafficking in Human Beings in 1997, whose members include representatives of non-governmental organisations.”
Measures
“To supplement the existing structures, the Federal Government has shifted the focal point of its efforts towards the fight against human trafficking for the purpose of exploitative employment. A joint federal level-state level working group is currently developing a strategic approach designed to reinforce prevention, establish advisory structures and improve criminal prosecution and the data situation.
The Federal Government has reached agreement on a bill designed to combat abuses of temporary agency work and work and services contracts. This means that there will be clear rules in future to prevent abuses and the circumvention of employment standards.”
Section 2: Current legislative and Regulatory Framework
Workers’ Rights [page 13]
“Ireland is strongly committed to the protection and promotion of both domestic and migrant workers’ rights through national and international legislation, with a robust body of employment rights legislation which provides employees with a means for redress in cases where their employment rights have been breached. In 2017, Ireland has taken up, for the first time, a Titulaire seat on the Governing Body of the International Labour Organisation (ILO). During its term, Ireland will maintain and promote its commitment to human rights and will work to enhance the profile of business and human rights in the framework of the ILO.”
“the second Italian NAP-BHR intends to strengthen the application of the UNGPs through a series of complementary measures, referring in particular to the following guidelines:
– the commitment to update and improve collective action in relation to multiple human rights issues from the perspective of protecting the ‘most vulnerable’ (women and girls, minors, persons with disabilities, LGBTIQ+ persons, migrants and asylum seekers, persons belonging to ethnic and religious minorities, the elderly), with the aim to empower their role and involvement as right-holders, where individual aspects related to business activities may have a significant impact on these categories from a labour and economic point of view” (p. 7)
II. Premises
b) Italy and the United Nations Guiding Principles on Business and Human Rights (UNGPs)
“The NAP addresses the issue of the negative impact of business activities on human rights and identifies specific commitments with the aim of effectively integrating the UNGPs into the national system and business activities and introduces limited objectives and actions, with reference to the national context translated into the following priorities:
The fight against caporalato (especially in the agricultural and construction sectors) and forms of exploitation, forced labour, child labour, slavery and irregular work, with particular attention to migrants and victims of trafficking” (p. 10)
IV. Italian ongoing activities and future commitments
Irregular work and the agricultural sector
“interventions for the protection and integration of migrant workers will be reinforced, in line with former actions in 2020, within the framework of the Steering Committee as well as the Three-year Plan to combat illegal labour. To this end experience and significant results have been achieved during inspections carried out by the extraordinary task forces organized in implementing the two projects financed with EU and national funds (“SU.PR.EME.” and “A.L.T. Caporalato!”), the Ministry and inspection staff being assisted by cultural mediators from the International Organisation for Migration (IOM). The promotion and enhancement of synergies between territorial Labour Inspectorates, Public Safety Authorities, Public Prosecutors’ Offices, Police Forces, Social Partners and Associations on the territory, jointly committed on several fronts (prevention, assistance, protection, repression) will also be promoted to strengthen the protection of victims, foster cooperation and increase trust in the institutions.” (p. 21)
“Contacts were made with the IOM referents of each regional context and with the bodies and associations of the anti-trafficking network in territories involved to ensure timeliness and effectiveness of any interventions to take charge of and provide protection to victims of severe exploitation identified during the operations.” (p. 22)
“the INL has carried out and coordinated extraordinary surveillance campaigns in some areas of Southern Italy (in the agricultural sector only, with the project Su.Pr.Eme (funded by the EU Commission and supported by the project PIU’ SU.PRE.ME, for an amount of about € 50 million for the implementation of interventions in Puglia, Campania, Basilicata, Calabria and Sicily) and Central Italy (mainly, but not only in agriculture, with the project A.L.T. Caporalato! project, financed by the Ministry of Labour and Social Policies for an amount of € 3 million for actions in the territories of central and northern Italy), where the phenomena of forced labour and labour exploitation of migrants are particularly diffused.” (p. 22)
Smuggling of migrants and trafficking in human beings
The National Plan of Action against Trafficking and Serious Exploitation of Human Beings 2016-2018, implementing Directive (EU) 2011/36, is aimed at defining measures and intervention strategies for preventing and combating the phenomenon, as well as actions aimed at raising awareness, social prevention, emersion and social integration of victims. The Plan was articulated according to the following five key priorities: (a) identify, protect and assist trafficking victims; (b) intensify prevention of human trafficking; (c) strengthen prosecution of traffickers; (d) improve policy coordination and coherence among key stakeholders; and (e) increase knowledge of emerging issues related to all forms of human trafficking and provide an effective response.
Given the complexity and multi-sectoral nature of the interventions, the Plan has provided for the establishment of a political-institutional Steering Committee, responsible for ensuring a multidisciplinary and integrated approach between institutional and private/social actors. It is flanked by a Technical Committee, composed of representatives of central and local government, law enforcement agencies, trade unions and third sector entities involved in the fight against human trafficking.
Moreover, the Department for Equal Opportunities at the Presidency of the Council of Ministers is responsible for the data collection system SIRIT (Sistema Informatizzato per la raccolta di informazioni sulla tratta), managed and updated by the Veneto Region within the framework of the Agreement for the management of the service inherent in the “Antitrafficking toll-free number”
Given the persistence of the Covid-19 health emergency, the Department for Equal Opportunities introduced proper changes for public and private operators in charge of anti-trafficking projects. Taking into account the dynamics of trafficking in relation to confinement measures, the Department ensured the ongoing implementation of projects and by an ad hoc provision of 28 May 2020 established their extension until 31 December 2020, with a 7-months paid allowance worth over € 11 million. This approach was reiterated in order to further extend the anti-trafficking projects until 30 June 2021, while providing additional funding of approximately € 10 million. In 2021 the Department for Equal Opportunities has prepared a new call (Call No. 4/2021): it takes into account the changes some services have provided during the pandemic, but it will also be structured in such a way to respond to needs of operators.
In 2020, the process aimed at drawing up the new Plan was started; to this end, both the Steering Committee and the Technical Committee were reconvened, within which 4 working tables were identified according to the four key directions prevention, prosecution, protection, partnership and cooperation. The opportunity to set up an ad hoc working group involving all the competent Administrations with the aim of strengthening the collaboration for data collection was shared. In particular, the new Plan will be based on the following key priorities: (a) improve the reliability and availability of data on trafficking, as a precondition for adequate monitoring of the phenomenon and better policy-making; (b) intensify actions to address trafficking for sexual exploitation, forced marriages, begging, forced crime, organ trafficking, sale of infants, all forms of labour exploitation; (c) address trafficking in the new context of the migration crisis (in fact, many victims of trafficking are involved in asylum application systems); (d) intensify the training of professionals who, in various capacities, have contact with victims, also in relation to the evolution of traffickers’ operational methods; (e) combat impunity for those who knowingly use trafficked persons; (f) strengthen efforts to prevent child trafficking for multiple exploitation purposes; (g) take further measures to improve the identification of trafficked persons; (h) facilitate and ensure access to compensation for trafficked persons; (i) continue to take measures to ensure that the return of trafficked persons is carried out with respect for their rights, safety and dignity and, with regard to children, in full compliance with the principle of the best interests of the child; (l) enhance the efficiency and effectiveness of investigation and prosecution activities.
In the field of labour and social legislation, in the implementation of priorities of intervention provided in planning documents for surveillance activity, extraordinary inspection campaigns were launched to prevent and counteract the illegal phenomena of greatest social alarm. These include caporalato, and the exploitation of foreign citizens and their reduction to slavery through controls over production sectors and geographical areas most at risk, in close collaboration with enforcement law officers (Carabinieri, ASL, Guardia di Finanza, State Police).
Although the prevention of contemporary forms of slavery and the protection of victims cannot disregard the fight against illegal phenomena and the restoration of legality, the most demanding challenge concerns the direct involvement of workers. This is especially in regard to those most exposed to the risk of abuse and oppression: they should be involved in training courses to know their fundamental rights, for a greater awareness of defense tools provided and encourage a relationship of trust with the institutions. It should also be noted that, if during supervisory activities the presence of illegally employed irregular foreign workers is ascertained, the inspection staff is required to fill out and deliver a form to inform the foreign worker of his/her right to unpaid wages and insurance and social security contributions and how to enforce this right, as well as to sanction and take restrictive measures against involved employers.” (p. 25)
The nexus State-Business
“The violation of rules relating to the exploitation of child labour and other forms of trafficking in human beings, as defined by Legislative Decree No. 24 of 4 March 2014, constitutes for the company exclusion from procedures concerning public contracts, as provided for in Art. 80, paragraph 1) – letter f), of the Public Contracts Code.” (p. 48)
ANNEX 1 – Accountability Grid and Assessment Tools for the Implementation of the NAP
“6. Ensure full implementation of the National Action Plan against Trafficking and Serious Exploitation of Human Beings” (p. 62)
“42. Preparation – by and/or in collaboration with the Inter-ministerial Committee for Human Rights – of spaces and activities for awareness raising and training on human rights and business (with particular attention to the so-called vulnerable categories (women, minors, persons with disabilities, LGBTIQ+ persons, minorities, migrants, etc.) designed as tools for support to businesses and public officials. These tools may consist in the preparation of governmental webpages to host dedicated information material, as well as in the development of campaigns, surveys, e-learning modules and ad hoc seminars. The latter will be defined in relation to specific competences and activities of each Ministry, as well as in constant dialogue with local authorities and all stakeholders who wish to take part in these initiatives.” (p. 67)
“54. Ensure an adequate level of resources dedicated to legal aid, and ensure access to free legal aid also for non-resident foreign nationals, in particular for irregular migrants who are victims of crimes committed by criminal organizations, such as trafficking in human beings, and enable them to report such crimes regardless of their status.” (p. 68)
Chapter 1. Towards the Formulation of the National Action Plan (NAP)
2. Positioning of the NAP: Links with International Documents, including the UNGPs and the Sustainable Development Goals (SDGs)
(3) The Cabinet-approved Growth Strategy 2018 in June 2018 also refers to encouraging progressive undertakings by companies in Japan through the NAP formulation process. The Growth Strategy further refers to protecting human rights through the development of an environment for accepting foreign nationals, including the improvement of their working environments.
Chapter 2. Action Plan
2. Areas of the NAP
(1) Cross-cutting areas
C. Labour (Promotion of Decent Work)
(Existing framework/Measures taken）
Along with globalization, increasing attention has been brought to the treatment of foreign workers. Appropriate implementation of the Technical Intern Training Program and protection of technical intern trainees are being promoted based on the Act on Proper Technical Intern Training and Protection of Technical Intern Trainees (Technical Intern Training Act) (Act No. 89 of 2016) enacted in November 2017 as well as on bilateral agreements with sending countries.
(Future measures planned)
(…)
(c) Protect and respect the rights of workers, including foreign workers and technical intern trainees
To employers of foreign workers, disseminate and raise awareness on compliance with labour laws and the Guidelines for Employers to Improve the Management of Employment of Foreign Workers (Public Notice of the Ministry of Health, Labour and Welfare No. 276 of 2007) through seminars and other measures. [Ministry of Health, Labour and Welfare]
Continue to implement multi-lingual services for foreign workers at Prefectural Labour Bureaus, Public Employment Security Offices, and Labour Standards Inspection Offices. [Ministry of Health, Labour and Welfare]
F. Acceptance of and Coexistence with Foreign Nationals
(Existing framework/Measures taken）
In recent years, the number of foreign nationals residing and working in Japan has been increasing, and there is a greater need for realizing a society where Japanese and foreign nationals can live safely and comfortably together through properly accepting foreign nationals and realizing a society of coexistence. Under these circumstances, the Government has taken the position of accepting foreign nationals who have status of residence, including Convention refugees and third-country resettled refugees as members of society without isolating them. To fully develop an environment where foreign nationals can enjoy the same public services and live without undue anxiety just as Japanese nationals do, the Ministerial Conference adopted the “Comprehensive Measures for Acceptance and Coexistence of Foreign nationals” (hereinafter referred to as “Comprehensive Measures”) in December 2018, and compiled a further document titled “Enhancement of “Comprehensive Measures” (hereinafter referred to as “Enhancement Measures”) in June 2019. The Comprehensive Measures were revised in line with the direction of the Enhancement Measures in December 2019, under which the Government has worked together to steadily promote the relevant measures.
Moreover, in July 2020, in consideration of the situation of implementation of related measures, the Comprehensive Measures were revised from the perspective of further enhancing and encouraging the environment for acceptance of foreign nationals.
（Future measures planned）
Improve and promote the development of an environment for acceptance of foreign nationals leading to realize a society of harmonious coexistence
To realize a society of harmonious coexistence, the Government continues to steadily implement, promote and disseminate the measures related to various situations in life incorporated in the Comprehensive Measures (revised in 2020), including measures that contribute to business and human rights, while listening to the opinions of relevant parties. [Cabinet Secretariat, Cabinet Office, National Police Agency, Financial Services Agency, Consumer Affairs Agency, Fair Trade Commission, Ministry of Internal Affairs and Communications, Ministry of Justice, Ministry of Foreign Affairs, Ministry of Finance, Ministry of Education, Culture, Sports, Science and Technology, Ministry of Health, Labour and Welfare, Ministry of Agriculture, Forestry and Fisheries, Ministry of Economy, Trade and Industry, Ministry of Land, Infrastructure, Transport and Tourism]
(4) Measures regarding Access to Remedy
Judicial and Non-Judicial Remedy
(…)
(Future measures planned)
(…)
(f) Continue and reinforce measures, including those based on specific legislation ( for workers, persons with disabilities, and foreign workers, including technical intern trainees, and for whistleblower protection)
In accordance with the Technical Intern Training Act, continue to report to the Commissioner of the Immigration Services Agency and the Minister of Health, Labour and Welfare. Provide counseling by the Organization for Technical Intern Training to technical intern trainees in their native languages, and support transfer of workplace when human rights violations occur and technical intern trainees find it difficult to undertake training. [Ministry of Justice, Ministry of Health, Labour and Welfare]
It is imperative that the labour market is regulated to ensure compliance with constitutional, legal and international standards. Several SDGs and ILO core conventions cover various aspects of working conditions including decent work and economic growth, reduction of inequality, quality education and gender equality. The SDG targets include: […] 8.8 (protect labour rights and promote safe and secure working environments for all workers, including migrant workers, in particular women migrants, and those in precarious employment) […]
During the stakeholders’ consultations the following concerns were identified:
4) Lack of effective regulation of recruitment agencies for migrant workers […]
CHAPTER THREE: POLICY ACTIONS
3.1. Pillar 1: The State Duty to Protect [Page 17]
Policy Actions
The Government will:
vii. Sensitise relevant sections of the public especially women and other marginalised and minority groups on –
a) Land laws, including resettlement and compensation frameworks; b. Labour laws and the rights of migrant workers; and
c) Environmental laws and standards;
3.2. Pillar 2: Corporate Responsibility to Respect Human Rights
b) Human Rights Policy commitments [page 18-19]
The Government will:
ii. encourage recruitment agencies to provide any required repatriation, legal and psychological support to migrant workers who have suffered or been subjected to abuse abroad;
CHAPTER FOUR: IMPLEMENTATION AND MONITORING
ANNEX 1: SUMMARY OF POLICY ACTIONS
Strategic Objective
Policy Actions
Key Actors
Strategic Objective 1:
Enhance existing policy, legal, regulatory and administrative framework for ensuring respect of human rights by business through legal review and development of specific guidance for business
Sensitise relevant sections of the public on:
Land laws, including resettlement and compensation frameworks;
Labour laws and the rights of migrant workers; and
Environmental laws and standards.
Ministry of Lands& and Physical Planning, Ministry of Labour and Social Protection,
Ministry of Environment and Forestry, NEMA, NLC
Strategic objective 2:
Enhance understanding of the obligation of business to respect human rights
Encourage recruitment agencies to provide any required repatriation, legal and psychological support to migrant workers who have suffered or been subjected to abuse abroad.
Content from non-BHR specific chapters in the Human Rights NAP:
Strategic priority 1.5. Promote human rights public policies to assist areas partially covered by the State
…
1.5.2. Adopt public policies aimed at ensuring the protection and the enforcement of the human rights of migrant and refugees, as well as mechanism for their social and labour integration.
3. The Corporate responsibility to respect human rights
The 12th Principle [page 31]:
Internationally recognized human rights’ are those set out in the Universal Declaration of Human Rights of 1948, the two 1966 International Covenants, on Economic, Social and Cultural Rights and on Political and Civil Rights, and the ILO core conventions. In some cases, other standards may also be applicable, such as the rights of women, indigenous peoples, national, ethnic or linguistic minorities, children, people with disabilities, or foreign workers and their families.
CHAPTER 3: National Action Plan Priority Areas and Proposed Actions
3.2. NAP Priority Areas
3.2.2. Anti-Discrimination, Equal Opportunity, and Inclusion (page 19)
‘As established during the NBA and consultative process, the discriminatory treatment in business activity of women and vulnerable or marginalised groups, including transgender persons, Persons with Disabilities, minorities, migrant and refugee workers, and others, remains an ongoing challenge.’
Social integration processes require the adoption of structural measures such as identification, access to work, education, among others, in order to allow social mobility. Progress has been identified in the area of migratory regularization; thus, in 2020, a regularization measure was adopted for foreigners in irregular conditions that would ensure regular permanence. It is necessary to address the remaining difficulties in the management of the response of the refugee and migration system.
It is important to highlight the political will of the State, also within the framework of the NAP, to adopt measures against discrimination and xenophobia; the limitations on the hiring of migrant workers and their consequent access to decent work; the need to provide migrants and companies with complete information on their rights and identification documents, as well as efficient complaint mechanisms, in line with the recommendations of the Committee on Migrant Workers. There is also the challenge of strengthening judicial mechanisms, especially when conditions of regularity are not met. – page 48
Table 8: NAP strategic guidelines and objectives, and alignment with the axes of the Peru Vision 2050
Strategic guideline No. 2: Design of public protection policies to prevent human rights violations in the business environment. Objective No. 1: Promote regulatory actions to prevent human rights violations in the corporate sphere
24.
Action: Promote awareness of the identification documents of migrants, refugees, and refugee claimants, in order to ensure respect for their rights and access to labor information.
Background: It is required that the identification documents issued by the State to migrants, refugee claimants and refugees, be recognized by all entities, to allow foreigners to access procedures before State entities in order to facilitate their access to decent work and their rights.
Indicator: Information material on the rights and duties of migrants and their socioeconomic integration process aimed at companies and foreigners; Number of companies receiving information sessions on identification documents for migrants, refugee claimants and refugees, rights, recruitment, and socioeconomic integration of migrants in the country; Labor recruitment of migrant workers information booklet; Number of migrants, asylum seekers, and refugees trained in labor and social security matters (Action Indicators). – page 72
25.
Action: Ensuring fair access to employment for foreigners.
Background: For migrants whose countries of origin do not have an agreement with our country, Legislative Decree No. 689 applies to them, which, in Article 4, establishes that national and foreign companies may only hire foreign personnel in a proportion that does not exceed 20% of the total number of workers. This limits the possibilities of hiring, especially in micro and small companies, which have a smaller number of workers.
Indicator: Intersectoral technical report that includes the evaluation of the relevance of modifying the limit for hiring foreigners for MSEs. – page 75
31.
Action: Promote the ratification and implementation of international agreements related to migrant workers.
Background: This requires a specific evaluation of ILO Convention No. 97 on migrant workers; Convention No. 118 on equal treatment of nationals and foreigners in matters of social security; Convention No. 143 on migrant workers, analyzing their relevance and contribution, as well as whether they are in harmony with other national legislation, which will be considered in the Technical Report.
Indicator: An intersectoral technical report evaluating the relevance and contribution of Convention No. 97, concerning migrant workers, prepared by the Ministries concerned; An Intersectoral technical report evaluating the relevance and contribution of Convention No. 143 on migrant workers, prepared by the Ministries concerned. – page 78
Strategic guideline No. 3: Design of public policies that promote respect for human rights by companies through accountability, investigation, and sanction for the impacts of their activities.
Objective 1: Promote policies and/or standards that guarantee respect for human rights in business activities.
54.
Action: Promote the rights and non-discrimination of foreign migrants by companies.
Background: Companies have an important role to play in respecting the human rights of migrants, so it is necessary to avoid situations of discrimination or stigmatization in the workplace, which could prevent access to work because of their origin.
Indicator: CONACOD’s work program to strengthen the complaint system and dissemination of this anti- discrimination mechanism.– page 91
Objective No. 2: Technical assistance to companies for the observance of human rights in their business activities
72.
Action: Promote the rights and non-discrimination of special protection groups (elderly people, Afro-Peruvians, people with disabilities, women, LGBTI people, migrants) in advertising and the media.
Background: Media companies have a responsibility to promote and respect the rights of specially protected groups (elderly people, Afro- Peruvians, people with disabilities, women, LGBTI people, migrants), since, through the content of their programming, they make visible or make invisible certain aspects of society, reinforcing narratives that benefit or harm this population group.
Indicator: Number of informative letters sent to market agents. – page 108
Tasks of the National Labour Inspectorate in the field of combating human trafficking and, in particular, forced labour [page 47]:
The signing of an agreement between the Border Guard Chief Commander and the Chief Labour Inspector in 2008 and then in 2015 served as an instrument to strengthen the capacity of labour inspectors to respond to the illegal employment of foreign nationals and to the phenomenon of trafficking in human beings. The agreement offers a basis for cooperation in undertaking joint inspections by Border Guard officers and labour inspectors, and for exchanging information on violations of the law concerning foreign nationals, including cases of their illegal employment. Effective combating of crimes of trafficking in human beings for forced labour is also possible thanks to mechanisms of cooperation and exchange of information between National Labour Inspectorate units and prosecutors’ offices, at both the central and local levels, also on the basis of an agreement concluded in 2014. Training courses are conducted at the National Labour Inspectorate Training Centre in Wroclaw to help improve the qualifications of the inspectorial staff involved in the activities related to the issues in question. The procedure for handling complaints by PIP authorities is an important tool in the prevention of trafficking in human beings for forced labour and violations of labour rights of foreign nationals.
Appendix 1
International Legal Framework in Force in Poland [page 57]:
(…) – Article 19: The right of migrant workers and their families to protection and assisstance.
2021-2024 NATIONAL ACTION PLAN
13. National Labour Inspectorate
Tasks of the National Labour Inspectorate in the field of combating trafficking in human beings, in particular, for forced labour
The signing of an agreement between the Border Guard Chief Commander and the Chief Labour Inspector in 2008 and then in 2015 and 2018 served as an instrument to strengthen the capacity of labour inspectors to respond to the illegal employment of foreign nationals and to the phenomenon of trafficking in human beings. The agreement offers a basis for cooperation primarily in undertaking joint inspections by Border Guard officers and labour inspectors, and for exchanging information on violations of the law concerning foreign nationals, including cases of their illegal employment. Effective combating of crimes of trafficking in human beings for forced labour is also possible thanks to mechanisms of cooperation and exchange of information between National Labour Inspectorate units and prosecutors’ offices, at both the central and local levels, also on the basis of an agreement concluded in 2014 and 2017. Training courses are conducted at the National Labour Inspectorate Training Centre in Wrocław to help improve the qualifications of the inspectorial staff involved in the activities related to the issues in question.
The procedure for handling complaints by PIP authorities is an important tool in the prevention of trafficking in human beings for forced labour and violations of labour rights of foreign nationals. Complaints that suggest the need for immediate action are examined first. – page 38
Labour inspectors also check compliance with the principle of equal treatment of foreign nationals in terms of working conditions and other conditions of employment, compared to Polish citizens employed in corresponding or similar positions.
Promotion of the idea of equal treatment and non-discrimination in the labour market, especially with respect to foreign nationals, is supported by projects co-financed from European funds, as well as PIP publications (leaflets, brochures, guides) addressed to a wide audience. – page 39
Principle 9 – Adequate domestic policy to meet HR obligations
In the framework of development cooperation, migration is an important cross-cutting issue, and in dealing with this issue, it is vital to engage the cooperation of all shareholders – state bodies, non-governmental sector and businesses – to ensure the necessary integration and employment of migrants. (pg. 31)
2 National Action Plan on Business and Human Rights 2020-23
2.2 Pillar 2: the corporate responsibility to respect human rights
2.2.2 Operational principles: human rights due diligence
Guiding Principles 16 to 21
Measure 29: Public-private partnerships to promote respect for human rights in the value chain
The federal government supports a project to promote human rights due diligence with a view to preventing the exploitation of Syrian refugees and migrant workers in neighbouring countries (Turkey, Lebanon, Jordan). The aim is to strengthen the contribution that business enterprises make to providing decent work opportunities and combatting exploitation in the textile, agricultural and construction sectors in these countries.
Objective
Indicator
Responsibility
Establish partnerships with the private sector to create decent work opportunities in value chains.
Swiss and private sector contributions to the Better Work and SCORE programmes and to projects aimed at protecting migrant workers from exploitation.
FDFA [Federal Department of Foreign Affairs],
EAER [Federal Department of Economic Affairs, Education and Research].
Continue committing to implement important United Nations human rights covenants, incorporating them into domestic law, and preparing national reports for review (pages 8-9)
‘In addition to incorporating five core UN human rights conventions in domestic law, […] the Taiwan government has also adopted a national report system based on the UN model, and has pledged to do likewise with another three core human rights conventions, namely, the “International Convention on the Protection of Rights of All Migrant Workers and Members of Their Families,” […]’
This information is also covered under Appendix 4: Overview of the implementation of the state duty to protect and the access to remedy, The state duty to protect, UNGP10, Actions planned (pages 52-53).
Continue pushing for passage of laws to protect working conditions and labor rights (page 10)
‘[…] in order to improve the working conditions of foreign fishing crews, the Taiwan government will provide more living and leisure facilities.’
Appendix 1: Concrete actions taken by Taiwan to fulfill the state obligation to protect
Government procurement (page 25)
‘Article 98 of the “Government Procurement Act” stipulates that for a winning tenderer which employs more than 100 persons locally, aborigines or persons with physical or mental disabilities shall account for a minimum of two percent of the total number of employees during the term of contract performance; otherwise, the foregoing tenderer shall pay a fee in lieu of performance and shall not hire foreign workers to make up the shortage in question.’
3. The core content of the National Action Plan on Business and Human Rights
3.1 Action plan on labour
3.1.3 Action Plan (2019–2022)
Pillar 1: State duties in protecting (Protect)
No.
Issues
Activities
Responsible agencies
Time-frame (2019–2022)
Indicators (wide frame)
Compliance with National Strategy/ SDGs/UNGPs
2.
Amendments to laws, regulations, policies
and related measures
Review border employment policy in a manner aimed at protecting all workers who are legal without discrimination, including protection of family members who are with them. This is to be in accordance with the ASEAN Consensus on the Protection and Promotion of the Rights of Migrant Workers.
– Ministry of Labour
2019–2022
Number of policies reviewed
– National Strategy for Human Capital Development and Strengthening
– National Strategy for Social Cohesion and Just Society
– SDG 8
– UNGPs Articles 1, 3, 4, 5 and 7
6.
Eliminating discrimination in employment and the workplace
Consider measures of social protection for migrant workers, especially agricultural and fishery workers, seasonal employees, and domestic workers.
– Ministry of Labour
2019–2022
Monitoring measures of migrant workers
– National Strategy for Human Capital Development and Strengthening
– National Strategy for Social Cohesion and Just Society
– SDG 8
– UNGPs Articles 1, 3, 4, 5 and 7
Consider and determine measures and mechanisms for employment of other vulnerable groups, such as … stateless persons and migrants, including those of diverse sexual orientation and gender identity to enter the labour system in line with international human rights principles
– Ministry of Labour
– Ministry of Interior
– Ministry of Social Development and Human Security
– Office of the National Security Council
2019–2022
Number of vulnerable groups employed
– National Strategy for Social Cohesion and Just Society
– National Strategy for Public Sector Rebalancing and Development
– SDG 5, 8 and 10
– UNGPs Articles 1, 3, 4, 5 and 7
9.
Access to health services for workers
Develop friendly health service systems for migrant workers such as migrant public health volunteers to create effective access to public health
– Ministry of Public Health
2019–2022
A mechanism to provide public health services for migrant workers
– National Strategy for Human Capital Development and Strengthening
– National Strategy for Social Cohesion and Just Society
– SDG 3, 8 and 10
– UNGPs Articles 1, 3, 4, 5 and 7
10.
Children of migrant workers
Address the problem of access to education by children of migrant workers by providing basic education in accordance with the problem’s conditions and needs, both in the public and private system and informal (non-formal education)
– – Ministry of Education
2019–2022
Number of establishments received promotion of welfare other than those stated by law (places/ persons)
– National Strategy for Human Capital Development and Strengthening
– SDG 4 and 8
– UNGPs Articles 1, 3, 4, 5 and 7
10.
Children of migrant workers
Address the problem of access to education by children of migrant workers by providing basic education in accordance with the problem’s conditions and needs, both in the public and private system and informal (non-formal education)
– Ministry of Education
2019–2022
Number of establishments received promotion of welfare other than those stated by law (places/ persons)
– National Strategy for Human Capital Development and Strengthening
– SDG 4 and 8
– UNGPs Articles 1, 3, 4, 5 and 7
11.
Human trafficking and forced labour
Consider bringing measures or labour laws which are applied to the fishery sector to be used in the supervision of labour conditions in other industrial sectors such as agriculture and construction in which many migrant workers are hired
– Royal Thai Police
– Ministry of Agriculture
– Ministry of Labour
Ministry of Industry
2019–2022
Number of at-risk establishments that have been examined
– National Strategy for Human Capital Development and Strengthening
– SDG 8
– UNGPs Articles 1, 3, 4, 5 and 7
15.
Operations set for business sector
Inspect and monitor entertainment places/ businesses, establishments, and recruitment agencies, focusing on inspecting … work permits (in the case of migrant workers)
– Royal Thai Police
– Ministry of Labour
– Ministry of Interior
2019–2022
– Number of employment/ recruitment licensees inspected
Number of establishments and migrant workers inspected
– National Strategy for National Security.
– SDG 8
– UNGPs Articles 1, 3, 4, 5 and 7
Pillar 2: Responsibilities of the business sector in respecting of human rights
2.2 Labour rights and welfare
State enterprises and the business sector that use migrant workers should be responsible for the costs of recruiting labour and other expenses in accordance with the “employer pay principle”.
Pillar 3: Duties of the state and the business sector to provide remedy (Remedy)
No.
Issues
Activities
Responsible agencies
Time-frame (2019–2022)
Indicators (wide frame)
Compliance with National Strategy/ SDGs/UNGPs
1.
Complaints and petitions
Provide channels for complaints and hotlines in languages that migrant workers understand
– Ministry of the Interior
– Ministry of Justice
– Ministry of Labour
2019–2022
Number of complaint channels and hotlines in languages that migrant workers understand
– National Strategy for Social Cohesion and Just Society
– National Strategy for Public Sector Rebalancing and Development
– SDG 8 and 10
– UNGPs Articles 27, 28, 29 and 31
3.
Administration of Justice
Develop criteria for approval and selection of migrant workers from three countries (Cambodia, Laos and Myanmar) to be the language coordinators to facilitate migrant workers who enter into the justice system. The coordinators should be trained in order to perform duties correctly, fairly and efficiently
– Ministry of Labour
2019–2022
– Develop and improve criteria for selecting the coordinators Number of trainings for language coordinators
– National Strategy for Social Cohesion and Just Society
– National Strategy for Public Sector Rebalancing and Development
– SDG 8, 10 and 16
– UNGPs Articles 25, 26, 27, 28, 29 and 31
5.
Remedies
Review criteria of compensation under the Act on Compensation for Injured Persons and the Damages and Expenses for the Accused in Criminal Cases B.E. 2544 (2001) and the Amendment (No. 2) B.E. 2559 (2016) to cover migrant workers that have been victims of crime.
– – Ministry of Justice
2019–2022
Meetings to review payment criteria for state compensation under the Act on Compensation for Injured Persons and the Damages and Expenses for the Accused in Criminal Cases B.E.
2544 (2001) and the Amendment (No. 2) B.E. 2559 (2016) to cover migrant workers that have been victims of crime
– National Strategy for Public Sector Rebalancing and Development
– SDG 16
– UNGPs Articles 25, 26, 27, 28, 29 and 31
3.2 Action plan for community, land, natural resources and the environment
3.2.1 Overview of the situation
The Industrial Estate Authority of Thailand is assigned by the government to develop industrial estates in three Special Economic Zone (SEZ) areas in three provinces: Sa Kaeo Industrial Estate, Sa Kaeo Province, Sadao Industrial Estate, Songkhla Province, and industrial estates in the Special Economic Zone in Tak Province. Each industrial estate established has studied the impact on environment, economy, society and community through the preparation of the environmental impact assessment report and use it as a tool to create preventative and alleviative measures towards environmental impact and to monitor environmental quality. One of the measures requires factories in the industrial estates to pay attention to the importance of hiring local labour which will help reduce migrant labour problems. But if using migrant workers is a necessity, the operator should choose only registered ones.
The UK 2013 NAP states in relation to New Actions planned that [page 11]:
“The Government will do the following to reinforce its implementation of its commitments under Pillar 1 of the UNGPs:
… (vi) Promote new project activity on raising awareness and tackling the negative impacts of business activity, including on the human rights of groups like … migrant workers and their families, by tasking our diplomatic missions in countries where these are concerns.”
The UK 2016 Updated NAP refers to migrant workers in the Introduction [page 3]:
“Since the publication of the UNGPs, in 2011, and the UK’s National Action Plan in 2013, there have been a number of developments at the international level. In particular:
The Global Goals for Sustainable Development, agreed by world leaders and launched at the UN in September 2015, contained commitments to: (…) protect labour rights, promote safe and secure working environments for all workers, including migrant workers, in particular women migrants, and those in precarious employment (SDG 8.8).”
The UK 2016 Updated NAP, in the Government Commitments section [page 11], states:
“The Government will do the following to reinforce its implementation of its commitments under Pillar 1 of the UNGPs: (..) Consider new project activity on raising awareness and tackling the negative impacts of business activity, including on the human rights of groups like indigenous peoples, women, national or ethnic minorities, religious and linguistic minorities, children, persons with disabilities, and migrant workers and their families, by tasking our diplomatic missions in countries where these are concerns.”
