Fair recruitment and access to justice for migrant workers

Over 169 million men and women today live and work outside their country of origin in pursuit of decent work and better livelihoods. Public employment services and private employment agencies, when appropriately regulated, play an important role in the efficient and equitable functioning of labour markets by matching available jobs with suitably qualified workers. However, it is during the recruitment phase that migrant workers, especially low-wage workers, are particularly at risk of entering a cycle of abuse and exploitation.

 

Access to justice is central to making human rights, including labour rights, a reality for all workers and individuals. It is premised upon the central tenet of non-discrimination – that every person is entitled, without discrimination and on an equal basis with others, to equal treatment and protection under the law.1 In addition, a number of international Conventions and instruments guarantee the right to a fair and public hearing and process2 as well as the right to an effective remedy.3 For a remedy to be considered effective, it must:

• be accessible, affordable, adequate and timely;

• combine preventive, redressive and deterrent elements; and

• include the right to be treated “equally in all stages of procedure”, regardless of personal characteristics such as gender, race, or ethnicity, among others.

To this end, this working paper focuses on good practices concerning the migrant workers’ right to access to justice in the context of their labour recruitment, where recruitment is understood to include the advertising, information dissemination, selection, transport, placement into employment and – for migrant workers – return to the country of origin where applicable. The paper first gives an overview of current gaps in rights protection throughout the labour migration cycle and then outlines the sources of the right to access to justice under international human rights law, international labour standards and instruments, bilateral agreements, and the UN Guiding Principles on Business and Human Rights (UNGPs). It also briefly sets out the processes that may be available for seeking redress, as well as the structural factors that obstruct migrant workers from accessing these processes and provides examples of good practices from around the world that are constructively addressing these barriers to accessing justice.

Master class on fair recruitment

Within the context of exacerbated challenges created by COVID 19 pandemic, the ILO’s General Principles and Operational Guidelines for Fair Recruitment and Definition of Recruitment Fees and Related Costs (GP&OG) provides invaluable guidance on how to ensure the recruitment process of workers, especially migrant workers. The GP&OG are organized in a way that respects the rights of those involved, the needs of communities of origin and destination, and takes into account the legitimate needs of employers and recruiters.

Based on the ILO Fair Recruitment Initiative Strategy, the ILO and ITC-ILO have developed a series of Master class on fair recruitment, to explain what can be done to reduce the risk of abusive and fraudulent recruitment of workers. The Masterclass on fair recruitment is divided into six modules:

1. 1. Why fair recruitment matters
2. 2. Legal and normative framework
3. 3. Public and private employment services
4. 4. Monitoring and enforcement, 
5. 5. Business and private sector engagement
6. 6. Union's Role

 

 

 

 

 

 

 

 

 

Facilitating Journeys: The role of intermediaries in labour migration process from Nepal

What happens after the decision to migrate for work has been made? What steps do prospective migrants take, where do they obtain information and what services do they seek? This infographic is based on qualitative research amongst migrant workers that examines the wide range of intermediaries that workers encounter in their migration journey.

 

As part of its Integrated Programme on Fair recruitment (FAIR), a global programme supported by the Swiss Development Cooperation, the ILO in Nepal commissioned a study amongst prospective and returning migrant workers to document their experience and in particular their interaction with various intermediaries that are involved in the migration process. Qualitative data was collected through in-depth interviews with 32 men and 9 women migrant workers, originating from 5 provinces, that were either abroad or had recently returned to Nepal.

This infographic illustrates the collection of narratives from migrant workers and builds a picture of their experiences after deciding to migrate. Who do workers interact with as they prepare their journeys? Where do they gather information? How do they prepare for interviews and who supports the processing of job applications and contracts? How are visas obtained, and where do workers receive orientation and training? What costs do these various services amount to? Furthermore, what network of intermediation and support do workers connect with one they have reached their destination? And, finally, who do workers turn to settle outstanding issues upon return to Nepal?

Analysis Report of Recruitment Reviews from Nepali migrant workers

This report explores recruitment practices of recruitment agencies based on the reviews from 1,593 reviewers provided to Recruitment Advisor.

The study found that:

- Sub-agents and middlemen continue to play an important role in facilitating the migration of Nepalis in foreign employment.

- Migrant workers are paying high recruitment and other related fees.

- Majority of migrant workers took pre-departure training.

- Migrant workers continue to be deceived about their job, salary, and benefits. 

- Passports of the workers were withheld by the employer. 

- Migrant workers were deprived of freedom of association and right to return. 

- Most migrant workers less informed about recruitment agency and employer.

The report also proposes ways forward regarding the identified problems.

Labour inspection and monitoring of recruitment of migrant workers

With a view towards contributing to achieving fair recruitment of migrant workers, this paper offers an overview of the main challenges pertaining to monitoring of recruitment of migrant workers by labour inspectorates, along with suggested ways forward and pointers for possible action by the ILO.

Labour inspection responsibilities extend to all stages of the recruitment process. The ILO General Principle for Fair Recruitment 5 states that “Regulation of employment and recruitment activities should be clear and transparent and effectively enforced. The role of the labour inspectorate and the use of standardized registration, licensing or certification systems should be highlighted.” Furthermore, Operational Guideline 5.1 outlining the responsibilities of governments indicates that: "Governments should work to ensure that there is an effective and sufficiently resourced labour inspectorate, and that it is empowered and trained to investigate and intervene at all stages of the recruitment process for all workers and all enterprises, and to monitor and evaluate the operations of all labour recruiters.” However, inspection of recruitment processes remains challenging – leaving many vulnerable workers (including migrant workers and those in the informal economy), exposed to exploitation and abuse.

In order to further expand knowledge and advocacy on the role of the labour inspectorate in ensuring fair recruitment, the ILO Labour Migration branch and the Labour Administration, Labour Inspection and Occupational Safety and Health branch commissioned a brief on fair recruitment and labour inspection, with the contribution of several projects (EU-REFRAME, SDC-FAIR II and SIDA-JLMP).

 

2019 Recruitment Costs Pilot Survey Report-Ghana, Measuring SDG Indicator (10.7.1)

This report presents the survey results and examines the recruitment costs, monthly earnings, and Recruitment Cost Indicator (RCI) of migrant workers taking into account their socio-demographic characteristics such as age, occupation, the industry of work, educational attainment, skills, and gender.

In 2019, the Ghana Statistical Service conducted the Recruitment Cost Pilot Survey (RCPS) in four administrative districts, namely, Mampong Municipal, Asante Akim North in the Ashanti Region, and Berekum and Techiman in the Bono and Bono East regions, respectively. The study was mainly designed to pilot an ILO recommended survey methodology to collect data on recruitment costs and monthly earnings of migrant workers from purposely selected districts, in a bid to calculate the SDG indicator 10.7.1 (Recruitment Cost Indicator). This report, therefore, presents the survey results, as it examines the recruitment costs, monthly earnings, and Recruitment Cost Indicator (RCI) of migrant workers taking into account their socio-demographic characteristics such as age, occupation, the industry of work, educational attainment, skills, and sex.

The results of this pilot study show that the survey methodology adopted for this study is suitable for estimating the RCI as required for measuring the SDG indicator 10.7.1. The study shows that the RCI levels, derived from average recruitment costs and monthly earnings for migrant workers, could plausibly be a function of skill level, country of destination, or educational level of the migrant worker. This is because lower levels of RCI could be associated with highly-skilled workers, highly educated migrant workers, and developed countries due largely to commensurate high monthly earnings, a result that resonates with our a-priori expectation.

The Ghana Statistical Service (GSS) implemented the study in collaboration with the International Labour Organization (ILO) with funding from the European Union.

 

Measuring sustainable development goal indicator 10.7.1 on recruitment costs of Vietnamese workers overseas: Results of the Labour Force Survey 2021

This report "Measuring sustainable development goal indicator 10.7.1 on recruitment costs of Vietnamese workers overseas: Results of the Labour Force Survey 2021" was developed using data from the Viet Nam Labour Force Survey 2021. This is the first time the General Statistics Office has released a study on Vietnamese workers abroad.

The report results showed basic characteristics of Vietnamese workers overseas within the last three years (2018-2021). In particular, the report has shown that, on average, Vietnamese workers going to work abroad had to use the equivalent of 7.4 months of their first-month salary to pay for or cover recruitment costs for getting their job abroad in the first place. Based on the study results, the report has proposed policy recommendations related to Vietnamese workers overseas.