Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) - Guinea (Ratification: 1978)

The Committee notes with regret that the Government’s report has not been received. It notes, however, that a new Labour Code was adopted in 2014.

Legislation. The Committee notes the adoption of the Law No. L/2014/072/CNT of 10 January 2014 issuing the Labour Code. The Committee notes that section 131.1 of the new Labour Code provides that “Where an employer intends to hire a foreign worker outside the West African States Economic Community (ECOWAS), he must obtain the prior approval of the public employment service under conditions determined by order of the Minister in charge of employment.” Section 131.1 also provides that “the hiring of foreign workers is governed by special regulations”. The Committee therefore requests the Government to provide a copy of the texts regulating the employment of foreign workers, including copies of the order determining the conditions under which the authorization of public employment service is granted.

Articles 3 and 6 of the Convention. In its previous comments, the Committee noted that the draft Labour Code extended the penalties for illegal immigration to the organizers of illicit or clandestine movements of migrants for employment in the territory of the Republic of Guinea, or from it, or transiting the territory. The Committee notes that section 131.4 of the new Labour Code provides that “an employer who uses the services of a foreign worker without the prior authorization of the public employment service and without obtaining a residence visa must, if having brought the worker from a foreign country, bear the full cost of repatriation”. The Committee therefore requests the Government to provide information on the measures taken to establish administrative, civil and criminal sanctions in respect of the illegal employment of migrant workers, the organization of migration in abusive conditions and knowingly assisting migration in conditions contravening relevant international, multilateral or bilateral instruments or agreements, or national legislation.

Article 8. Legal status in the case of loss of employment. In the absence of provisions in this regard in the new Labour Code, the Committee requests the Government to provide information on the legal status of migrant workers lawfully in the country who have lost their employment before the end of the employment contract and the manner in which they enjoy equal treatment with nationals in respect of guarantees of security of employment, the provision of alternative employment, relief work and retraining.

Articles 10 and 14(a). National equality policy and free choice of employment. The Committee notes that section 3 of the new Labour Code provides that “the State ensures equal opportunities and equal treatment of citizens with regard to access to vocational training and employment, without distinction as to origin, race, sex, religion and philosophy.” In addition, the Committee notes that section 5, which prohibits all forms of discrimination based on sex, age, national origin, race, religion, colour, political and religious opinions, social origin, trade union membership or not and union activity, does not cover nationality. The Committee recalls that under Article 14(a) of the Convention, the State may make the free choice of employment subject to temporary restrictions for a prescribed period not exceeding two years. The Committee requests the Government to provide information on how it ensures that foreign nationals residing in the country for two years have equal treatment with nationals as regards access to employment and are protected against discrimination in employment.

Trade union rights. The Committee notes that section 322.4 of the new Labour Code reduces to at least three years (previously five years) the obligation of residence for foreign workers in a regular situation to be able to become trade union officials, and removes the requirement for nationals whose countries have concluded agreements stipulating reciprocity in trade union matters or with a national legislation granting the right to become a trade union official to foreigners without a prior three year residence requirement; the period of three years is removed or reduced to the delay in the agreement or legislation. Regarding foreigners’ access to management functions of employers’ organizations, the Committee notes that paragraph 1 of section 311.6 appears to remove the obligation of residence for foreigners, while paragraph 2 seems to require a minimum of three years of residence. While noting the progress made, the Committee again draws the Government’s attention to the fact that the principle laid down in Article 10 of the Convention is that of equality of treatment without conditions, whether it be of residence or reciprocity (see General Survey on migrant workers, 1999, paragraphs 109 and 440). The Committee therefore hopes that the Government will amend sections 322.4 and 311.6 of the Labour Code. The Committee asks the Government to clarify, where applicable, the conditions necessary for the exercise of management functions of employer’s organizations by foreigners engaged in a professional activity and lawfully residing in the territory.