Migration for Employment Convention (Revised), 1949 (No. 97) - Jersey

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Scope of protection. Private household employees. The Committee previously noted that section 1(5)(a) and (b) of the Employment (Jersey) Law excluded from its application the employment of a person under which the person’s work relates to the employer’s family household, where certain specific conditions are met. It also noted the Government’s clarification that workers employed in private households who were likely to meet the additional conditions set out in section 1(5) would be au pairs. The Committee notes that the Government indicates in its report that there is no specific employment legislation for au pairs but that the Employment (Jersey) Law would apply if the conditions in section 1(5)(a) and (b) are not met. The Committee recalls that foreign workers who are au pairs are covered by the Convention and asks the Government to indicate the applicable legislation to foreign au pairs who do meet the conditions set out in section 1(5)(a) and (b) of the Employment (Jersey) Law 2003, and any measures taken to ensure that foreign au pairs who are working and residing in the family home enjoy no less favourable treatment with nationals in the same conditions with respect to the matters set out in Article 6(1)(a)–(d) of the Convention. The Committee further encourages the Government to consider collecting statistical information, disaggregated by sex and nationality, on the number of national and foreign workers employed as live-in domestic workers in private households, including au pairs, in order to have an overview of the number of those foreign live-in domestic workers and nationals who are covered by the Employment (Jersey) Law 2003, and of those who are not, and to provide such information when available.

Article 3 of the Convention. Private recruitment agencies and misleading propaganda. The Committee notes the Government’s reply in response to its previous request concerning any complaints received by the Department of Social Security regarding unsatisfactory agency service pursuant to the Employment Agencies (Registration) Code of Conduct (Jersey) Order 1970. The Government also indicates that it is not aware of any misleading propaganda on the migration process, and that no measures have been considered necessary to prevent or suppress such misleading propaganda. The Committee requests the Government to continue to assess the need for any measures to prevent and suppress misleading propaganda on the migration process (including for example: (i) measures aimed at tackling exaggerated claims on the living and working conditions or on chances in finding and maintaining work in Jersey; or (ii) measures aimed at tackling false information propagating stereotypes on migrant workers or at combating xenophobia), and to provide information on any steps taken in this regard.

Article 4. Measures to facilitate departure and equality of treatment. The Committee recalls its previous comments regarding section 11 of the Employment Agencies (Registration) Code of Conduct (Jersey) Order 1970, imposing disproportionate restrictions on women wishing to migrate for employment using private agencies, restrictions that are not imposed with respect to male migrants. The Committee notes with interest that section 5 of the Employment Agencies (Registration and Code of Conduct) (Amendment) (Jersey) Order 2013 amends section 6 of the Employment Agencies (Registration) Code of Conduct (Jersey) Order 1970 to repeal the reference to “any female person” and to remove the restrictions on women wishing to migrate for employment using private agencies.

Article 6. Equality of treatment. Enforcement. The Committee welcomes the information provided by the Government regarding compliance with the provisions of the Employment (Jersey) Law 2003, including the minimum wage, and the Social Security (Jersey) Law 1974 and the Social Security (Residence and Persons Abroad) (Jersey) Order 1974, covering the matters enumerated in Article 6(1)(a)–(d) of the Convention. It notes in particular the data from the surveys undertaken on employers in the domestic work sector between June 2012 and May 2017, indicating that no minimum wage issues were found but that a number of employers had “issues with contracts”. The Government further indicates that both migrants and national workers, as well as employers, can submit complaints to the Jersey Advisory and Conciliation Service (JACS) which can settle employment disputes and give free advice. Since January 2014, the JACS received 15 queries in relation to work in private households (six from male workers, seven from female workers and two unspecified), 12 of which were from British/Jersey nationals. No complaints were submitted to the judicial or administrative authorities dealing with questions of principle relating to the Convention. The Committee requests the Government to continue to provide information on compliance with the relevant legal provisions covering the matters set out in Article 6(1)(a)–(d) of the Convention, including complaints submitted to the courts or the JACS, or violations detected by the compliance inspectors of the Social Security Department. It also asks the Government to clarify the type of contractual issues that were found in the context of the surveys of the employers of domestic workers.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Scope of protection. Private household employees. The Committee recalls section 1(5)(a) and (b) of the Employment (Jersey) Law excluding from its application the employment of a person under which the person’s work relates to the employer’s family household, where certain specific conditions are met. The Committee notes the Government’s clarification that the majority of the people working in private households would in fact be protected by the Employment Law as most would not reside in the employer’s home; workers employed in private households who are likely to meet the additional conditions set out in section 1(5) would be au pairs. The Government further states that both migrant and national workers employed in private households have the right to paid holidays and the minimum wage, unless the worker (whether a migrant or national worker) is excluded by section 1(5) of the Employment (Jersey) Law. An employee of a private household who simply resides in the household but does not meet the other conditions is not excluded from the protection of the Law. The Committee notes that the Social Security Department recorded 11 au pairs in 2010 and seven au pairs in 2012; all au pairs were women except one. No information has been provided on the number of nationals working in private households, including those falling within the meaning of section 1(5)(a) and (b) of the Employment (Jersey) Law. The Committee asks the Government to provide statistical information, disaggregated by sex and nationality, on the number of national and foreign workers employed as live-in domestic workers in private households distinguishing between those excluded from the application of the Employment (Jersey) Law pursuant to section 1(5), and those who are not. The Committee also requests the Government to provide copies of the relevant legislation applicable to au pairs.

Article 3 of the Convention. Private recruitment agencies and misleading propaganda. The Committee notes the Government’s statement that the Department of Social Security has received no complaints regarding unsatisfactory agency service pursuant to the Employment Agencies (Registration) Code of Conduct (Jersey) Order, 1970. The Committee requests the Government to continue to provide information on the nature and number of any complaints received against agencies pursuant to sections 4(2) and 15 of the Employment Agencies (Registration) Code of Conduct (Jersey) Order, 1970. Please also indicate any other measures taken to prevent and suppress misleading propaganda on the migration process.

Articles 4 and 6. Measures to facilitate departure and equality of treatment. The Committee recalls its previous comments regarding section 11 of the Employment Agencies (Registration) Code of Conduct (Jersey) Order, 1970, imposing disproportionate restrictions on women wishing to migrate for employment using private agencies; restrictions that are not imposed with respect to male migrants. The Committee notes the Government’s statement that the insular authorities will consider reviewing the legislation when resources allow it. Recalling Article 4 of the Convention requiring measures to facilitate departure of migrant workers and the principle of equality of treatment, including between male and female migrant workers, set out in Article 6 of the Convention, the Committee requests the Government to give serious consideration to reviewing section 11 of the Employment Agencies (Registration) Code of Conduct (Jersey) Order, 1970, as soon as possible, with a view to its revision, and to report on the progress made in this regard. Please provide information on any steps taken to adopt gender-sensitive measures to facilitate the departure of both men and women migrants so as to avoid unnecessary restrictions on women wishing to migrate for employment outside of Jersey.

Article 6. Equality of treatment. The Committee recalls sections 16(7) and (8) of the Employment (Jersey) Law, 2003 prohibiting differences with respect to minimum wages in relation to racial groups or gender, and the Government’s confirmation that the provisions regarding minimum wages and paid holidays apply to all employees irrespective of race, colour, nationality, religion or sex. The Committee also notes the information provided by the Government regarding the contributory benefits set out in the Social Security (Jersey) Law, 1974 and the Social Security (Residence and Persons Abroad) (Jersey) Order, 1974. The Committee recalls that legislative provisions alone are not sufficient to ensure that migrant workers enjoy equality of treatment with nationals and that it is essential that States ensure that the legislation is applied in practice, particularly by means of labour inspection services or other supervisory authorities (General Survey on migrant workers, 1999, paragraph 371). The Committee requests the Government to provide further information on the practical measures taken to ensure that the relevant national provisions covering the matters enumerated in Article 6(1)(a)–(d) of the Convention are effectively applied in practice in respect of all migrant workers lawfully residing in the country, and to provide information on any complaints submitted to the judicial or administrative authorities concerning the principle of equality of treatment, and their outcome.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 6 of the Convention. Equality of treatment. Social security. With respect to its previous comments concerning equal treatment between nationals and non-nationals under contributory and non-contributory benefits schemes, the Committee notes the Government’s confirmation that nationality cannot be used as an eligibility criterion for participation in such schemes.

Equality of treatment. Minimum wage. The Committee notes the adoption of the Employment (Jersey) Law, 2003, which came into effect in July 2005 and which applies to all employees who are working wholly or mainly in Jersey. According to the Government, the provisions on minimum wages and paid holidays of the law apply to all employees irrespective of their nationality, race, religion or sex. The Committee notes that section 17(7) and (8) prohibit differential treatment with respect to minimum wages in relation to different racial groups or gender and that “racial groups” means a group of persons identified by reference to colour, race, nationality, ethnic or national origin; religion, however, is not covered by the provisions of the Employment (Jersey) Law 2003. Recalling that Article 6 of the Convention also prohibits less favourable treatment between nationals and migrant workers with respect to religion, the Committee asks the Government to confirm that religion cannot be used as a ground for differential treatment, and to indicate the relevant legal provisions. The Committee also asks the Government to provide information on the implementation of the policy and legislation concerning equal treatment of foreign and national workers with respect to the other matters covered by Article 6(1)(a)–(d) of the Convention.

Scope of protection. Private household employees. The Committee notes that pursuant to section 1(5)(a) of the Employment (Jersey) Law, 2003, the law does not apply to the employment of a person under which the person’s work relates to the employer’s family household where: (i) the employee resides in the family home of the employer; (ii) the employee is treated as a member of the family with respect to accommodation and meals and tasks and leisure activities; and (iii) is not liable to any deduction or to make any payment to the employer as regards living accommodation and meals; or (b) where (i) the employee is a member of the employer’s family, (ii) resides in the family home, and (iii) shares in the tasks and activities of the family and the employee’s work is done in that context. The Committee asks the Government (a) to provide statistical information, disaggregated by sex and nationality, on the numbers of national and foreign workers employed in private households; and (b) to indicate how migrant workers in private households are being protected against less favourable treatment irrespective of race, nationality, religion and sex with respect to minimum wages  and paid holidays.

Annex II and Article 3. Private recruitment agencies and misleading propaganda. The Committee notes the Employment Agencies (Registration) Code of Conduct (Jersey) Order, 1970, issued under the Employment Agencies (Registration) (Jersey) Law, 1969. It notes that section 4(2) of the Order prohibits agents or persons acting on their behalf “with intent to deceive falsely describe the nature, locality or conditions of any employment or the wages offered in connection therewith or the qualifications, character, age or experience of or the wages required by any applicant for employment or make any other representation false in any material particular regarding any employment or applicant for employment”. The Committee notes that complaints regarding unsatisfactory agency service may be put before the Minister (section 15). The Committee asks the Government to provide information on the nature and number of complaints received against agencies pursuant to sections 4(2) and 15 of the Employment Agencies (Registration) Code of Conduct (Jersey) Order 1970. Please also indicate any other measures taken to prevent and suppress misleading propaganda on the migration process in accordance with Article 3 of the Convention.

Articles 3, 4 and 6. Misleading propaganda and equality of treatment. Measures to facilitate departure. The Committee notes that pursuant to section 11 of the Employment Agencies (Registration) Code of Conduct (Jersey) Order, 1970, an agent wanting to employ a female person outside Jersey must be in possession of written information obtained from a responsible person or society testifying to the satisfactory nature of the proposed employment. When this concerns the employment in any theatre music hall, café or other similar place or film production, the agent must also have proof of the bona fides of the proposed employer and of any person representing himself or herself as acting for such employer. The Committee recalls Article 4 of the Convention requiring ratifying States to take measures to facilitate departure of men and women migrants. The Committee also recalls that non-discrimination and equality of treatment, including between male and female migrant workers, is one of main principles of the Convention. While acknowledging the Government’s efforts to protect women migrant workers against misleading propaganda and abuse, the Committee considers that the abovementioned provisions put disproportionate restrictions on women wishing to migrate for employment using private agencies, such restrictions not being imposed with respect to male migrants. The Committee refers the Government to the non-binding guidelines of ILO Multilateral Framework on Labour Migration which, while calling for measures to prevent discrimination and abuse by private agencies, also call upon ILO member States to adopt gender-sensitive labour migration policies. The Committee hopes that the Government will consider reviewing section 11 of the Employment Agencies (Registration) Code of Conduct (Jersey) Order 1970 in order to reflect equality of treatment between men and women migrant workers with respect to the migration process. It encourages the Government to adopt gender-sensitive measures to facilitate the departure of both men and women migrants and avoid unnecessary restrictions on the employment of women nationals abroad.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

1. Article 6 of the Convention. The Committee notes the information provided in the Government’s report concerning contributory and non-contributory benefits schemes. In both types of schemes it is mentioned that eligibility criteria do not include race, religion, sex, and that all residents are provided equal treatment under these schemes. However, the Committee notes that the Government’s report contains no specific information concerning non-discrimination based on nationality. Please confirm that nationality cannot be used as an eligibility criterion for participation in such schemes.

2. In view of the growing role of private agencies in the international migration process, the Government is asked to state whether this tendency has any repercussions on the application of Annex II of the Convention, which deals with the recruitment, placement and conditions of labour migrants. If so, the Committee would be grateful if the Government would state the measures that have been taken or are envisaged to regulate the activities of private agencies or encourage self-regulation in order to protect migrant workers from any abuse. Please also specify the penalties for infringements, particularly as regards misleading advertising relating to migration for employment.

3. Finally, the Committee asks the Government to include in its next report statistics on the number of persons migrating for employment to and from Jersey and to communicate the relevant results, if any, of the activities of the labour inspection service, in accordance with the provisions of the Convention.