Solicitud directa (CEACR) - Adopción: 2012, Publicación: 102ª reunión CIT (2013)

Convenio sobre los trabajadores migrantes (revisado), 1949 (núm. 97) - Filipinas (Ratificación : 2009)

The Committee notes the Government’s first and second reports and the legislation and statistical information attached thereto. It also notes the Government’s report on the application of the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), which also contains information relevant to Convention No. 97.

Article 1 of the Convention. Information on national policies, laws and regulations. The Committee notes the provisions in the Labour Code, Title II (Employment of non-resident aliens), the Commonwealth Act (CA) No. 613 on Immigration, 1940, and the various memorandum orders and circulars issued by the Bureau of Immigration regarding visa requirements, employment permits and immigration status. It notes in particular section 9(g) and 20(a) of the Immigration Act regarding admission of foreigners coming to pre-arranged employment. The Bureau of Immigration is responsible for the administration and enforcement of the legislation relating to immigration, citizenship and admission and registration of foreigners in accordance with the Immigration Act. The Bureau of Employment Services (BES) maintains a registration and work permit system to regulate the employment of foreigners (section 15(a)(4) of the Labour Code). The Committee requests the Government to continue to provide information on any developments in law and policy regulating the employment of foreign workers in the Philippines, as well as any structures that have been set up to assist those workers in accordance with the Convention. The Committee also requests the Government to provide up-to-date statistics, disaggregated by sex, and nationality, regarding the number of foreigners that have entered the Philippines for pre-arranged employment, and the number of work permits registered by the BES.

Article 2. Free services to assist migrant workers, in particular the provision of accurate information. Further to its observation noting the range of pre-departure orientation (PDOS), pre-employment orientation (PEOS) and post-arrival orientation (PAOS) seminars for Filipino migrant workers conducted by the Commission on Filipinos Overseas (CFO), the Philippine Overseas Employment Administration (POEA), the Overseas Workers Welfare Administration (OWWA) and the Philippine Overseas Labor Offices (POLOs), the Committee notes from the website of OWWA the list of accredited land-based PDOS providers which include private recruitment agencies and non-governmental organizations. The Committee notes the Government’s indication that PDOS for agency-hired overseas workers is mandatory and is free of charge where OWWA and POEA assume the costs. A standard fee of 100 Philippine pesos (PhP) is charged to local recruitment agencies by accredited service providers to cover the cost of training materials. The Committee notes that membership in OWWA is obtained (a) by enrolment upon processing of contracts at the POEA or (b) by voluntary registration of Filipino workers at jobsites overseas, and that a membership contribution has to be paid (section IV(1)(a) and (b) and (2) of the OWWA Board Resolution No. 138 of 2003). Furthermore, the Migrant Workers and Other Overseas Filipinos Resource Centers (MWRCs) also provide information to migrant workers in the host countries. The Committee asks the Government to clarify in which cases POEA and OWWA do not assume the costs of PDOS and PEOS, and whether the PAOS and the information provision to migrants provided by the CFO is free of charge. Please also indicate what costs and services are covered by the OWWA membership fee. The Committee also requests the Government to indicate how it is being ensured that accredited service providers, local recruitment agencies and private employers, involved in PDOS, PEOS and PAOS, are not charging fees to the overseas worker, and how potential migrant workers are being informed of the existence of these services.

Article 3. Misleading propaganda. The Committee notes the provisions in the Labour Code, the Migrant Workers and Overseas Filipinos Act (RA 8042) and the Anti-Trafficking in Persons Act (RA 9208) defining, listing and prohibiting acts constituting illegal recruitment and acts of trafficking in persons, as well as the penalties imposed on any persons found guilty of illegal recruitment under section 7(a) and (b) of RA 8042. It also notes Executive Order No. 41 of 29 April 2011 reactivating the Presidential Task Force Against Illegal Recruitment created under Executive Order No. 759 of 2008 and the anti-illegal recruitment campaigns and pre-departure and pre-employment information provided to migrant workers. The Committee asks the Government to continue to provide information on the activities and measures taken by the various institutions against false information regarding the migration process stemming from private recruiters, recruitment agencies or employers, as well as any measures taken or envisaged to cooperate with other governments in this regard.

Article 4. Measures to facilitate departure and arrival – household service workers. The Committee notes from the statistics provided by the Government that in 2010, almost one third of the overseas Filipinos were domestic workers, 98 per cent of them being women. In 2010, 94,880 female migrant workers compared to 1,703 male migrant workers were employed as household service workers. Female overseas workers also outnumbered male overseas workers as cleaners and related workers (9,521 women compared to 2,612 men), professional nurses (10,254 women compared to 1,828 men) and caregivers and caretakers (8,750 women compared to 543 men). The Committee notes that on 16 December 2006, the Government promulgated the Household Service Workers’ (HSW) Policy Reform Package 2006 which sets a minimum age for household workers at 23 years of age and requires upgrading of skills of domestic workers through skills training and certification with the Technical Education and Skills Development Agency (TESDA). Employers of household service workers are to cover the placement costs and pay a minimum wage of US$400. Prior to departure, household service workers must attend OWWA’s Comprehensive Pre-departure Orientation Programme (CPDEP). The Committee notes the steady increase in the deployment of household service workers in the Gulf Cooperation Council (GCC) countries, the GCC share of new hires being 63 per cent in 2010. The Committee requests the Government to supply information on the effectiveness of the Household Service Workers Programme on the protection of the rights of household service workers, including the payment of the minimum wage of US$400 and compliance with the provisions of their contract of employment. Please indicate the underlying reasons for the age restrictions on the departure of household service workers, as well as whether any such restrictions are imposed on sectors in which predominantly male migrants are being deployed. The Committee also requests the Government to provide information on the percentage of household service workers that attended the CPDEP and training with TESDA, and how the implementation of the programme is being monitored and coordinated.

Restrictions on departure of migrant workers. The Committee notes that pursuant to section 5 of RA 8042 and section 6 of the Omnibus Rules and Regulations implementing RA 8042, as amended by RA 10022, the POEA Governing Board, after consultation with the Department of Foreign Affairs (DFA) , may, in the pursuit of national interest and or when public welfare so requires, at any time terminate or impose a ban on the deployment of migrant workers. It may also grant exceptions to the ban or lift the ban. The Committee requests the Government to provide information on any ban imposed on the deployment of migrant workers, in general, or with respect to certain sectors of employment or countries of destination, pursuant to section 5 of RA 8042 and section 6 of the Omnibus Rules and Regulations implementing RA 8042, indicating the reasons for imposing such a ban, as well as its impact.

Article 5. Medical examinations and requirements for entry and departure. The Committee notes that pursuant to sections 3 and 4 of the POEA Rules and Regulations Governing Recruitment and Employment of Land-Based Overseas Workers (Rule VIII, Part II), the private agency who refers an applicant for overseas employment to a medical examination shall ensure that the examination be conducted “in accordance with the requirements of the employer”. With respect to immigrants, the Committee notes that section 29(a)(2) of the Immigration Act excludes “persons afflicted with a loathsome or dangerous contagious disease”. The Committee further notes the Government’s statement that medical exams are required for foreign nationals in the Philippines when applying for renewal of a visa and for employment. The Committee draws the Government’s attention to paragraph 266 of its 1999 General Survey on migrant workers stating that refusal of entry or repatriation on the grounds that the worker concerned is suffering from an infection or illness of any kind which has no effect on the task for which the worker has been recruited, constitutes an unacceptable form of discrimination. The Committee also refers to Paragraphs 24–28 of the HIV and AIDS Recommendation, 2010 (No. 200), according to which HIV testing must be genuinely voluntary and free of any coercion, should not be required of workers, including migrant workers, and migrant workers should not be required to disclose HIV-related information about themselves or others; those seeking to migrate for employment, should not be excluded from migration by countries of origin, of transit or of destination on the basis of their real or perceived HIV status. The Committee asks the Government to provide information as follows:

• (i) how it is ensured that medical examinations do not include compulsory HIV testing or pregnancy testing and do not lead to the exclusion of the applicant for overseas employment on the basis of the results of such testing, or on the basis of an infection or illness which has no effect on the task for which the worker has been recruited; and
• (ii) the contents of the medical examinations for foreign workers in the Philippines and the practical application of section 29(a)(2) of the Immigration Act, including any assessment made as to whether the infection or illness would have an effect on the task for which the worker has been recruited. Please also provide information on the number of non-nationals seeking employment in the Philippines who have been prohibited entry or who have been expelled on the basis of this provision, including on the basis of their real or perceived HIV status.

Article 6. Equality of treatment. The Committee notes the restrictions imposed on foreign workers regarding trade union activities pursuant to sections 269 and 272(b) of the Labour Code, and refers to its comments on Convention No. 143 and the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

Article 7(1). Cooperation with employment services of other Member States, in appropriate cases. Please indicate the measures taken to ensure that the POEA and other services connected with migration cooperate with the corresponding services of other Member States.

Article 7(2) and Annex I: Articles 4 and 6 – Free services by the public employment services in connection with recruitment, introduction and placement. The Committee notes section 15(a)(2) of the Labour Code providing that the BES shall provide for free placement services to workers, and that RA 8759 or the Public Employment Service Office (PESO) Act of 1999 establishes non-fee charging employment services (PESOs) which, among others, conduct pre-employment counselling and orientation to prospective local and overseas workers, and provides reintegration assistance services to returning Filipino migrant workers. The Committee also notes that pursuant to section 2(i) of the Migrant Workers and Overseas Filipinos Act RA 8042 “government fees and other administrative costs of recruitment, introduction, placement and assistance to migrants shall be rendered free without prejudice of section 36 thereof”. However, section 36 of the RA 8042 states that upon approval of the Act, all fees charged by any Government office to migrant workers shall remain at their present levels. Section 4 of Rule XVII of the Omnibus Rules and Regulations implementing RA 8042, also provides that all fees for services being charged by any government agency on migrant workers prevailing at the time the Rule entered into force shall not be increased. All other services rendered by the Department of Labor and Employment (DOLE) and other government agencies in connection with the recruitment and placement of and assistance to migrant workers shall be rendered free. The administrative cost thereof shall not be borne by the worker. The Committee requests the Government to clarify the relationship between sections 2(i) and 36 of RA 8042, and the practical application of section 4 of Rule XVII, and to confirm that the services by the public employment services in connection with recruitment, introduction and placement of migrant workers shall be rendered free.

Annex I, Articles 3(3)(a) and (b) and (4). Recruitment by the employer, his or her representative, or private recruitment agencies. The Committee notes that the POEA shall regulate private sector participation in the recruitment and overseas placement of workers by setting up a licensing and registration system (section 23(b) of RA 8042). It also notes the establishment of the POEA Licensing and Regulation Office (LRO) and the provisions in the Labour Code, the RA 8042, the Omnibus Rules and Regulations implementing RA 8042 regarding illegal recruitment and related penalties, the suspension or cancellation of the licence or authority given, and the jurisdiction of the POEA to hear and decide administrative cases involving or arising out of recruitment rules and regulations. POEA can also receive complaints or institute proceedings on its own initiative. It also notes that the POEA can impose administrative penalties for pre-employment and recruitment violation cases including reprimand, suspension, or cancellation or revocation of licence (Rule X, sections 3, 6(a) and (b), 8 and 10). The Committee asks the Government to provide additional information on the activities of the LRO and the manner in which it supervises the activities of private recruitment agencies and employers, in accordance with Article 3(4) of Annex I. Please provide information on any administrative violation cases regarding recruitment and pre-employment addressed by the POEA, as well as the administrative penalties imposed.

Annex I, Article 5. Supervision of contracts. The Committee notes the Government’s statement that the POEA is the competent authority to examine the employment contracts of overseas Filipino workers. It notes in this regard sections 1–4 of Part III, Rule I of the POEA Rules and Regulations Governing the Recruitment and Employment of Land-based Overseas Workers, regarding the Verification of Documents and Registration of Foreign Principals, Employers and Projects. Section 2 provides for document verification, including the model employment contract, prior to registration with the POEA, by the POLOs and for minimum provisions in the employment contract. It also notes the Government’s indication that employment contracts of household service workers are individually verified by the POLOs in the host country to ensure the existence of the job, in compliance with the relevant legislation and the employer’s capacity to comply with the terms and conditions of employment. The Committee further notes that the National Labour Relations Commission (NLRC) has the exclusive jurisdiction to hear and decide claims arising out of an employment relationship or by virtue of any law or contract involving Filipino workers for overseas employment. The Committee requests the Government to provide additional information on how compliance with the provisions of the employment contract is being monitored in the country of destination. Considering that contract-substitution was noted by the Committee as a practice being known to occur particularly in the Gulf States (General Survey on migrant workers, 1999, paragraphs 143–144), some of which are top destinations for overseas Filipino workers, the Committee also requests the Government to provide information on any measures taken to monitor and address this practice, including through bilateral agreements. The Committee also requests the Government to provide information on the number and nature of complaints submitted to the NLRC by overseas workers regarding non-compliance with the contract of employment, and their outcome.

Contract of employment for Saudi Arabia. The Committee notes that the POEA standard contract for overseas Filipino workers going to Saudi Arabia, states that “engagement in trade union activities by the employee”, is a valid reason for the employer to terminate the contract of employment. Such a condition is not included in the general standard employment contract for various skills. The Committee emphasizes that particular attention should be paid to provisions in migrant workers’ contracts which may be contrary to the ILO fundamental principles and rights, such as the right to organize, and the right to engage in collective bargaining. The Committee refers to its comments on Convention No. 87 and asks the Government to provide information on any measures taken or envisaged to delete trade union activities from the list of grounds for termination in standard contracts.

Immigrant workers. The Committee notes that section 20(a) of the Immigration Act provides that the petition of an employer requesting a foreigner to come on pre-arranged employment shall be accompanied by a written employment contract and information regarding length of service, wages and additional benefits. Please indicate the competent authority regarding the supervision of contracts of employment of foreign workers in the Philippines.

Article 8. Maintenance of residence in case of incapacity for work. The Committee requests the Government to provide information on how the right of immigrant workers who have been admitted on a permanent basis to reside in the country is maintained in practice in the event of incapacity for work.

Article 9. Earnings and savings – Remittances. The Committee notes the Government’s statement that a foreign worker has the freedom to remit all or a portion of his or her earnings. At the same time, section 22 of the Labour Code provides that it shall be mandatory for all Filipino workers abroad to remit a portion of their foreign exchange earnings to their families, dependents, and/or beneficiaries in the country in accordance with rules and regulations prescribed by the Secretary of Labour. Recalling that under Article 9 of the Convention, migrant workers should be able to transfer such part of their earnings and savings as they may desire, the Committee asks the Government to provide information on the practical application of section 22 of the Labour Code, and copies of the relevant rules and regulations.

Bilateral agreements. The Committee notes from the Government’s report on Convention No. 143 that the Philippines has signed labour agreements with 23 countries employing Filipino land-based workers, 14 of which are still in effect. It notes that the DOLE has prioritized the review of these agreements with countries in the Middle East. The Government further indicates that the DOLE issued Administrative Order No. 28 series 2012 on “The Philippine Labour Agreement: Guidelines and procedures which shall be adopted to harmonize the forging of bilateral agreements between the Philippines and another country”. Memoranda of Understanding (MOUs) have also been signed between the Philippines and the Republic of Korea on the sending and receiving of workers under the employment permit system of the Republic of Korea, and with Canada concerning cooperation in human resources and development; Memoranda of Agreements (MoAs) have been signed with the United Arab Emirates in the field of labour, and with Bahrain on health services cooperation. The POEA has also issued rules on the minimum monthly income United Arab Emirates employers have to pay Filipino household services workers, and guidelines on the recruitment and deployment of Filipino “au pairs” to Switzerland and Norway. Please continue to provide information on the conclusion of bilateral agreements and other arrangements, including information on their practical application and impact. Please also provide copies of any memoranda of agreements or understanding concluded with countries of destination, as well as of the Philippine Labour Agreement Guidelines and the Guidelines on the recruitment and deployment of Filipino “au pairs”.

Article 11(b). The Committee requests the Government to indicate the longest period which is regarded as constituting “short-term entry” within the meaning of Article 11(b).