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

Convenio sobre los trabajadores migrantes (disposiciones complementarias), 1975 (núm. 143) - Filipinas (Ratificación : 2006)

The Committee notes the Government’s second report on this Convention, and the statistical information and legislation attached. It also notes the Government’s reports on the Migration for Employment Convention (Revised), 1949 (No. 97) which contain information relevant to the application of Convention No. 143.

Article 1 of the Convention. Basic human rights of all migrant workers. The Committee recalls the Government’s state policy declared in sections 2(c), 4 and 23(b) of Republic Act (RA) No. 8042 on the Migrant Workers and Overseas Filipinos of 1995 regarding the fundamental human rights and freedoms of overseas Filipino workers, and the criteria for deployment of migrant workers to host countries set out in section 4 of RA No. 10022, amending RA No. 8042. It also notes the various support structures including the Commission on Filipinos Overseas (CFO), the Philippine Overseas Employment Administration (POEA) and the Overseas Workers Welfare Administration (OWWA), the Philippine Overseas Employment Offices (POLOs), the Migrant Workers’ and Overseas Filipinos Resource Centers (MWRC), and the Legal Assistant for Migrant Workers’ Affairs, put in place to ensure the protection and welfare of Filipino workers overseas at various stages of the migration process. At the same time, the Committee notes from the most recent statistics collected by the POEA and the CFO that overseas labour migration continues to be promoted and managed by the Government and the deployment of workers overseas continues to increase, particularly to countries in the Middle East. The Committee notes that women represented 55 per cent of the overseas Filipino workers deployed in 2010. The Committee asks the Government to provide information on the practical application of section 4 of RA No. 10022, including the list of host countries determined on the basis of this provision. The Committee would also appreciate receiving information, disaggregated by sex, on the percentage of overseas Filipino workers that participated in the pre-departure, pre-employment and post-arrival orientation seminars organized by the various institutions, and on whether these orientations include information on human rights of migrants and available mechanisms for complaints and redress. Please also provide information on any measures taken to ensure respect of basic human rights of migrant workers in an irregular situation.

Household service workers. The Committee notes that the Household Service Workers Reform package was promulgated in 2006 to ensure better protection of the rights of household service workers through various measures, including an age limit of 23 years of age for deployment, employment contract verification, a “no-placement fee” policy, pre-departure orientation and a pre-education programme and assistance and counselling provided in the host countries. The Committee also notes that significant numbers of overseas Filipino workers continue to be deployed overall, particularly in the service sectors, with almost one third of the deployed overseas workers in 2010 in domestic work, 98 per cent of them being female migrant workers. The Committee recalls that under Article 1 of the Convention, States undertake to respect the basic human rights of all workers, men and women, including the right to equality of opportunity and treatment and non-discrimination based on sex. The Committee requests the Government to continue to provide specific information on the measures taken to ensure protection of human rights of female overseas workers, and their impact. It also requests the Government to explain the reasons for imposing age restrictions on the deployment of household service workers and to indicate whether such age restrictions have been imposed on other sectors in which Filipino overseas workers are deployed. Please also indicate whether any consideration is being given to lifting the age restrictions on the employment of household service workers, with a view to ensuring respect for the basic human rights of all workers, including the right to non-discrimination, and to report on any progress made in this regard.

Restrictions on trade union activities. The Committee previously referred to the need to amend sections 269 and 272(b) of the Labour Code so as to grant the right to organize to all nationals lawfully residing within the Philippines (and not just those with valid permits if the same rights are guaranteed to Filipino workers in the country of the foreign worker, or if the country in question has ratified the ILO Conventions concerning freedom of association and the right to collective bargaining). The Committee recalls that Article 1 of the Convention is not subject to reciprocity, and applies to all migrant workers, including those in an irregular situation; the basic human rights referred to in this Article include the fundamental rights of workers, including freedom of association and the right to organize (General Survey on migrant workers, 1999, paragraphs 296–297). The Committee refers the Government to its comments on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

Article 2. Measures to detect migration in abusive conditions, and illegal employment of migrants. The Committee notes from the statistics provided by the CFO that as of December 2010, 704,916 overseas Filipinos (or 8 per cent of the total estimated number of overseas Filipinos) were in an irregular situation (i.e. who were undocumented, or without valid residence or work permits, or overstaying in a foreign country). No information has been provided on the number of irregular migrant workers in the Philippines. With respect to the measures taken to detect migration in abusive conditions of Filipino workers, the Committee notes the Government’s indication that regular reporting is being implemented through the Statistical Performance Reporting System (SPRS) in the different posts overseas which provides vital information to the inter-agency committee to implement a shared government information system for migration of Filipino workers (section 20 of RA No. 8042) regarding cases of abuse, illegal recruitment and trafficking. The Committee also notes that the Legal Assistant for Migrant Workers’ Affairs is responsible for keeping and maintaining the shared information system (section 24(e) of RA No. 8042). The Committee requests the Government to confirm that a shared government information system is effectively in place to detect whether any migrant workers depart from, transit or arrive in the country in abusive conditions, or are illegally employed, and to provide information on the activities of the inter-agency committee and the Legal Assistant for Migrant Workers’ Affairs in this context. Please indicate how workers’ and employers’ organizations are being consulted and enabled to furnish information. The Committee also requests the Government to continue to provide statistical information, disaggregated by sex, on the number of Filipino migrant workers in an irregular situation, as well as on the numbers of foreign workers that have entered or are employed in the Philippines in an irregular situation.

Articles 3 and 4. Measures to prevent and address irregular migration and the illegal employment of migrant workers. The Committee asks the Government to continue to provide information on the activities and measures taken, and the results achieved, by the various institutions, including the CFO and the Inter-Agency Council Against Trafficking (IACAT), the MWRC in the host countries, the POEA, the Bureau of Immigration, the Philippines Centre of Transnational Crimes and the Interpol Department to prevent and address migration in abusive conditions and against the organizers of such movements, including measures to enhance cooperation and mutual assistance among foreign countries. Please also provide information on any specific legal and practical measures adopted against those who are employing workers who have migrated under irregular conditions into the Philippines.

Article 5. Authors of trafficking for labour purposes. The Committee asks the Government to provide information on any arrangements at national or international level to ensure that traffickers for labour purposes can be prosecuted regardless of the country they operate from.

Article 6. Civil, penal and administrative sanctions. The Committee notes the provisions in the Labour Code and the RA No. 8042 and RA No. 9208 imposing penal sanctions, including imprisonment, with respect to illegal recruitment and trafficking in persons. It also notes the provisions in the Labour Code allowing for the suspension or cancellation of any licence or authority to recruit employees for overseas employment for violation of applicable laws, rules and regulations (section 35) and the Rules regarding the grounds for the suspension, cancellation or revocation of such a licence or authority, Book I, Rule VI, section 2(a)–(w). The Committee further notes the provisions in the Commonwealth Act (CA) on Immigration No. 613 and RA No. 9208 concerning the role of the Bureau of Immigration in enforcing immigration and foreigner administration laws and adopting measures for the apprehension of suspected traffickers both at the place of arrival and departure. It also notes the role of the Philippine national police and the local government units in enforcing the legislation on trafficking. The Committee asks the Government to provide information on any proceedings which have been instituted under RA No. 8042 and RA No. 9208, regarding illegal recruitment and trafficking in persons, supplying sample copies of the relevant decisions and indicating the penalties imposed. Please also provide information on the number of licences of private recruitment agencies that have been suspended, cancelled or revoked because of illegal recruitment practices.

Article 7. Consultation with employers’ and workers’ organizations. The Committee reiterates its request to the Government to supply additional information on how employers’ and workers’ organizations, from the Philippines or in host countries, are being consulted with respect to measures taken to prevent and eliminate migration in abusive conditions referred to in Article 2 of the Convention, and their possibility of taking initiatives to this end.

Article 8. Legal status in the case of loss of employment. The Committee recalls sections 40 and 41 of the Labour Code and notes the Government’s confirmation that loss of employment due to non-compliance by the employer has an effect on the legal situation of the migrant worker, since the granting of the work permit is conditional on the existence of employment. If the worker is terminated from employment, the basis for granting the work permit is lost. The Committee asks the Government to bring its law and practice into line with Article 8(1) of the Convention and to take the necessary legislative and other measures to ensure that the permission of a migrant worker to reside lawfully in the Philippines for the purpose of employment shall not be revoked where the migrant loses his or her employment prematurely. Please also provide information on the measures taken to apply Article 8(2).

Article 9(1), (2) and (3). Equality of treatment in respect of rights arising out of past employment. The Committee reiterates its request to the Government to indicate the specific provisions in the national legislation ensuring that: (1) migrant workers whose situation cannot be regularized enjoy equality of treatment with respect to rights arising out of past employment as concerns remuneration, social security and other benefits; (2) the worker concerned shall have the possibility to present his or her case to a competent body, and (3) that the costs of expulsion shall not be borne by the migrant worker or his or her family.

Article 11. Definition of migrant worker. The Committee requests the Government to indicate the maximum periods for the purpose of Article 11(2)(b) and (e) of the Convention.

Article 14(a). Free choice of employment. The Committee recalls that pursuant to section 41(a) of the Labour Code employment permits cannot be transferred to another employer without prior approval by the Department of Labour and Employment of the Code. Rule XIV, section 7 provides that an employment permit can be issued for one year. The Committee asks the Government to indicate whether any employment restrictions exist on foreign nationals with respect to the free choice of employment beyond the two-year period permitted under Article 14(a) of the Convention.

Article 15. Bilateral agreements. The Committee refers to its comments on Convention No. 97 and requests the Government to continue to provide information on the conclusion of bilateral agreements and other arrangements, including information on their impact.

Parts III–V of the report form. Practical application and enforcement. The Committee asks the Government to continue to provide information on the practical application of the provisions of the Convention, including on any inspection activities carried out by the POEA, and the number and nature of contraventions reported and penalties applied concerning illegal recruitment and trafficking in persons. Please also provide information on the number, nature and outcome of complaints filed with the POEA, or other competent bodies and the courts relating to violations of the relevant legislation and concerning migration in abusive conditions, including trafficking in persons. The Committee asks the Government to provide, in particular, information on any complaints submitted to the competent authorities by Filipino migrant workers or foreign workers in the Philippines, who are in an irregular situation, regarding non-respect of their basic human rights, and the available mechanisms for redress.