Solicitud directa (CEACR) - Adopción: 2022, Publicación: 111ª reunión CIT (2023)

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

The Committee notes the Government’s reports received in 2017 and 2021, and its 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. With reference to its previous comment, the Committee notes, from the Government’s reports, the new Joint Manual of Operations in Providing Assistance to Migrant Workers and Other Filipinos Overseas, published to provide assistance to overseas Filipino workers, particularly those in distress, at all times. This Joint Manual was signed by the Department of Foreign Affairs (DFA), the Department of Labor and Employment (DOLE), the Department of Social Welfare and Development (DSWD), the Department of Health (DOH), the Philippine Overseas Employment Administration (POEA) and the Overseas Workers Welfare Administration (OWWA). The Committee further takes note of the list of programmes and services offered to overseas Filipino workers. Among these, the Committee notes with interest the “Balik Pinay! Balik Hanapbuhay!” (BPBH) Programme which provides training and starting capital to female overseas Filipino workers who returned to the country after being victim of illegal recruitment, trafficking, exploitation (unpaid and underpaid), sexual and physical abuse, or with a contract which was terminated prematurely. The Committee also notes the development of the POEA Mobile Application, which makes the POEA’s database easily accessible to potential overseas jobseekers who wish to verify the status of a recruitment agency, the existence and availability of approved job offers and other relevant information to avoid illegal recruitment. The Government indicates that since its launch in March 2014, 424,762 users have downloaded the application. The Committee notes, however, that all the information provided concerns overseas Filipino workers and that the Government does not provide any information on the measures taken to assist foreign workers in the Philippines. The Committee requests the Government to provide information on: (i) the results of the Balik Pinay! Balik Hanapbuhay! Programme, including on the number of women who benefited from it; (ii) any activities undertaken to give effect to the provisions of the Convention and to promote and protect the rights of Filipino migrant workers, and (iii) 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.

Article 2. Free services to assist migrant workers, in particular the provision of accurate information. The Committee notes the Government’s indication, in reply to its previous comment, that services rendered under the pre-employment orientation seminars (PEOS) and post-arrival orientation seminars (PAOS) are free of charge. The Committee notes the Government’s indication that, in 2016, a total of 724,983 migrants followed the Pre-Departure Orientation Seminar (PDOS), women representing 49 per cent of them. The Government further indicates that the Commission of Filipinos Overseas (CFO) information services are available free of charge. These services include PDOS, Guidance and Counseling Program (GCP), Country Familiarization Seminars for Au Pairs, Exchange Visitor Program (US J-1 visa) and Peer Counseling Seminar to departing emigrants. It notes however that a fee of 400 Philippine pesos (PHP) (approximately USD7.9) is charged to cover registration expenses. The Committee also notes the list of benefits and services covered by the OWWA membership fee, including disability and death insurance, scholarship for dependants, and on-site assistance. Recalling that Article 2 of the Convention requires to provide free services, the Committee requests the Government to lift the registration fee charged by the CFO for its information services. Noting that no information was provided in this regard, the Committee reiterates its requests that the Government indicate how it is being ensured, in practice, 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. In reply to its previous comment, the Committee notes the Government’s information on the different measures taken to prevent and address human trafficking. Among these measures, the Committee notes the Community Education Program (CEP), a nationwide annual information campaign conducted by the CFO in coordination with various government agencies, non-governmental organizations, and media organizations, which seeks to assist prospective migrants in making informed decisions regarding working or settling abroad, as well as generating community involvement on migration concerns. It also aims to raise public awareness about issues concerning migration, inter-marriages, and existing government policies and programs directed against illegal recruitment, documentation fraud and trafficking. The Committee further notes that the POEA regularly posts anti-illegal recruitment advisories on its social media accounts with over 2 million views. The Committee takes note of this information.

Article 4. Measures to facilitate departure and arrival – household service workers. The Committee notes that the Government’s reports are silent on the effectiveness of the Household Service Workers Programme on the protection of the rights of such workers, and that no information is provided on the reason for imposing a minimum age (23 years) for household workers, as required in its previous comments.The Committee further notes, from the concluding observations of the United Nations Committee on the Elimination of Discrimination against Women (CEDAW): (i) the existence of widespread exploitation and abuse of Filipina migrant workers working abroad, in particular as domestic workers; (ii) the insufficient support provided to reintegrate those who return; and (iii) that the protection of migrant workers under the Association of Southeast Asian Nations (ASEAN) migration policies does not cover unskilled migrants, who constitute the majority of Filipina migrant workers (CEDAW/C/PHL/CO/7-8, 25 July 2016, para. 37).The Committee further notes, from the Government’s 2021 report to the CEDAW, that, in order to address the vulnerability of overseas Filipino workers, particularly female domestic workers, it has entered into bilateral labour agreements with destination countries and continues to conduct regular dialogue with them to ensure that their rights and welfare are protected (CEDAW/C/PHL/9, 4 October 2021, para. 112). The Committee once again requests the Government to provide information on the effectiveness of the Household Service Workers Programme on the protection of the rights of household service workers, including compliance with the provisions of their contract of employment. With regard to the age restriction on the departure of household service workers, the Committee refers to its comment under Convention No. 143 and requests the Government to indicate the underlying reasons for the age restriction 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 OWWA’s Comprehensive Pre-departure Orientation Programme and training with the Technical Education and Skills Development Agency (TESDA), and how the implementation of the programme is being monitored and coordinated.

Restrictions on departure of migrant workers. Noting that the Government does not provide information to its previous request, the Committee once again asks 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 Republic Act (RA) No. 8042 and section 6 of the Omnibus Rules and Regulations implementing RA No. 8042, indicating the reasons for imposing such a ban, as well as its impact.

Article 5. Medical examinations and requirements for entry and departure. With reference to the Committee’s previous request, the Government indicates that under the Philippine AIDS Prevention and Control Act of 1998, compulsory HIV testing is unlawful as a precondition to employment, admission to educational institutions, the exercise of freedom of abode, entry or continued stay in the country, or the right to travel, the provision of medical service or any other kind of service, or the continued enjoyment of said undertakings.However, the Committee notes that section 29(a)(2) of the Immigration Act, which provides for the prohibition of entry or expulsion on the grounds that the immigrant worker is suffering from an infection or illness, is still in force and may result in discrimination against migrant workers. Therefore, the Committee requests the Government to provide information onhow it is ensured, in practice, that medical examinations, required when applying for a visa (or the renewal of a visa) and for employment, either as a foreign national seeking employment in the Philippines or as a Filipino candidate for overseas employment, do not include compulsory HIV testing or pregnancy testing and do not lead to the exclusion of the applicant 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. Noting that no data is made available by the Government on this point, the Committee also requests it to provide information on 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. Once again please 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 on 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.Noting that the Government does not provide any information in this regard, the Committee once again requests the Government to 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.With reference to its previous request, the Committee notes that the Government does not provide any new information on this point and once again requests the Government to clarify the relationship between sections 2(i) and 36 of RA No. 8042, and the practical application of section 4 of Rule XVII, and to confirm that the services offered by the public employment services in connection with recruitment, introduction and placement of migrant workers are free of charge.

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 Government’s reports do not reply to its previous comments and requests on this point. The Committee notes, from the concluding observations of the United Nations Committee on the Protection of Migrant Workers (CMW), that private recruitment agencies: (1) charge excessive placement fees, and provide often incomplete information, which may result in acceptance of salaries below the minimum wage and deprivation of other labour benefits; and (2) serve as intermediaries for abusive foreign recruiters (CMW/C/PHL/CO/2, 2 May 2014, para. 42). The Committee invites the Government to adopt measures to ensure that recruitment fees or related costs are not collected from workers. The Committee also once again requests the Government to provide information on (i) the activities of the POEA Licensing and Regulation Office (LRO) with regard to its supervising activities of private recruitment agencies and employers, in accordance with Article 3(4) of Annex I; and (ii) 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. With reference to its previous comment, the Committee notes, from the Government’s report to the CEDAW, that through the Philippine Overseas Labour Offices (POLO), present in 40 countries, the Government provides assistance to workers on issues and concerns of overseas Filipino workers relative to their work conditions and well-being. The Government also established an Overseas Filipino Workers’ Command Centre to ensure that overseas workers and their next-of-kin’s concerns and issues are acted upon promptly (CEDAW/C/PHL/9, para. 112). The Committee notes, however, that the Government did not provide the information requested, in its previous request, on several issues. The Committee requests the Government to provide information on: (i) how compliance with the provisions of the employment contract is being monitored in practice by the POEA once the worker has arrived in the country of destination; and (ii) the number and nature of complaints submitted to the National Labour Relations Commission (NLRC) by overseas workers regarding non-compliance with the contract of employment, and their outcome. Furthermore, recalling 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 primary destinations for overseas Filipino workers, the Committee once again requests the Government to provide information on any measures taken to monitor and address this practice, including through bilateral agreements.

Contract of employment for Saudi Arabia. In reply to the Committee’s previous request, the Government indicates that the POEA standard contract for overseas Filipino workers going to Saudi Arabia prohibits employees to engage in trade union activities because Saudi laws prohibit foreigners to do so. The Committee once again 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. It recalls that the Convention guarantees migrant workers the right to establish and join organizations of their own choosing without previous authorization and that the fact of being a foreign worker should not present an obstacle to membership of trade unions (General Survey on promoting fair migration, 2016, para. 413). The Committee refers to its comments on Convention No. 87 and requests the Government to take the necessary measures to delete trade union activities from the list of grounds for termination in standard contracts.

Immigrant workers. In reply to the Committee’s previous comment, the Government indicates that, for the issuance of the Alien Employment Permit (AEP), the DOLE requires a copy of the employment contract. The Committee also takes notes of the Government’s indication that the agencies responsible for supervising the contracts of employment of foreign workers are the Bureau of Immigration (BI), the Bureau of Local Employment (BLE), and the Professional Regulation Commission (PRC). The Committee requests the Government to provide information on the activities of the BI, the BLE and the PRC with regard to the supervision of contracts of employment of foreign workers in the Philippines, for example by providing information on the number of contracts reviewed, the number of infringements founds and the proposed remedies.

Article 8. Maintenance of residence in case of incapacity for work. The Committee notes that the Government’s reports do not provide any information in relation to its previous request. The Committee recalls that under Article 8 of the Convention, a migrant worker who has been admitted on a permanent basis and the members of his or her family shall not be returned to their territory of origin or the territory from which they emigrated because the migrant is unable to follow his or her occupation by reason of illness contracted or injury sustained subsequent to entry, unless the person concerned so desires or an international agreement to which the Member is a party so provides. The Committee therefore once again 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 Philippines is maintained in practice in the event of incapacity for work.

Article 9. Earnings and savings – Remittances. In reply to its previous comment, the Committee notes that the Government provides detailed information on the Manual of Regulations on Foreign Exchange Transactions, but that this information does not clarify whether section 22 of the Labour Code imposes an obligation on Filipino workers abroad to remit a portion of their foreign exchange earnings to their families, dependents, and/or beneficiaries in the country. The Committee does note, from the concluding observations of the CMW, that in practice, under section 22 of the Labour Code, certain categories of Filipino workers abroad, such as seafarers, are reportedly obliged to remit up to 80 per cent of their foreign exchange earnings to their families and dependents and other beneficiaries in the country (CMW/C/PHL/CO/2, 2 May 2014, para. 40).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 requests the Government to take measures to amend section 22 of the Labour Code to ensure that migrant workers shall have the right, but not the obligation, to transfer such part of their earnings and savings as they may desire. In the meantime, the Committee requests 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. With reference to its previous comment, the Committee notes the Government’s indication that the Philippines has signed 14 new labour agreements with countries employing Filipino land-based workers. It also notes the conclusion on 24 November 2017 of the ASEAN Consensus on the Protection and Promotion of the Rights of Migrant Workers. The Committee further notes, from the Government’s report on Convention No. 143, that among the existing bilateral agreements which are in effect, 14 of them contain a provision on equality of treatment, allowing Filipino migrant workers to have the same social security rights, obligations and qualifying conditions as the nationals of the host country. The Committee welcomes the Government’s efforts in strengthening international cooperation. It requests the Government to provide: (i) information on the practical application of the bilateral agreements in place; (ii) a copy of the Philippine Labour Agreement Guidelines and the Guidelines on the recruitment and deployment of Filipino “au pairs”; and (iii) information on the conclusion of any new bilateral agreements and other arrangements. In this regard, it refers to the ILO General Principles and Operational Guidelines for Fair Recruitment and Definition of Recruitment Fees and Related Costs inviting Members to make the international agreements on labour migration publicly available.

Article 11(2)(b). The Government indicates, in reply to the Committee’s previous request, that the longest period which is regarded as constituting “short-term entry” within the meaning of Article 11(2)(b) is the period for which a person enters the country for tourism or business without the need for a visa, which for most countries is a maximum period of 30 days. The Committee recalls that Article 11(2)(b) of the Convention provides that it does not apply to short-term entry of members of the liberal professions and artistes. The Committee requests the Government to confirm that beyond 30 days and after obtaining a working visa, both overseas Filipino workers and immigrant workers in the Philippines, are covered by the Convention.

Statistics on migration flows. The Committee notes, from the Government’s reports, that as of December 2013, there were 10,238,614 Filipinos working and living in 221 countries of destination. Of those, 4,869,766 (47.6 per cent) are permanent residents; 4,207,018 (41.1 per cent) are expected to return at the end of their contract of employment; and 1,161,830 (11.3 per cent) are in an irregular situation (i.e. undocumented, or without valid residence or work permits, or overstaying in a foreign country; these were estimated at 8 per cent as of December 2010). The Government also indicates, that in 2015-2016, a total of 70,364 working permits were issued to foreign nationals, 16,571 for female workers and 53,793 for males. The Committee requests the Government to continue to provide: (i) detailed information on the numbers of overseas Filipino workers by economic sector, sex and country of destination; and (ii) up-to-date statistics, disaggregated by sex and nationality, as well as economic sector, on the number of migrants that have entered the Philippines for employment.