Una política nacional eficaz de migración laboral tiene que abordar las necesidades del país a ese respecto, ciñéndose al mismo tiempo a las obligaciones internacionales con respecto a la protección de los derechos de los migrantes (véase la sección Derecho y principios internacionales del presente capítulo). Otros criterios también ayudan a que la política nacional de migración laboral sea sostenible a largo plazo. Esos criterios se aplican en diferentes etapas de la elaboración de políticas, desde la formulación, pasando por la implementación, hasta el seguimiento y la evaluación (véase más información sobre la elaboración de políticas en la serie of capítulos Gestión de la migración y ciclo de políticas).
Características de una política eficaz de migración laboral
Policy Approaches
Characteristics of an effective policy for labour migration
- Twin objectives: Ensure safe and orderly labour migration, and harness its positive impact to balance temporary and permanent labour market needs.
- Consistent: Complement the objectives set forth in relevant government strategies, especially in the area of employment or sustainable development.
- Comprehensive: Cover all phases of the migration journey, as well as related issues such as barriers to labour migration, vulnerability in the workplace and needs for skills enhancement.
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Evidence-based: The process to develop a labour migration policy should ensure that the stakeholders involved have access to reliable data and its quality analysis, so that their deliberations are based on an evidenced-based understanding of the migration and mobility and labour market trends.
- Transparent: Employ whole-of-government and whole-of-society approaches that consider inputs from different stakeholders, with both State and non-State actors representing various positions on the issue.
- Rights-based: Safeguard rights applicable to migrant workers by:
- Establishing mechanisms to prevent the violation of rights, including through the promotion of social inclusion and cohesion (see Anti-discrimination measures);
- Establishing and enforcing specific sanctions against violations of rights in the national legislation;
- Introducing effective mechanisms for reporting rights violations, and providing adequate legal representation in judicial cases;
- Establishing a functioning institutional system for the detection and prosecution of rights violations (see Human rights of migrants: An overview).
Good Practice
National Labour Migration Policy, Sri Lanka
The Ministry of Foreign Employment Promotion and Welfare (MFEPW) in Sri Lanka, under the guidance of the International Labour Organization (ILO), developed a national policy aimed at facilitating migration for decent work. Before its adoption in 2009, three corresponding working groups were established focusing on three areas: good governance; protection and empowerment of migrant workers and their families; and linking migration to development processes. Since then, the Government has prepared a number of mechanisms, guidelines and training sessions to ensure effective policy implementation. For instance, an operational manual was produced in 2013 to streamline the handling of migrant worker grievances that diplomatic missions should provide in countries of destination to Sri Lankans working abroad. The policy recognizes the significant contribution of migrant workers to Sri Lanka’s overall development.
Fuente
ILO, 2015.
To Go Further
- Organisation of Economic Co-operation and Development (OECD), Recruiting Immigrant Workers hosts a series of labour migration policies in OECD countries and examines whether they are effective and efficient to properly respond to the needs of the domestic market.
- International Labour Organization (ILO), Good practices database lists over 100 practices, labour migration policies and programmes in various regions of the world.
Partes interesadas en el proceso de gestión de la migración laboral
Government authorities in the country of destination
Being able to make the most effective response to labour migration challenges depends on well-functioning labour market institutions, with a mission to enforce policies, collaborating with other relevant stakeholders that monitor and evaluate the implementation of those policies and raise issues. Table 3 summaries the function of different institutions in destination countries, though countries may distribute roles and responsibilities differently, and institutional names may differ depending on the State.
Table
Table 3. Role of labour market institutions in destination countries
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MINISTRIES OF LABOUR |
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LOCAL GOVERNMENTS |
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LABOUR INSPECTION SERVICES |
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MINISTRIES OF INTERIOR |
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MINISTRIES OF FOREIGN AFFAIRS |
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NATIONAL OR LOCAL AGENCIES |
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Labour inspectors
Monitoring by a dedicated government body can help to mitigate the risk of migrant workers being exploited. This monitoring can include employers’ behaviour, including their failure to provide written contracts, timely and regular remuneration, statutory rest time, or information on migrant workers’ rights. Occupational safety and health are particularly important. On-site verification of work hazards can be based on an assessment of the availability of protective gear, safety instructions in the language of the workers and an investigation of accident records. Particular attention should be given to migrant workers with special needs, including women, young migrants or persons with disabilities.
Policy Approaches
Effective labour inspections to protect migrant workers
- Raise migrant workers’ awareness of their rights and enforcement mechanisms, including the right to compensation for migrant workers regardless of their status, and the right to justice.
- Establish a legal and institutional framework to effectively detect, investigate and prosecute offenses.
- Create firewalls between labour inspectors and justice and immigration authorities.
- Increase the frequency of inspections and make unannounced checks. Regularly change the inspectors visiting a particular employer. Concentrate inspections in the sectors and types of businesses with more frequent and flagrant violations of workers’ rights.
Fuente
European Union Agency for Fundamental Rights (FRA), 2018; SYNDEX, 2012.
Consular protection
In line with international law, States can provide protection to their nationals residing abroad (see Diplomatic and consular law). An emerging trend is the placement of labour attachés in consular offices. These officials of the ministry of labour are seconded to the ministry of foreign affairs to serve in a variety of roles, given their broad mandate. Using their knowledge of international legal norms, together with labour policies and regulations in destination countries, as well as the labour market situation at home and abroad, labour attachés provide assistance on work-related issues faced by their nationals working in that country.
Example
Placing labour attachés in consular offices abroad
- Labour attachés can assist consular staff in providing legal assistance and representation in cases of violations of workers’ rights as well in cases in which those migrants face legal prosecution or are in detention.
- Labour attachés can assist migrant workers retrieving their dues or other benefits when their work contracts are violated, and can assist those who are subject to inhumane, unhealthy or unsafe working conditions.
- Labour attachés can facilitate the proper medical care of migrant workers who suffer injury or are sick, and can assist those who wish to return home.
Fuente
IOM and Organization for Security and Co-operation in Europe (OSCE), 2010.
Trade unions
Developing effective and sustainable labour migration policy takes a whole-of-society approach (see Developing migration policy). Non-State actors may include organizations representing workers’ interests and defending their rights, such as trade unions. Although trade unions are often seen to be in conflict with government and employers, that does not necessarily have to be the case if there is a common commitment to developing labour market policies and regulations that are consistent with international labour standards and international human rights instruments. In this regard, trade unions have a fundamentally important role to play in ensuring that migrant workers are fully incorporated into the workplace and society more broadly, as well as ensuring that workers are covered by workplace and broader societal protection mechanisms. Trade unions are well versed about current policy concerns among workers, trends and emerging issues that can be beneficial from the policy formulation stage all the way to policy evaluation.
Table
Table 4. Selected activities of trade unions on behalf of migrant workers
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IN COUNTRIES OF ORIGIN |
IN COUNTRIES OF DESTINATION |
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Offer pre-departure orientation programmes for conditions of employment, social security and labour standards |
Disseminate information and offer trainings in languages understandable to migrants on legal conditions and enforcement of rights
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Provide counselling and referral services, especially to victims of abuse and exploitation |
Offer legal services to migrant workers suffering from violations of their rights, defending them in courts
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Raise migrants’ awareness of the benefits of joining trade unions in hosting countries |
Represent migrant workers to repeal contractual or administrative barriers to trade union membership
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Advocate for the reduction of recruitment fees and use of model employment contracts |
Advocate for ratification of international labour conventions and the introduction and enforcement of non-discrimination national legislation and standards
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Cooperate with trade unions in destination countries on monitoring migrant workers’ work conditions |
Take appropriate action to protect migrant workers’ rights and eliminate all forms of discrimination
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Establish protection programmes targeting female migrant workers against discrimination or exploitation |
Campaign for non-discriminatory treatment of migrant women and for their effective protection from abuse |
Fuente
ILO International Migration Programme and Subregional Office for East Asia, 2005.
Case Study
Malaysian Trades Union Congress supports Vietnamese migrant worker
Ms N. was a Vietnamese migrant worker in Malaysia. She contacted her family in Viet Nam from her workplace, a garment factory, claiming that she was being exploited and her rights abused. The family contacted the Malaysian Trades Union Congress (MTUC), which committed to assisting in this case and went to investigate the claims made by Ms N. Although it was not provided with access to the workers in the workplace, a coordinator of the MTUC succeeded in locating Ms N. outside of work premises. Once Ms N. understood the coordinator was there as a direct result of her complaint to her family, she was willing to cooperate.
With evidence, the coordinator arranged a meeting between the Department of Labour and the factory, a meeting in which the identity of Ms N. was kept secret, but information was provided on her case (for instance, the facts that no overtime was paid, she was forced work on rest days, long working hours, lower pay than promised, restriction of movement, no access to personal documents).
Shortly after the meeting, before further investigation by the MTUC commissioned by the Labour Department, the Human Resources Manager from the factory provided documentation showing the pay deductions had been reversed, overtime was paid for the last year, working hours were fixed, rest periods were established, and overtime was voluntary. These payments and improved conditions seem to have benefitted not only Ms N. but also the 74 other workers of Vietnamese, Cambodian, Indonesian and Nepalese origin at the factory.
Fuente
ILO, 2014.
Policy Approaches
Working with trade unions for a more effective labour migration
- Where appropriate, involve national and regional trade union formations in policymaking processes.
- Include trade union representatives in negotiations of bilateral labour migration agreements (BLMAs).
- Consult trade unions on the inclusion of appropriate text in BLMAs to ensure the protection of migrant workers.
Employers and the business community
Employers in both origin and destination countries can benefit from consistent labour migration policies and vice versa. On the one hand, employers in origin countries are preoccupied with the loss of skilled labour. In this sense, they can help making employment more attractive in terms of wages and benefits, so that the local working-age populations stay and contribute to the economy in their origin communities, rather than seeking employment abroad. On the other hand, employers in destination countries are concerned with the ability to hire workers from abroad when they are needed (International Organization of Employers [IOE], 2018). Inefficiency or delay in the administration of visas and work permits is likely to incur costs on both employers and prospective employees.
As such, consistent and transparent labour migration policies that are produced in consultation with the business community will allow employers to carry out stable labour acquisition and retention strategies benefiting not only employers, but also migrants. The private sector has the most insight into the needs of the domestic labour market in terms of skills requirements, labour shortages and so on. By working together with the government and non-State actors, the private sector can assist in determining domestic labour market needs over a projected period and in shaping a labour migration policy that is responsive to labour market needs. In addition, the private sector can also support programmes to attract skilled migrant workers into sectors of the economy where there is a shortage of local skills.
Other non-State actors in the country of destination
Other non-State actors that may provide insights into the development of effective and sustainable labour migration policy can include civil society and migrant workers themselves, as well as their families and support networks, including migrant and diaspora associations.
Table
Table 5. Role of non-State actors in destination countries
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CIVIL SOCIETY |
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MIGRANT AND DIASPORA ASSOCIATIONS |
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EMPLOYERS |
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Mensajes clave
- Una política de migración laboral eficaz debe basarse en los derechos y ser integral, transparente y compatible con los objetivos establecidos en las estrategias gubernamentales pertinentes.
- Una política de migración laboral eficaz requiere la participación de instituciones del mercado de trabajo eficientes que se encarguen de elaborar políticas, aplicarlas, hacer el seguimiento y evaluarlas junto con los otros interesados pertinentes, y de prestar apoyo a los trabajadores migrantes.
- La participación de los sindicatos en todas las etapas de la formulación, la implementación y el seguimiento de las políticas laborales nacionales, incluido su componente de migración laboral, asegurará que la política sea coherente, equilibrada y sostenible.
- El sector privado puede proporcionar información útil en la elaboración de la política de migración laboral, y aportar su conocimiento más profundo de las necesidades del mercado de trabajo interno y las competencias que escasean.
- Una tendencia nueva en la protección de los trabajadores migrantes es la colocación, en las oficinas consulares, de agregados laborales con amplios conocimientos de las normas jurídicas internacionales, las políticas laborales de los países de destino y de origen y la situación del mercado de trabajo en sus países y en el extranjero.