Multinational enterprises faced with global migratory movements: facilitation or obstruction of

international labour mobility?

Ferran Camas Roda

Professor of Labour Law and Social Security and Director of the Chair of Immigration, Rights and Citizenship, University of Girona

SUMMER SCHOOL ON INTERNATIONAL LABOUR AND BUSINESS LAW.Doctoral Schools of University of Ferrara in Rovigo & University of Padova)

4th-15th September 2016

Summary• 1. Facts and perceptions concerning international migration. Status of global

migrations: the challenge of forced migrations.

• 2. TRIPARTITE DECLARATION OF PRINCIPLES CONCERNING MULTINATIONAL ENTERPRISES AND SOCIAL POLICY – MIGRATION.

• 3. OECD Guidelines for Multinational Enterprises.

• 4. Other international laws, reports or political initiatives of interest for multinational enterprises in work-related migration management.

• 5. The new: “GLOBAL COMMITMENTS TO ADDRESSING LARGE MOVEMENTS OF REFUGEES AND MIGRANTS”

• 6. Issues to discuss.

Facts and perceptions concerning international migration

Growth in migration worldwide and increasing concern over large-scale involuntary migration (due to conflicts, environmental disasters and for economic reasons).

• Types of public discourse and policies on these issues? Focus on security or solidarity?

• Can a country meet the challenges of immigration alone or are other supranational or international solutions needed?

• The importance of economic or work-related migration, faced by all regions, although half of migrant workers are located in Northern America and in southern, northern and western Europe.

In this context, an increase in female migration, particularly in the domestic service sector, can be seen.

• Should migration policies be defined depending on the migrant’s motive for migration, or should the political vision be universal, whatever the reasons for migration?

• Concerning migrant workers, should a restrictive or liberal policy be adopted?

• Should the rights of migrant workers be guaranteed whatever their status – documented or undocumented migrants?

The Raft of the Medusa (1818/19. T. Géricault)

TRIPARTITE DECLARATION OF PRINCIPLES CONCERNING MULTINATIONAL

ENTERPRISES AND SOCIAL POLICY

(adopted by the Governing Body of the International Labour Office at its 204th Session

(Geneva, November 1977) as amended at its 279th (November 2000) and 295th Session(March 2006))

The MNEs Declaration is the most relevant document among those aiming at regulating

corporate behaviour (such as the OECD Guidelines for Multinational Enterprises, the UN Report on Business and Human Rights and the UN Global Compact) given its formal adoption

by the ILO and being the most comprensive text in the area of labour principles (The ILO MNEs Declaration: What’s

in it for workers. International Labour Office, 2011).

Basic premises of the Declaration

The aim of the Declaration is to promote the positive contribution that Multinational Enterprises (MNEs) can bring to social and economic progress, a goal that will be promoted through laws and practices

adopted by governments.

[Tension between the view that MNEs bring benefits if they are subject to the national laws of host countries and the view advocating that MNEs

should be allowed to operate without constraints]

• [The concept of a Multinational Enterprise is not defined, but guidance is provided in Paragraph 6 which states that]: “Unless otherwise specified, the term “multinational enterprise” is used in this Declaration to designate the various entities (parent companies or local entities or both or the organization as a whole) according to the distribution of responsibilities among them, in the expectation that they will cooperate and provide assistance to one another as necessary to facilitate observance of the principles laid down in the Declaration”.

• [Voluntary application] Paragraph 7: ”This Declaration sets out principles in the fields of employment, training, conditions of work and life and industrial relations which governments, employers' and workers' organizations and multinational enterprises are recommended to observe on a voluntary basis; its provisions shall not limit or otherwise affect obligations arising out of ratification of any ILO Convention”

• [Promoting some international conventions] Paragraph 9. “Governments of States which have not yet ratified Conventions Nos. 29, 87, 98, 100, 105, 111, 122, 138 and 182 are urged to do so and in any event to apply, to the greatest extent possible, through their national policies, the principles embodied therein and in Recommendations Nos. 35, 90, 111, 119, 122, 146, 169, 189 and 190”.

The aim of these International Labour Organization Conventions or Recommendations are as follows:

• Convention (No. 29) concerning Forced or Compulsory Labour; • Convention (No. 87) concerning Freedom of Association and Protection of the

Right to Organise;• Convention (No. 98) concerning the Application of the Principles of the Right to

Organise and to Bargain Collectively; • Convention (No. 100) concerning Equal Remuneration for Men and Women

Workers for Work of Equal Value; • Convention (No. 105) concerning the Abolition of Forced Labour;• Convention (No. 111) concerning Discrimination in Respect of Employment and

Occupation; • Convention (No. 122) concerning Employment Policy; • Convention (No. 138) concerning Minimum Age for Admission to Employment;• Convention (No. 182) concerning the Prohibition and Immediate Action for the

Elimination of the Worst Forms of Child Labour

• Recommendation (No. 35) concerning Indirect Compulsion to Labour;• Recommendation (No. 90) concerning Equal Remuneration for Men

and Women Workers for Work of Equal Value;• Recommendation (No. 111) concerning Discrimination in Respect of

Employment and Occupation; • Recommendation (No. 119) concerning Termination of Employment

at the Initiative of the Employer;• Recommendation (No. 122) concerning Employment Policy;• Recommendation (No. 146) concerning Minimum Age for Admission

to Employment; • Recommendation (No. 169) concerning Employment Policy;• Recommendation (No. 189) concerning General Conditions to

stimulate Job Creation in Small and Medium-Sized Enterprises;• Recommendation (No. 190) concerning the Prohibition and

Immediate Action for the Elimination of the Worst Forms of Child Labour.

Conclusion:The Tripartite Declaration concerning Multinational Enterprises does

not establish that States should ratify ILO Conventions and Recommendations which directly regulate issues concerning the

work or employment of migrant workers

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

• Migration for Employment Recommendation (Revised), 1949 (No. 86)

• Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143)

• Migrant Workers Recommendation, 1975 (No. 151)

Migration for Employment Convention (Revised), 1949 (No. 97) • Requires ratifying states to facilitate international migration for

employment by establishing and maintaining a free assistance and information service for migrant workers and taking measures against misleading propaganda relating to emigration and immigration. Includes provisions on appropriate medical services for migrant workers and the transfer of earnings and savings. States have to apply treatment no less favourable that that which applies to their own nationals in respect to a number of matters, including conditions of employment, freedom of association and social security

ILO: http://www.ilo.org/global/standards/subjects-covered-by-international-labour-standards/migrant-workers/lang--en/index.htm

[Something of interest: Article 6]

1. Each Member for which this Convention is in force undertakes to apply, without discrimination in respect of nationality, race, religion or sex, to immigrants lawfully within its territory, treatment no less favourable than that which it applies to its own nationals in respect of the following matters:

– (a) in so far as such matters are regulated by law or regulations, or are subject to the control of administrative authorities-

(i) remuneration, including family allowances where these form part of remuneration, hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum age for employment, apprenticeship and training, women's work and the work of young persons;(ii) membership of trade unions and enjoyment of the benefits of collective bargaining;(iii) accommodation;

Migration for Employment Recommendation (Revised), 1949 (No. 86)

4.1 It should be the general policy of Members to develop and utilise all possibilities of employment and for this purpose to facilitate the international distribution of manpower and in particular the movement of manpower from countries which have a surplus of manpower to those countries that have a deficiency.

4.2 The measures taken by each Member should have due regard to the manpower situation in the country and the Government should consult the appropriate organisations of employers and workers on all general questions concerning migration for employment

16.1 Migrants for employment authorised to reside in a territory and the members of their families authorised to accompany or join them should as far as possible be admitted to employment in the same conditions as nationals.

Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143)

Provides for measures to combat clandestine and illegal migration while at the same time setting forth the general obligation to respect the basic human rights of all migrant workers. It also extends the scope of equality between legally resident migrant workers and national workers beyond the provisions of the 1949 Convention to ensure equality of opportunity and treatment in respect of employment and occupation, social security, trade union and cultural rights, and individual and collective freedoms for persons who as migrant workers or as members of their families are lawfully within a ratifying state's territory.

ILO: http://www.ilo.org/global/standards/subjects-covered-by-international-labour-standards/migrant-workers/lang--en/index.htm

Something of interest:

Article 1: Each Member for which this Convention is in force undertakes to respect the basic human rights of all migrant workers.

Article 10: Each Member for which the Convention is in force undertakes to declare and pursue a national policy designed to promote and to guarantee, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, of social security, of trade union and cultural rights and of individual and collective freedoms for persons who as migrant workers or as members of their families are lawfully within its territory.

Migrant Workers Recommendation, 1975 (No. 151)

[Something of interest: Article 8.3]

“Migrant workers whose position has not been or could not be regularised should enjoy equality of treatment for themselves and their families in respect of rights arising out of present and past employment as regards remuneration, social security and other benefits as well as regards trade union membership and exercise of trade union rights”

Other ILO Conventions and Recommendations that refer to migrant workers:

Employment Relationship Recommendation, 2006 (No. 198)

•1. Members should formulate and apply a national policy for reviewing at appropriate intervals and, if necessary, clarifying and adapting the scope of relevant laws and regulations, in order to guarantee effective protection for workers who perform work in the context of an employment relationship

•5. Members should take particular account in national policy to ensure effective protection to workers especially affected by the uncertainty as to the existence of an employment relationship, including women workers, as well as the most vulnerable workers, young workers, older workers, workers in the informal economy, migrant workers and workers with disabilities

Domestic Workers Convention, 2011 (No. 189)

8.1 National laws and regulations shall require that migrant domestic workers who are recruited in one country for domestic work in another receive a written job offer, or contract of employment that is enforceable in the country in which the work is to be performed, addressing the terms and conditions of employment referred to in Article 7, prior to crossing national borders for the purpose of taking up the domestic work to which the offer or contract applies

Domestic Workers Recommendation, 2011 (No. 201)

It regulates issues to guarantee social security rights and the assignability of these rights to migrant domestic workers and also includes additional

measures to ensure effective protection of the latter (creation of help lines in the migrants’ language,

emergency accommodation, visiting arrangements to inspect the employer’s home, etc.).

Nevertheless, the Tripartite Declaration contains certain principles that could affect migrant workers:

With regard to employment promotion, Paragraph 18 states that:

• “Multinational enterprises should give priority to the employment, occupational development, promotion and advancement of nationals of the host country at all levels in cooperation, as appropriate, with representatives of the workers employed by them or of the organizations of these workers and governmental authorities”

• With regard to Equality of opportunity and treatment, Paragraphs 21, 22 and 23 state that

21. All governments should pursue policies designed to promote equality of opportunity and treatment in employment, with a view to eliminating any discrimination based on race, colour, sex, religion, political opinion, national extraction or social origin.

22. Multinational enterprises should be guided by this general principle throughout their operations without prejudice to the measures envisaged in paragraph 18 or to government policies designed to correct historical patterns of discrimination and thereby to extend equality of opportunity and treatment in employment.

Multinational enterprises should accordingly make qualifications, skill and experience the basis for the recruitment, placement, training and advancement of their staff at all levels.

23. Governments should never require or encourage multinational enterprises to discriminate on any of the grounds mentioned in paragraph 21, and continuing guidance from governments, where appropriate, on the avoidance of such discrimination in employment is encouraged.

OECD Guidelines for Multinational Enterprises

Recommendations for responsible business conduct in a global context

25 May 2011 at the OECD’s 50th Anniversary Ministerial Meeting.

Previous data: Some differences in relation to the ILO Declaration.

• The Guidelines are recommedations addressed by governments to multinational enterprises.

• No reference to ILO Conventions and Recommendations.

• These Guidelines are supported or complemented by “Commentaries” enabling their full scope to be understood.

• The Guidelines have the following chapters

I. CONCEPTS AND PRINCIPLESII. GENERAL POLICIES

III.DISCLOSUREIV. HUMAN RIGHTS

V. EMPLOYMENT AND INDUSTRIAL RELATIONSVI. ENVIRONMENT

VII. COMBATING BRIBERY, SOLICITATION AND EXTORTIONVIII. CONSUMER INTERESTS

IX. SCIENCE AND TECHNOLOGYX. COMPETITION

XI. TAXATION

• The Guidelines make no direct reference to migrant workers.

However, some references are made in the Commentary on the chapters dealing with Human Rights (IV) and Employment and Industrial Relations (V).

Something of interest: Supply Chain in Chapter II: General Policies

“Enterprises are encouraged to engage in or support, where appropriate, private or multi-stakeholder initiatives and social dialogue on responsible supply chain management while

ensuring that these initiatives take due account of their social and economic effects

on developing countries and of existing internationally recognised standards”

“Migrant workers and homeworkers are found in many global supply chains and may face

various forms of discrimination and limited or no legal protection”

Attention. It should be taken into account:

Resolution concerning decent work in global supply chains

adopted by the General Conference of the International Labour Organization, having met at Geneva in its 105th Session, 2016.

• Governments should:

“Set out clearly the expectation that all business enterprises domiciled in their territory and/ or jurisdiction respect human rights throughout their operations, and the fundamental principles and rights at work for all workers, including migrant workers, homeworkers, workers in non-standard forms of employment and workers in EPZs.“

IV. Human Rigths.

• Enterprises should respect the internationally recognised human rights of those affected by their activities (Chapter II: General Policies)

• Enterprises should: 1. Respect human rights, which means they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved (IV. Human Rights)

“Depending on circumstances, enterprises may need to consider additional standards. For instance, enterprises should respect the human rights of individuals belonging to specific groups or populations that require particular attention, where they may have adverse human rights impacts on them. In this connection, United Nations instruments have elaborated further on the rights of indigenous peoples; persons belonging to national or ethnic, religious and linguistic minorities; women; children; persons with disabilities; and migrant workers and their families” (Comentary of Human Rights, p. 32).

Also in Chapter V. Employment and Industrial Relations:

• Guideline No. 5: “In their operations, to the greatest extent practicable, employ local workers”

• Comentary: “In accordance with the ILO Human Resources Development Recommendation 195 of 2004, enterprises are also encouraged to invest, to the greatest extent practicable, in training and lifelong learning while ensuring equal opportunities to training for women and other vulnerable groups, such as youth, low-skilled people, people with disabilities, migrants, older workers, and indigenous peoples”

Other international laws, reports or political initiatives of interest for

multinational enterprises in work-related migration management

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families

Adopted by General Assembly resolution 45/158 of 18 December 1990

The Convention regulates in Part III (Human Rights of All Migrant Workers and Members of their Families) the rights granted to both documented and undocumented workers.

Among the rights listed in Part III, those pertaining to equal treatment in conditions of work and also in terms of employment and social security can be mentioned, since migrant workers and their families should enjoy treatment not less favourable than that which applies to nationals of the State of employment insofar as they meet the requirements laid down in the applicable legislation of the State of employment or in the applicable bilateral and multilateral agreements

ILO Multilateral Framework on Labour MigrationNon-binding principles and guidelines for a rights-based approach to labour migration adopted by the Tripartite

Meeting of Experts on the ILO Multilateral Framework on Labour Migration

(Geneva, 31 October-2 November 2005)

This non-binding ILO Multilateral Framework gives effect to the resolution and conclusions on a fair deal for migrant workers in a global economy, adopted by the 92nd Session of the International Labour Conference in 2004. Paragraph 23 of the conclusions states: In order to assist member States to develop more effective labour migration policies, the tripartite constituents have agreed to develop a non-binding multilateral framework for a rights-based approach to labour migration which takes account of national labour market needs.

• Protection of Migrant Workers (Principle 8).

The human rights of all migrant workers, regardless of their status, should be promoted and protected. In particular, all migrant workers should benefit from the principles and rights in the 1998 ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, which are reflected in the eight fundamental ILO Conventions, and the relevant United Nations human rights Conventions

GLOBAL COMMITMENTS TO ADDRESSING LARGE MOVEMENTS OF REFUGEES AND

MIGRANTS

In the Report In safety and Dignity: Addressing Large Movements of Refugees and Migrants (9 May 2016) the Secretary-General of the United Nations urges Member

States to make full use of the opportunity offered by the 19 September High Level Plenary Meeting to adopt new:

To include the following three pillars:

PILLAR 1. UPHOLDING SAFETY AND DIGNITY IN LARGE MOVEMENTS OF BOTH REFUGEES

AND MIGRATS

• To address the causes of large movements of refugees and migrants

• To protect people in route and at bordes

• To prevent discrimination and promote inclusion

Secretary-General:

“Given the importance of employment and livelihoods in inclusion policiews, I call on Member States to stand ready to support Governments, employer’s and worker’s organisations and other world-of-work actors in adressing the significant impact of large influxes and migrants on labour markets”

PILLAR 2. A GLOBAL COMPACT ON RESPONSIBILITY-SHARING FOR REFUGEES

• Recognize that large movements of refugees as a result of emerging and unresolved conflicts that are profoundly affecting individuals and Member States, sometimes for protracted periods of time .

• Commit to sharing responsability for hosting refugees more fairly.

PILLAR 3: GLOBAL COMPACT FOR SAFE, REGULAR AND ORDERLY MIGRATION

• Undertake a state-led process to elaborate a comprehensive international cooperativon framework on migrations ahd human mobility in the form of a Global Compact for Safe, Regular and Orderly Migration

• Ensure that the Global Compact is based on the recognition that all migrants, regardless of their status, must receive protection.

Issues to discuss

• Integration of immigrant workers into the labour market.

• The role of employers in immigrant integration.

• Attittudes towards diversity: Diversity Management?

• Delimitating the exercise of the right to freedom of religion in the workplace:

-Prohibition-Restrictions-Approval on the wearing of religious symbols?

-Managing working time while respecting workers religious practices?

Thank you very much!

http://www.ferrancamas.com

fernando.camas@udg.edu

@FerranCamasRoda