Fair recruitment and access to justice for migrant workers

Over 169 million men and women today live and work outside their country of origin in pursuit of decent work and better livelihoods. Public employment services and private employment agencies, when appropriately regulated, play an important role in the efficient and equitable functioning of labour markets by matching available jobs with suitably qualified workers. However, it is during the recruitment phase that migrant workers, especially low-wage workers, are particularly at risk of entering a cycle of abuse and exploitation.

 

Access to justice is central to making human rights, including labour rights, a reality for all workers and individuals. It is premised upon the central tenet of non-discrimination – that every person is entitled, without discrimination and on an equal basis with others, to equal treatment and protection under the law.1 In addition, a number of international Conventions and instruments guarantee the right to a fair and public hearing and process2 as well as the right to an effective remedy.3 For a remedy to be considered effective, it must:

• be accessible, affordable, adequate and timely;

• combine preventive, redressive and deterrent elements; and

• include the right to be treated “equally in all stages of procedure”, regardless of personal characteristics such as gender, race, or ethnicity, among others.

To this end, this working paper focuses on good practices concerning the migrant workers’ right to access to justice in the context of their labour recruitment, where recruitment is understood to include the advertising, information dissemination, selection, transport, placement into employment and – for migrant workers – return to the country of origin where applicable. The paper first gives an overview of current gaps in rights protection throughout the labour migration cycle and then outlines the sources of the right to access to justice under international human rights law, international labour standards and instruments, bilateral agreements, and the UN Guiding Principles on Business and Human Rights (UNGPs). It also briefly sets out the processes that may be available for seeking redress, as well as the structural factors that obstruct migrant workers from accessing these processes and provides examples of good practices from around the world that are constructively addressing these barriers to accessing justice.

Master class on fair recruitment

Within the context of exacerbated challenges created by COVID 19 pandemic, the ILO’s General Principles and Operational Guidelines for Fair Recruitment and Definition of Recruitment Fees and Related Costs (GP&OG) provides invaluable guidance on how to ensure the recruitment process of workers, especially migrant workers. The GP&OG are organized in a way that respects the rights of those involved, the needs of communities of origin and destination, and takes into account the legitimate needs of employers and recruiters.

Based on the ILO Fair Recruitment Initiative Strategy, the ILO and ITC-ILO have developed a series of Master class on fair recruitment, to explain what can be done to reduce the risk of abusive and fraudulent recruitment of workers. The Masterclass on fair recruitment is divided into six modules:

1. 1. Why fair recruitment matters
2. 2. Legal and normative framework
3. 3. Public and private employment services
4. 4. Monitoring and enforcement, 
5. 5. Business and private sector engagement
6. 6. Union's Role

 

 

 

 

 

 

 

 

 

Labour inspection and monitoring of recruitment of migrant workers

With a view towards contributing to achieving fair recruitment of migrant workers, this paper offers an overview of the main challenges pertaining to monitoring of recruitment of migrant workers by labour inspectorates, along with suggested ways forward and pointers for possible action by the ILO.

Labour inspection responsibilities extend to all stages of the recruitment process. The ILO General Principle for Fair Recruitment 5 states that “Regulation of employment and recruitment activities should be clear and transparent and effectively enforced. The role of the labour inspectorate and the use of standardized registration, licensing or certification systems should be highlighted.” Furthermore, Operational Guideline 5.1 outlining the responsibilities of governments indicates that: "Governments should work to ensure that there is an effective and sufficiently resourced labour inspectorate, and that it is empowered and trained to investigate and intervene at all stages of the recruitment process for all workers and all enterprises, and to monitor and evaluate the operations of all labour recruiters.” However, inspection of recruitment processes remains challenging – leaving many vulnerable workers (including migrant workers and those in the informal economy), exposed to exploitation and abuse.

In order to further expand knowledge and advocacy on the role of the labour inspectorate in ensuring fair recruitment, the ILO Labour Migration branch and the Labour Administration, Labour Inspection and Occupational Safety and Health branch commissioned a brief on fair recruitment and labour inspection, with the contribution of several projects (EU-REFRAME, SDC-FAIR II and SIDA-JLMP).