Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the Government’s first report on this Convention. It also notes with interest the extensive laws, regulations and policies applying the Convention showing the Government’s commitment to promote and protect the rights of migrant workers. It notes in particular the relevant provisions in the 1987 Constitution, the Labor Code (Presidential Decree No. 442), Republic Act (RA) No. 8042 or the Migrant Workers and Overseas Filipino Act 1995, Omnibus Rules and Regulations Implementing the Migrant Workers and Overseas Filipino Workers Act of 1995, RA No. 9208 or the Anti-Trafficking Act 2002, the Rules and Regulations Governing the Recruitment and Employment of the Philippine Overseas Employment Administration (POEA) 2002, and the Commonwealth Act (CA) No. 613 on Immigration 1940. In addition, the Committee notes from the information submitted by the Government to the United Nations Committee on Migrant Workers (CMW) the significant numbers of Filipino nationals, especially women, seeking employment abroad (1,205 million workers in 2005, of which 75 per cent were land-based workers). It also notes that presently there are 36,150 foreign workers in the Philippines (CMW/C/PHP/1, 7 March 2008, paragraphs 36–45).

Part I of the Convention: Migration in abusive condition. Protection of basic human rights (Article 1 of the Convention). The Committee notes the relevant provisions in the 1987 Constitution and the Labor Code, providing for equality of treatment and ensuring protection of basic human rights for all workers. It also notes the State policy declared in section 2(c) of RA No. 8042 that the overseas employment programme rests solely on the assurance that the fundamental human rights and freedoms of Filipino citizens shall not be compromised or violated, and that the overseas Filipino workers shall only be deployed in countries where their rights as migrant workers are protected (section 4 of RA No. 8042); section 23(b) states that in the recruitment and placement, the POEA shall only deploy workers in countries where the Philippines has concluded bilateral agreements or arrangements provided that such countries guarantee to protect the rights of Filipino migrant workers. Section 2(d) emphasizes the importance of gender sensitive overseas migration policies. In this context, the Committee notes the concern expressed by United Nations Treaty bodies about reports that migrant workers, in particular women employed as domestic workers, nurses, care-givers, continue to face abuse and discrimination. Undocumented workers encounter obstacles in legal protection and redress in cases of discriminatory treatment in the workplace (E/C.12/PHL/CO/4, 24 November 2008, paragraphs 21–22, CMW/C/PHL/1, 22 May 2009, paragraphs 27, 28 and 31). The Committee asks the Government to provide information on the practical application of its state policy to ensure that the human rights of Filipino citizens shall not be compromised in the context of its overseas employment programme. Please provide specific information on the measures taken to ensure protection of human rights of female Filipino overseas workers.

Restrictions on trade union activities. The Committee notes that section 269 imposes restrictions on trade union activities for foreign workers in the Philippines. Pursuant to section 272(b), foreigners who violate this provision shall be subject to immediate and summary deportation. The Committee draws the attention of the Government to its comments on the application of the Freedom of Association and the Rights to Organize Convention, 1948 (No. 87), and asks the Government to take immediate steps to amend its legislation in accordance with Articles 1 and 10 of the Convention.

Article 2. Measures to detect migration in abusive conditions, and illegal employment of migrants. The Committee notes that in 2005, an estimated 1.3 million emigrants were in an unauthorized situation. With respect to irregular migrant workers in the Philippines, the Committee notes the provisions in CA No. 613 governing the entry of foreigners, as well as their expulsion, deportation and repatriation. While such provisions are valid in addressing clandestine migration flows, the Committee notes that no information has been provided on any specific measures taken to detect whether foreigners have entered the country in “abusive conditions” within the meaning of the Convention (see General Survey on migrant workers, 1999, paragraph 319). With respect to measures taken to detect emigration in abusive conditions of Filipino workers, the Committee notes that section 20 of RA No. 8042 provides for the establishment of an inter-agency committee to implement a shared government information system for migration of Filipino workers. Rule XIII, section 44(d) of the Omnibus Rules and Regulations implementing RA No. 8042 provides for the registration of undocumented workers to bring them within the purview of the Act. The Committee asks the Government to provide further information as follows:

(i)    activities of the inter-agency committee to implement a shared government information system to detect whether any migrant workers depart, transit or arrive in the country in abusive conditions, or are illegally employed; and

(ii)   statistics, disaggregated by sex and nationality, on the number of migrants illegally employed or subjected to abusive conditions and the nature of infringements.

Please indicate how workers’ and employers’ organizations are being consulted and enabled to furnish information.

Articles 3 and 4. Measures to prevent and eliminate migration in abusive conditions and illegal employment of migrant workers. Measures against organizers of such movements and those who employ workers who have migrated in illegal conditions. Systematic contact and information exchange. The Committee notes with interest the provisions in the Labor Code, RA 8042 and RA 9208 listing and prohibiting acts constituting illegal recruitment and acts of trafficking in persons. It notes that pursuant to section 2 of RA 9208 the State shall give the highest priority to the enactment of measures and development of programmes to eliminate trafficking, and that sections 20 and 21 establish and outline the broad mandate of the Inter-Agency Council Against Trafficking (IACAT), including its role in recommending measures to enhance cooperative efforts and mutual assistance among foreign countries. It also notes the establishment of migrant workers and other overseas Filipinos resource centres in embassies in countries where there are large concentrations of Filipino migrant workers and the role of the Department of Foreign Affairs (DFA) with respect to enhancing assistance in eliminating trafficking through closer networking with government agencies in the country and overseas. Two task forces, one on illegal recruitment and one on human trafficking, have been created under the Commission of Filipinos Overseas (CFO). The Philippines Centre of Transnational Crimes and the Interpol Department also appear to have a role in the exchange of information on illegal recruitment and trafficking. The Committee further notes from information submitted to the CMW that the Government is implementing a comprehensive set of measures such as public information and education campaigns, pre-departure and pre-employment programmes, and a massive anti-illegal recruitment programme (CMW/C/PHL/1, paragraphs 267, 302 and 303). The Committee asks the Government to provide information on the activities and measures taken by the various institutions to prevent and address migration in abusive conditions and against the organizers of such movements, and on the results achieved. Please also provide information on the specific legal and practical measures adopted against those who are employing workers who have migrated in illegal conditions into the Philippines, and on the results of the measures taken by the abovementioned institutions to ensure systematic contact and information exchange to this end.

Article 5. Prosecution of labour traffickers. The Committee notes with interest the provisions in the Labor Code, RA No. 8042 and RA No. 9208 concerning the filing of complaints and prosecution of persons involved in illegal recruitment and trafficking. It particularly notes sections 8 and 9 of RA No. 9208 concerning prosecution of labour traffickers and section 26 providing that the Department of Justice shall endeavour to include offenses of trafficking in persons among extraditable offenses. The Committee asks the Government to provide information on the number of persons involved in illegal recruiters and labour traffickers that have been prosecuted under the abovementioned legislation, including an indication on whether they have been prosecuted regardless of the country they operate from. Please also include information on any other arrangements at national or international level to ensure that labour traffickers can be prosecuted regardless of the country they operate from.

Article 6. Civil, penal and administrative sanctions. The Committee notes the provisions in the Labor 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 Labor Code (section 35) 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. Rule VI, section 2(a)–(w) provides an extensive list of the grounds of suspension, cancellation or revocation of such a licence or authority. The Committee asks the Government to indicate the specific legislative provisions imposing civil, penal and/or administrative sanctions on those employing workers who have migrated in illegal conditions.

Article 7. Consultation with employers’ and workers’ organizations. The Committee notes that the migrant workers and overseas Filipino resource centers may include staff from “bona fide NGOs” of the host countries (section 19 of RA No. 8042). Please provide 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 case of loss of employment. The Committee notes the provisions in the Labor Code (sections 40 and 41) and the Omnibus Rules implementing the Labor Code (Book I, Rule XIV) concerning work permits of foreign workers. It notes that one of the conditions that needs to be fulfilled is compliance with the condition for which the employment permit was issued (Book I, Rule XIV, section 6(a)). Please indicate whether loss of employment due to non-compliance by the employer may have an effect on the legal situation of the migrant worker. Please also provide information on the measures taken to apply Article 8(2).

Article 9, paragraphs 1, 2 and 3. Rights arising out of past employment. Please 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.

Part II of the Convention. Equality of opportunity and treatment. Articles 10 and 14. National policy on equality between migrant workers and nationals and free choice of employment. The Committee notes section 1, article III of the Constitution concerning equal protection of laws, and section 3 of the Labor Code providing equal work opportunities regardless of sex, race and creed, but omitting nationality. It also notes, however, that pursuant to section 6 of the Labor Code all rights and benefits granted to workers under the Code shall apply to all workers. The Committee further notes the provisions of the Labor Code and the Omnibus Rules implementing the Labor Code concerning employment permits, which cannot be transferred to another employer without prior approval by the Department of Labor and Employment (section 41(a) 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 11. Definition of migrant worker. The Committee notes the definition of “non-immigrant” in section 9(g) of CA No. 613 providing for a special category of foreigners coming to “prearranged employment for whom the issuance of a visa has been authorized in accordance with section 20 of the Act”. The Committee recalls the definition of migrant worker and the permissible exclusions set out in Article 11(1) and (2) of the Convention. Please clarify the precise meaning of “non-immigrant” under section 9(g) of CA No. 613 with a view to determining whether they would fall under one of the excluded categories of migrant workers referred to in Article 11 of the Convention.

Article 15. Bilateral agreements. The Committee notes from the information provided to the CMW that the Government has engaged in a number of bilateral agreements and other arrangements with countries of destination (CMW/C/PHL/1/Add.1, paragraphs 30–35). Please continue to provide information on the conclusion of bilateral agreements and other arrangements, including information on their impact on effectively resolving problems arising from the application of the Convention.

Parts III–V of the report form. Practical application, supervision and enforcement. The Committee notes that various institutions (including POEA, the Overseas Workers Welfare Administration (OWWA), DFA, IACAT, CFO, etc.) are in charge of supervising, enforcing and implementing the relevant legislation and policies concerning migration for employment. It notes the provisions in CA No. 613 and RA 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 Philippine national police and the local government units in enforcing the legislation on trafficking. Furthermore, the Labor Code, RA 8042 and Executive Order No. 797 give an important role to the POEA in implementing and monitoring the relevant laws and regulations concerning overseas employment of Filipino nationals, including the inspection of private recruitment agencies and entities, and jurisdiction to hear and decide administrative cases involving or arising out of recruitment rules and regulations. POEA can also receive complaints or institute proceedings on its own initiative. The National Labor Relations Commission (NLRC) has the exclusive jurisdiction to hear and decide claims arising out of an employment relationship or by virtue of any law or contract involving Filipino workers for overseas employment. Criminal action arising from illegal recruitment shall be filed with the regional trial courts. The Committee asks the Government to provide information as follows:

(i)    the inspection activities carried out by the POEA, and the number and nature of contraventions reported and penalties applied concerning illegal recruitment and human trafficking;

(ii)   the number, nature and outcome of complaints filed with the POEA, NLRC, or the courts relating to violations of the relevant legislation and concerning migration in abusive conditions, including trafficking in persons;

(iii) the various activities carried out, and results achieved, by the various institutions and mechanisms in place to give effect to the provisions of the Convention; and

(iv)  statistical information, disaggregated by sex and nationality, country of destination and sector of employment, on emigration and immigration of both documented and undocumented workers.