Observación (CEACR) - Adopción: 2011, Publicación: 101ª reunión CIT (2012)

Convenio sobre los trabajadores migrantes (revisado), 1949 (núm. 97) - Israel (Ratificación : 1953)

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The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2009 and the resulting conclusions of the Conference Committee. It also notes the information in the Government’s report, including legislation and statistics. The Committee further notes the communication, received 25 July 2011, from the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) and the Government’s reply thereto.

The Committee notes from the data provided by the Government that, in 2009, 54,000 temporary migrant workers were lawfully employed in care giving, 25,000 in agriculture, 5,000 in construction, 500 in manufacturing and 500 as ethnic chefs. The majority of the temporary migrant workers in the care giving sector are women, while in the other sectors the great majority of the foreign workers employed are men. The IUF indicates that migrant workers mainly originate from China, India, Nepal, Philippines, Sri Lanka and Thailand. The Committee requests the Government to continue to provide updated statistical information on the actual number of temporary migrant workers present in Israel, disaggregated by sex, country of origin and age, and the sectors in which they work.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 98th Session, June 2009)

Article 6 of the Convention. Equal treatment. The Committee previously noted that following a decision of the High Court of Justice in the case of Kav LaOved Workers Hotline and others v. Government of Israel (2006), the Government had taken measures with a view to increasing the protection of migrant workers employed in the care giving and agricultural sectors, and simplifying the process of changing employers. The Committee notes that the Conference Committee welcomed some of the measures taken by the Government but considered that challenges possibly remained in fully applying the Convention in certain sectors. It requested further information on the impact of the measures in reducing migrant workers’ dependence on individual employers, as this is an important aspect in ensuring that equal treatment is applied to migrant workers in practice. The Committee notes from the information provided by the Government that under the new employment system, foreign workers are free to change employers and agencies, and that workers deciding to leave their employer no longer have to register with the Minister of Interior, but rather with an employment agency (in the construction industry) or with a licensed recruitment agency (in homecare and agriculture). In the agricultural sector, the Government indicates that, along with issuing additional employment permits, emphasis is placed on concluding bilateral agreements to ensure fair and transparent recruitment of foreign agricultural workers. With respect to caregivers, the Government states that both employers and temporary foreign caregivers are required to register with one of the licensed recruitment agencies, which are obliged to send periodically a representative to the home of the employer to oversee the employment relationship and resolve misunderstandings. The Committee also notes, however, that on 16 May 2011, the Government passed the Entry into Israel Law (Amendment No. 21), 5771-2011, authorizing the Minister of the Interior to determine the foreign workers’ field of occupation in his or her visa and residence permit, and to adopt regulations limiting the number of times a foreign worker in the nursing profession may transfer to a new employer and limiting employment of such workers to specific geographical areas. The Committee notes that the implementation in practice of the Entry into Israel Law (Amendment No. 21), 5771-2011 could result in reinstating the “restrictive employment relationship” of migrant workers with their employers previously criticized in the decision of the High Court of Justice (2006). The Committee therefore asks the Government to provide full details on the implementation in practice of the Entry into Israel Law (Amendment No. 21), 5771-2011, including information on the number of transfers of foreign workers in the nursing profession presently allowed, how many transfers have been requested and how many refused, and the reasons for such refusal. The Committee also asks the Government to continue monitoring the impact of the new employment system on migrant workers employed in agriculture, construction, manufacturing and as ethnic chefs, and to provide information in this regard, as well as copies of bilateral agreements concluded for the agricultural sector.

Equal treatment of caregivers (remuneration, hours of work, overtime arrangements). The Committee notes the decision of the High Court of Justice in Yolanda Gloten v. the National Labour Court (HCJ 1678/07) of 29 November 2009 (hereafter the Gloten Judgement). In this case, the High Court decided not to consider an appeal against the ruling of the National Labour Court that no overtime pay could be granted with respect to a case of a foreign worker providing care on a live-in basis since the exceptions regarding the scope of application set out in sections 30(A)(5) and (6) of the Hours of Work and Rest Law 1951 applied. The Committee notes that the High Court of Justice concluded that the current legal framework did not offer a proper mechanism suitable for the unique situation of caregivers, and that a narrow and partial interpretation of the law concerning overtime pay might lead to harmful consequences. The High Court, therefore, rejected the appeal due to the difficulty of applying the Law only partially, and because the Court did not consider that the round-the-clock live-in employment of caregivers corresponded to the general framework of protective labour law. The Committee notes that the IUF expresses concern at the impact of the Gloten Judgement on the situation of the large number of migrant women providing care on a round-the-clock and live-in basis and refers in this regard to several examples of regional labour court judgements rejecting lawsuits by migrant caregivers for overtime pay under the Hours of Work and Rest Law, citing the Gloten Judgement. The IUF also draws attention to the Court’s reasoning according to which in circumstances where the application of the labour law is expected to “harm” migrant workers (based on the assumptions that increasing wages due to overtime worked may reduce their employment opportunities), the possibility of diverging from the provisions of protective labour law should be considered. According to the IUF, the Gloten judgement facilitates the application of a discriminatory and inferior legal regime to the work of women migrants.

The Committee notes the Government’s reply indicating that the exceptions set out in sections 30(A)(5) and (6) of the Hours of Work and Rest Law, on which the High Court of Justice is relying, apply to all caregivers, whether local or foreign workers. The Committee notes that sections 30(A)(5) and (6) provide in general terms that the Law shall not apply “to persons employed in positions requiring a special degree of trust”, and to “employees, the conditions and circumstances of whose employment render it impossible for the employer to control working hours and hours of rest”. The Government also states that an application for an additional hearing in this matter is presently before the High Court of Justice and that it is awaiting its outcome. The Committee notes the High Court’s acknowledgement of the need for an appropriate and clear legislative framework guaranteeing adequate pay and favourable working conditions, which at the time of the decision was apparently being developed by the Ministry of Industry, Trade and Labor (MoITAL). The Committee recalls that the Convention requires ratifying states to undertake to apply to migrant workers lawfully in the country, without discrimination based on nationality, race, sex and religion, treatment not less favourable than nationals, with respect to the matters set out in Article 6(1)(a)(i), in law and in practice. The Committee notes that foreign caregivers, 80 per cent of whom are women, constitute the large majority of migrant workers. While no information has been provided on the actual situation of local caregivers, the Committee notes that only a small number of local citizens are willing to work as caregivers, as acknowledged in the Gloten Judgement, suggesting that the present policy applying to caregivers, may, in practice, affect disproportionally female foreign caregivers. The Committee therefore asks the Government to provide information on the outcome of the additional hearing before the High Court of Justice. Understanding that the Foreign Workers’ Committee of the Knesset has recommended an extensive reform of the care giving sector, the Committee asks the Government to provide detailed information on any developments in this regard and hopes that such a reform will ensure that foreign caregivers are treated not less favourably than Israeli caregivers with respect to remuneration, hours of work, overtime arrangements, and other matters set out in Article 6(1)(a)(i) of the Convention. The Committee further asks the Government to indicate all measures taken or envisaged to ensure that, in law and in practice, women migrant workers are treated on an equal footing with their male counterparts, foreign or otherwise, in terms of working and living conditions, work-related tax and access to the justice system.

Equal treatment with respect to social security. Having noted restrictions concerning the health insurance system for migrant workers established under the Foreign Workers Law and the Foreign Workers Order (Prohibition of Unlawful Employment and Assurance of Fair Conditions) (Health Service Basket for Workers) 5761-2001, the Committee had requested the Government to clarify the reasons for establishing a separate health insurance system for migrant workers and for the exclusions or limitations provided under sections 3 and 4 of the Order. The Committee notes that during the Conference Committee’s discussion, concerns were expressed regarding insufficient lack of coverage regarding sickness, unemployment and old-age and care expenses relating to maternity, and that challenges remained with respect to social security. The Committee notes the Government’s reply indicating that the reasons for setting up a separate private health insurance system is due to the relative short stay (usually a period up to five years) of temporary migrant workers coming to work in Israel. The Government affirms that the system contains the same basket of medical services included in the national medical insurance scheme, and indicates that the Inter-ministerial Committee on Social Rights and Obligations with respect to Foreign Workers is considering favourably the inclusion of the rights that have hitherto been excluded in the foreign workers’ health basket. The Committee further notes the information provided by the Government regarding the enforcement of the health insurance obligation by the Population, Immigration and Borders Authority (PIBA) and the Ministry of Industry, Trade and Labour (MoITAL), and the procedures to be followed by employers and recruitment agencies to prove or confirm that valid medical insurance has been arranged for foreign workers. Noting that no information has been provided on how it is being ensured that all workers admitted to Israel under the Foreign Workers Law fully enjoy the right to treatment not less favourable than Israeli nationals regarding social security in respect of maternity, sickness, unemployment and old age, the Committee asks the Government to provide full details in this regard in its next report. It also requests the Government to indicate the outcome of the discussions of the Inter-ministerial Committee on Social Rights and Obligations with respect to Foreign Workers.

Enforcement and access to legal proceedings. The Committee recalls the importance of dissuasive sanctions and effective enforcement of relevant laws in ensuring equal treatment between foreign workers and nationals. The Committee notes that in the course of 2008 and 2009 the PIBA in the Ministry of the Interior became the new competent authority regarding issues involving migrant workers, thus replacing the Foreign Workers’ Unit in MoITAL. It notes from the Government’s report that according to enforcement statistics for 2009, 930 investigative files were opened against employers suspected of violations of the Foreign Workers Law and 1,662 administrative fines were imposed on employers for such violations; 196 fines were imposed on employers for violations of the Minimum Wage Law and 171 judgements rendered. The Committee also notes that in March 2010, the Foreign Workers Law was amended to strengthen the institution of the Commissioner for the Rights of Foreign Employees in the sphere of labour laws (section 1V(a)). The Commissioner has the authority to intervene in legal proceedings, to handle complaints of migrant workers against employers, actual employers, employment agencies and labour contractors, and to file civil lawsuits with the labour court or other qualified courts. However, the Committee notes that the Commissioner will not be able to exercise any of these powers with respect to complaints lodged by foreign domestic caregivers against their employers, except in cases of human trafficking, conditions of enslavement or forced labour, and cases of sexual abuse, violence or sexual harassment (section 1(31)(3)). The Committee considers, particularly in light of the recent amendments to the Entry into Israel Law and the Gloten Judgement, that excluding the largest group of foreign workers, primarily also women, from the protection of the Commissioner for the Rights of Foreign Workers while leaving monitoring of the employment relationship between these workers and their employers to licensed recruitment agencies, raises concerns as to whether foreign caregivers are able, on an equal footing with nationals, to enjoy and claim effectively their rights in respect of the matters referred to in Article 6(1)(a)–(c) in practice, as provided for by Article 6(1)(d) of the Convention. The Committee asks the Government to indicate the reasons for excluding foreign caregivers from the mandate of the Commissioner for the Rights of Foreign Workers, and to provide full information on how foreign caregivers lawfully in the country are able to enjoy equal treatment, in law and in practice, with Israeli nationals with respect to the matters set out in Article 6(1)(a)–(d) of the Convention. Please include in this regard information on the number and nature of complaints submitted by foreign and national caregivers with the different authorities, and their outcome. The Committee also asks the Government to continue to provide enforcement statistics on the number and nature of violations of the relevant laws and regulations identified and addressed by the various responsible authorities, including indications as to the sanctions imposed and the main sectors of employment, including construction, agriculture and manufacturing. Noting further the Government’s intention to study and internalize, in cooperation with the social partners, the best practices for the treatment of foreign workers in line with the provisions of the Convention, the Committee asks the Government to indicate any progress made in this regard.

The Committee is raising other points in a request addressed directly to the Government.