Solicitud directa (CEACR) - Adopción: 2013, Publicación: 103ª reunión CIT (2014)

Convenio sobre los trabajadores migrantes (disposiciones complementarias), 1975 (núm. 143) - Serbia (Ratificación : 2000)

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Article 1 of the Convention. Basic human rights. The Committee notes the Government’s brief indication that the protection of human rights of all migrant workers, including refugees and trafficked persons, is not under the responsibility of the Ministry of Economy and Regional Development. The Committee notes however that the Strategy for Combating Illegal Migration (2009–14) was adopted in March 2009. This strategy which aims mainly at improving efficiency and effectiveness in combating irregular migration provides for: (i) the development of competences and capacities of stakeholders; (ii) the strengthening of the institutional and legal frameworks, including the empowerment of labour inspectors to take measures against employers who illegally employ foreigners and the reinforced supervision of employment agencies; (iii) the exchange of information between countries to prevent irregular migration; (iv) the need to conclude more bilateral agreements on employment and rights of workers; and (v) the development of awareness-raising campaigns on trafficking in persons. The Committee notes that the development of a package of measures concerning different categories of migrants in an irregular situation, including women migrants, is also envisaged. The Committee requests the Government to provide information on any measures taken by the competent authorities, within the framework of the Strategy for Combating Illegal Migration or otherwise, to ensure the protection of basic human rights of all migrant workers, including migrant workers in an irregular situation, refugees and trafficked persons. The Government is also asked to provide information on any plan of action adopted under the Strategy, including concrete measures taken to implement it.

Articles 2 and 6. Identifying illegal employment and migration in abusive conditions. The Committee notes from the Government’s report that the Ministry of Economy and Regional Development does not have data on migrant workers engaged in undeclared work. The Committee also notes that, according to the Strategy for Combating Illegal Migration, the formal legal framework does not meet the needs of the authorities to adequately process the recorded cases of unauthorized migration and the collection and processing of such data needs to be improved. Recalling that, in accordance with Article 2 of the Convention, each Member for which this Convention is in force shall systematically seek to determine whether there are illegally employed migrant workers on its territory, the Committee requests the Government to take the necessary measures to collect data, if possible disaggregated by sex and country of origin, on migrant workers engaged in undeclared work. The Committee further requests the Government to provide information on any penalties imposed on employers by labour inspectors under the Law on Conditions and Employment of Foreign Nationals, as amended up to 2005.

Article 8. Legal status in the case of loss of employment. The Committee notes that pursuant to sections 29 and 30 of the Law on Foreigners 2008, temporary residence can be granted for a period up to one year and extended for the same period, if not otherwise provided under this Law or an international treaty. Temporary residence for work and employment can be granted to a foreigner who acquired the right to work. Temporary residence is granted to a foreigner until expiry of the approved work engagement (section 30). The Committee recalls that Article 8 aims to protect migrant workers from having their residency permit, whether temporary or permanent, revoked when losing their employment prematurely and as a consequence finding themselves in an irregular situation. The Committee reiterates its requests to the Government to provide information on the legal situation of migrant workers who have lawfully resided in the country and who have lost their employment prematurely and to indicate how such workers enjoy equal treatment with nationals in the areas of security of employment, the provision of alternative employment, relief work and retraining.

Article 9(1) and (2). Equality of treatment of migrants in an irregular situation. Noting that the Government’s report does not contain information in this regard, the Committee requests the Government to provide information, including reference to the relevant legislation, on the measures taken to ensure that migrant workers in an irregular situation enjoy equality of treatment with regularly admitted and lawfully employed migrants in the country in respect of the rights arising out of past employment, as regards remuneration, social security and other benefits. The Committee further requests the Government to provide information on cases concerning breaches of equality of treatment of migrants in an irregular situation brought before the courts and the final decisions handed down including with respect to trafficked persons.

Article 9(3). Costs of expulsion. The Committee notes the provisions regarding unlawful residence and expulsion in the Law of Foreigners 2008, and notes that pursuant to section 56 the costs of escort to a diplomatic or consular mission or to the shelter, or the state border, are to be borne by the foreigner who is escorted. If a foreigner does not have resources, the employer who engaged the foreigner without an appropriate permit and the person who is obliged to bear the cost of his or her stay in the Republic of Serbia, are to bear the costs jointly. If the costs cannot be paid by them, they are to be borne by the State. The Committee underlines that according to Article 9(3) in case of expulsion of the worker or his or her family, “the cost shall not be borne by them”. The Committee draws the Government’s attention to paragraph 310 of the 1999 General Survey on migrant workers according to which a “clear distinction should be made between: (a) the case where the migrant worker is in an irregular situation for reasons which cannot be attributed to him or her ... in which case the cost of his or her return as well as the return of family members, including transport costs, should not fall upon the migrant; and (b) the case where the migrant worker is in an irregular situation for reasons which can be attributed to him or her, in which case, only the costs of expulsion may not fall upon the migrant”. The Committee also considers that costs of surveillance constitute administrative costs within the context of escorting the migrant worker to the frontier that must be borne by the State which wishes to ensure that the worker and his or her family actually leave the country following a decision to expel (see General Survey, op. cit., paragraph 311). The Committee requests the Government to indicate the costs borne by migrant workers in all the instances in which they can be expelled from the territory, and to indicate the legal provisions in this regard. The Committee also requests the Government to take the necessary measures to amend section 56 of the Law on Foreigners so as to ensure that at least the costs arising out of placing a foreigner under supervision are not borne by the migrant worker. The Committee requests the Government to provide information on any development in this regard.

Articles 10 and 12. National policy on equality of opportunity and treatment. The Committee notes that the Government refers in its report to the Law against Discrimination which prohibits discrimination in employment and occupation on the basis of a wide range of grounds, including citizenship (sections 2(1) and 16). Acknowledging the importance of legislation prohibiting discrimination and providing for procedures against discrimination, the Committee notes that equality of opportunity and treatment between nationals and migrant workers also needs to be ensured in practice. An active policy to secure acceptance and observance of this principle and to assist migrant workers and their families to make use of the equal opportunities offered to them is also needed. The Committee requests the Government to take the necessary steps to formulate and implement a national policy on equality of opportunity and treatment with respect to employment and occupation, social security, trade union and cultural rights and individual and collective freedoms, and to seek cooperation of employers’ and workers’ organizations in promoting the acceptance and observance of the policy for persons who as migrant workers or as members of their families are lawfully within its territory. Please also provide information on any complaints dealt with by the labour inspectorate and the courts regarding discrimination against migrant workers. The Committee also requests the Government to provide all relevant information (legal texts, policy measures, studies and surveys) in reply to the questions in the report form regarding the application of Article 12 of the Convention.

Article 14. Free choice of employment and permissible restrictions. The Committee notes that pursuant to the Law on Foreigners 2008, foreign nationals may be employed if they have a permanent or temporary residence permit and have the authorization for employment. The Committee notes the conditions set out in the draft Law on Employment of Foreign Citizens regarding access to the labour market and permission to work, which are, to a large extent, similar to those in the Law on Conditions for Employment of Foreign Citizens. It notes, in particular that member States of the European Economic Area (EEA) and Switzerland will have free access to the labour market and that work permits for other foreign nationals continue to be issued on the basis of “personal work permits”, “work permits for employment” and “work permits for special cases of employment”. Foreigners employed with a “personal work permit” (i.e. those with permanent residency, refugees and specific categories of foreign nationals) have free choice of employment and exercise of employment rights, while the “work permit for employment” is issued at the request of the employer for the duration of the planned employment period which cannot exceed the duration of the temporary residence granted to the foreign national. Work permits for special cases of employment are issued for seasonal work and posted workers, among others. Recalling that pursuant to Article 14(a) of the Convention, migrant workers shall have the free choice of employment, after an initial period of lawful residence not exceeding two years, the Committee requests the Government to provide information on the number of migrant workers employed with a work permit for employment, including the time during which they have been employed. Please indicate any restrictions regarding the free choice of employment imposed on foreign nationals working under such permits for a period exceeding two years. The Committee also requests the Government to indicate the categories of employment or functions in the state institutions and administrative departments to which access is restricted for migrant workers.

Parts III to V of the report form. Practical application and enforcement. The Committee requests the Government to provide detailed information on the manner in which the Convention is applied in practice, including information on the outcome of inspection activities and on the number and nature of contraventions reported and penalties imposed, and the number and nature of complaints addressed to the courts relating to violations of the relevant legislation. The Committee also requests the Government to provide information to give a general appreciation of the application of the Convention, including any research or surveys undertaken on the situation of migrant workers in the country, as well as information on the activities undertaken by the various authorities involved in the development and implementation of the migration management strategy and the strategy for combating irregular migration, relevant to the application of the Convention, and the results achieved. Please also provide information, disaggregated by sex and nationality, on the number and categories of migrant workers employed in Serbia and their main occupations, and the number of nationals employed abroad, as well as statistics on emigration and immigration of workers, including those in an irregular situation.