Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

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 written information of the Government submitted to the Conference Committee, and the extensive information in the Government’s report, including legislation and statistics, received on 1 September 2009. The Committee further notes the communication from the Italian Union of Labour (UIL), submitted on behalf of the UIL, the Italian General Confederation of Labour (CGIL) and the Italian Confederation of Workers’ Trade Unions (CISL) received on 24 September 2009, which provides additional information on many of the observations already made by the Worker members during the discussion in the Conference Committee, and adds some new issues. The Committee also notes the Government’s reply to the UIL communication, received on 4 December 2009. The Committee will examine the UIL communication together with the Government’s reply at its next session.

Combating irregular migration, while protecting the rights of migrant workers in an irregular situation. The Committee notes the conclusion of the Conference Committee that the phenomenon of irregular migration is a complex and global issue, and that Italy faces particular challenges in addressing the rapid increase in immigration flows and in protecting the basic human rights of migrant workers. The Conference Committee noted that the Government was taking certain measures aimed at combating irregular migration, including the illegal employment of migrants, while at the same time improving compliance with the laws and regulations concerning conditions of work and strengthening assistance measures. The Conference Committee asked the Government to undertake a detailed analysis of recent legislative initiatives targeting irregular migration, including the illegal employment of migrants, and to take measures to ensure that migrant workers who are in an irregular situation were able to enjoy their basic human rights, in accordance with Article 1 of the Convention. It encouraged the Government to strengthen its efforts to promote tolerance and respect between all groups of society.

The Committee takes due note of the extensive information in the Government’s report regarding the many efforts made to combat human trafficking, through national and transnational actions, and the programmes providing assistance to victims of trafficking and serious exploitation managed by the Inter-Ministerial Committee for the Support of the Victims of Trafficking, Violence and Serious Exploitation contemplated under section 18 of the Unified Text of provisions concerning immigration and the status of foreigners (Legislative Decree No. 286/1998 of 25 July 1998). The Committee also notes that Law No. 94/2009 of 15 July 2009 amending, among others, Legislative Decree No. 286/1998 further increases the sanctions laid down for the exploitation of workers illegally employed.

The Committee notes that the Government reaffirms its commitment to protect the fundamental human rights of all migrant workers, and refers in this regard to section 2 of Legislative Decree No. 286/1998 guaranteeing any foreigner at the border or in Italy the enjoyment of fundamental human rights provided in the national legislation, the international Conventions in force and the generally recognized principles of international law. The Committee further notes the Government’s indication that the stigmatization of certain ethnic or social groups and the racist and xenophobic propaganda, mainly targeting non-European Union (EU) immigrants and minority groups, such as the Roma, are matters of serious concern which compromise the difficult process of peaceful integration and coexistence. The Committee notes from the information provided by the Government that the Programmatic Document 2009–11 will contain a strong focus on policies fighting both the exploitation of immigrants and racial discrimination and xenophobia, based on surveys and monitoring interventions and campaigns to promote equal opportunities. The Committee also notes the Government’s commitment to see to it that constant action to combat irregular immigration also helps to reduce exploitation of migrant workers who are in the country in an irregular situation and who can therefore be more easily exploited. In this context, the Committee notes the measures taken to regularize undeclared Italian, EU workers and non-EU workers in the care sector pursuant to section 1ter of Legislative Decree No. 27/2008 (converted into Act No. 102/2009 on the “family assistance and support declaration”).

With respect to its concerns expressed in its previous observation regarding reports on human rights violations and exploitative working conditions of undocumented workers coming from Africa, Asia and Eastern Europe, the Committee notes the information in the Government’s report on the special surveillance campaigns, some aimed at the agricultural sector, carried out in the Puglia region and Foggia district since 2006 where the phenomenon is particularly widespread. It also notes that the 2008 document on Strategic Programming of the Monitoring Activity of the Ministry of Labour, Health and Social Policies gives particular attention to inspections aimed at fighting irregular migration flows and illegal employment of migrants. Particular attention is given to minorities, operating outside any employment or regulatory framework, promoting the irregular immigration of their own nationals to keep them in situations of exploitation in violation of workers’ rights. The Committee notes that in 2008 labour inspection activities aimed at detecting abusive employment found that out of the 4,666 workers in an irregular situation, lacking a residence permit, 336 were employed in the agricultural sector, 711 in the services sector, and 2,231 in construction. Out of the 9,608 workers who were found to be irregular for other reasons, 732 were employed in agriculture, 2,229 in services and 2,989 in construction. The Committee further notes that research is being carried out in Campania, Apulia, Calabria and Sicilia on new forms of labour exploitation, which has worsened in recent years. The Committee asks the Government to provide information as follows:

(i)    a copy of the Programmatic Document 2009–11 and other documents concerning the policies fighting both the exploitation of immigrants and racial discrimination and xenophobia, including of migrants of Roma and Sinti origin, as well as information on the surveys conducted, the monitoring interventions undertaken, and campaigns held to promote equal opportunities;

(ii)   the results achieved by the various measures and programmes undertaken, including inspections carried out, to detect employment of foreigners in abusive conditions, and to protect those migrants who have been victims of abuse or exploitation;

(iii) the number and nature of infringements, and sanctions pronounced against those organizing or facilitating clandestine migration, and those employing migrant workers in abusive conditions, particularly in agriculture, construction and services sectors;

(iv)  the number of male and female migrants in an irregular situation who have been identified as victims of abuse and exploitation in the agriculture and construction sectors, and how many of those have been granted a special permit pursuant to section 18 of Legislative Decree No. 286/1998; and

(v)   the number of undeclared EU and non-EU workers, men and women, working in the care sector that have been regularized pursuant to Act No. 102/2009. The Government is also requested to indicate whether it intends to adopt similar measures to regularize undeclared migrant workers in other sectors, such as agriculture and construction.

Measures directed at migrant workers. The Committee notes that in June 2009 the Conference Committee requested the Government to undertake a detailed analysis of the legislative provisions proposed in the context of the so‑called Security Package with a view to ensuring their compliance with the Convention. The Committee recalls that during the discussion in the Conference Committee concerns were raised about the possible adverse effects of the provisions in the Security Package, should it be adopted, especially the provision introducing the offence of illegal entry or residence in Italian territory. The Committee notes that Law No. 94/2009 (the Security Package) amending Legislative Decree No. 286/1998 was adopted on 15 July 2009. The Committee notes the Government’s statement that the objective of the new law is to make State action to prevent or combat minor and major criminality more effective, and that the severe line taken in particular sectors is accompanied by greater protection against every form of oppression and violence against so-called disadvantaged groups. The Committee notes that the law introduces the offence of illegal entry or residence by inserting section 10bis in Legislative Decree No. 286/1998 which punishes unlawful entry and residence in Italian territory by a fine of between 5,000 to 10,000 euros. Section 10bis further provides that the accused foreigner can be expelled without it being necessary to obtain advance clearance from the competent court for the investigation of the offence. Section 10bis further provides that once the foreigner has been expelled, the Chief of Police (questore) informs the court which dismisses the case based on no case to answer.

The Committee also notes that the Tribunal of Pesaro, in a decision of 31 August 2009, raised a question to the Constitutional Court regarding the constitutionality of section 10bis, as regards the offence of “illegal stay” on the territory, on the basis of the consideration that it is contrary to: (i) the principle of reasonableness, including from the perspective of proportionality; (ii) the principle of equality (article 3 of the National Constitution) as it assumes arbitrarily that all migrants in an irregular situation are socially dangerous; (iii) the principle of solidarity (articles 2 and 3 of the National Constitution); (iv) article 10 of the National Constitution that provides for the respect of international customary law; and (v) articles 3 and 37 of the National Constitution because it does not contemplate the possibility of a “justified cause” for the irregular stay in the country.

The Committee draws the attention of the Government to the fact that if the fight against clandestine migration is justified, at the same time, it is important to ensure respect of the basic human rights of all migrant workers, in order to avoid migrant workers (notably those in an irregular situation) finding themselves in a situation where their rights are not respected and where they are vulnerable to abuses of all kinds (paragraph 361 of the 1999 General Survey on migrant workers). The measures advocated in Part I of the Convention to combat clandestine movements of migrants (Articles 2–6) are primarily targeted at the demand for clandestine labour rather than the supply (see paragraph 338 of the 1999 General Survey on migrant workers). The objective of Article 6(1) of the Convention is therefore to define and apply sanctions against organizers of clandestine movements and against employers in cases of illegal employment, and not against migrant workers who are in an irregular situation themselves. Through Articles 1 and 9, the Convention aims to ensure that migrant workers enjoy a minimum level of protection with respect to their basic human rights and with respect to claims regarding rights arising out of past employment, even when they have immigrated or are employed illegally and their situation cannot be regularized.

The Committee notes that pursuant to section 331(1) of the Code of Criminal Proceedings public officials are obliged to report criminal offences and that the introduction of the crime of illegal entry and stay of foreign workers may prevent migrant workers in an irregular situation from requesting assistance from essential public services. This may also prevent them, in practice, from filing complaints with regard to violations of their basic human rights. The possibility for migrant workers to claim certain rights arising out of past employment with respect to remuneration, social security and other benefits before a competent body, as provided by Articles 9(1) and (2) of the Convention, may also remain merely theoretical if migrant workers in an irregular situation who report violations of these rights are immediately expelled. The Committee expresses concern that section 10bis of Legislative Decree No. 286/1998 will further marginalize and stigmatize migrant workers in an irregular situation, and increase their vulnerability to exploitation and violation of their basic human rights. The Committee notes that the Government’s report does not contain any information on whether it has undertaken the detailed analysis of the impact of recent legislative initiatives targeting irregular migration, including illegal employment of migrants, especially the Security Package, as requested by the Conference Committee.

The Committee, in line with the Conference Committee’s conclusions, asks the Government to undertake a detailed analysis of the impact of recent legislative measures aimed at combating irregular migration, and especially of section 10bis of Legislative Decree No. 286/1998, on the basic human rights of migrant workers in an irregular situation and the equality of treatment of these workers with respect to their rights arising out of past employment, guaranteed by Articles 1 and 9 of the Convention, with a view to assessing the need to amend or repeal this and other provisions of Legislative Decree No. 286/1998. Concerning the pending question before the Constitutional Court on the constitutionality of section 10bis, the Committee asks the Government to provide information on the outcome of the decision, once handed down. The Committee further asks the Government to provide information on the practical application of section 10bis, including the number of migrant workers who have been identified as irregular and expelled since the entering into force of the Act. The Government is also requested to indicate how it is ensured that migrant workers, who are in an irregular situation, especially those accused of the crime of illegal immigration, including as a result of labour inspections, and who are the object of an expulsion order, can file complaints with regard to violations of their basic human rights and can claim certain rights arising out of past employment with respect to remuneration, social security and other benefits as provided by Articles 1 and 9 of the Convention.

Part II of the Convention. Equality of opportunity and treatment between migrants lawfully in the country and nationals. The Committee notes that the Conference Committee requested the Government to ensure full respect for the equality of opportunity and treatment of migrant workers lawfully in the country with nationals, and to pursue its efforts, in cooperation with the social partners, to promote and ensure the observance of a national policy in this regard. The Conference Committee states further that the Government should take additional measures to ensure the effective protection of migrant workers against direct and indirect discrimination, in accordance with Articles 10 and 12 of the Convention. The Committee notes that the integration of the immigrant population is one of the objectives of the social inclusion strategy outlined in the National Report on Social Protection and Inclusion 2008–10, and that the Programmatic Document 2009–11 is to include interventions on integration and immigration. The Committee also notes the information in the report on the initiatives carried out under the National Fund for Social Policies (FNPS) to promote social inclusion and integration, including the interventions promoting labour insertion of the Roma, Sinti and Traveller populations (Lombardia, Piemonte, Toscana and Puglia).

With respect to the incidences of discrimination against the Roma, including attacks at Roma camps, the Committee notes the Government’s reply that the issues connected with the presence of the Roma community on the national territory has long received attention and that it is making all efforts to put in place initiatives aimed at ensuring a more secure and fairer civil coexistence. According to the Government these initiatives aim at improving integration and the quality of relations with the resident population in order to protect more effectively public security, and to prevent discrimination and intolerance against the Roma. The Government mentions in this regard the state of emergency declared in some regions between 21 May 2008 and 31 May 2009 and the collaborative actions of delegated commissions in this context, which according to the Government had positive results. The Committee notes that during the Conference Committee discussion the Worker members questioned the emergency-like approach vis-à-vis the Roma and Sinti populations, and called for a well-defined integration policy on housing, schooling and employment. The Committee notes the Government’s written statement to the Conference Committee that as part of its efforts of defining a national strategy on Roma issues, the Programmatic Document
2009–11 will include a special section on actions supporting the Roma and Sinti communities, promoting and defining a new approach to the issue of Sinti and Roma, based on interventions on social inclusion, the concept of equal rights and duties for nationals and immigrants, the reception of immigrants and acceptance of diversity. In addition, the Committee notes the information in the Government’s report on the activities organized by the Office for the Promotion of Equality of Treatment and the Elimination of Discrimination based on Race and Ethnic origin (UNAR) to promote social inclusion and intercultural dialogue, and to address discrimination against immigrant workers. Recalling that the policy on equality of opportunity and treatment between nationals and migrant workers referred to in Article 10 of the Convention focuses on discrimination based on nationality, the Committee will examine any issues and action taken specifically relating to combating discrimination on the basis of race, colour or national extraction against the Roma and Sinti populations, including in the context of an integrated national strategy on the Roma, in the context of the Government’s report on the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).

The Committee asks the Government to provide information, including statistics, on the specific results achieved under the projects to promote equality of opportunity and treatment between nationals and migrant workers lawfully in the country and to eliminate discrimination based on nationality, in particular with regard to employment and occupation. Please indicate how the social partners have been involved in any of the measures taken or envisaged to promote and ensure the observance of the national equality policy. Noting the information in the Government’s report regarding specific programmes and actions, including awareness raising, to combat discrimination and promote social inclusion in the labour market and society, the Committee asks the Government to indicate the impact of these measures on promoting tolerance and respect between all groups of society. The Committee also asks the Government to provide information on all actions taken in the context of a national integrated strategy on the Roma, to prevent and address discrimination against Roma migrant workers, and promote their equal opportunity and treatment with nationals in accordance with Article 10 of the Convention.

Integration agreement. The Committee notes that Law No. 94/2009 introduces section 4bis in Legislative Decree No. 286/1998 aimed at promoting cohabitation between Italians and foreigners and making the issuing of a residence permit conditional upon the signing of an “Integration Agreement” setting out the objectives of integration (and related “credits”) to be achieved by the foreigner during the period of validity of his or her residence permit. In the event of complete loss of “credits”, the residence permit is revoked and the foreigner must be expelled from the national territory, with some exceptions relating to asylum, humanitarian reasons, long-term EC residence permit, or family reasons. The Committee notes that the criteria and modalities for the signing of the Integration Agreement will be established by regulations. The Committee asks the Government to provide a copy of the regulations and examples of any integration agreements already signed and information on the measures taken to assist foreigners to achieve the integration objectives set under the agreements.

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

[The Government is asked to reply in detail to the present comments in 2010.]