Demande directe (CEACR) - adoptée 2019, publiée 109ème session CIT (2021)

Repetition

Articles 1 to 3 of the Convention. Basic rights of migrant workers and measures to detect and suppress migration in abusive conditions and the illegal employment of migrants. The Committee notes that, in its concluding observations, the United Nations Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) expressed concern regarding the “information received with regard to … Guinean citizens who are victims of trafficking and forced labour in the fields of agriculture, diamond and gold-mining, and domestic work in countries in the region and victims of domestic servitude in European countries, the United States and the Middle East”. The CMW therefore requested the Government of Guinea to: “(a) Systematically collect data disaggregated by gender, age and origin so as to better combat human trafficking and smuggling; (b) Step up campaigns on the prevention of trafficking and smuggling of migrant workers, and take appropriate measures to stop the dissemination of misleading information regarding emigration and immigration; (c) Improve the training of police officers and other law enforcement officials, border guards, judges, prosecutors, labour inspectors, teachers, health-care providers and the State party’s embassy and consular personnel on how to combat human trafficking and smuggling; (d) Promptly, effectively and impartially investigate, prosecute and punish all acts of trafficking in persons, human smuggling and other related offences, and deal expeditiously with cases filed against traffickers and human smugglers; (e) Afford protection and assistance to all victims of trafficking, in particular by providing shelters and launching projects aimed at helping them to rebuild their lives; (f) Increase international, regional and bilateral cooperation to prevent and combat trafficking in persons” (CMW/C/GIN/CO/1, 8 October 2015, paragraphs 53–54). The Committee requests the Government to provide information on the measures taken or contemplated to suppress clandestine movements of migrants for employment and illegal employment of migrants, and the measures taken or contemplated against the organizers of illicit or clandestine movements of migrants for employment departing from, passing through or arriving in its territory, and against those who employ workers who have immigrated in illegal conditions.

Article 6. Detection of the illegal employment of migrant workers and definition of sanctions. Legislative developments. The Committee notes the adoption of Order No. A/2015/085/METFPET/DNTLS/CAB/SGG of 30 January 2015 which regulates the use of foreign labour. The Committee welcomes the fact that, pursuant to section 9, “employers who use the services of a foreign worker with having obtained the prior authorization [required] … must, if they have brought the worker from another country, fully cover the costs of the worker’s repatriation”. However, the Committee notes that section 10 provides that “any foreign worker who is hired or used illegally will receive a fine equal to three months’ wages of the worker (six months’ wages in the event of a repeat offence)”. The Committee requests the Government to specify whether these penalties also apply to employers who have not obtained the prior authorization required and have illegally hired or used the services of a foreign worker, and to indicate the relevant legal text. The Committee also requests the Government to provide a copy of the Orders establishing protected jobs and setting the fee for work permits, and of any new legislation to detect and penalize the movements or employment of migrants in an irregular situation.

Article 8. Legal status in the case of loss of employment. Following the Committee’s request for clarification, the Government indicates that the loss of employment of migrant workers does not result in the withdrawal of their residency permit or work permit, and that, therefore, the workers concerned cannot be considered as being in an irregular situation. While noting this information, the Committee once again requests the Government to specify whether, in the case of loss of employment, migrant workers have the right to enjoy equality of treatment with nationals for the remainder of the duration of their work permit, particularly with regard to security of employment, the provision of alternative employment and retraining.

Articles 10 and 12. National equality policy. The Committee notes the Government’s indication that, in employment other than protected jobs, migrant workers benefit from equality of opportunity and treatment with regard to employment, occupation and social security. The Committee recalls that measures that allow for the implementation of a national equality policy range from the adoption of policies and legislation to the implementation of programmes to integrate migrants and programmes against xenophobia, and campaigns to ensure equal opportunity and treatment for migrant workers (see 2016 General Survey concerning the migrant workers instruments, paragraph 345). With regard to legislative protection against discrimination based on nationality, the Committee once again observes that section 5 of the Labour Code, which prohibits discrimination, does not mention “nationality” as a prohibited ground of discrimination. In this regard, the Committee recalls that legislative protection against discrimination based on actual or perceived nationality is fundamental to migrant workers (see 2016 General Survey, paragraph 337). The Committee once again urges the Government to include the ground of “nationality” in section 5 of the Labour Code the next time that the Code is revised, and in the absence of the prohibition of discrimination based on actual or perceived nationality in legislation, it requests the Government to take the measures necessary to ensure that migrant workers and members of their family who are legally resident in the country enjoy equality of opportunity and treatment with regard to employment, occupation and social security, and are not victims of discrimination.

Equality of treatment and trade union rights. The Committee recalls that it had requested the Government to consider the amendment of sections 322.4 and 311.6 of the Labour Code, which establish conditions of residence and reciprocity for migrant workers to be able to take up trade union office or occupy management functions in employers’ organizations. The Committee notes the Government’s indication that this issue will be examined at the next session of the Advisory Committee on Labour and Social Legislation. Recalling that Article 10 of the Convention establishes the principle of equality of treatment, the Committee once again requests the Government to examine the possibility of taking the necessary measures to amend sections 322.4 and 311.6 of the Labour Code concerning the exercise of trade union functions or management functions in employers’ organizations by foreign nationals engaged in a professional activity and lawfully residing within the territory, in order to ensure that they have equality of treatment with nationals.