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

Convention (n° 143) sur les travailleurs migrants (dispositions complémentaires), 1975 - Chypre (Ratification: 1977)

Autre commentaire sur C143

Observation

Demande directe

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Article 1 of the Convention. Basic human rights. The Committee asks the Government to continue to provide information, disaggregated by sex, nationality, and sector of activity on the number of migrant workers, in a regular or irregular situation, and on the measures adopted, including by the Department of Labour and the Equality bodies to ensure the full respect of their basic human rights.

Articles 2 to 7. Measures to detect, prevent and suppress irregular migration and the illegal employment of migrant workers. The Committee previously took note of the legislative provisions adopted by the Government with a view to harmonizing the national legislation with the Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals. The Committee notes, from the statistics provided by the Government in its report, as well as from the 2017 report of the European Migration Network, that, in 2016, a total of 282 third-country nationals irregularly staying and employed in Cyprus were identified, mainly from South-East Asia and Eastern Europe, and the number of employers prosecuted for illegal employment of foreigners significantly dropped from 984 in 2012 to 226 in 2016. The Government adds that, in case of breach of the employment contract, penalties are imposed on employers and, in case trafficking issues are identified, competent authorities are notified and immediate action is taken. Referring to its 2019 direct request on the application of the Migration for Employment Convention (Revised), 1949 (No. 97), the Committee notes with interest the ratification of the Protocol of 2014 to the Forced Labour Convention, 1930, on 1 February 2017, and points out that, in April 2019, in the context of the Universal Periodic Review (UPR), the Government indicated that steps are taken towards the ratification of the Private Employment Agencies Convention, 1997 (No. 181), (A/HRC/41/15, 5 April 2019, paragraph 53). The Committee further notes the adoption of the National Action Plan against Human Trafficking for 2016–18, as well as of a National Referral Mechanism guide for handling victims of trafficking in May 2016. The Committee however notes that, in its last concluding observations, the United Nations Committee on Economic, Social and Cultural Rights (CESCR) expressed concern about the prevalence of trafficking in migrant workers for the purposes of sexual and labour exploitation (E/C.12/CYP/CO/6, 28 October 2016, paragraphs 33 and 34); and that, in April 2019, the Human Rights Council, in the context of the UPR, recommended that the Government intensify efforts to prevent and combat trafficking in migrant workers, particularly women (A/HRC/41/15, 5 April 2019, paragraph 139). The Committee asks the Government to provide information on the concrete measures taken to effectively detect, prevent and suppress irregular migration and illegal employment, in particular trafficking in persons for exploitation in private households, including in the framework of the National Action Plan against Human Trafficking for 2016–18, and on the concrete impact of these measures on the reduction of this phenomenon. It also asks the Government to provide statistical information on the number of labour inspections carried out and detection of migrant workers in an irregular situation or illegally employed, as well as on the nature of the infringements identified and the administrative, civil and penal sanctions imposed on employers. The Committee further asks the Government to provide specific information on the penalties and other measures adopted against organizers of illegal or clandestine movements of migrants for employment with respect to work undertaken by foreign nationals.

Article 8. Legal status in the case of loss of employment. Following the Committee’s request for clarification, the Government states that third-country nationals residing legally in the country enjoy equal treatment with Cyprus and European Union (EU) nationals. The Committee notes that, according to the statistical information provided by the Government, 1,208 third-country nationals were registered as unemployed in September 2018. While noting this information, the Committee again asks the Government to specify whether, in the case of loss of employment, migrant workers expressly enjoy the right to 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.

Article 9. Rights arising out of past employment of migrant workers in an irregular situation. Referring to its previous comments, the Committee notes the downward trend in the number of complaints from third-country nationals examined by the Department of Labour, from 652 complaints in 2012 to 558 complaints in 2015, of which more than 80 per cent concerned migrant domestic workers. The Government indicates that a mechanism for resolving complaints submitted by migrant workers has been established at each District Labour Office. The Government adds that the whole procedure can be performed both in Greek and English, so as to ensure a clear understanding of each party’s positions. In most instances, an amicable solution is reached between the parties involved, either by signing a release agreement and allowing the migrant worker to look for a new employer or by providing further awareness of their employment rights and obligations to the migrant workers and thus, contributing towards their decision to return and continue working for their employer. The Committee asks the Government to continue to supply information on the number and nature of complaints submitted to the Department of Labour, specifying whether such complaints were submitted by the worker or the employer and concerned rights arising out of past employment (remuneration, social security or other benefits). It asks the Government to provide a copy of any legal decision ordering the payment of outstanding wages to migrant workers found to be illegally employed for the period worked. It also asks the Government to provide information on any other measures taken by the Department of Labour Relations in order to ensure that third-country nationals in an irregular situation can claim their rights arising out of past employment in accordance with Article 9 of the Convention.

Article 14(a). Free choice of employment and employment restrictions. The Committee previously noted that a temporary work permit of third-country nationals is tied to a specific occupation and to the employer mentioned in the employment contract, and that the worker has the right to change employer after the first year of employment and the expiration of the employment contract but that this right is limited to the same occupation or economic activity. The Committee notes the Government’s statement that a temporary work permit is issued for a specific occupation and a determined period of time, provided that a number of certain criteria are met by the employer, such as area of economic activity and the inability to find suitable employees for the specific duties from the local or European labour market. While noting that the Government considers that such provisions fall within the exception provided for under Article 11(2)(e) of the Convention, the Committee recalls that the exclusion provided for in the Convention only refers to the situation of workers already employed in organizations or enterprises which carry out activities in a third-country to which these workers are detached to undertake specific tasks, and therefore could not be applied generally to all third-country nationals working with temporary work permit (see 2016 General Survey concerning the migrant workers instruments, paragraph 127). The Committee also notes that migrant domestic workers, the majority of whom are women, are still limited to two changes of employer over a six-year period and change of sector is only possible with the approval of the Minister of the Interior. The Committee therefore asks the Government to take the necessary steps to amend its legislation in order to ensure that third-country nationals, including migrant domestic workers, who have resided in the country for two years, enjoy equality of treatment with nationals as regards access and free choice of employment, and to provide information on any progress made in this regard. It also asks the Government to provide information, disaggregated by sex and nationality, on the number of third-country nationals, including migrant domestic workers, with employment and residency permits exceeding two years.

Article 14 (b). Recognition of diplomas and qualifications. Referring to its previous comments, the Committee notes the Government’s statement that Law No. 31(I)/2008 on recognition of professional qualifications has been amended by Law No. 34(I)/2017 in order to harmonize the national legislation with the Directive 2013/55/EU of the European Parliament and of the Council of 20 November 2013 amending Directive 2005/36/EC on the recognition of professional qualifications. The Government states that no real obstacles have been encountered by Cyprus competent authorities in the recognition of the professional qualifications of third-country nationals which is done on an equal basis with Cypriot and EU nationals. The Committee however notes that, as recently highlighted by the European Commission, the law regulating the exercise of the profession of estate agents contained indirect discrimination against third country nationals, because it requires applicants to submit “certified educational attainment”, when there is no procedure for such certification for diplomas issued by schools in third countries and found there was indirect discrimination on the ground of national origin, in breach of the law transposing the Equality Acquis (European Commission, Country Report on non-discrimination, 2018, pages 46–47). The Committee, therefore, asks the Government to provide information, including studies or surveys, on any obstacles encountered in practice regarding the recognition of diplomas and qualifications of third-country nationals, including EU citizens, in particular with regard to the profession of estate agents. It asks the Government to provide information on any assessment carried out by competent authorities on this issue. The Committee again asks the Government to provide information on any specific legislative provisions regarding recognition of the professional qualifications of third-country nationals.

Article 14(c). Restrictions in the interest of the State. Public service. The Committee previously noted that the Law on Foreigners and Immigration provides for equal treatment of third-country nationals with a long-term residence permit with nationals in respect of access to wage employment and independent professional activities, as long as these activities do not concern, even occasionally, the public service (section 18JG(1)(a)). With respect to EU citizens, section 31(a) of the Public Service Law 1990–2006 provides that they can be appointed to the public service provided that the post is not one that involves the exercise of public authority and the responsibility for the safeguarding of the general interests of the State. The Committee previously noted, however, that no EU national was employed in the public service, except in the area of public education, and that language requirements represent a serious obstacle for access to employment of EU migrant workers. The Committee notes the Government’s indication that language requirements are linked to the relevant decisions of the Council of Ministers that written communication in the public sector is carried out in the Greek Language, and that for the purpose of facilitating access to employment of third-country nationals, fast learning courses of Greek Language for English speakers with appropriate certifications are being organized. The Government adds that positions that involve the exercise of public authority and the safeguarding of the interests of the State do not exceed 15 per cent of the total approved positions in public administration. The Committee recalls that general prohibitions as regards the access of foreigners to certain occupations, when permanent, are contrary to the principle of equal treatment unless they apply to limited categories of occupations or public services and are necessary in the interest of the State (see 2016 General Survey, paragraph 370). The Committee therefore asks the Government to ensure that restrictions on the access of third-country nationals to employment are related to “limited categories of employment and functions” and necessary “in the interest of the State” in line with Article 14(c) of the Convention, and to provide information on any developments in this regard. It further asks the Government to provide detailed information on the types of posts which have been considered as involving the exercise of public authority and the responsibility for the safeguarding of the general interests of the State. The Committee asks the Government to provide updated statistical information on the number of EU citizens and third-country nationals employed in the public service, as well as on the number and nature of complaints against public sector institutions regarding unequal treatment in employment and occupation, including those related to language requirements of EU citizens, addressed by any competent authorities.

Enforcement. The Committee notes that, according to the statistical information provided by the Government, the number of complaints regarding discrimination on the ground of “national origin” in employment submitted to the Equality Authority substantially dropped from 19 in 2013 to six in 2016, while between 2013 and mid-2017, only three cases of discrimination based on ethnic origin in employment were submitted to the Equality Authority. The Government adds that the Ministry of Labour, Welfare and Social Insurance is proceeding with the implementation of a decision for the creation of a single inspectorate unit, which will not only help to increase inspections undertaken, but will also help to further enhance their efficiency. The Committee asks the Government to provide information on any measures taken to raise awareness and strengthen the ability of foreign workers to claim their rights in respect of non-discrimination and equality of opportunity and treatment, including through the creation of a single inspectorate, as well as on their impact. It asks the Government to continue to provide information on the number of cases or complaints of discrimination from EU citizens and third-country nationals dealt with by the labour inspectorate, the Equality Authority, the courts or any other competent authorities, as well as the sanctions imposed and the remedies granted, while specifying the alleged ground of discrimination.