Demande directe (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 143) sur les travailleurs migrants (dispositions complémentaires), 1975 - Guinée (Ratification: 1978)

Autre commentaire sur C143

Demande directe

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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. In its previous comments, the Committee had requested the Government to provide information on the measures taken or contemplated to suppress clandestine movements of migrants for employment and illegal employment of migrants, to sanction the organizers of illicit or clandestine movements of migrants for employment departing from, passing through, or arriving in its territory, and against persons who employ workers who have immigrated in illegal conditions. The Committee notes that the Government indicates in its report that to combat clandestine migrations, it intends to take measures to promote training, in particular in business management, job creation, sustainable activities and the provision of micro-financing. The Committee further notes that the United Nations Committee on Human Rights expresses concern in its concluding observations regarding: (a) the situation of Guinean migrants who are still in Libya; and (b) the situation of children, girls and women who are victims of domestic servitude and prostitution networks in foreign countries, especially in North Africa and the Middle East (CCPR/C/GIN/CO/3, 7 December 2013, paragraph 39). In that connection, the Committee also takes note of the creation of the National Committee to Combat Trafficking in Persons and Similar Practices (CNLTPPA) by Decree No. D/2017/039/PRG/SGG of 17 February 2017. With regard to trafficking in persons, the Committee refers the Government to the Committee’s direct request of 2018 on the Forced Labour Convention, 1930 (No. 29). While noting the employment policy measures envisaged by the Government, the Committee again requests it to provide detailed information on the measures taken or contemplated to put an end to clandestine migration and illegal employment of migrants, as well as the measures taken or contemplated in respect of 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. The Government is also requested to provide information on CNLPPA activities to combat clandestine migration.

Article 6. Detection of the illegal employment of migrant workers and definition of sanctions, Legislation. The Committee recalls that it noted that under section 9 of Order No. A/2015/085/METFPET/DNTLS/CAB/SGG of 30 January 2015 on regulating the use of foreign labour, “employers who use the services of a foreign worker without 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”. The Committee had however noted 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 case of a repeat offence)”. In the absence of a response from the Government on this point, the Committee again requests the Government to specify whether sanctions are also provided for 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.

Article 8. Legal status in the case of loss of employment. In its previous comment, while noting the Government’s indication that the loss of employment of migrant workers does not result in the withdrawal of the residency permit or work permit and that, therefore, the workers concerned cannot be considered as being in an irregular situation, the Committee requested 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. In the absence of a response from the Government on this point, the Committee is obliged to reiterate its request.

Articles 10 and 12. National equality policy. The Committee had previously noted 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. Moreover, referring to paragraph 345 of the 2016 General Survey concerning the migrant workers instruments, the Committee recalled the measures allowing the implementation of a national equality policy in respect of migrant workers, in particular that of legislative protection against discrimination based on nationality. In the absence of information on this issue in the Government’s report, the Committee again requests it to include the ground of “nationality” in section 5 of the Labour Code which prohibits discrimination, the next time that the Code is revised. In the meanwhile, it again 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 and occupation and social security and are not victims of discrimination. The Government is requested to provide information on all related measures taken.

Equality of treatment and trade union rights. In the absence of a response from the Government on this point, the Committee again requests it to consider the amendment of sections 322.4 and 311.6 of the Labour Code, concerning the exercise of trade union leadership 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, without the requirement of reciprocal measures by the foreign workers’ country of origin.

Article 14(c). Restriction of access to limited categories of employment or functions. The Committee notes that Order No. A/2015/084/METFPET/DNTLS/CAB of 30 January 2015, which determines protected employment in the private and assimilated sectors, lists the categories of employment prohibited to foreign workers in sectors including the administrative services, agriculture, transport, management, catering, maintenance, construction and health. 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 the 2016 General Survey, paragraph 370). It considers that all the “protected” types of employment listed in the Order are not in compliance with the Convention’s requirement of being “necessary in the interests of the State”. The Committee therefore requests the Government to review the list of “protected” employment in the light of Article 14(c) of the Convention and amend it accordingly. In the meantime, the Committee requests the Government to provide information on the application in practice of the Order of 2015.