ILO: six month ban may be discriminatory

A six month ban ‘is not’ something that ILO promotes, because migrant workers may be exposed to certain unfair conditions, Tim De Meyer said.

A senior specialist for the International Labour Organisation (ILO) has said that the six month ban established by Macau’s new imported labour law could be “a case of discrimination” for migrant workers. In an interview with Macau Daily Times, Tim De Meyer, senior specialist in international labour standards and labour law of the Subregional Office for East Asia, pointed out that there is no black and white approach for the Macau migrant workers’ complaints and advised them to pay attention to the results of the new law in practice.

The new law came into force in April this year and allows the Macau Government to refuse to issue a new stay permit to the non-resident workers for a period of six months. However, this six-month ban should only be applied to the cases of termination of labour contract without just cause by the non-resident worker within the effective term of the contract.

Macau Migrants Network was planning to raise the issue with the ILO and the United Nations at the time when the Law for the Employment of Non-Resident Workers was being discussed at the Legislative Assembly. The group deemed the law discriminatory for migrant workers and demanded a number of changes, including changing the six month ban.

“It is a case of discrimination, but we have to see if it is a case of permissible discrimination,” De Meyer underlined.

At this moment, the ILO has no way to issue a recommendation to the Macau Government, but the expert suggested that non-resident organisations be watchful.

“It isn’t definitely a situation that we promote, because the main reason is the more you restrict the opportunities of migrant workers to look for another job while they are in a country, the more you will in fact expose them to certain conditions,” he said. In other words, migrants could be subject to forced labour or discrimination.

However, according to De Meyer, migrants would not be able to say that the new restriction on imported labour violates their human rights. He called for a need “to see what sort of pressure it puts on migrant workers”.

For instance, “you have to consider in what sort of position of vulnerability it puts migrant workers and to what extend does it force them to accept exploitation from forced labour situations,” he said.

“Does it really mean that as a result of these restrictions migrant workers earn 50 or 60 percent of what a local resident is earning in a job that has the same skills, knowledge and responsibility?

“If that is the case they could get a declaration from ILO saying it is unfair,” he said.

Hong Kong’s case

In Hong Kong, in 2003 the Trade Union Congress of the Philippines (TUCP) submitted to the ILO a complaint against a levy system, which permitted employers to pass on a levy to the migrant workers by subtracting it from their wages. “In and of itself there was no specific violation of any convention, but obviously the levy worked out in such a way that was clear as result of that system the migrant workers just consistently end up having a lower wage compared to local citizens carrying out similar jobs – that could actually be a case of discrimination,” De Meyer explained.
He continued: “In the context of that representation against Hong Kong, the ILO body basically decided to say it was not really a violation, but it is a violation of a principle of law, which is fairness.”

“The point is Macau’s case is quite complex compared to the one in Hong Kong. Looking at the ILO’s Convention 143, one of the two conventions on migrant workers, it specifically says two things: that the basic human rights of migrant workers must be protected; and that migrants should be given equality of treatment and opportunity – which means freedom to look for another job.

However, firstly, “the opportunity to look for another job is not a basic right of migrant workers, in the sense that ILO member states are very insistent upon their right to regulate the access to labour market. Secondly, the convention 143 is not applicable to Macau,” De Meyer said.
“That means that by itself, as long as you have not ratified convention 143, in and by itself it isn’t prohibited for member states to basically say: ‘No. You can come in, you can apply for a job, but you don’t have the right to apply for another job, and if you want to do so you have to leave first and you can come back.’”
Challenging issue

The Government claims that under the new law migrant workers are better protected, as the law is now linked to the Labour Relations Law. That means non-resident workers enjoy the same rights as locals, except when looking for a better job.
“What this law is trying to do is make sure that migration remains temporary.

Basically, it gives the Government an authority to make sure that migrant workers when they come to the end of their contract will have to go back,” De Meyer stressed.

“It seems to me the Government has been advised on the situation,” he added.

More recently, two local migrant associations have demanded the SAR Government extend the visas of non-resident workers who are waiting on the Labour Affairs Bureau to issue a statement of proof of termination of their employment contract, in order to avoid the misuse of the six-month ban.

The expert says that the 10 days of visa permit currently allowed for workers who are appealing their employer’s decision is “extremely short”.
“That’s an important aspect. What opportunities do they really have in order to effectively challenge if they have been dismissed with or without just case?” he questioned. -Alexandra Lages (In Bangkok)