21. MIGRANT WORKERS

CHEA Sophal, RADU Mares

Introduction

Exploitation of migrant workers can go as far as severe mistreatment, human trafficking and modern slavery (chapter 16) and is taking place in various industries (e.g. construction, domestic workers). The UN Convention on Migrant Workers remains the least ratified among the UN core human rights treaties. In law and in practice migrant workers often receive insufficient protection and are recognized as a vulnerable group at high risk of exploitation. Therefore, leading companies have recently engaged in large multistakeholder initiatives (chapter 5), which develop comprehensive packages of measures and specific principles such as the ‘employer pays principle’. Extraterritorial laws combatting human trafficking and forced labour (chapter 4) further support efforts throughout the supply chain to improve the protection of migrant workers. Trade unions (chapter 19) have not always been successful in addressing the rights of this group of workers, while domestic workers – who are predominantly women (chapter 23) – face difficulty in becoming unionized due to their workplace not being the factory floor. According to the UNGPs and other soft law instruments (chapter 2), companies are expected to undertake their human rights due diligence in a participatory manner (chapter 14) and with special attention to vulnerable groups (chapter 8-13) – such as indigenous people (chapter 22), persons with disabilities (chapter 24) and children (chapter 15). Cooperation between states – the sending, transit and receiving countries – is indispensable for creating an enabling environment (chapter 1 and 2) for more responsible business conduct throughout the global supply chains. Recruitment agencies, which have for decades been covered by ILO Conventions, pose particular challenges and require specific attention from companies that rely on their services. Understanding the root causes of migration – from poverty to climate change (chapter 29) – and employing new technologies is essential for finding innovative ways to protect migrant workers.

According to reports from the Ministry of Labour and Vocational Training (MoLVT), 1.2 million Cambodians are working overseas, mainly in Thailand, Malaysia, Singapore, Hong Kong, South Korea, Japan, and Saudia Arabia. Annually they provide remittances of around $2 billion to their families. There are several reasons for migrating to work overseas such as lack of local jobs, higher wages, and following friends or relatives. The main sectors in which Cambodian migrants work include the construction and service sectors. Cambodia has also been sending Khmer labourers to work abroad through bilateral agreements as well as Memorandums of Understanding (MoUs) with receiving states. Some MoUs have been revoked due to grave violations of human rights and abuse of Cambodian migrant workers.  Several stakeholders can support Cambodian migrant workers to facilitate their access to information, education, access to justice and social protection. 

Main Aspects

• Migration (documented migration or irregular migration)
• Causes of migration
• Migrants and refugees (separate legal frameworks)
• Human trafficking and labor exploitation
• Unfair competition
• Benefits for countries of origin and countries of employment
• Principle of equality of treatment (remuneration, conditions of work, terms of employment, medical care, children education)
• Right to property
• Right to be informed (of conditions applicable)
• Employer pays principle (no recruitment fees on workers)
• Consultation and cooperation among states regarding migration (and ensuring sound, equitable, humane and lawful conditions of migration)
• Recruitment agencies (temporary work agencies)
• Remediation mechanisms
• Reporting laws (corporate transparency)
• Digital tools in supply chains (form of worker empowerment)
• Sustainable development and migration
• Climate change and migration

Background

ILO, Global Estimates on International Migrant Workers^[1]

Global estimates of the stock of international migrants and migrant workers, 2017

Men constitute a larger proportion of migrant workers. In 2017, the stock of male migrant workers was estimated to be 95.7 million, while the corresponding estimate for female migrant workers was 68.1 million, or 58.4 and 41.6 per cent, respectively, of all migrant workers. (…) The higher proportion of men among migrant workers may also be explained by other factors, including the higher likelihood of women to migrate for reasons other than employment (for instance, for family reunification), as well as by possible discrimination against women that reduces their employment opportunities in destination countries. Societal stigmatization, the discriminatory impacts of policies and legislation and violence and harassment not only undermine women’s access to decent work but can also result in low pay, the absence of equal pay and the undervaluation of female-dominated sectors. (…)

When disaggregating migrant workers by age group, it is found that while youth workers (aged 15-24) and older workers (aged 65 plus) constitute 8.3 per cent and 5.2 per cent, respectively, of migrant workers, prime-age adults constitute 86.5 per cent. This age composition holds for male and female migrant workers alike. The fact that the overwhelming majority of migrant workers consist of prime-age adults suggests that some countries of origin are losing the most productive part of their workforce, which could have a negative impact on their economic growth. On the other hand, destination countries benefit from receiving prime-age workers as they are increasingly faced with demographic pressures. It is important to note, however, that the emigration of prime-age individuals may provide a source of remittances for countries of origin. (…)

Of the 164 million migrant workers worldwide, 111.2 million (67.9 per cent) are employed in high-income countries, 30.5 million (18.6 per cent) in upper middle-income countries, 16.6 million (10.1 per cent) in lower middle-income countries and 5.6 million (3.4 per cent) in low-income countries.

UN, Global Compact for Migration^[2]

4. Refugees and migrants are entitled to the same universal human rights and fundamental freedoms, which must be respected, protected and fulfilled at all times. However, migrants and refugees are distinct groups governed by separate legal frameworks. Only refugees are entitled to the specific international protection defined by international refugee law. This Global Compact refers to migrants and presents a cooperative framework addressing migration in all its dimensions.

7. This Global Compact presents a non-legally binding, cooperative framework that builds on the commitments agreed upon by Member States in the New York Declaration for Refugees and Migrants. It fosters international cooperation among all relevant actors on migration, acknowledging that no State can address migration alone, and upholds the sovereignty of States and their obligations under international law.

8. This Global Compact expresses our collective commitment to improving cooperation on international migration. Migration has been part of the human experience throughout history, and we recognize that it is a source of prosperity, innovation and sustainable development in our globalized world, and that these positive impacts can be optimized by improving migration governance. The majority of migrants around the world today travel, live and work in a safe, orderly and regular manner. Nonetheless, migration undeniably affects our countries, communities, migrants and their families in very different and sometimes unpredictable ways.

15. We agree that this Global Compact is based on a set of cross-cutting and interdependent guiding principles:

(a) People-centred. The Global Compact carries a strong human dimension, inherent to the migration experience itself. It promotes the well-being of migrants and the members of communities in countries of origin, transit and destination. As a result, the Global Compact places individuals at its core;

(b) International cooperation. (…);

(c) National sovereignty. The Global Compact reaffirms the sovereign right of States to determine their national migration policy and their prerogative to govern migration within their jurisdiction, in conformity with international law. Within their sovereign jurisdiction, States may distinguish between regular and irregular migration status, including as they determine their legislative and policy measures for the implementation of the Global Compact, taking into account different national realities, policies, priorities and requirements for entry, residence and work, in accordance with international law;

(d) Rule of law and due process. (…);

(e) Sustainable development. The Global Compact is rooted in the 2030 Agenda for Sustainable Development, and builds upon its recognition that migration is a multidimensional reality of major relevance for the sustainable development of countries of origin, transit and destination, which requires coherent and comprehensive responses. Migration contributes to positive development outcomes and to realizing the goals of the 2030 Agenda for Sustainable Development, especially when it is properly managed. The Global Compact aims to leverage the potential of migration for the achievement of all Sustainable Development Goals, as well as the impact this achievement will have on migration in the future;

(f) Human rights. The Global Compact is based on international human rights law and upholds the principles of non-regression and non-discrimination. By implementing the Global Compact, we ensure effective respect for and protection and fulfilment of the human rights of all migrants, regardless of their migration status, across all stages of the migration cycle. We also reaffirm the commitment to eliminate all forms of discrimination, including racism, xenophobia and intolerance, against migrants and their families;

(g) Gender-responsive. The Global Compact ensures that the human rights of women, men, girls and boys are respected at all stages of migration, that their specific needs are properly understood and addressed and that they are empowered as agents of change. It mainstreams a gender perspective and promotes gender equality and the empowerment of all women and girls, recognizing their independence, agency and leadership in order to move away from addressing migrant women primarily through a lens of victimhood;

(h) Child-sensitive. The Global Compact promotes existing international legal obligations in relation to the rights of the child, and upholds the principle of the best interests of the child at all times, as a primary consideration in all situations concerning children in the context of international migration, including unaccompanied and separated children;

(i) Whole-of-government approach. The Global Compact considers that migration is a multidimensional reality that cannot be addressed by one government policy sector alone. To develop and implement effective migration policies and practices, a whole-of-government approach is needed to ensure horizontal and vertical policy coherence across all sectors and levels of government;

Objectives for safe, orderly and regular migration

1. Collect and utilize accurate and disaggregated data as a basis for evidence-based policies

2. Minimize the adverse drivers and structural factors that compel people to leave their country of origin

3. Provide accurate and timely information at all stages of migration

4. Ensure that all migrants have proof of legal identity and adequate documentation

5. Enhance availability and flexibility of pathways for regular migration

6. Facilitate fair and ethical recruitment and safeguard conditions that ensure decent work

7. Address and reduce vulnerabilities in migration

8. Save lives and establish coordinated international efforts on missing migrants

9. Strengthen the transnational response to smuggling of migrants

10. Prevent, combat and eradicate trafficking in persons in the context of international migration

11. Manage borders in an integrated, secure and coordinated manner

12. Strengthen certainty and predictability in migration procedures for appropriate screening, assessment and referral

13. Use migration detention only as a measure of last resort and work towards alternatives

14. Enhance consular protection, assistance and cooperation throughout the migration cycle

15. Provide access to basic services for migrants

16. Empower migrants and societies to realize full inclusion and social cohesion

17. Eliminate all forms of discrimination and promote evidence-based public discourse to shape perceptions of migration

18. Invest in skills development and facilitate mutual recognition of skills, qualifications and competences

19. Create conditions for migrants and diasporas to fully contribute to sustainable development in all countries

20. Promote faster, safer and cheaper transfer of remittances and foster financial inclusion of migrants

21. Cooperate in facilitating safe and dignified return and readmission, as well as sustainable reintegration

22. Establish mechanisms for the portability of social security entitlements and earned benefits

23. Strengthen international cooperation and global partnerships for safe, orderly and regular migration

Harsdorff, Towards an ILO Approach to Climate Change Adaptation^[3]

Climate change is already occurring and is having increasingly large impacts on enterprises and workers, and on economic and social development. In the longer-term, the increase in average temperatures, the alteration of rainfall patterns and rises in sea level will be the most significant effects. In the short-to-medium term, the impacts are mostly caused by erratic weather patterns and extreme events such as storms, floods and droughts. In most regions these impacts on the world of work are negative, disrupting businesses, destroying workplaces and undermining income opportunities. In poor countries and communities the impacts on income generation, employment and social security can be particularly devastating. Those who have done least to cause the problem stand to lose the most.

To prevent unmanageable and potentially uncontrollable climate changes, the causes of such change needs to be tackled and measures to reduce further greenhouse gas emissions are needed urgently. In parallel, countries, communities and enterprises have to adapt to the climate change that is already underway as a result of emissions since the industrial revolution, in order to try to prevent losses and exposure.

The United Nations Framework Convention on Climate Change (UNFCCC) and the Intergovernmental Panel on Climate Change (IPCC) have produced authoritative definitions of adaptation. The IPCC has also concluded, in its 4th Assessment Report, that adaptation is intricately linked to sustainable development. Based on these definitions and the link to sustainable development the ILO interprets its role in climate change adaptation as: “Reducing vulnerability of workers, enterprises and governments to the effects of climate change and enhancing capacity at individual and society level to respond to, prepare for and adapt to climate change in ways which enhance development and social inclusion”. This emphasizes the view that reducing vulnerability must play a central role in adaptation efforts and also that the large investments needed to adapt to climate change should be seized as an opportunity to build a more sustainable society, rather than as defensive expenditure designed to reduce losses.

Relevant ILO programmes and approaches include (…) Displacement and migration: There is increasing evidence of climate change becoming an additional driver of migration, both internal and across borders. The latter is likely to become more prominent as an adaptation option and ILO Conventions offer guidelines for the migration process. (…)

“While migration can be a manifestation of acute vulnerability, it can also represent an adaptation strategy since it can: help to reduce risk to lives, livelihoods and ecosystems; contribute to income diversification; and enhance overall capacity of households and communities to cope with the adverse effects of environmental and climate change. Migration has been used for millenniums as an adaptation strategy and is likely to be of growing importance in the future.”

The ILO has a specific mandate with regard to international migration and is promoting a rights-based approach. While the Office would need to work closely with other agencies and organizations to address some of the likely challenges to arise from climate related migration and displacement, it should make sure that standards are at the centre of the debate and action. Indeed, beyond the protection of the rights of migrant workers contained in Conventions 97 and 143, these two instruments provide for sound and sustainable migration policies based on cooperation between states (countries of origin and countries of destination), social dialogue in the formulation and implementation of migration policies and the promotion of integration policies. (…)

Instruments

UN, Convention on the Rights of Migrant Workers^[4]

Preamble

Taking into account the fact that migration is often the cause of serious problems for the members of the families of migrant workers as well as for the workers themselves, in particular because of the scattering of the family,

Bearing in mind that the human problems involved in migration are even more serious in the case of irregular migration and convinced therefore that appropriate action should be encouraged in order to prevent and eliminate clandestine movements and trafficking in migrant workers, while at the same time assuring the protection of their fundamental human rights,

Considering that workers who are non-documented or in an irregular situation are frequently employed under less favourable conditions of work than other workers and that certain employers find this an inducement to seek such labour in order to reap the benefits of unfair competition,

Article 25

1. Migrant workers shall enjoy treatment not less favourable than that which applies to nationals of the State of employment in respect of remuneration and:

(a) Other conditions of work, that is to say, overtime, hours of work, weekly rest, holidays with pay, safety, health, termination of the employment relationship and any other conditions of work which, according to national law and practice, are covered by these terms;

(b) Other terms of employment, that is to say, minimum age of employment, restriction on home work and any other matters which, according to national law and practice, are considered a term of employment.

2. It shall not be lawful to derogate in private contracts of employment from the principle of equality of treatment referred to in paragraph 1 of the present article.

3. States Parties shall take all appropriate measures to ensure that migrant workers are not deprived of any rights derived from this principle by reason of any irregularity in their stay or employment. In particular, employers shall not be relieved of any legal or contractual obligations, nor shall their obligations be limited in any manner by reason of such irregularity.

Article 28

Migrant workers and members of their families shall have the right to receive any medical care that is urgently required for the preservation of their life or the avoidance of irreparable harm to their health on the basis of equality of treatment with nationals of the State concerned. Such emergency medical care shall not be refused them by reason of any irregularity with regard to stay or employment.

Article 30

Each child of a migrant worker shall have the basic right of access to education on the basis of equality of treatment with nationals of the State concerned. Access to public pre-school educational institutions or schools shall not be refused or limited by reason of the irregular situation with respect to stay or employment of either parent or by reason of the irregularity of the child’s stay in the State of employment.

Article 33

1. Migrant workers and members of their families shall have the right to be informed by the State of origin, the State of employment or the State of transit as the case may be concerning:

(a) Their rights arising out of the present Convention;

(b) The conditions of their admission, their rights and obligations under the law and practice of the State concerned and such other matters as will enable them to comply with administrative or other formalities in that State. (…)

Article 35

Nothing in the present part of the Convention shall be interpreted as implying the regularization of the situation of migrant workers or members of their families who are non-documented or in an irregular situation or any right to such regularization of their situation (…)

Part IV: Other Rights of Migrant Workers and Members of their Families who are Documented or in a Regular Situation

Article 37

Before their departure, or at the latest at the time of their admission to the State of employment, migrant workers and members of their families shall have the right to be fully informed by the State of origin or the State of employment, as appropriate, of all conditions applicable to their admission and particularly those concerning their stay and the remunerated activities in which they may engage as well as of the requirements they must satisfy in the State of employment and the authority to which they must address themselves for any modification of those conditions.

Part VI: Promotion of sound, equitable, humane and lawful conditions in connection with international migration of workers and members of their families

Article 64

1. (…) the States Parties concerned shall as appropriate consult and co-operate with a view to promoting sound, equitable and humane conditions in connection with international migration of workers and members of their families.

2. In this respect, due regard shall be paid not only to labour needs and resources, but also to the social, economic, cultural and other needs of migrant workers and members of their families involved, as well as to the consequences of such migration for the communities concerned.

Article 68

1. States Parties, including States of transit, shall collaborate with a view to preventing and eliminating illegal or clandestine movements and employment of migrant workers in an irregular situation. The measures to be taken to this end within the jurisdiction of each State concerned shall include:

(a) Appropriate measures against the dissemination of misleading information relating to emigration and immigration;

(b) Measures to detect and eradicate illegal or clandestine movements of migrant workers and members of their families and to impose effective sanctions on persons, groups or entities which organize, operate or assist in organizing or operating such movements;

(c) Measures to impose effective sanctions on persons, groups or entities which use violence, threats or intimidation against migrant workers or members of their families in an irregular situation.

2. States of employment shall take all adequate and effective measures to eliminate employment in their territory of migrant workers in an irregular situation, including, whenever appropriate, sanctions on employers of such workers. The rights of migrant workers vis-à-vis their employer arising from employment shall not be impaired by these measures.

ILO, Migration for Employment Convention^[5]

Article 3

1. Each Member for which this Convention is in force undertakes that it will, so far as national laws and regulations permit, take all appropriate steps against misleading propaganda relating to emigration and immigration. (…)

Article 6

1. Each Member for which this Convention is in force undertakes to apply, without discrimination in respect of nationality, race, religion or sex, to immigrants lawfully within its territory, treatment no less favourable than that which it applies to its own nationals in respect of the following matters:

(a) in so far as such matters are regulated by law or regulations, or are subject to the control of administrative authorities–

(i) remuneration, including family allowances where these form part of remuneration, hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum age for employment, apprenticeship and training, women’s work and the work of young persons;

(ii) membership of trade unions and enjoyment of the benefits of collective bargaining;

(iii) accommodation;

(b) social security (that is to say, legal provision in respect of employment injury, maternity, sickness, invalidity, old age, death, unemployment and family responsibilities, and any other contingency which, according to national laws or regulations, is covered by a social security scheme), subject to the following limitations:

(i) there may be appropriate arrangements for the maintenance of acquired rights and rights in course of acquisition;

(ii) national laws or regulations of immigration countries may prescribe special arrangements concerning benefits or portions of benefits which are payable wholly out of public funds, and concerning allowances paid to persons who do not fulfil the contribution conditions prescribed for the award of a normal pension;

(c) employment taxes, dues or contributions payable in respect of the person employed; and

(d) legal proceedings relating to the matters referred to in this Convention.

IOM, Migration and the 2030 Agenda: A Guide for Practitioners^[6]

Goal 10: Reduce inequality within and among countries

Target 10.7: Facilitate orderly, safe, regular and responsible migration and mobility of people, including through the implementation of planned and well-managed migration policies.

What does target 10.7 mean?

Orderly migration: There is no definition of this term within the 2030 Agenda. This document will use IOM’s definition of orderly migration: “the movement of a person from his or her usual place of residence to a new place of residence, in keeping with the laws and regulations governing exit of the country of origin and travel, transit and entry into the host country.” This underlines a State’s right to regulate entry as a basis for being able to ensure migrants’ proper treatment, granting rights, enforcing law and managing relationships with host communities.

Regular migration: IOM defines regular migration as “migration that occurs through recognized, authorized channels.” The regularity of migration does not solely refer to the method used to cross a country’s border, as migrants can enter a country through regular channels, but find themselves in an irregular situation after a period of time.

Safe migration: There is no common definition for the concept of safe migration. A migrant can be in an unsafe situation while or after having migrated through regular channels; conversely, a migrant can be in a situation that is both safe and irregular. A migrant’s situation can change from safety to unsafety throughout the various phases of their migratory process, and thus the definition should encompass all stages of the process, including at the country of origin, transit, country of first asylum and country of destination. Further, safe migration should also be considered for internal migration, and also for those left behind who do not finish their intended journey. Safe migration is not a static concept and is one that primarily is concerning the well-being of and reduction of risk for migrants. The needs of different categories of migrants, as well as factors which could make any migrant vulnerable, should also be considered.

ILO, General Principles and Operational Guidelines for Fair Recruitment^[7]

Scope

These principles and guidelines are intended to cover the recruitment of all workers, including migrant workers, whether directly by employers or through intermediaries. They apply to recruitment within or across national borders, as well as to recruitment through temporary work agencies, and cover all sectors of the economy. Implementation of these principles and guidelines at the national level should occur after consultation between the social partners and the government.

Responsibilities of enterprises and public employment services

15. Enterprises and public employment services should respect human rights when recruiting workers, including through human rights due diligence assessments of recruitment procedures, and should address adverse human rights impacts with which they are involved.

15.1 All enterprises and public employment services should respect human rights in their recruitment processes wherever they operate, independently of the abilities and/or willingness of States to fulfil their human rights obligations.

15.2 They should undertake due diligence regarding their recruitment activities.

15.3 When they are not practising direct recruitment, enterprises should engage workers only through compliant labour recruiters, including public employment services and private recruitment agencies. Where it is not feasible to verify directly the conduct of all the parties involved in recruitment, there should, at a minimum, be a contractual obligation requiring labour recruiters to work with third parties operating in accordance with legal requirements, and these principles and guidelines. The enterprise should have in place a procedure for evaluating other parties involved in the recruitment process.

15.4. Enterprises and public employment services should respect internationally recognized human rights, including those expressed in international labour standards, in particular the right to freedom of association and collective bargaining, and prevention and elimination of forced labour, child labour and discrimination in respect of employment and occupation, in the recruitment process.

15.5. Enterprises and public employment services should not retaliate against or blacklist workers, in particular those who report recruitment abuses or fraudulent recruitment practices anywhere along their supply chain, and should provide special protections for whistle-blowers pending the investigation or resolution of a grievance or dispute.

16. Enterprises and public employment services should undertake recruitment to meet established labour market needs and never as a means to displace or diminish an existing workforce, lower wages or working conditions, or otherwise undermine decent work.

17. No recruitment fees or related costs should be charged to, or otherwise borne by, recruited workers and jobseekers.

17.1. Workers and jobseekers should not be charged any fees or related recruitment costs by an enterprise, its business partners or public employment services for recruitment or placement, nor should workers have to pay for additional costs related to recruitment.

17.2. Enterprises and public employment services should communicate this policy externally via guidelines and other means including contracts to all prospective and current business partners and relevant stakeholders. Enterprises should determine whether private employment agencies and other labour recruiters charge recruitment fees to workers or impose other related costs on them, and should not engage workers through agencies and other labour recruiters known to charge recruitment fees or related costs to workers.

18. Enterprises and public employment services should not retain passports, contracts or other identity documents of workers.

18.1. Enterprises and public employment services should not interfere with workers’ free and complete access to their own passports, identity documents and residency papers, including their employment contracts, paying careful attention to the situation of migrant workers.

IHRB, Dhaka Principles for Migration with Dignity^[8]

The Dhaka Principles provide a roadmap that traces a migrant worker from recruitment, through employment, to the end of contract. They provide key principles that employers and migrant recruiters should respect at each stage in the process to ensure migration with dignity. 

Core Principle A: All workers are treated equally and without discrimination

Migrant workers should be treated no less favourably than other workers performing the same or similar work. Moreover, migrant workers should be protected from any discrimination that would constitute a violation of human rights.

Core Principle B: All workers enjoy the protection of employment law

Migrant workers should have a legally recognised employment relationship with an identifiable and legitimate employer in the country where the work is performed.

Principle 1: No fees are charged to migrant workers

The employer should bear the full costs of recruitment and placement. Migrant workers are not charged any fees for recruitment or placement.

Principle 2: All migrant worker contracts are clear and transparent

Migrant workers should be provided with written contracts in a language each worker understands, with all terms and conditions explained clearly, and the worker’s assent obtained without coercion.

Principle 3: Policies and procedures are inclusive

Migrant workers’ rights should be explicitly referred to in employer and migrant recruiter public human rights policy statements, relevant operational policies and procedures addressing human rights responsibilities.

Principle 4: No migrant workers’ passports or identity documents are retained

Migrant workers should have free and complete access to their own passport, identity documents, and residency papers, and enjoy freedom of movement.

Principle 5: Wages are paid regularly, directly and on time

Migrant workers should be paid what they are due on time, regularly and directly.

Principle 6: The right to worker representation is respected

Migrant workers should have the same rights to join and form trade unions and to bargain collectively as other workers.

Principle 7: Working conditions are safe and decent

Migrant workers should enjoy safe and decent conditions of work, free from harassment, any form of intimidation or inhuman treatment. They should receive adequate health and safety provision and training in relevant languages.

Principle 8: Living conditions are safe and decent

Migrant workers should enjoy safe and hygienic living conditions, and safe transport between the workplace and their accommodation. Migrant workers should not be denied freedom of movement, or confined to their living quarters.

Principle 9: Access to remedy is provided

Migrant workers should have access to judicial remedy and to credible grievance mechanisms, without fear of recrimination or dismissal.

Principle 10: Freedom to change employment is respected, and safe, timely return is guaranteed

Migrant workers should be guaranteed provision for return home on contract completion and in exceptional situations. They should not, however, be prevented from seeking or changing employment in the host country on completion of first contract or after two years, whichever is less.

IHRB, Six Steps to Responsible Recruitment^[9]

Employer Pays Principle: No worker should pay for a job – the costs of recruitment should be borne not by the worker but by the employer

Step 2. Assess the risks of workers being charged recruitment-related fees

(…)

Draw on Expertise:

• Assess relevant data – there may be relevant information available about worker retention, job suitability and performance that is linked to recruitment processes and the risks of worker-paid fees.
• Ascertain what information exists within suppliers / business relationships (e.g. are recruitment processes included in existing audits?).
• Through discussion with suppliers, workers, labour brokers, unions and NGOs, assess the average level and types of fees currently being paid by workers to secure their job, and ascertain when these fees are being paid and to whom.

Consult migrant workers and their legitimate representatives:

• Understand migrant workers’ views about how fees and other impacts via the recruitment process affect them.
• Demonstrate you take the concerns of migrant workers seriously. This helps build mutual understanding and creates opportunities to work together to identify potential impacts and suitable ways to address them.

Understand your operating context:

• Identify countries/locations of operation with laws/regulations on migrant worker recruitment fees that are absent, weak or unenforced or which actively conflict with the EPP.
• Make a country-by-country inventory of the recruitment process and legally required fees.
• Develop an indicative recruitment pricing structure of what you believe to be the genuine costs of recruitment in each operating location.

Review your business relationships:

• Assess the risks of your company practices contributing to recruitment fees being charged by a business relationship.
• Assess the risks of being directly linked to the charging of a migrant worker recruitment fee in connection with company operations, products or services – including via a relationship one or more step removed from the company, such as deeper within the supply chain.
• Establish robust screening and selection processes for key business relationships, such as suppliers and sending and receiving country recruitment and employment agents, including assessing their ability to comply with the policy and whether additional oversight may be required.

Step 3. Integrate and act on the risk assessments

(…)

Create and use leverage with business relationships:

• In each situation, think about the many forms leverage can take, whether via traditional commercial leverage, leverage through collective action with business partners and peers, or leverage via bilateral or multi-stakeholder engagement and collaboration with governments, civil society and other stakeholders.
• Initial steps to identify and build leverage could include:
• Build into new supplier agreements the expectation for them to prevent, mitigate and remediate recruitment-related impacts on migrant workers.
• Establish a clear labour cost structure with suppliers and / or recruitment and employment agents.
• Identify key personnel at suppliers responsible for hiring decisions and gauge their willingness and ability to align with the EPP policy.
• Where possible, reduce the number of recruitment agencies with which your supplier engages to enable more effective monitoring and targeting of training resources.
• Consider carefully whether to terminate a relationship where fees and other impacts on migrant workers caused by the third party. It may be beneficial to continue to work within the business relationship to remediate the impacts and build their capacity to meet the Employer Pays Principle in practice.

Step 6: Remedy recruitment-related impacts early and directly

Establish or participate in remedy processes:

• Develop and adopt appropriate and transparent procedures for receiving, escalating and resolving worker grievances, including ensuring confidential channels of communication for migrant workers to raise grievances regarding the recruitment process.
• Remedy means restoring migrant workers adversely impacted during the recruitment lifecycle to the situation they would have been in had the impact not occurred. Where that is no longer possible, compensation or other forms of remedy may be used to try to make amends. This is distinct from corrective action and other procedures focused on preventing recurrence, though this is also important.
• Ensure any grievance mechanism you develop or participate in satisfies the effectiveness criteria of the UN Guiding Principles on Business & Human Rights, that they are: legitimate; accessible; predictable; equitable; transparent; rights-compatible; a source of continuous learning; and, based on engagement and dialogue.
• Develop or review any mechanism in consultation with workers and their legitimate representatives, as well as staff, departments and other internal stakeholders to understand any cultural differences and build their support and buy in.

Know the Chain, Findings from Three Sectors^[10]

Good Practice Examples: Remedy for migrant workers

Adidas discloses a summary of the human rights complaints it has received and details on the outcomes of remediation processes, which include several cases of remedy for migrant workers. For example, in 2013 and 2014, Adidas worked with its suppliers in Taiwan to remedy poor working conditions of migrant labor by eliminating wage deductions made by employment agencies, returning passports and bank books, and relocating migrant workers to safer and higher-quality dormitories.

Coca-Cola, Modern Slavery Statement^[11]

Policy and Due Diligence Enhancements

Recognizing that migrant workers are particularly vulnerable to exploitation and human trafficking, in 2014, the Company reviewed policies and due diligence activities with the aim of better protecting such workers throughout the supply chain. The Company publicly committed to three principles related to the recruitment and employment of migrant workers:

1. Employment terms are represented in a truthful, clear manner and m the language understood by workers prior to employment;
2. Worker does not pay recruitment, placement or transportation fees; and
3. Worker has access to personal identity documents.

These principles, along with the overall prohibition of forced labor, create a framework for responsible and transparent recruitment and employment practices. These practices were built into the Company’s audit protocol at the beginning of 2015 and conducted auditor training sessions around the world to familiarize third party auditors with the new expectations. The Company continues to do refresh auditor training as needed, including in Africa, Hong Kong and Latin America in 2016.

Centre for Sport and Human Rights, The Mega-Sporting Event Lifecycle^[12]

Mega-sporting events (MSE) are the pinnacle of global sport, but cannot stand apart from their very significant social impacts – both positive and negative. Sporting events can enhance freedoms and celebrate human dignity, but can also amplify discrimination and abuse. It is critical to ensure that the world of sport is in full alignment with the UN Guiding Principles on Business and Human Rights (UN Guiding Principles) and other international human rights and related instruments, principles, and standards.

All organisations, including those in the world of sport, are responsible for respecting human rights. Through preventing potential negative human rights impacts linked to major events, and providing adequate remedies for abuses that do occur, all organisations involved in delivering a mega-sporting event can better harness sport’s potential for good.

The lifecycle for a mega-sporting event also serves as a microcosm for the whole range of business and human rights issues. With the large amount of public investment associated with these events, and their impacts on local communities, mega-sporting events should be delivered to exemplary standards in all respects – especially with regard for human rights.

The capacity of mega-sporting events to promote human rights is enhanced by the fact that sport is inherently tied to sporting values and fair play, and sport’s history of providing a stage for progressive interventions in issues such as community relations, discrimination, gender equality and personal and social development.

This guide presents the lifecycle of a mega-sporting event, with specific elements of good practice at each stage that those involved in hosting the event should integrate into their planning, delivery and legacy in order to ensure a rights-compliant event.

Farbenblum et al., Transformative Technology for Migrant Workers^[13]

Digital worker engagement platforms are ameliorating information asymmetries, empowering migrant workers and driving systemic reforms in at least five new ways.

First, these digital platforms are enabling migrant workers, service providers, and business to undertake activities they are already engaged in, but more quickly, cheaply, efficiently and, sometimes, more safely. For example, the Australian Fair Work Ombudsman’s Record My Hours app provides an automated geofencing functionality to enable workers to securely and automatically document their working hours at a particular worksite.

Second, digital platforms allow organizations to engage with workers at unprecedented scale. For example, worker reporting tools within the supply chain context are enabling suppliers and buyers to engage with tens of thousands of workers across a workforce.

Third, technology is enabling people to do things that were previously impossible. For instance, CDM’s Contratados platform allows for the sharing of knowledge and experiences among workers from different home villages working in different locations across the US who were previously unconnected. Significant advancements in technology itself are also making new activities possible and extending the realm of possibilities for low-income migrant workers. These include, for example, the ubiquitous penetration of smartphones that are becoming more affordable with improved features. Further relevant developments not covered in this report include the use of blockchain in migrant contract verification, payment systems and supply chain tracing, the use of biometric technology to register a migrant worker’s presence at a worksite, and developments in relation to digital ID.

Fourth, by expanding the realm of possible action by migrant workers, technology can lead to broader structural and policy change. For example, having empowered migrant workers with information to make informed choices about who they work for through Contratados, Centro de los Derechos del Migrante is considering consequences for their advocacy for visa portability that would enable migrant workers to change employers in the country of employment while remaining on the same visa.

Fifth, technology enables organizations to undertake their core activities in fundamentally different ways. For example, OUR’s WorkIt app facilitates a new approach to worker organizing that is primarily online, potentially transforming the offline work of traditional worker organizing into support for the online platform and training of online organizers. Legislators and industry groups are recognizing that worker engagement platforms offer tremendous potential but also have a number of significant limitations and pose new risks to workers. This report has explored a range of practical, ethical, and legal challenges associated with digital tools for migrant workers that warrant deeper consideration. (…)

The initiatives profiled in this report demonstrate that digital technology offers unprecedented and amplified opportunities for migrant worker engagement, empowerment, and justice. However, technology cannot fix structural inequalities, missing institutional capacity or a lack of human intent. Indeed, worker engagement platforms will rarely, if ever, fix a problem quickly or in isolation. Technology’s transformative potential will ultimately be realized through responsible and well-considered approaches to the funding, development, and implementation of platforms that respond to migrant workers’ vulnerabilities and the structural drivers of exploitation. Effective initiatives will be those that are integrated with strong offline programs with a well-conceived theory of change to deliver meaningful outcomes to migrant workers.

Jureidini, Corruption in Migrant Labour Recruitment^[14]

Why are prospective low-skill, low-income migrant workers, particularly from Asian and African countries, required to pay private recruitment agencies (PRAs) in labour origin countries for being recruited, while most higher-skilled workers and professionals do not pay? The general assumption by some labour economists is that it is exploitative, but, because low-skilled labour supply far outstrips labour demand, the labour market works in alleviating unemployment in countries of origin and filling jobs in labour destination countries. (…)

Another myth is that the exploitation and corruption in the recruitment process is located in countries of origin and perpetrated by private recruitment agencies. In reality, the recruitment exploitation begins in the destination countries where companies tendering for a contract decide not to pay recruitment costs in order that their tender can be more price-competitive. Thus, the exploitation and corruption is systemic between both destination and origin countries with all stakeholders involved directly or indirectly, wittingly or unwittingly. (…)

The presence and level of kickback payments/bribes and payment of expenses to representatives of employer companies at destination. It is well known in the recruitment industry that recruitment agencies compete with one another by offering bribes to representatives of employers in order to procure labour supply contracts. These kickback bribes can range from US$400-1,500 per worker. In addition to the kickback payments, recruitment agencies are often required to fund the trips of employer representatives to the origin countries by paying for flight upgrades, or even airfares, 5 star hotels, food and sometimes ‘entertainment’. The trips are ostensibly for skills testing and selection of recruits. Employer personnel often ask agents for the hotel and food receipts so they can claim them from their companies on return, even though they had not paid. The funds for the kickback payments and employer travel expenses are built into the charges that agencies foist upon the low-skilled migrant workers as part of the “recruitment costs”. The extent of the kickback and other payments to personnel of the employing company will also be factors in the differences that migrant workers pay.

Worker payments used to pay various local officials in origin and destination countries to process paperwork more quickly or to prevent deliberate delays. There are kickback payments to “a range of government officials in both origin and destination countries to fraudulently approve a host of applications or facilitate discretionary decisions including, but not limited to, foreign worker quotas, demand set attestations, visas, medical certificates, and work permits.” There is little or no oversight of such fraudulent practices by origin or destination country governments.

Recommendations

• Repeal laws and regulations in origin countries that allow recruitment agencies to charge migrant workers and criminalize charges to workers.
• To show commitment to eradicating corruption, both origin and destination countries should ratify relevant international conventions and activate existing penal codes towards the recruitment industry.
• Establish accredited, proven ethical recruitment agencies that do not charge workers as exclusive migrant labour suppliers to destination countries.
• Establish serious, binding bilateral and multi-lateral agreements specifically banning the employeepays model and introducing an employer-only-pays model.
• Mandatory reimbursement of charges to workers by employers who could in turn claim reimbursement from recruitment agencies involved.
• Increased electronic/internet government-to-government recruitment.
• Project tenders should include a separate detailed and transparent ‘Labour Recruitment Cost Analysis’ within bidding proposals that detail variable and fixed costs of recruitment, including labour costs of subcontractors. Lowest bids should be more carefully scrutinized to ascertain whether cost reductions are at the expense of migrant workers being recruited.
• Calculate and establish international standards for reasonable commissions for agencies involved in low-skilled migrant labour recruitment.
• Legislative reform is insufficient. The commercial sector must be targeted for compliance with ethical-legal standards and prosecuted for corrupt practices. For example, employing companies need oversight of personnel in human resources, procurement and facilities management departments to identify fraudulent transactions.

Background (Cambodia)

ILO, Recruitment Fees and Related Costs^[15]

In Cambodia, the legal framework regulating overseas recruitment is Sub-Decree No. 190 on The Management of the Sending of Cambodian Workers Abroad through Private Recruitment Agencies, adopted in 2011. The Sub-decree outlines the responsibilities of private recruitment agencies for recruitment, job matching, pre-departure training, and the safe return of migrant workers. In 2013, eight Prakas (i.e., ministry-level decrees) were adopted to support Sub-Decree 190. These Prakas provided greater clarity to authorities and recruitment agencies on their roles and responsibilities. It should be noted that at the time of developing the eight Prakas, there were discussions about another Prakas that would specify the costs permitted to be charged to migrant workers and the maximum or “ceiling” fees that recruitment agencies are allowed to charge. However, this was not adopted. As of today, there are no official maximum service fees that recruitment agencies are allowed to charge…the Government is planning to fill this important gap by putting an official cap on allowable fees.

The Association of Cambodian Recruitment Agencies (ACRA), and the Manpower Association of Cambodia (MAC) have worked with the Ministry of Labour and Vocational Training, with the technical assistance of the ILO/TRIANGLE in ASEAN, to develop and adopt a Code of Conduct for Cambodian private recruitment agencies. The Code, which was launched in January 2020, marks a significant step forwards; it reflects increasing recognition and understanding that recruitment fees and related costs must be limited to those permissible by the law. They must also not be excessive and only be charged in the interests of the migrant workers. In addition, recruitment agencies must take steps to reduce the cost, and commit to moving towards a “zero fee” recruitment model.

Migration Displacement and Briefing Note Series II^[16]

With regard to labour migration within the region, South East Asia has been characterised as one labour migration system with two groupings of states – emigration and immigration. Emigration states include The Philippines, Cambodia, Myanmar, Lao PDR, Vietnam, and Indonesia whilst immigration states are those that are more developed in the region: Singapore, Brunei, Malaysia and Thailand. Labour migration flows extend out from the region to destinations in the Middle East, Africa and Europe.

Instruments (Cambodia)

ASEAN Declaration on the Rights of Migrant Workers^[17]

General Principles

1. Both the receiving states and sending states shall strengthen the political, economic and social pillars of the ASEAN Community by promoting the full potential and dignity of migrant workers in a climate of freedom, equity, and stability in accordance with the laws, regulations, and policies of respective ASEAN Member Countries;

2. The receiving states and the sending states shall, for humanitarian reasons, closely cooperate to resolve the cases of migrant workers who, through no fault of their own, have subsequently become undocumented;

3. The receiving states and the sending states shall take into account the fundamental rights and dignity of migrant workers and family members already residing with them without undermining the application by the receiving states of their laws, regulations and policies; and

4. Nothing in the present Declaration shall be interpreted as implying the regularisation of the situation of migrant workers who are undocumented.

Obligations of Receiving States

Pursuant to the prevailing laws, regulations and policies of the respective receiving states, the receiving states will:

5. Intensify efforts to protect the fundamental human rights, promote the welfare and uphold human dignity of migrant workers;

6. Work towards the achievement of harmony and tolerance between receiving states and migrant workers;

7. Facilitate access to resources and remedies through information, training and education, access to justice, and social welfare services as appropriate and in accordance with the legislation of the receiving state, provided that they fulfil the requirements under applicable laws, regulations and policies of the said state, bilateral agreements and multilateral treaties;

8. Promote fair and appropriate employment protection, payment of wages, and adequate access to decent working and living conditions for migrant workers;

9. Provide migrant workers, who may be victims of discrimination, abuse, exploitation, violence, with adequate access to the legal and judicial system of the receiving states; and

10. Facilitate the exercise of consular functions to consular or diplomatic authorities of states of origin when a migrant worker is arrested or committed to prison or custody or detained in any other manner, under the laws and regulations of the receiving state and in accordance with the Vienna Convention on Consular Relations.

Obligations of Sending States

Pursuant to the prevailing laws, regulations and policies of the respective sending states, the sending states will:

11. Enhance measures related to the promotion and protection of the rights of migrant workers;

12. Ensure access to employment and livelihood opportunities for their citizens as sustainable alternatives to migration of workers;

13. Set up policies and procedures to facilitate aspects of migration of workers, including recruitment, preparation for deployment overseas and protection of the migrant workers when abroad as well as repatriation and reintegration to the countries of origin; and

14. Establish and promote legal practices to regulate recruitment of migrant workers and adopt mechanisms to eliminate recruitment malpractices through legal and valid contracts, regulation and accreditation of recruitment agencies and employers, and blacklisting of negligent/unlawful agencies.

Sub-Decree on Sending of Cambodian Workers Abroad^[18]

Chapter 3: Recruitment Agency

Article 6:

Any agency recruiting Cambodian workers to work abroad shall obtain an authorization for free according to the PRAKAS of the Ministry of Labor and Vocational Training except otherwise specified by other regulations.

Procedures to grant authorization shall be determined by a Prakas from the Minister of Labor and Vocational Training.

Recruitment agencies shall respect all applicable laws and regulations of the Kingdom of Cambodia.

Article 7:

To obtain authorization, the recruitment agencies shall fulfil the following requisite conditions:

a) Have an office with clear address and sufficient staff, office materials, communication and transportation means;

b) Have a training center with appropriate size, which consists of:

• a building equipped with materials and equipment for vocational and language training to meet the standard skills and demand of the job market and for pre-departure orientation training in accordance with the guideline;
• proper accommodation and dining areas that ensure good health, sanitation and safety; and
• internal rules to be recognized by the Ministry of Labor and Vocational Training.

c) Have language teachers to provide language training that meets the standard skills and demand of the worker receivers;

d) Enter into a contract with the Ministry of Labor and Vocational Training on the duty and procedures of job placement service operation;

e) Deposit a guaranty money properly according to the guidelines as stipulated in Articles 8 and 10 of this subdecree;

f) Have a permanent representative in the receiving country.

Anukret on the Export of Khmer Labour to Work Overseas^[19]

Article 1:

With the objectives of improving living conditions of people and enhancing their professional skills, while the job market in the country is inadequate to absorb the unemployed and the under employed, and to raise revenues for the State, the Royal Government shall authorize the export of Khmer labor to work overseas.

Article 5:

The Receiver Party shall specified the followings in their requests:

• start and termination date of the work
• nature of the work
• location of the work site
• number of workers and skills required
• salaries and other remunerations including lodging accommodation, food, clothing, medical care and other basic living necessities.
• Means of transport of labour to and from.

Upon receipt of the request, the Provider Party shall provide to the Receiver Party within 45 days a response indicating whether they can fulfil the terms of the request or whether they need to discuss further the matter.

The Receiver Party shall provide to the Provider Party within 30 days a response indicating whether to accept the terms in its entirety or in part. If there is no reply past a 30 days period and there is further follow up discussion, the Provider Party shall deem that the Receiver Party have given up their request.

Royal Government of Cambodia, National Employment Policy^[20]

To oversee and protect migrant workers in obtaining decent employment and skill recognition

In line with strategic priorities of the Policy on Labour Migration for Cambodia 2014, provide support to Objective 3 “reviewing and harnessing benefits obtained from labour migration for development”, in particular upon return of the migrant workers to the country and their re-integration processes.

Measures

1. Governance of labour migration.
2. Protect and empower migrant workers.
3. Strengthen service provision for social and economic re-integration for returned migrants…
4. Improve information management system on migrant workers sent abroad and those who have returned.
5. Enforce and promote the implementation of the Labour Law, Immigration Law and other regulations related to the management of foreign manpower who come to work in Cambodia.

6.2 Protection and empowerment of women and men migrant workers

Since 2011, the MOLVT has given significant attention to increasing the protection of migrant workers prior to departure. Prakas No. 57 ensures that private recruitment agencies must satisfy a range of minimum requirements in order to obtain a license, with Prakas No. 250 and 251 instituting regular monitoring processes for private recruitment agencies, and suspending their license if they fail to comply. Currently, MOLVT is formulating checklists to outline more specific criteria for inspections of recruitment agencies.

Sub-decree 190, Prakas No. 46, and the effective delivery of MOLVT national standardised Pre-Departure Orientation materials, can ensure that each migrant worker is informed of their rights at work and workplace practices, culture and tradition in destination countries, financial literacy, health awareness, and how to access rights both at home and abroad. The Prakas ensures that trainers from recruitment agencies must be certified, and that migrant workers receive a pre-departure orientation certificate as proof of completion as a pre- requisite to migration. The MOLVT has conducted training-of-trainers for pre-departure training, and will monitor its quality and assess its effectiveness.

In January 2014, the MOLVT opened a Migrant Worker Resource Centre (MRC) at the Department of Employment and Manpower in Phnom Penh. Amongst its other functions, this MRC receives migrant worker grievances as per the complaints mechanism outlined in Prakas No. 249. Complaints received to date relate to conditions prior to departure (for example, costs or delays in deployment) or while abroad (for example, pay or work).

ACRA & MAC, Code of Conduct for Cambodian Private Recruitment Agencies^[21]

1. Respect for, and implementation of national laws and fundamental principles and rights at work.

1.1 Private recruitment agencies must comply with all applicable legislation, regulations, multilateral and bilateral agreements on labour migration, and policies related to the recruitment of migrant workers in origin, transit and destination countries.  This explicitly prohibits trafficking in persons, forced labour, and child labour, includes the right to freedom of association and collective bargaining and respect for equality of treatment and non-discrimination…

4. Respect for and enforcement of recruitment and employment contracts

4.1 Written contracts should be in Khmer language that the migrant worker can understand, the language of the receiving country and English, or explained clearly to the worker…and be enforceable in origin and destination countries.

4.2 Migrant workers’ agreements to the terms and conditions of recruitment and employment should be voluntary and free from deception or coercion.

4.3 Recruitment and employment contracts must be clear and transparent, at a minimum include the type of work, address of the workplace and information about working conditions, rest and leave time, wages, social insurance, living conditions, compliant procedures and dispute settlement procedures.

Social Protection across Borders: Roles of Mekong Countries of Origin^[22]

2.1 Migration from Cambodia to Thailand, Malaysia and Japan

As of May 2019, 243,465 Cambodian nationals migrated to Thailand through processes established under a Memorandum of Understanding (MOU) signed between Cambodia and Thailand in 2015.  Meanwhile, 158,828 Cambodians are completing the nationality verification process as part of the registration process for undocumented migrants inside Thailand. A further 9,126 Cambodians have migrated temporarily to Thailand as seasonal workers. Including undocumented workers, there are an estimated 400,000 to 500,000 Cambodian nationals working in Thailand. The majority are employed in the fisheries, agriculture, livestock, construction, manufacturing and service sectors, including domestic work.

Cambodia officially began sending workers to Malaysia in 1998. Between 1998 and 2016, 46,541 documented migrant workers migrated to Malaysia, of whom 86% were women and 70% domestic workers. More recent figures from 2017 put the number of documented Cambodian workers in Malaysia at 5,995, the overwhelming majority of whom (4,643) are women.  In 2011, following widely reported cases of Malaysian employers abusing their Cambodian domestic workers, the Cambodian government issued a moratorium on the “first time” migration of domestic workers to Malaysia. Despite the ban, more than 8,000 Cambodian nationals were believed to have continued their employment in Malaysia. The ban was eventually lifted in 2015 when the Cambodian government signed an MOU with its Malaysian counterparts concerning the recruitment of domestic workers and a separate agreement concerning migrant workers in nondomestic work sectors.  According to the Immigration Department of Malaysia, migrant workers from Cambodia are currently permitted to work in construction, on plantations, in agriculture, and in the service and manufacturing sectors.

Cambodia began sending workers to Japan in 2007 under the TITP.^[23] As of December 2017, 6,180 Cambodian workers had been recruited under the programme. In 2018, an additional 3,328 Cambodian workers migrated to Japan under the TITP.15 All the recruitment agencies interviewed by MMN for the study stated that the number is expected to grow rapidly, as migrants see Japan and the Republic of Korea as attractive destination countries in terms of safety and benefits.  Currently, migrant workers in Japan are permitted to engage in 133 categories of work under 77 sectors. For Cambodians, agriculture (34%), textile (26%), construction (18%) and food manufacturing (11%) are among the most popular.

IOM, World Migration Report^[24]

Migration involves high proportions of irregular migration, mostly in relation to economic factors such as poverty and lack of employment. Irregular migration flows such as those from Cambodia and the Lao People’s Democratic Republic to destinations including Thailand and Malaysia are often facilitated by smugglers. Smugglers also play a significant role in irregular migration out of the sub-region, with Vietnamese migrants moving to Europe, for example, often using smugglers to reach their destinations. Mixed migration flows exist (involving movements of people with and without international protection needs), as do migration flows underpinned by mixed motivations. Many migrants face exploitation in South-East Asia, stemming from their irregular status. Migrant workers in particular industries also face forced labour, exploitation and serious abuse (for example, in the fishing, agriculture, construction and manufacturing industries). In addition to smuggling, trafficking of persons continues to be a challenge in South-East Asia, with nearly half of all victims in Asia (46%) trafficked within the sub-region. Large numbers of people are trafficked for both sexual exploitation and forced labour, with a larger share of females trafficked for sexual exploitation in 2016. Countries such as Malaysia and Thailand had more victims of forced labour than sexual exploitation in 2016.

Chairattana et al, Route of Migration from Myanmar and Cambodia to Thailand^[25]

Cambodian migrant workers are employed mainly in construction, manufacturing and general labour work. According to the survey by the IOM and Association of Cambodian Recruitment Agencies (ARCM), the majority of Cambodian respondents said that they worked as construction workers, while 23 and 19 percent of them worked in the manufacturing, and general labour work sectors, respectively. Moreover, the proportion of Cambodian workers employed in the Thai fishery sector is relatively low, accounting for only 13 percent. The percentage of Cambodian workers in this sector has significantly decreased due to the reduction in the local commercial fishing fleet and the permanent closing of informal factories in many coastal provinces.

The fishery sector jobs along with other sectors tend to be segregated by gender. Cambodian men tend to work as seafarers or construction workers, while Cambodian women work in food processing, garment workers, and in the service sectors. In Rayong where the FAIR Fish project is located, the percentage of Cambodian migrant workers was evenly distributed between various sectors, with a higher percentage working in the fishery sector – (28 percent), followed by 12 percent in domestic work, and 10 percent in industrial work.  The predominance of Cambodian migrants working in the fishery sector is due to the fact that Rayong has a long coastline where lots of fishing communities and small processing factories are located. (…)

For Cambodian migrant workers, Thailand is among the popular destinations for both regular and irregular Cambodian workers because of geographical proximity, cultural similarity, higher wages, and prior migration by friends and family members. The main employment sectors which employ migrant workers are construction and manufacturing. In addition, the number of Cambodian workers in the Thai fishery sector tends to be decreasing because of the reduction of the commercial fishing fleet and the closing of factories in Thailand’s coastal provinces.

Along the Thailand-Cambodia border, there are seven main international checkpoints, 10 border trade checkpoints, and several small unofficial crossing points, called “Chong Anu Lom” in Thai, scattered along the porous border, which are frequently used by locals. MOU Cambodian workers are only allowed to cross the border at the Aranyaprathet- Poipet international checkpoint, whereas irregular Cambodian workers are able to enter Thailand through all checkpoints by using a tourist visa and then acquire documents later, or walk through forest or small stream along the border, taking irregular channels. The most frequently used migration routes are the “East- to-West” and “ South- to- North” routes. The East- to-West route has highest volume as the infrastructure to border is well constructed. On the other hand, the route to the northern border is less popular because of geographical obstacles and political unrest.

Chhay, Migration-Decision Making and Social Status: Cambodian Female Workers^[26]

Prior to discussing the main findings on the decision-making and social status issues of Cambodian female migrant workers in Malaysia, it is important to mention several keys factors and actors which make migration to Malaysia possible. First, it was through the efforts of the Cambodian government, which established agreements with Malaysia in 1997 and 2015, that the flow of migrant workers to Malaysia was initiated and coordinated. Later, procedures, regulations, and laws established by the MoLVT enabled the establishment of recruitment agencies. In an improvement over the early stages of Cambodian migration to Malaysia, the MoLVT now monitors the training process of each recruitment agency before workers are permitted to depart for Malaysia (…)

At the family level, migrant workers feel more empowered and respected by parents and family members. Family members value their opinion in decision-making. Obviously, this is a result of their financial support which has raised the family’s standard of living, helped to repay outstanding debt and supported the education of their siblings or children. At the societal level (which refers to the neighbourhood), however, their social status is very much linked to their economic success. The most important point is that Cambodian society as a whole needs to acknowledge the contribution and sacrifice of the female migrants, including their achievement in overcoming social and cultural barriers to support their family financially, rather than focusing on negative speculation such as prostitution.

(…) I think further studies should focus on the following areas and topics. First, there should be an in-depth comparative study between single and married Cambodian migrant workers in either the domestic work sector or the industry sector. Second, it is common that married couples who migrate to work in foreign countries leave their children in the care of their parents or in-laws. There should be comparative studies on married women who migrate with or without their husband, since the families (especially the children) experience different psychological and socio-economic impacts. Third, more focus should be placed on the returnees, particularly on the impact of their overseas work on their social status, standard of living, and psychological wellbeing after their return. Fourth, the economics and pattern of transformation of the household, which results from the financial support of Cambodian migrant women should be evaluated through time and space. Last, but not least, Cambodia is relatively new to the migration experience, especially in the external sense. However, it appears that the government (and the MoLVT in particular) has made significant improvement in providing information, training, and measures to assist migrant workers in overcoming irregularities and challenges upon working in Malaysia. This work has been accomplished in coordination with related NGOs in Cambodia and Malaysia, as well as with the Cambodian Embassy in Malaysia.

However, as stressed in several studies, it is imperative to continue strengthening the regulations and implementation of related laws, sub-decrees, and contents of the MoU with Malaysia in order to ensure a positive experience for those Cambodians who break cultural barriers and social norms in order to earn a better living and improve the standard of living for their family and for Cambodia as a whole.

Sakulsri et al, Exploring the Experiences of Cambodian Labour Migrants^[27]

The Cost of Migration

The participants in the study indicated that there are substantial differences in costs between going through informal and formal recruiters to get into Thailand legally. For Cambodian workers, where private recruitment agencies are the primary agents facilitating the process at the origin site, migrating for work under the MOUs requires approximately a three-month time period and a total expense of between $250 and $600. These costs are typically borne by the migrant workers through a combination of upfront payments and payroll deductions, with the services of a Thai private employment agency to complete the bureaucratic hurdles on the receiving end.

Migrants borrow money from banks, micro-finance institutions, and relatives in order to obtain passports and visas, and also pay their informal guides. If the migrants do not have enough money to prepare their documents or pay their informal guides, the business owner normally provides loans to them…

Working and Living Conditions

Most migrant workers were allowed to live at the workplace dormitory where all services were provided by the employer. However, in-depth interviews with migrants revealed that good living conditions depend on agreements with the employer and whether he/she respects the law. Generally, the migrants stayed in crowded rental rooms in order to save money and have funds to send back to their families in Cambodia. For those who were living alone, it was unsafe for them but they had felt they had little choice. The majority of migrants wanted the employer to give them an on-site dormitory with or without charge because they believed that it would be more secure than living outside in rental rooms.

Conclusions

In the past two and half decades, Thailand’s economic growth has generated employment opportunities and absorbed millions of workers from other countries, mainly from the Mekong sub-region. Cambodian people, especially unskilled labourers, have benefited from this important opportunity by getting regular jobs that bring in income for their families back home. Many Cambodians migrated to work in Thailand because of several push factors in Cambodia, including the lack of employment opportunities; rising debts to private money lenders, banks, and MFIs; rising health costs; hope for earning income for house building or renovation; having small land plots and crop failures; and encouragement from relatives and neighbours who already work or worked in Thailand. (…)

Remittances were used to pay off debt to the banks/MFIs/ relatives, to support family at home, and to assist parents in emergencies such as health problems or children’s needs. Other uses included savings in order to buy land, future small business investment, and farm vehicles. Generally, migrants could remit substantially from their salary to their parents or relatives at home, and they did so twice a year – for the Khmer New Year and the Phchum Ben festival. However, the most common way to remit was through Kasikorn Thai Bank as it has links to local money transfer agencies in Cambodia. (…)

The findings of the study indicate that migration systems are generally composed of the governance system, which is also coordinated by migrants, migrant families, agencies and employers working together through bilateral labor agreements and governing migration between the two countries. An investment in hands-on public awareness of documentation and trusted channels is needed so that prospective migrants and their families can be fully informed before making the decision to migrate. There need to be laws and standards in both the sending country and the receiving country (Thailand) which specify the costs and duration of the process to import labor, and this information should be publicly disseminated to the relevant offices/agencies/ personnel in both countries.

Questions

1. How would you describe work experience of Cambodian migrant workers abroad?
2. What are the most common concerns raised by Cambodian migrant workers?
3. What are the needs of migrant workers prior to migrating, while working abroad, and upon return in regards to social protection?
4. What policies and programmes are in place for migrant workers to access social protection in countries of origin and destination?
5. What are the main sectors that Cambodian migrant workers work in?
6. What recruitment-related costs and fees do migrant workers from Cambodia working in Thailand pay for?

Further Readings

• International Organization for Migration (IOM), World Migration Report 2018 (2018) http://publications.iom.int/system/files/pdf/wmr_2018_en.pdf.
• Institute for Human Rights and Business, Migration with Dignity: Implementing the Dhaka Principles (2017) www.ihrb.org/dhakaprinciples/implementation-guidance.
• Leadership Group for Responsible Recruitment, Catalysing Business Leadership – Theory of Change (2018) www.ihrb.org/uploads/member-uploads/LGRR_Theory_of_Change.pdf.
• Institute for Human Rights and Business, Responsible Recruitment Resource Bank www.ihrb.org/employerpays/employer-pays-resource-bank.
• University of New South Wales, Human Rights Clinic, International Obligations Regarding Migrant Workers – A Guide for Countries of Origin (2016) www.law.unsw.edu.au/sites/law.unsw.edu.au/files/Guide_to_International_Obligations_Regarding_Migrant_Workers_-_UNSW_Human_Rights_Clinic.pdf.
• Amnesty International, Exploited for Profit, Failed by Governments – Indonesian Migrant Domestic Workers Trafficked to Hong Kong (2013) www.amnesty.org/download/Documents/12000/asa170292013en.pdf.
• International Labour Organization (ILO), ‘Climate Change and Labour: The Need for a “Just Transition”’, International Journal of Labour Research, 2:2 (2010) www.ilo.org/wcmsp5/groups/public/—ed_dialogue/—actrav/documents/publication/wcms_153352.pdf.
• International Labour Organization (ILO), Migrant Workers Convention (No. 143) (1975) www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C143.
• International Labour Organization (ILO), Technical Note: Labour Mobility and Regional Climate Adaptation (2016) www.ilo.org/wcmsp5/groups/public/—ed_protect/—protrav/—migrant/documents/publication/wcms_534341.pdf. 
• International Labour Organization (ILO), Guide on Developing an International Labour Migration Statistics Database in ASEAN (2015) www.ilo.org/wcmsp5/groups/public/—asia/—ro-bangkok/—sro-bangkok/documents/publication/wcms_374212.pdf.
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^[9] Leadership Group for Responsible Recruitment and IHRB, Six Steps to Responsible Recruitment – Implementing the Employer Pays Principle (2018) www.ihrb.org/uploads/member-uploads/Six_Steps_to_Responsible_Recruitment_-_Leadership_Group_for_Responsible_Recruitment.pdf.

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^[13] Bassina Farbenblum et al, Transformative Technology for Migrant Workers – Opportunities, Challenges, and Risks (2018) www.opensocietyfoundations.org/sites/default/files/transformative-technology-for-migrant-workers-20181107.pdf.

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^[21] Association of Cambodian Recruitment Agencies (ACRA) and Manpower Association of Cambodia (MAC), Code of Conduct for Cambodian Private Recruitment Agencies (2020) https://www.ilo.org/wcmsp5/groups/public/—asia/—ro-bangkok/—sro-bangkok/documents/publication/wcms_735867.pdf.

^[22] Mekong Migration Network, Social Protection Across Borders: Roles of Mekong Countries of Origin in Protecting Migrants’ Rights (2019)http://www.mekongmigration.org/wp-content/uploads/2019/09/Book_Social-Protection-Across-Borders_for-Web.pdf^.

^[23] Compulsory Insurance Scheme Applicable to Trainees under Japan’s Technical Internship Training Program (TITP).

^[24] International Organization for Migration (IOM), World Migration Report 2020 (2020) https://www.un.org/sites/un2.un.org/files/wmr_2020.pdf.

^[25] Siwat Chairattana & Thawatchai Khanawiwat, The Report on the Route of Migration from Myanmar and Cambodia to Thailand (2020) Plan International Thailand, The Fostering Accountability in Recruitment for Fishery Workers Project, https://plan-international.org/publications/route-migration-thailand#download-options.

^[26] Chhunly Chhay, Migration-Decision Making and Social Status: Cambodian Female Migrant Workers in Malaysia (2019), Kent State University, https://etd.ohiolink.edu/apexprod/rws_etd/send_file/send?accession=kent1564689869848654&disposition=inline

^[27]  Teeranong Sakulsri et al, ‘Exploring the Experiences of Cambodian Labour Migrants: The Journey to Thailand under the Framework of Bilateral Agreements’, Journal of Mekong Societies (2020) https://so03.tci-thaijo.org/index.php/mekongjournal/article/view/226515.