“The Role of Social Security in Protecting Migrant Workers: ILO’s Approach”

1. “The Role of Social Security in Protecting Migrant Workers: ILO’s Approach” ISSA Regional Conference for Asia and the Pacific New Delhi, India, November 2006 Ursula Kulke, Co-ordinator for Standards and Legislation Social Security Department, ILO Geneva

2. The expansion of globalization and the greater flow of people across national boundaries Lead to new forms of relations that require corresponding economic and social policies Not new, but critical and urgent issue...

3. Widely accepted definition ofsocial security ILO defines social security as: “… the protection which society provides for its members, through a series of public measures, against the economic and social distress that would otherwise be caused by the stoppage or substantial reduction of earnings resulting from sickness, maternity, employment injury, unemployment, invalidity, old-age and death and the provision of medical care and subsidies to families with children….”

4. Nine branches of social security benefits • Medical care • Sickness benefit • Unemployment benefit • Old-age benefit • Employment injury benefit • Family benefit (for children) • Maternity benefit • Invalidity benefit • Death (for survivors) benefit

5. Social Security – A Human Right • Declaration of Philadelphia (1944) • Universal Declaration of Human Rights (1948) • Social Security (Minimum Standards) Convention, 1952 (No. 102) • International Covenant on Economic, Social & Cultural Rights (1966) • International Labour Conference (2001): “highest priority are policies and initiatives which can bring social security to those who are not covered by existing systems”

6. Overall policy objectives • Ensuring equality of treatment in social security for migrant workers and ensuring that migrant workers can enjoy their entitlements to benefit in practice • Thus, extending social security coverage to currently unprotected population

7. Restrictions faced by migrant workers under national legislation • Principle of Nationality, which leads to exclusion of migrant workers from coverage or entitlement to benefits • Principle of Territoriality, which limits scope of application of social security legislation to territory of a country • Lack of bilateral or multilateral social security agreements through which social security rights, acquired in one country, are maintained and which provide for the export of benefits

8. Policy options and instruments • Coordination of social security rights of migrant workers by • Multilateral agreements • Bilateral agreements • Ratification of ILO Social Security Conventions • Protection of social security rights by unilateral measures • Protection by individuals (e.g. private insurance)

9. ILO standards for the protection of migrant workers’ social security rights • Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19)= 120 Ratifications • Asian Countries: Bangladesh, China, Korea, India, Indonesia, Iran, Iraq, Japan, Jordan, Lebanon, Malaysia, Myanmar, Pakistan, Philippines, Singapur, Syria, Thailand and Yemen • The Equality of Treatment (Social Security) Convention, 1962 (No. 118) = 38 Ratifications • Asian Countries: Bangladesh, India, Iraq, Jordan, Pakistan and Philippines • The Maintenance of Social Security Rights Convention, 1982 (No. 157)= 3 Ratifications • Asian Countries: Philippines • The Maintenance of Social Security Rights Recommendation, 1982 (No. 157)

10. Social security rights of irregular migrant workers • Relevant ILO social security standards are silent regarding the protection of irregular migrant workers • Exception: Article 9(1) of the ILO Migrant Workers (Suplementary Provisions) Convention, 1975 (No. 143), which stipulates that irregular migrant workers shall have the same rights as regular migrant workers concerning social security rights arising out of past employment • Ratifications: 18 (non of them belongs to Asian Countries)

11. Basic principles of ILO standards and bilateral and multilateral instruments • Equality of treatment between nationals and non-nationals • Non-national workers should have same treatment as national workers re. coverage and entitlement to benefits • Determination of applicable legislation • Social protection of migrant workers has to be governed by single law to avoid double benefits or double obligation to pay social security contributions • Maintenance of acquired rights • The right acquired in other countries should be guaranteed to the migrant worker

12. Basic principles of ILO standards and bilateral and multilateral instruments • Maintenance of rights in course of acquisition • The contribution period served in other countries should be taken into account when considering the qualifying period (principle of aggregation) • Provision of benefits abroad • There should be no restriction on the payment of benefits irrespective of the place of residence of the beneficiary • Mutual administrative assistance • Facilitation of administrative arrangements through liaison bodies to ensure smooth coordination • Reciprocity • Protection of migrant workers is based on reciprocity

13. Protection through multilateral social security agreements- Examples - • European Union • Regulation 1408/71/EEC (1971) • Regulation 859/2003/EC (2003) • European-Mediterranean Agreements (most remarkably, The Barcelona Declaration of 1995) • Caribbean Community and Common Market (CARICOM) • Agreement on Social Security (1997)

14. Protection through multilateral social security agreements- Examples - • Africa: • Economic Community of West African States (ECOWAS) General Convention on Social Security (1993), • Economic Community of the Countries of the Great Lakes (CEPGL);General Social Security Convention (1978) • Southern African Development Community (SADC); Convention under Preparation • East African Community (EAC); Convention under Discussion • Asia: • In the context of regional integration, ASEAN is interested in establishing social safety nets and reinforcing social security for member countries

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16. Reasons for the lack of social security coordination • Administrative complexity and costs for coordination • Social security systems of migrant sending countries are insufficiently developed • Impediment for conclusion of bilateral/multilateral agreements on « reciprocal » basis • Social security systems of migrant sending countries are different to those of migrant receiving countries • e.g. widespread use of provident fund systems • Administrative capacity is insufficient • to ascertain whether all required conditions are satisfied • to distribute periodically for several years social security benefits • Lack of willingness to coordinate, as social security is not given a high priority

17. Protecting social security rights through unilateral measures • Coverage of social security for migrant workers in the host countries • Provision of group insurance for overseas workers • Liability on recruitment agencies for (voluntary) social security coverage (e.g. Indonesia and Philippines) • Provision of voluntary social security coverage for nationals working abroad (e.g. Jordan, Philippines) • Provision of health care coverage for family members in the home country • Possibility of covering retroactively missing insurance periods

18. Some best practices regarding protection of irregular migrant workers’ social security rights • Provision of emergency health care • e.g. Belgium, Czech Republic, Finland, France, Mexico, Norway and Spain • Treatment by medical doctor in case of urgent care • e.g. Mexico, Sweden and Turkey

19. ILO’s Approach for the Way Forward… • International Migration is important part of ILO’s Decent Work Agenda • ILO Tripartite Meeting of Experts adopted in 2005 “The ILO Multilateral Framework on Labour Migration: Non-binding principles and guidelines for a rights-based approach to labour migration”, which lays down: • “(9.9.) entering into bilateral, regional or multilateral agreements to provide social security coverage and benefits, as well as portability of SS entitlements, to regular migrant workers and, as appropriate, to migrant workers in irregular situation” • (“9.10.) adopting measures to ensure that migrant workers and accompanying family members are provided with health care and, at a minimum, with access to emergency medical care, and that regular migrant workers and accompanying family members receive the same treatment as nationals witht regard to the provision of medical care”

20. ILO’s Approach for the ASEAN Countries... • Extending social protection for migrant workers constitutes one of key pillars of ILO Plan of Action on Labour Migration in Asia Pacific. It states: • “The Asian Regional Meeting in 2001 asked the ILO to help design a social security treaty for migrant workers, especially for coverage of old-age benefits and payment of pensions in countries where migrants retire. Possibilities for harmonizing benefits that can be availed of by each other’s nationals when employed in another member country will be studied, including the requirements and qualifications for membership and for entitlements to various benefits. There may be a need in some cases to amend existing social security legislation to allow for pension rights to be given to non-nationals........ • Both ISSA and SEC/SOC (ILO) will be asked to provide technical expertise on social security issues under the Plan of Action”

21. ILO’s Approach for the ASEAN Countries... • ILO is well prepared to provide ASEAN countries technical assistance regarding: • Providing social security coverage for migrant workers under national legislation • Harmonizing national social security legislation and, if needed, amending existing social security legislation • Negotiating and drafting of bilateral social security agreements • Drafting of regional social security treaty for ASEAN countries • Strengthening administrative capacities for the implemention of social security agreements/social security treaty.

22. THANK YOU