REGIONAL NETWORK FOR CIVIL ORGANIZATIONS ON MIGRATION

1. REGIONAL NETWORK FOR CIVIL ORGANIZATIONS ON MIGRATION >Labour Rights of Migrant Workers

2. Miguel Marín Calderón General Secretary, Sindicato Unitario de Trabajadores de la Construcción y Similares (SUNTRACS) (Joint Union of Construction Workers and Similar Workers) Costa Rica

3. INTRODUCTION First, some general considerations are made regarding the labour conditions of migrant workers. In this case, reference is made to the Dominican Republic, Costa Rica, and El Salvador. The data and information shared by us are based on information collected by the Regional Network for Civil Organizations on Migration. Secondly, three relevant contributions are mentioned that are derived from Advisory Opinion 18 of the Inter-American Court of Human Rights on the Legal Status and Rights of Undocumented Migrants, September 17, 2003. 3

4. CONTEXT In recent years, market deregulation, minimum State presence, and labour flexibility have been emphasized as a strategy to improve effectiveness and efficiency in productive activities. In addition, the transnationalization of labour markets – with Central America and the Dominican Republic as examples – has had an impact on the hiring conditions and compliance with the labour rights of workers. 4

5. The recent crisis of the North American financial market can be instructive. Today, allowing the market to guide speculative, commercial, or productive activities by itself does not seem to be a solid thesis. Something more is required. Appropriate regulatory frameworks are required, as well as the will – by public and private agents – to comply with them and mechanisms to ensure appropriate compliance. In our opinion, the dynamics of international economy – with a trend toward deregulation stimulating the least possible intervention by the State – and the weakening of the tasks carried out by the State create conditions that favour incompliance with the labour rights of workers in the region. The importance of complying with labour rights lies in the fact that they are a means to improve the quality of life of individuals – for example, through the right to minimum wages and social benefits that are inherent to employment – and, at the same time, they enable the real exercise of citizenship. In this regard, compliance with labour rights as civil, political, and social rights “gains particular relevance for the exercise of citizenship once it enables a real inclusion of the excluded and strengthens the path toward overcoming inequalities. On the contrary, a formal notion of citizenship which does not consider realization of social rights ends up perpetuating inequalities”. In this regard, as petitioners we believe that the situations described above constitute violations to several rights protected by the American Convention on Human Rights (Articles 4, 5, 8, 24, 25, & 26) and by the San Salvador Pact (Articles 6, 7, 8, & 9), and incompliance with State obligations taken on by States in the region through ratification of the American Convention (Articles 1 & 2). Inter-American Institute of Human Rights (2008). Protección Internacional de los Derechos Económicos, Sociales y Culturales. Sistema Universal y Sistema Interamericano. IIDH. San José, Costa Rica. Page 20. 5

6. PROBLEMS In the past months, the organizations making up RNCOM in Costa Rica, El Salvador and the Dominican Republic as countries both of origin and destination of migrant populations, have observed a deterioration in the labour conditions of migrant workers in these countries, and especially those of irregular migrant workers. The following common aspects showing the deterioration of the labour rights of irregular migrant workers in the above-mentioned countries are highlighted below: ● Incompliance with clauses of individual employment contracts ● Incompliance with payment of minimum wages ● Termination of contracts with employer’s liability ● Arbitrary acts affecting the integrity of payment of the Christmas bonus and social benefits ● Actions against integrity and the working day ● Incompliance with hygiene and occupational health regulations ● Laying off workers who get organized in unions ● Little willingness by workers to denounce incompliance with the conditions under which they were hired. This fear has to do with the possibility that they may not be hired again. 6

7. The above-mentioned aspects become critical given the scarce knowledge of migrant workers about migration legislation. ● Insufficient labour inspection actions by Ministries or Secretariats of Labour. Undoubtedly, the task of inspection is a fundamental action to ensure compliance with the labour rights not only of migrant workers but of workers in general. By definition, inspection has three dimensions: dissuasion – attempts to persuade the employer before filing a demand; education – informs about appropriate ways to comply with labour legislation; and direction – orients actions. ● Little awareness by public officials from Ministries or Secretariats of Labour in addressing requests by migrant workers. Weak or inexistent strategies for dissemination of information about labour rights to workers in general and migrant workers in particular. ● Lengthy judicial processes on labour matters – known as judicial delay – which deter migrant workers from using the established mechanisms to resolve their conflicts regarding this matter. The above becomes a real obstacle which hinders the ability of this population to gain access to labour justice. 7

8. An estimated 450,000 (four hundred and fifty thousand) migrants live in Costa Rica, specifically. A little over 100,000 of them are irregular migrants. According to data provided by the Caritas Centre for Labour Rights (Centro de Derechos Laborales de la Pastoral Social-Caritas), which provides free expert advice on labour matters, assistance was provided to a total number of 1009 persons reporting labour rights violations from January 2009 to June 2010. Of these workers, 366 were foreign nationals, accounting for 36.27% of the total number, that is, a little over one third. In El Salvador, according to data from the Human Rights Ombudsman’s Office, the General Directorate of Migration and Immigration has carried out interventions (raids) in the eastern region of the country to expel Nicaraguan and Honduran migrant workers. These processes have been summary and have not respected due process. A quote from mentioned report says: “It can be stated, according to verification by this Office, that the Salvadoran State has not complied with the provisions of the Article in question, since no protection was provided to migrant workers in view of their expulsion – individual or collective – and neither did the State comply with the guarantees of due process or grant the migrant workers the opportunity to request a review of their cases by administrative and judicial authorities.” Special report by Oscar Humberto Luna, Human Rights Ombudsman, submitted to the United Nations Commission on the Protection of the Rights of All Migrant Workers and Members of Their Families, on implementation of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. 8

9. On the other hand, according to data from a Survey on Haitian Immigration carried out by IOM and FLACSO in 2004, approximately 510,000 Haitian nationals are working in the Dominican Republic. In 2008, a study carried out in Santo Domingo on the labour conditions of Haitian immigrants working in construction shows that 96% of Haitian workers and 73% of Dominican workers “stated that nobody had explained to them their rights as workers when they were first hired”. The same study shows, en general, that “the majority of the workers, that is, 66.07%, stated that they had not been informed about their wages, as did 27.03% of the Dominican workers”. In addition, “72.0% of the Dominican workers stated that they had reached an agreement regarding their wages when they were hired, whereas only 33.03% of the Haitian workers stated that they knew what their wages would be”. Servicio Jesuita a Refugiados/as y Migrantes (SJRM). Entre lo real, lo establecido y lo deseable. Estudio de las condiciones laborales de los inmigrantes haitianos que trabajan en el sector construcción en el Distrito Nacional de la República Dominicana. Santo Domingo, 2008. Page 60. Ibid. Page 49. Some elements derived from the Jurisprudence of the Inter-American Court of Human Rights. In Advisory Opinion 18 on the Legal Status and Rights of Undocumented Migrants, September 17, 2003, the Court states in regard to dignified labour conditions of migrant workers: 9

10. This Court considers that the exercise of these fundamental labour rights guarantees the enjoyment of a dignified life to the worker and to the members of his family. Workers have the right to engage in a work activity under decent, fair conditions and to receive a remuneration that allows them and the members of their family to enjoy a decent standard of living in return for their labour. Likewise, work should be a means of realization and an opportunity for the worker to develop his aptitudes, capacities and potential, and to realize his ambitions, in order to develop fully as a human being. • Frequently, many occasions, undocumented migrant workers are not recognized the said labour rights. For example, many employers engage them to provide a specific service for less than the regular remuneration, dismiss them because they join unions, and threaten to deport them. Likewise, at times, undocumented migrant workers cannot even resort to the courts of justice to claim their rights owing to their irregular situation. This should not occur; because, even though an undocumented migrant worker could face deportation, he should always have the right to be represented before a competent body so that he is recognized all the labour rights he has acquired as a worker. • The Court considers that undocumented migrant workers, who are in a situation of vulnerability and discrimination with regard to national workers, possess the same labour rights as those that correspond to other workers of the State of employment, and the latter must take all necessary measures to ensure that such rights are recognized and guaranteed in practice. Workers, as possessors of labour rights, must have the appropriate means of exercising them. 10

11. In regard to applying the principles of equality and non-discrimination of irregular migrant workers, the same Consultative Opinion states the following: 102. This general obligation to respect and guarantee human rights, without any discrimination and on an equal footing, has various consequences and effects that are defined in specific obligations. The Court will now refer to the effects derived from this obligation.. 103. In compliance with this obligation, States must abstain from carrying out any action that, in any way, directly or indirectly, is aimed at creating situations of de jure or de facto discrimination. This translates, for example, into the prohibition to enact laws, in the broadest sense, formulate civil, administrative or any other measures, or encourage acts or practices of their officials, in implementation or interpretation of the law that discriminate against a specific group of persons because of their race, gender, colour or other reasons. In regard to recognizing the labour rights of irregular migrant workers, in addition to the above-mentioned the Inter-American Court states the following in said Consultative Opinion: 131. The vulnerability of migrant workers as compared to national workers must be underscored. In this respect, the preamble to the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families refers to “the situation of vulnerability in which migrant workers and members of their families frequently find themselves owing, among other things, to their absence from their State of origin and to the difficulties they may encounter arising from their presence in the State of employment.” 11

12. 132. Nowadays, the rights of migrant workers “have not been sufficiently recognized everywhere” and, furthermore, undocumented workers “are frequently employed under less favourable conditions of work than other workers and [...] certain employers find this an inducement to seek such labour in order to reap the benefits of unfair competition.” 133. Labour rights necessarily arise from the circumstance of being a worker, understood in the broadest sense. A person who is to be engaged, is engaged or has been engaged in a remunerated activity, immediately becomes a worker and, consequently, acquires the rights inherent in that condition. The right to work, whether regulated at the national or international level, is a protective system for workers; that is, it regulates the rights and obligations of the employee and the employer, regardless of any other consideration of an economic and social nature. A person who enters a State and assumes an employment relationship, acquires his labour human rights in the State of employment, irrespective of his migratory status, because respect and guarantee of the enjoyment and exercise of those rights must be made without any discrimination. 134. In this way, the migratory status of a person can never be a justification for depriving him of the enjoyment and exercise of his human rights, including those related to employment. On assuming an employment relationship, the migrant acquires rights as a worker, which must be recognized and guaranteed, irrespective of his regular or irregular status in the State of employment. These rights are a consequence of the employment relationship. United Nations Organization, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, December 18, 1990, Preamble 12

13. Proposalfromthejointunions • Ratification of alltreaties and conventions of theUnitedNations, OAS, ILO onmigrantworkers and theirfamilies. • Interpretation of domesticlegislation and publicpoliciesfortheprotection, security, regularization, labor protection and social securityforworkers and theirfamilies. • Promotetreatiesbetweenstates, private sector and workersforthe social and unionizedprotection of migrantworkers and theirfamilies.

14. Miguel Marín Calderón General Secretary, Sindicato Unitario de Trabajadores de la Construcción y Similares (SUNTRACS) (Joint Union of Construction Workers and Similar Workers) Costa Rica