Ad Hoc Committee on Statelessness and Related Problems, Preliminary Draft Convention Relating to the Status of Refugees (and Stateless Persons): Communication from the International Labour Organisation

E/AC.32/L.9

Ad Hoc Committee on Statelessness and Related Problems
Preliminary Draft Convention Relating to the Status of Refugees
(And Stateless Persons)
Communication from the International Labour Organisation

In connexion with Articles 13, 14, 16, 17, 18 and 24 of the Preliminary Draft Convention relating to the Status of Refugees ( and Stateless Persons) (E/AC.32/2), the attention of the Ad Hoc Committee on Statelessness and Related Problems is drawn to the following provisions of the Migration for Employment Convention and Recommendation (Revised), 1949, adopted by the International Labour Conference at its 32nd Session on 1 July 1949.

MIGRATION FOR EMPLOYMENT CONVENTION (REVISED), 1949

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 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, restriction 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, lad 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 condition prescribed for the award of a normal pension;

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

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

2. In the case of a federal State the provision of this Article shall apply in so far as the matters dealt with are regulated by federal law or regulations or are subject to the control of federal administrative authorities. The extent to which and manner in which these provision shall be applied in respect of matters regulated by the law or regulations of the constituent States, provinces or cantons, or subject to the control of the administrative authorities thereof, shall be determinated by each Member. The Member shall indicate in its annual report upon the application of the Convention the extent to which the matters dealt with I this Article are regulated by federal law or regulations or are subject to the control of federal administrative authorities. In respect of matters which are regulated by the law or regulations of the constituent States, provinces or cantons, or are subject to the control of the administrative authorities thereof the Member shall take the steps provided for in paragraph 7(b) of Article 19 of the Constitution of the International Labour Organisation.

Article 7

1. Each Member for which this Convention is in force undertakes that its employment service and other services connected with migration will co-operate in appropriate cases with the corresponding services of other Members.

2. Each Member for which this Convention is in force undertakes to ensure that the services rendered by its public employment service to migrants for employment are rendered free.

Article 8

1. A migrant for employment who has been admitted on a permanent basis and the members of his family who have been authorized to accompany or join him shall not be returned to their territory of origin or the territory form which they emigrated because the migrant is unable to follow his occupation by reason of illness contracted or injury sustained subsequent to entry, unless the person concerned so desires or an international agreement to which the Member is a party so provides.

2. When migrants for employment are admitted on a permanent basis upon arrival in the country of immigration the competent authority of that country may determine that the provisions of paragraph 1 of this Article shall take effect only after a reasonable period which shall in no case exceed five years from the date of admission of such migrants.

MIGRATION FOR EMPLOYMENT RECOMMENDATION (REVISED), 1949

16.

(1) Migrants for employment authorised to reside in a territory and the members of their families authorised to accompany or join them should as far as possible be admitted to employment in the same conditions as nationals.

(2) In countries in which the employment of migrants is subject to restrictions, these restrictions should as far as possible-

(a) cease to be applied to migrants who have regularly resided in the country for a period, the length of which should not, as a rule, exceed five years; and

(b) cease to be applied to the wife and children of an age to work who have been authorised to accompany or join the migrant, at the same time as they cease to be applied to the migrant.

18.

(1) When a migrant for employment has been regularly admitted to the territory of a Member, the said Member should, as far as possible, refrain from removing such person or the members of his family from its territory on account of his lack of means or the state of the employment market, unless an agreement to this effect has been concluded between the competent authorities of the emigration and immigration territories concerned.

21.

(1) Members should in appropriate cases supplement the Migration for Employment Convention (Revised), 1949, and the preceding paragraphs of the present Recommendation by bilateral agreements, which should specify the methods of applying the principles set forth in the Convention and in the Recommendation.

(2) In concluding such agreements, Members should take into account the provisions of the Model Agreement annexed to the present Recommendation in framing appropriate clauses for the organisation of migration for employment and the regulation of the conditions of transfer and employment of migrants, including refugees and displaced persons.

ANNEX MODEL AGREEMENT ON TEMPORARY AND PERMANENT MIGRATION FOR EMPLOYMENT, INCLUDING MIGRATION OF REFUGEES AND DISPLACED PERSONS¹

ARTICLE 1. EXCHANGE OF INFORMATION

1. The competent authority of the territory of immigration shall periodically furnish appropriate information to the competent authority of the territory of emigration or in the case of refugees and displaced persons, to any body established in accordance with the terms of an international instrument which may be responsible for the protection of refugees and displaced persons who do not benefit from the protection of any Government concerning

(a) legislative and administrative provisions relating to entry employment, residence and settlement of migrant and of their families;

ARTICLE 17. EQUALITY OF TREATMENT

1. The competent authority of the territory of immigration shall grant to migrants and to members of their families with respect to employment in which they are eligible to engage treatment no less favourable than that applicable to its own nationals in virtue of legal or administrative provisions or collective labour agreements.

2. Such equality of treatment shall apply, without discrimination in respect of nationality, race, religion or sex, to immigrants lawfully within the territory of immigration in respect of the following matters:

(a) in so far as such matters are regulated by laws 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, weekly rest days, overtime arrangements, holidays with pay and other regulations concerning employment, including limitations on home work, minimum age provisions, women's work and the work of young persons;

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

(iii) admission to schools, to apprenticeship and to courses or schools for vocational or technical training, provided that this does not prejudice nationals of the country of immigration;

(iv) recreation and welfare measures;

(b) employment taxes, dues or contributions payable in respect of the persons employed;

(c) hygiene, safety and medical assistance;

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

ARTICLE 18. ACCESS TO TRADES AND OCCUPATIONS AND THE RIGHT ACQUIRE PROPERTY

Equality of treatment shall also apply to

(a) access to trades and occupations to the extent permitted under national laws and regulations;

(b) acquisition, possession and transmission of urban or rural property.

ARTICLE 19. SUPPLY OF FOOD

The treatment applied to migrants and the members of their families shall be the same as that applied to national workers in the same occupation as regards the supply of food.

ARTICLE 20. HOUSING CONDITIONS

The competent authority of the territory of immigration shall ensure that immigration shall ensure that migrants and the members of their families have hygienic and suitable housing, I so far as the necessary housing is available.

ARTICLE 21. SOCIAL SECURITY

1. The two parties shall determine in a separate agreement the methods of applying a system of social security to migrants and their dependents.

2. Such agreement shall provide that the competent authority of the territory of immigration shall take measures to ensure to the migrants and their dependents treatment not less favourable than that afforded by it to its nationals, except where particular residence qualifications apply to nationals.

3. The agreement shall embody appropriate arrangements for the maintenance of migrants' acquired rights and rights in course of acquisition framed with due regard to the principles of the Maintenance of Migrants' Pension Rights Convention, 1935, or of any revision of that Convention.

4. The agreement shall provide that the competent authority of the territory of immigration shall take measures to grant to temporary migrants and their dependents treatment not less favourable than that afforded y it to its nationals, subject in the case of compulsory pension schemes to appropriate arrangements being made for the maintenance of migrants' acquired rights and rights in course acquisition.

ARTICLE 25. PROVISIONS CONCERNING COMPULSORY RETURN

1. The competent authority of the territory of immigration undertakes that a migrant and the members of his family who have been authorized to accompany or join him will not be returned to the territory form which he emigrated unless he so desires if, because of illness or injury, he is unable to follow his occupation.

2. The Government of the territory of immigration undertakes not to send refugees and displaced persons or migrants who do not wish to return to their country of origin for political reasons back to their territory of origin as distinct from the territory from which they were recruited, unless they formally express this desire by a request in writing addressed both to the competent authority of the territory of immigration and the representative of the body set up in accordance with the provisions of an international instrument which may be responsible for the protection of refugees and displaced persons who do not benefit from the protection of any Government.

1 The phrases and passages in italics refer primarily to permanent migration; those enclosed within square within square brackets refer solely to migration of refugees and displaced persons.