Outline on Migrant Workers Rights - DOC by katiebelonga

VIEWS: 186 PAGES: 16

									P.O. Box 5675, Berkeley, CA 94705 USA




               MIGRANT WORKERS’ RIGHTS TO ORGANIZE




                                Contact Information:
                    Kathryn A. Dittrick, Frank E. Newman Intern
                                kdittrick@yahoo.com
                    Representing Human Rights Advocates through
                     University of San Francisco School of Law’s
                         International Human Rights Clinic
                             Professor Connie de la Vega
                                  Tel: 415-422-6752
                    MIGRANT WORKERS’ RIGHTS TO ORGANIZE

                                        BY KATHRYN A. DITTRICK

        Nirmala Bonat was a 19-year-old Indonesian woman who migrated to Malaysia to work as

a domestic maid.1 She is one of approximately 100,000 Indonesian maids in Malaysia.2 For five of

the eight months she was employed as a maid, her employer repeatedly beat her, poured boiling

water on her, and burned her with an iron.3 Bonat told reporters that her employer first got angry

with her when Bonat broke a mug, which is what lead to one of the worst cases of maid abuse in

Malaysia.4 A security guard came to the aid of Bonat after finding her with severe bruises on her

face, bleeding from her head and mouth.5

        Malaysia is home to over one million undocumented migrant workers from Indonesia, the

largest irregular migration flow in Asia and second largest flow in the world, only to Mexicans

entering the United States.6 Domestic workers are excluded from most of Malaysia’s labor

protection laws.7 Additionally, Malaysia has signed a Memorandum of Understanding with

Indonesia that prohibits migrant workers from joining trade unions and forming associations.8 Had

Bonat been able to join a trade union, her situation would have been different. Her employer

would not have had complete economic power over her.

        Undocumented migrant workers all over the world are often subject to human rights

violations once they begin work in a receiving country. They accept lower wages and improper



1
  AFP, Indonesian maid burnt in worst abuse case in Malaysia: report, CHANNEL NEWS ASIA, May 20, 2004.
2
  Id.
3
  Id.
4
  Id.
5
  Id.
6
  Human Rights Watch, Help Wanted: Abuses against Female Migrant Domestic Workers in Indonesia and
Malaysia, Vol. 16, No. 9 (B) (July 2004).
7
  AFP, Indonesia, Malaysia urged to reform labor laws to protect maids, CHANNEL NEWS ASIA, July 21, 2004.
8
  Human Rights Watch, Help Wanted: Abuses against Female Migrant Domestic Workers in Indonesia and
Malaysia, Vol. 16, No. 9 (B) (July 2004).


                                                       1
working conditions because of the fear of deportation if they report abuses by their employers. In

Australia, undocumented migrant workers at a Hindu temple in the suburbs of Sydney were paid

only $45 a month.9 In the United States, garment workers in El Monte, California were found

chained to their machines.10 Migrant workers at construction sites in Dubai were living packed

into boarding houses, as many as 85 workers in a nine-room home.11 Twelve Nepalese migrant

workers were killed in Iraq after they were smuggled there under false pretenses by Jordanian

employment agencies.12 Migrant workers in Saudi Arabia have been subject to forced

confinement, lack of food, physical and sexual assault, torture, and judicially ordered

beheadings.13 The problem of migrant worker abuse is not a small one, as there are over 175

million migrants in the world today. 14

        A migrant worker is defined in international law as "a person who is to be engaged, is

engaged or has been engaged in a remunerated activity in a State of which he or she is not a

national."15 Generally, migrants are considered people who are outside their country of origin for

twelve months or more.16 In 1960, there were an estimated 76 million migrants.17 That number has

since jumped to 175 million in 2000.18 The numbers of undocumented, or irregular, migrants is

more difficult to access. The International Labor Organization estimated there were 3.3 million


9
    Kristine Gough, Jobs body blocks illegal labour ban, THE AUSTRALIAN, (19 April, 2002).
10
   Jennifer Berman, The Needle and the Damage Done: How Hoffman Plastics Promotes Sweatshops and Illegal
Immigration and What to Do About It, 13 KAN. J. L. & PUB. POLICY 585 (Summer 2004).
11
   Lucy Williamson, Migrants’ Woes in Dubai Worker Camps, BBC NEWS (10 Feb. 2005), available at
http://news.bbc.co.uk/2/hi/south_asia/4249223.stm.
12
   Iraq: Killing of 12 Nepalese Migrant Workers, International Confederation of Free Trade Unions, at
http://www.icftu.org/displaydocument.asp?Index=991220527&Language=EN.
13
   Virginia Sherry, Workers’ Hell in Saudi Arabia, THE SOUTH CHINA MORNING POST, July 24, 2004.
14
   Globalization and Poverty, GATS, Textiles, Migration News (Jan. 2005, Vol. 12, #1) at
http://migration.ucdavis.edu/mn/more.php?id=3086_0_5_0.
15
   International Convention on the Protection of the Rights of All Migrant Workers and Their Families, G.A. Res.
45/158, adopted on 18 December 1990 (entered into force 1 July 2003).
16
   Globalization and Poverty, GATS, Textiles, Migration News (Jan. 2005, Vol. 12, #1) at
http://migration.ucdavis.edu/mn/more.php?id=3086_0_5_0.
17
   Id.
18
   Id.


                                                        2
irregular migrants in Europe in 2000.19 There are an estimated eight million undocumented

workers in the United States.20

        Ensuring migrant workers’ right to organize can solve many problems of workplace abuse

because it is not only a basic human right, but a mechanism that workers can use to help protect

their other human rights in the workplace. These basic human rights in the workplace include the

right to reasonable working hours, safe and healthy working conditions, fair wages, the right to

not be discriminated against, and the right to a remedy for violations of these rights.

        This report first outlines the established international human rights protections of workers,

specifically their right to organize. Part II of the report documents violations of the right to

organize, including violations by the United States for failing to provide a legal remedy for

violations of workers’ rights to organize. Part III discusses practical policy reasons for protecting

undocumented migrant workers’ rights. Part IV concludes that in order for the right to organize to

be fully protected, countries must recognize that this right extends to undocumented migrant

workers and requires that an adequate remedy be established to secure the right.




I.      LEGAL STANDARDS PROTECTING THE BASIC RIGHT TO ORGANIZE

        Article 22 of the International Covenant on Civil and Political Rights (―ICCPR‖) and

Article 8 of the International Covenant on Economic, Social, and Cultural Rights (―ICESCR‖)

hold that everyone shall have the right to freedom of association with others, including the right to


19
   Extract from the World Economic and Social Survey, Platform for International Cooperation on Undocumented
Migrants, at http://www.picum.org/ (link ―Numbers of Undocumented Migrants Living in Europe‖); see also
Communication from the Commission to the Council, the European Parliament, the European Economic and Social
Committee and the Committee of the Regions, Commission of the European Communities
 http://europa.eu.int/eur-lex/en/com/cnc/2004/com2004_0412en01.pdf.
20
   Case No. 2227 (United States), ILO Committee on Freedom of Association, 332nd Report of the Committee on
Freedom of Association, GB.288/7 (Part II) (November 2003) 142, ¶ 560 available at
http://www.ilo.org/public/english/standards/relm/gb/docs/gb288/pdf/gb-7.pdf.


                                                     3
form and join trade unions. The exercise of this right is subject only to restrictions based on

national security or public safety, public order, the protection of public health or morals or the

protection of the rights and freedoms of others.

        The International Labor Organization (―ILO‖) has established two conventions that clearly

articulate that all workers possess a freedom of association: the Freedom of Association and

Protection of the Right to Organize Convention (―Convention 87‖)21 and the Right to Organise

and Collective Bargaining Convention (―Convention 98‖).22 By virtue of the ILO Constitution, the

ILO Committee on Freedom of Association has the power to examine complaints alleging

violations of freedom of association whether or not the country concerned has ratified the relevant

ILO Conventions.23

        The International Convention on the Protection of the Rights of All Migrant Workers and

Members of Their Families (―Migrant Convention‖) entered into force on 1 July 2003.24 Article

26 of the Migrant Convention gives migrants and their families the right to join unions and to seek

their aid and assistance without any restrictions. Twenty-seven countries have either ratified or

acceded to this treaty.

        Article 5 of the International Convention on the Elimination of All Forms of Racial

Discrimination (―CERD‖) also protects the rights to freedom of association and to join and form

trade unions. The General Recommendations to this Convention articulate that distinctions

between citizens and non-citizens under the Convention only apply to rights particular to


21
   Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), available at
http://www.ohchr.org/english/law/association.htm.
22
   Right to Organise and Collective Bargaining Convention, 1949 (No. 98), available at
http://www.ohchr.org/english/law/organise.htm
23
   Case No. 2227 (United States), ILO Committee on Freedom of Association, 332nd Report of the Committee on
Freedom of Association, GB.288/7 (Part II) (November 2003) 142, ¶ 600, available at
http://www.ilo.org/public/english/standards/relm/gb/docs/gb288/pdf/gb-7.pdf.
24
   International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families,
available at http://www.ohchr.org/english/law/cmw.htm.


                                                        4
citizenship status, such as participating in elections, the right to vote, and the right to stand for

election.25

          In addition to the specific right of association, the conventions have also articulated a right

to a remedy for violations of fundamental human rights. The ICCPR and the Migrant Worker

Convention protect the right to an effective legal remedy. Article 8 of the Universal Declaration

provides that "[e]veryone has the right to an effective remedy by the competent national tribunals

for acts violating the fundamental rights granted him by the constitution or by the law."




II.       VIOLATIONS OF THE RIGHT TO ORGANIZE

          Violations of the right to organize occur in many different forms. In some countries, there

is no legal right for any workers to unionize. Other countries provide a legal right to organize, but

employers get around this by threatening and dismissing workers who attempt to effectuate their

rights. Some countries provide ample rights for national workers, while prohibiting undocumented

migrant workers from enjoying the rights they are equally entitled to. Other countries inhibit this

right by neglecting to establish an effective legal remedy for violations of the right to organize.

A.        VIOLATIONS OF NATIONAL WORKERS’ RIGHTS TO ORGANIZE

          Before addressing the rights of undocumented migrants, it is important to note that in

many countries legal citizens also experience violations of the right to organize. When legal

citizens’ rights are impaired, the hope of securing these rights for undocumented migrant workers

is even further diminished. For example, several countries, such as Cuba, China, Vietnam and




25
     Committee on the Elimination of Race Discrimination, General Recommendation 20: Non-discriminatory
     implementation of rights and freedoms, A/51/18(1996) 124 at ¶ 3.


                                                       5
Burma still prohibit any independent association of workers.26 Although China has the All-China

Federation of Trade Unions, it is run by the government and strongly allied with management,

which does not provide the workers with the benefits that independent unions would provide.27 In

the United States, approximately 25 million private civilian workers (including all of those in the

domestic and agricultural industries) and 6.9 million public workers do not have the right under

any law to negotiate their wages, hours or employment terms.28

        Even in countries where there are legal domestic laws ensuring the right to organize,

workers are dismissed, threatened, and killed for participating in union activity. In Ecuador,

seventy banana workers were dismissed for simply drawing a draft of a collective agreement.29 In

Uganda, there was a massive dismissal of striking textile workers because their actions would

―scare off investors.‖ 30 In all of Africa in 2003, there were a recorded twenty-five killed, 218

injured, beaten or tortured, 903 arrested, and 6,556 workers who were dismissed from their jobs

for participating in union activity.31 Last year in the Americas, approximately 94 people were

killed for exercising their right to organize, and a total of 356 death threats were recorded.32

Perhaps the worst atrocities took place in Columbia, where 70 of the 94 cases of murder took




26
   Asia and Pacific: More than 350,000 workers laid off in 2003 because of trade union activities, International
Confederation of Free Trade Unions, at
http://www.icftu.org/displaydocument.asp?Index=991219345&Language=EN.
27
   China: Migrants, Economy, Migration News, (January 2005, Vol. 12, #1), at
http://migration.ucdavis.edu/mn/more.php?id=3079_0_3_0
28
   Americas: Assassinations and Death Threats, International Confederation of Free Trade Unions, at
http://www.icftu.org/displaydocument.asp?Index=991219349&Language=EN.
29
   Annual Survey of Violations of Trade Union Rights, at
http://www.icftu.org/displaydocument.asp?Index=991219540&Language=EN.
30
   Id.
31
   Africa: Fundamental Rights Under Attack from Employers and Governments, International Convention of Free
Trade Unions, at http://www.icftu.org/displaydocument.asp?Index=991219350&Language=EN.
32
   Americas: Assassinations and Death Threats, International Confederation of Free Trade Unions, at
http://www.icftu.org/displaydocument.asp?Index=991219349&Language=EN.


                                                        6
place.33 The ILO Governing Body has earmarked a case against Columbia for violations of the

right to organize as one of the most serious issues before the court this year.34

        These gross violations of the right to organize affect both legalized and undocumented

workers alike. In order to remedy the situation for undocumented migrant workers, there must be

a stronger base for all workers within a country to enjoy their legal right of association.

B.      DISCRIMINATION AGAINST UNDOCUMENTED WORKERS

        In many countries where the general right to organize is reasonably protected,

governments are still discriminating against undocumented workers with regard to this right. For

example, Spain now formally prohibits foreign workers that are not legally registered in the

country from organizing or striking.35 This was established with their Basic Act on Rights and

Freedoms of Foreigners in Spain, which became effective on 23 January 2001.36

        On 23 March 2001, the General Union of Workers of Spain filed a complaint against Spain

with the ILO Committee on Freedom of Association.37 The complaint alleged that the Basic Act

on Rights and Freedoms of Foreigners in Spain violates the ILO Conventions 87 and 98.38 In

issuing its decision, the Committee determined that Article 2 of Convention No. 87 ―recognizes

the right of workers, without distinction whatsoever, to establish and join organizations of their

own choosing without previous authorization.‖ 39 The only exception to this is for armed forces




33
   Id.
34
   Case No. 1787 (Columiba), ILO Committee on Freedom of Association, 335nd Report of the Committee on
Freedom of Association, GB.291/7 (November 2004) ¶ 683 available at
http://www.ilo.org/public/english/standards/relm/gb/docs/gb291/pdf/gb-7.pdf
35
   http://www.icftu.org/displaydocument.asp?Index=991219459&Language=EN
36
   http://www.icftu.org/displaydocument.asp?Index=991219459&Language=EN
37
   Case No. 2121 (Spain), Complaint against the Government of Spain presented by General Union of Workers of
Spain (UGT) Report No. 327, Case(s) No(s). 2121, 327th Report of the Committee on Freedom of Association,
available at http://www.ilo.org/ilolex/english/newcountryframeE.htm.
38
   Id.
39
   Id.


                                                     7
and the police.40 As such, the Committee requested that the Spanish Government take into account

that all workers, without distinction, have the right to join organizations of their own choosing. 41

Although Spain has established a massive legalization policy, the law regarding unregistered

migrants is still on the books.

        In several Middle Eastern countries, such as Jordan, Kuwait, Lebanon, Oman, Israel,

Qatar, Saudi Arabia, Syria, United Arab Emirates, and Yemen, restrictions on the right to organize

and form unions are aimed at migrant workers.42 In several of these countries, domestic and

factory workers, those typically occupied by a large percentage of undocumented migrants, are

not protected under national labor laws. Other restrictions are particularly harmful to irregular

workers. For example, in Kuwait, foreign workers must have resided in Kuwait for at least five

years and must obtain a certificate of moral standing and good conduct before they are allowed to

join trade unions.43

C.      INEFFECTIVE REMEDY FOR VIOLATIONS OF THE RIGHT TO ORGANIZE

        As discussed above, migrant workers’ rights to organize are impeded in several ways. In

addition to being discriminated against by not being legally allowed to form trade unions,

undocumented workers are also discriminated against when they are denied effective remedies for

violations of their rights to organize.

1.      THE HOFFMAN PLASTIC CASE

        In a recent case in the United States, Hoffman Plastic Compounds v. NLRB, the United

States Supreme Court striped undocumented workers of their remedy for anti-union




40
   Id.
41
   Id.
42
   ICFTU, Annual Survey of Violations of Trade Union Rights (2004) at 283–94.
43
   Id.


                                                       8
discrimination.44 In Hoffman Plastic, an employee was illegally laid off after he participated in a

union organizing campaign. The National Labor Relations Board found this was a clear violation

of the anti-discrimination provision found in the National Labor Relations Act. On appeal to the

United States Supreme Court, the Court found that although this was a clear violation, the

employee could not receive back pay because he was an undocumented worker. The Court

articulated that allowing illegal aliens to receive back pay would violation the Immigration

Reform and Control Act,45 which firmly established that illegal aliens do not have the right to

work in the United States. Hoffman held that the only repercussion for employers that violate

undocumented workers’ right to unionize is a cease and desist order.

2.      EFFECT AND AFTERMATH OF HOFFMAN PLASTIC

        After the Hoffman Plastics case, United States employers have attempted to use Hoffman

as a way to deteriorate other workplace protections of migrant workers by arguing that

undocumented workers are not entitled to back pay under other federal laws, including wage

claim laws and workers compensation laws.46 For example, employers have argued that

immigration status is relevant in the discovery phase of national origin discrimination cases.47 In

Rivera v. Nibco, a case decided by the Ninth Circuit in the United States, the employer argued that




44
   Hoffman Plastic Compounds v. NLRB, 535 U.S. 137 (2002).
45
   Immigration Reform and Control Act of 1986, 8 U.S.C. § 1324a (2004) (making the employment of
undocumented workers illegal).
46
   See Connie de la Vega and Conchita Lozano-Batista, ―Advocates Should Use Applicable International Standards
to Address Violations of Undocumented Migrant Workers’ Rights in the United States,: in HUMAN RIGHTS AND
REFUGEES, INTERNALLY DISPLACE PERSONS AND MIGRANT WORKERS: ESSAYS IN HONOR OF JOAN FITZPATRICK
AND ARTHUR HELTON, (Anne F. Bayesky, Editor, Martinus Nijhoff publisher, forthcoming 2005) (articulating
employer attempts to limit migrant workers’ rights under Title VII of the Civil Rights Act, tort law and disability
protections; attempting to limit recovery for work already performed; and intimidating workers by using Hoffman to
request immigration information in discovery); see also Sarah Cleveland et al., EMPLOYMENT &
INTERNATIONAL LAW: Inter-American Court of Human Rights Amicus Curiae Brief: The United States Violates
International Law When Labor Law Remedies Are Restricted Based on Workers' Migrant Status, 1 SEATTLE J. SOC.
JUST. 795 (Summer 2003).
47
   Rivera v. Nibco, 364 F.3d 1057, 1062 (9 th Cir. 2004).


                                                         9
Hoffman established that certain remedies were not available to undocumented workers.48 As

such, the employer argued that further inquiry regarding the employee’s immigration status was

necessary to determine if the employee was eligible for remedies of back pay, front pay, or

reinstatement.49

        This proposed discovery into immigration status would greatly deter both documented and

undocumented workers from reporting workplace violations.50Although employers are required to

check work documents initially upon hire, migrant workers often fall out of legal status during

employment. Workers also fear their immigration status will lead to discovery of illegal status of

their family and friends.51 Because of this chilling effect and the legislative intent of national

origin discrimination laws, the Rivera court did not further extend Hoffman and held that

undocumented workers’ remedies of back pay in national origin discrimination cases are not

precluded as they are in anti-union discrimination cases.52

       The Rivera court made an important observation regarding the chilling effect of inquiry into

immigration status. Although it was not permitted in Rivera, employers are essentially still able to

inquire into immigration status in anti-union discrimination cases. This causes the same chilling

effect discussed in Rivera, as both documented and undocumented workers alike fear this inquiry

will negatively affect themselves, their friends, or their family.53 As a result of Hoffman,

undocumented workers have no incentive to bring forward cases of anti-union discrimination.

48
   Rivera v. Nibco, 364 F.3d 1057, 1062 (9 th Cir. 2004).
49
   Rivera v. Nibco, 364 F.3d 1057, 1062 (9 th Cir. 2004).
50
   Id.
51
   Id. at 1065.
52
   Id. at 1068–69.
53
   The threat of immigration status inquiry is not a new device for employers, though they now have legal support to
inquire under Hoffman. See Sarah Cleveland et al., EMPLOYMENT & INTERNATIONAL LAW: Inter-American
Court of Human Rights Amicus Curiae Brief: The United States Violates International Law When Labor Law
Remedies Are Restricted Based on Workers' Migrant Status, 1 SEATTLE J. SOC. JUST. 795, 805 (Summer 2003) for
documentation of specific instances of employer anti-union threats. In one instance in Washington’s apple industry,
and employer told workers that ―there hasn't been a union here yet, and the INS hasn't done any raids. But with a
union, the INS is going to be around." The union lost the subsequent election. Id.


                                                        10
They are awarded no remedy for doing so, and they face possible inquiry into their entire

immigration history. The Hoffman decision will surely preclude thousands of workers from

protecting their established workplace rights, which in turn decreases the accountability of

employers who exploit the migrant workforce.

3.      RESPONSE OF THE INTERNATIONAL COMMUNITY

        Following the Hoffman case, the American Federation of Labor and the Congress of

Industrial Organizations (―AFL-CIO‖) and the Confederation of Mexican Workers (―CTM‖)

alleged that the Hoffman decision violated the ILO Convention on the Freedom of Association and

Protection of the Right to Organize, the Convention on the Right to Organize and Collective

Bargaining, and the Declaration of Fundamental Principles and Rights at Work.54 The ILO found

that the post-Hoffman remedies available to migrant workers in the United States were

"inadequate to ensure effective protection against acts of anti-union discrimination."55 The ILO

also recommended that the United States amend labor law to bring it into conformity with

freedom of association principles and ensure "effective protection for all workers against acts of

anti-union discrimination in the wake of the Hoffman decision."56

        The ILO wrote, ―The Committee considers that such remedies in no way sanction the act

of anti-union discrimination already committed, but only act as possible deterrents for future acts.

Such an approach is likely to afford little protection to undocumented workers who can be




54
   Case No. 2227 (United States), ILO Committee on Freedom of Association, 332nd Report of the Committee on
Freedom of Association, GB.288/7 (Part II) (November 2003) 142 available at
http://www.ilo.org/public/english/standards/relm/gb/docs/gb288/pdf/gb-7.pdf. The United States became a party to
the ICCPR on September 8, 1992, and became a signatory to the ICESCR in 1977. Although the United States has
not ratified Convention 87 or Convention 98, by virtue of its constitution, the ILO Governing Body has the power to
hear claims against parties that have not ratified these treaties.
55
   Id. at ¶ 610.
56
   Id. at ¶ 613.


                                                        11
indiscriminately dismissed for exercising freedom of association rights without any direct penalty

aimed at dissuading such action.‖

        A year after the ILO issued its decision, it wrote, ―[T]he Committee regrets that the

Government has not provided any information on measures taken to explore possible

solutions, in full consultation with the social partners concerned, aimed at redressing this

inadequacy. It therefore requests the Government to keep it informed of any measures taken or

envisaged in this respect.‖57

        Also after the Hoffman decision, Mexico filed a request for an advisory opinion with the

Inter-American Court of Human Rights (―Inter-American Court‖) asking it to determine whether

states could deem a specific migratory status to be a prerequisite for the enjoyment of labor rights

or whether such practices constituted a violation of international (and OAS) principles of equality

before the law and non-discrimination.58 In response to Mexico’s request, the Inter-American

Court determined that states could not discriminate against any workers in their labor rights,

regardless of their immigration status.

        The Inter-American Court determined that American states could not put undocumented

migrant workers at a legal disadvantage in terms of labor rights, just as it could not do so with

legal residents or citizens. The court stated that ―the migratory status of a person cannot constitute

a justification to deprive him of the enjoyment and exercise of human rights, including those of a

labor-related nature. When assuming an employment relationship, the migrant acquires rights that

must be recognized and ensured because he is an employee, irrespective of his regular or irregular



57
   Case No. 2227 (United States), ILO Committee on Freedom of Association, 335th Report of the Committee on
Freedom of Association, GB.291/7 (November 2004) 142 available at
http://www.ilo.org/public/english/standards/relm/gb/docs/gb291/pdf/gb-7.pdf.
58
   Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18, 17 September 2003,
Inter-Am. Ct.H.R. (Ser. A) No. 18/03 (2003) at 113-114, ¶ 9, 10, available at
http://www.corteidh.or.cr/serieapdf_ing/seriea_18_ing.pdf.


                                                     12
status in the State where he is employed. These rights are a result of the employment

relationship.‖




III.    PRACTICAL POLICY REASONS FOR PROTECTING UNDOCUMENTED

MIGRANT WORKERS’ RIGHTS TO ORGANIZE

        It is un-contested that sovereign nations have the right and obligation to regulate the flow

of immigration into their country. As such, undocumented workers should not be encouraged to

begin or continue employment in a receiving country. However, granting undocumented workers

protection against workplace abuses not only ensures the human rights protections they are

entitled to, but actually deters illegal migration in the long run.

        The massive amounts of current migration are the result of economic push and pull

factors.59 As migrants search for jobs, employers search for cheap labor. Undocumented workers

particularly contribute to the supply of cheap labor because their fear of deportation prohibits

them from reporting workplace violations. Without minimum wages, adequate safety precautions,

and the pressure of negotiating with trade unions, employers can turn a hefty profit. The

International Confederation of Free Trade Unions noted, ―Many governments wishing to ensure

their foothold in the global market see trade unions as an obstacle to their economic

development.‖60

        The equation is simple: One employer negotiates with a union representing his employees

to pay them $2 more than the minimum wage. The employer also gives the employees health

benefits and provides a safe working environment. The employees work 40 hours a week and get


59
  Why and Where: Motives and Destinations, Nidi Eurostat, at http://www.nidi.nl/pushpull/dest/indexdest.html.
60
  Annual Survey of Violations of Trade Union Rights, at
http://www.icftu.org/displaydocument.asp?Index=991219540&Language=EN.


                                                       13
paid vacation and sick leave. A second employer in the same business pays his employees $2

below minimum wage. The second employer does not provide health benefits or vacation or sick

leave. The second employer spends no money maintaining the work area. His employees work 94

hours a week. Who makes a bigger profit? Obviously the second employer does. However, if the

second employer was effectively required to give his workers the protections they are entitled to,

he would not be able to exploit them as such.

        Although in countries like the United States it is illegal to hire undocumented workers, the

demand for them is high. This is exemplified by the facts that half of the agricultural workforce in

the United States (around 1.4 million workers) does not have proper work authorization status,

there are 1.2 million undocumented workers in the manufacturing sector, 1.3 million in the

services sector, 600,000 in construction, and 700,000 in restaurants.61 As discussed above,

undocumented migrant workers are very unlikely to report abuses of workplace human rights.62

This gives employers an incentive to hire them and turn a higher profit.63 Furthermore, after

Hoffman, an employer who violates an undocumented workers’ right to unionize is subject not

real consequences. Employers easily follow their role: Hire an undocumented worker with fake

work papers for a low wage. Once the worker talks of organizing, fire him. When the court tells

you to stop, smile, nod, and continue on your way.

        When employers are absolutely prohibited from denying all workers their workplace rights

and sanctioned by effective penalties when they neglect to do so, the incentives of hiring

undocumented workers disappear and all that remains is the disincentive to hire undocumented



61
   Sarah Cleveland et al., EMPLOYMENT & INTERNATIONAL LAW: Inter-American Court of Human Rights
Amicus Curiae Brief: The United States Violates International Law When Labor Law Remedies Are Restricted
Based on Workers' Migrant Status, 1 SEATTLE J. SOC. JUST. 795, 805 (Summer 2003).
62
   Id. at 811.
63
   Id. at 810.


                                                    14
workers—the threat of criminal sanctions. Decreasing the demand for undocumented migrant

workers will deter illegal migration.




IV.    CONCLUSIONS AND RECOMMENDATIONS

       All workers, regardless of their undocumented or irregular status, have an international

right to organize as articulated in the international documents listed in section I of this report. This

right includes a right to an effective remedy if violations of the right to organize occur.

Additionally, giving undocumented workers adequate and effective workplace rights helps reduce

the problem of irregular immigration.

       As such, all countries should strive to ensure that the right to organize is absolutely

protected. Violations of this right should afford effective remedies. Countries should incorporate

language into their domestic labor laws that explicitly protects undocumented migrant workers on

equal footing with national workers.

       Human Rights Advocates urges the Commission on Human Rights to:

       1.    Affirm the right to freedom of association, the right to organize, and the right to form

             trade unions with no distinction on the basis of immigration status, as established in

             the Migrant Convention, the ICCPR, the ICESCR, and the ILO Conventions, and as

             highlighted in recent decisions of the ILO and Inter-American Court.

       2.    Encourage the ratification of the Migrant Convention.

       3.    Request that the Special Rapporteur on Migrant Workers conduct specialized

             investigations on migrant workers’ right to organize and determine how adequate

             protection of this right can further protect other workplace human rights.




                                                  15

								
To top