Solicitud directa (CEACR) - Adopción: 2011, Publicación: 101ª reunión CIT (2012)

Convenio sobre los trabajadores migrantes (disposiciones complementarias), 1975 (núm. 143) - Armenia (Ratificación : 2006)

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Solicitud directa

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2011

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The Committee notes the Government’s first report on this Convention as well as the information provided by the Government in its first report on the Migration for Employment Convention (Revised), 1949 (No. 97) to the extent it is relevant to the application of Convention No. 143. It also notes the observations of the Republican Union of Employers of Armenia and the Confederation of Trade Unions of Armenia, annexed to the Government’s report.

The Committee notes the information in the Government’s report regarding the main legislative texts giving effect to the provisions of the Convention, in particular the Law on Foreigners of 25 December 2006, which covers entry, stay and residency of foreigners in Armenia, their transit through and exit from the country. It also notes that provisions of the Law on Employment and Social Protection in Case of Unemployment, 2006, and of the Labour Code, 2004, apply to foreign citizens and persons without citizenship. The Committee will undertake a more detailed examination of all the relevant legislation once translation of the Law on Foreigners and other relevant texts is available. The Committee notes that a State Policy to Regulate Population’s Migration, was adopted in 2004, the text of which was not provided. The Committee would be grateful to receive a summary of the main objectives and activities under the State Policy to Regulate Population’s Migration, giving effect to the provisions of the Convention. Please also provide statistical information, disaggregated by sex and nationality, on migration flows from and to Armenia, notably the number of foreign workers lawfully in the country and those who have entered Armenia for employment in an irregular situation, as well as the number of Armenian citizens leaving to seek employment abroad either under regular or irregular conditions.

Article 1 of the Convention. Protection of basic human rights. The Committee notes the provisions in the national constitution protecting the fundamental rights and freedoms, including the prohibition of discrimination, due process and freedom of movement, and the provisions in the Labour Code and the Law on Employment and Social Protection in Case of Unemployment guaranteeing some of the fundamental rights of workers. The Committee asks the Government to provide additional details on the measures taken to ensure that the protection of basic human rights covers all migrant workers, including those who have entered or are staying in the country in an irregular manner.

Article 2. Identifying illegal employment and migration in abusive conditions. The Committee notes the Government’s statement that pursuant to section 28 of the Law on Foreigners 2006, the competent body informs, within five days, the competent policy agency, the employer and the foreigner about the illegality of the migrant worker. The Government also states that Armenia is predominantly a country of emigration and that no cases of illegal migration inflow have been registered. Data on movement of illegally employed migrant workers on Armenia’s territory or departing from, passing through or staying on its territory are not reflected in national statistics as the competent body has not yet treated any permit requests, as provided by law. The Committee notes the observations of the Republican Union of Employers of Armenia regarding the role of employers’ or workers’ representatives in monitoring the clandestine movement of migrants in the territory or issues related to the conditions of their stay that may contravene international treaties. The Committee asks the Government to continue to provide information on any measures taken or envisaged to determine systematically whether there are any illegally employed migrants in the territory, and whether there depart from, pass through or arrive in Armenia migrants for employment in abusive conditions as defined in Article 2(1) of the Convention. The Committee encourages the Government to make special efforts to collect on a regular basis statistical data on irregular migration flows, and illegally employed migrants, and to provide information on any progress made.

Article 3(a) and (b). Measures to suppress clandestine movements of migrants and illegal employment of migrants, and against the organizers of such movements, as well as against those employing workers who have immigrated in illegal conditions. The Committee notes with interest that Armenia has ratified the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (trafficking Protocol) and that by Government Decision No. 1598-N of 6 December 2007 a National Action Plan and a Schedule for its implementation was approved to fight against human trafficking for the period of 2007–09. The Government further indicates that human trafficking is also being addressed in the context is the ILO Decent work country programme signed for 2007–11, which includes a component on international labour migration. Research is also undertaken in the context of bilateral cooperation. The Committee asks the Government to provide full information on the measures taken to address human trafficking, including on measures to suppress clandestine movements of migrants for employment and illegal employment of migrants, and against the organizers of such movements and against those who employ workers who have immigrated in illegal conditions. Please provide further information on the nature of the research undertaken in the context of bilateral cooperation, and its outcome.

Article 4. Measures to establish systematic contact and exchange of information with other States. The Committee notes the Government’s brief statement that there are regular contacts with other CIS member States in particular with the Federal Migration Service of the Ministry of Interior of the Russian Federation. The Government also states that Armenia is party to the Agreement on Cooperation of the States members of the Commonwealth of Independent States (CIS) against Illegal Migration, and the Convention on the Legal Status of Migrant Workers and the Status of their Family Members in the CIS, 2008. Please provide additional information on the contents of the activities carried out in the context of the CIS Agreement and CIS Convention, or otherwise, to establish contact and exchange information, and the results achieved.

Article 5. Prosecution of the authors of labour trafficking. The Committee notes that, pursuant to section 132 of the Criminal Code, it is prohibited to recruit, transport, transfer, harbour, or receive persons for the purpose of sexual exploitation or forced labour. Section 132(2)(3) indicates that the victim of this offence being under 18 is an aggravating circumstance. The Committee also notes that section 168 of the Criminal Code prohibits “child trafficking”. The Committee asks the Government to indicate the arrangements on the national or international level by which authors of labour trafficking can be prosecuted whatever the country from which they exercise their activities.

Article 6. Legislative provisions for the effective detection of the illegal employment of migrant workers and effective administrative, civil and penal sanctions in respect of illegal employment and organizing clandestine movements of migrants. The Committee notes that section 132 of the Criminal Code provides for imprisonment of 3 to 6 years. The Committee notes the Government’s references to the Law of 25 December 2006 amending the Administrative Offenses Code which provides that employment by the employer of foreigners without the appropriate residency status or work permit results in a fine amounting to 100 to 150 times the minimum wage. The Committee asks the Government to provide information on the practical application of section 132 of the Criminal Code, and on the Code on Administrative Offenses, including specific sanctions imposed. Please indicate whether any administrative, civil or penal sanctions are being imposed against those organizing clandestine movements of migrants generally.

Article 7. Consultations with the social partners. The Committee notes the Government’s statement that the Tripartite Commission created pursuant to section 5 of the Republican Collective Agreement signed in 2009 is competent to discuss matters related to the Convention. Please provide information on the outcome of any discussions within the Tripartite Commission pertaining to the laws and regulations and other measures provided for in the Convention.

Article 8(1) and (2). Right to remain in the country after loss of employment. Right to alternative employment, retraining and relief work. The Committee notes from the Government’s report that section 37 of the Law on Foreigners provides that, in the case of cessation of activities by the employer, the foreign employee who had previously obtained a temporary residence permit based on work until the end of his or her one-year temporary permit with the possibility of an extension for another year, can sign an employment contract with another employer on the condition that until the expiration of the permit, there is still three months time, and the new employer has obtained the agreement of the competent body. The Committee requests the Government to provide additional information on the legislative provisions and other measures taken to ensure that migrant workers who have lost their employment enjoy equal treatment with nationals in respect of guarantees of security of employment, the provision of alternative employment, relief work and training, in accordance with Article 8(2) of the Convention.

Article 9. Equality of treatment of migrants in an irregular situation. The Committee notes that the Government’s report does not provide any information on the measures taken to give effect to this Article of the Convention. The Committee requests the Government to provide information, including reference to the relevant legislation, on the measures taken to ensure that irregular migrant workers enjoy equality of treatment with regularly admitted and lawfully employed migrants in the country in respect of the rights arising out of past employment, as regards remuneration, social security and other benefits. The Committee further requests the Government to provide information on any cases concerning breaches of equality of treatment brought before courts of law and the final decisions handed down, and to indicate whether migrant workers contesting the expulsion are permitted to remain in the country for the duration of the case.

Articles 10 and 12. Specific measures to implement a national policy on equality. The Committee notes the relevant provisions regarding equality and non-discrimination in the national constitutions, the Labour Code and the Law on Employment and Social Protection in the Case of Unemployment. While noting these provisions and the explanations by the Government of sections 27–29 of the Law on Foreigners, the Committee recalls that Article 10 requires the Government to take an active policy to secure acceptance and observance of the principle of non-discrimination by society in general and to assist migrants workers and their families to make use of the equal opportunities offered to them. Article 12 of the Convention specifies the measures to be taken in the framework of a national policy on equality of opportunity and treatment. The Committee asks the Government to provide additional information on the practical measures, including educational programmes, taken or envisaged by which the national policy on equality is being implemented and observed.

Article 11. Definition of “frontier worker”. The Committee notes the Government’s statement that in the legislation of Armenia the term “frontier worker” is considered as a worker living in the nearby territory of the frontier for which a work permit is not required. The Committee asks the Government to indicate the specific legal provisions defining “frontier worker”.

Article 14. Access to employment. The Committee notes the Government’s indications that pursuant to section 22 of the Law on Foreigners, foreigners have the right to the free choice of occupation and type of activity, and to be active in economic activities not prohibited by the national legislation, observing legal restrictions provided by the Law. Section 22 provides that foreigners who have obtained a temporary or permanent residence permit as well as foreigners who have obtained special residence rights are free from the requirement of obtaining a work permit and can within this period freely choose their work, except as provided by the Law. The Committee will examine the relevant provisions of the Law on Foreigners once a translation in one of the official languages of the ILO is available. The Committee asks the Government to provide information, with an indication of the relevant legal provisions, on the restrictions regarding the categories of employment or functions for those foreign workers that are free from requiring a work permit.

Parts III, IV and V of the report form. The Committee notes that the Ministry of Foreign Affairs, the Ministry of Labour and Social Affairs, the Ministry of Territorial Administration (Migration Agency), the Police, the National Security Service, the Judicial Department and the State Labour Inspectorate are entrusted with the implementation of the legislation and policies applying the Convention. The Committee also notes the Government’s statement that there have not been any court decisions regarding matters relating to the Convention which, according to the Government, is being applied in a satisfactory manner. So that the Committee can assess fully how the Convention is being applied in practice, the Committee would be grateful if the Government would supply information on the specific activities carried out by the competent authorities to give effect to the provisions of the Convention. Please also provide copies of any relevant studies or surveys that have been undertaken on any of the matters referred to in this Convention.