Key Recommendation 3: Eliminating discriminatory laws and practices

Destination states should ensure that laws and practices do not discriminate against migrant workers, or between different categories of migrant workers, in their access to essential worker protections including the right to freedom of association.

Fair recruitment is undermined where migrant workers do not enjoy adequate legal protection in destination states. In many destination states, migrant workers, or workers in low-wage sectors of the labour market that disproportionately employ migrant workers, are excluded from elements of core labour laws. This may remove their rights to for example, minimum wage protections, maximum working hours, days off, and overtime payment. Workers in the agriculture, domestic work, security, and fishing sectors are just some examples who are particularly likely to be excluded from legislative protections. These are all roles particularly likely to be filled by migrant workers. Additionally workers in these sectors - or all migrant workers - are unable to form or join trade unions, denying them a fundamental human right and the ability to organise and pursue their own interests. Migrant workers may also be more at risk of discriminatory hiring practices than other workers, as the recruitment process straddles international borders: women can for example be under-represented in some temporary migration programmes. Ensuring that non-national populations in low-paid sectors of the economy have the same fundamental rights as nationals is an indispensable buffer against racialized social exclusion and attendant discriminatory attitudes that make migrant workers even more vulnerable, and which have particularly come to the fore in the context of the Covid-19 pandemic.

Combined with tied visa schemes, blanket restrictions on migrant workers’ access to fundamental labour protections - as well as discrimination between migrant workers on the grounds of gender or job - reduce the agency of migrant workers and make it far more difficult for governments to ensure fair recruitment practices.

Governments should:

3.1. Ensure that all workers, regardless of nationality, migration status or economic sector, are covered by core labour laws.

3.2. Ensure that all workers, regardless of nationality, migration status or economic sector, are able to access effective grievance mechanisms.

3.3. Ensure that all workers, regardless of nationality, migration status or economic sector, are able to form and join trade unions and enjoy their full right to freedom of association - and provide mechanisms to protect migrant workers from harassment or retaliation for activity related to unions or worker organisations.

3.4. Prohibit employers or recruiters from requesting migrant workers of a specific gender or nationality, and require employers to ensure that working and living conditions do not discriminate on the basis of gender.

3.5. Ensure that migration policies are underpinned by the principle of non-discrimination, and develop policies and action plans, and implement preventive measures, to foster greater harmony and tolerance between migrant workers and national populations, including in specific regard to programmes to increase the labour force participation of nationals.