Philippines - Taiwan: Legal framework
The Philippines has ratified all key international conventions relating to migrant workers’ rights and it engages fully with both the UN and the ILO systems. Its decision not to ratify the Private Employment Convention largely reflects the opposition of its private recruitment agencies to the abolition of recruitment fees and indicates that, despite a healthy working relationship between the private sector, workers’ organisations and the government, it is the private sector’s views on this issue that take primacy. Notwithstanding the failure to abolish recruitment fees for all workers (domestic workers are exempted from paying fees) the Philippines legal and regulatory framework is focused on ensuring that workers are recruited fairly and work to the terms outlined in standard employment contracts aimed at protecting their labour rights abroad. The Philippines has laws and regulations to address the plight of undocumented workers and its response to the Covid-19 pandemic has demonstrated that a workers’ irregular status does not exclude them from the ambit of the state’s protection. One obvious shortcoming in the laws and guidelines on fair recruitment is that there is less detail in the regulations on the recruitment of Filipino seafarers relative to the regulations for land-based workers, but taken as a whole its legal and regulatory framework is impressively detailed and robust.
Taiwan has been excluded from the UN system since 1971, but it ratified the international bill of rights in 2009 and has granted them the status of domestic legislation, and put mechanisms in place for their implementation. Taiwan has two distinct regulatory frameworks that address the roles and responsibilities of the entities that can recruit foreign workers on behalf of its employers. The Ministry of Labour has regulatory oversight over the framework that regulates manufacturing, domestic work and coastal fisheries. The Fisheries Agency oversees the other, which regulates Taiwan’s Distant Water Fishing sector. The Ministry of Labour regularly amends its laws and regulations pertaining to the recruitment of foreign workers, and conducts policy impact assessments. There appears to be far less appraisal and evaluation of the laws in the distant water fishing sector. No laws or policies outline Taiwan’s expectations on the legislation on recruitment processes in the states from which it sources its migrant workers. Domestic workers remain excluded from the Labour Standards Act despite the existence of a draft law that would limit their working hours. The government has justified the failure to provide them with the protection of labour laws by stating that “their duties, work hours and rest hours are clearly different from workers of business entities, making it hard to draw a clear line between what is work and what is not.” Undocumented workers are also excluded from labour law, but have access to legal aid in certain circumstances. Civil society organisations and the recruitment sector are encouraged to engage with the authorities on policies relating to recruitment, but civil society views this engagement as superficial and despite some positive reforms, the authorities have resisted long-standing calls for the abolition of private recruitment agencies and for labour law protection to be extended to domestic workers.
Recommendations to the Philippines government:
- Ratify the ILO Private Employment Convention and in keeping with its requirement that workers should not pay recruitment fees, amend the Republic Act 10022 to bring Philippine law in line with the ‘employer pays’ principle and in such a way that it is consistent with the ILO’s definition of recruitment fees and related costs.
Recommendations to the Government of Taiwan:
- Commit to the principles of the ILO Private Employment Agencies Convention, 1997 (No. 181) and amend the Employment Service Act and other relevant legislation to make employers of foreign workers in all sectors liable for all costs associated with hiring private employment institutions to recruit workers, including the monthly service fees charged to workers.
- Amend legislation to ensure that all foreign workers in Taiwan, including domestic workers, enjoy the protection of the Labour Standards Act.
- Bring the Distant Water Fishing sector under the regulatory authority of the Ministry of Labour and ensure that all workers in that sector enjoy fundamental rights and protections comparable to foreign workers employed in other sectors in Taiwan.
