Vietnam National Consultation Statement, 3-4 March 2008

16 Mar 2008   |  Unused   |  Unused  

Vietnam National Consultation

on the Protection and Promotion of the Rights of Migrant Workers

March 3-4, 2008, Hanoi, Vietnam 

 

We, the participants of the Vietnam National Consultation on the Protection and Promotion of the Rights of Migrant workers, recognize the responsibility that every state has to protect, promote and fulfill the rights of migrant workers. We agree that ASEAN, as a self-proclaimed caring and sharing community, should act in a clear and concrete way so that the people of ASEAN who wish to migrate can benefit from a new arrangement that ensure their rights as migrant workers will be protected.

 

ASEAN has set forth plans for full economic integration of its ten member nations by the year 2015.  Clearly, a new arrangement for migrant workers should reflect the fact that in the future a regionally integrated Southeast Asian market means the divisions that continue to separate the work forces of the ASEAN countries will be difficult to maintain. Like all ASEAN states, Vietnam will face an important challenge to protect its own people in an increasingly globalized world where movement of people across borders becomes the norm rather than the exception.  .  

 

As ASEAN countries continue to grow more economically interdependent, we believe that it is increasingly important for states to adopt people-centered policies and agreements that create opportunities for greater acceptance of the principles of decent work, and respect for economic, social and cultural rights for all workers and their families.  We note that national consultations on the protection and promotion of the rights of migrant workers have already been held in Indonesia, the Philippines, and Thailand, and sub-regional consultations have been conducted in Singapore and Malaysia, and we appreciate the value of this important ASEAN regional solidarity in the protection of migrant workers

 

We note that Vietnam and the Governments of ASEAN, UN agencies, and other stakeholders in the international community have been engaged in preparations to accommodate the challenges of this increasingly integrated and developed ASEAN region.  Accordingly, we commend our Government, and the other Governments of ASEAN for promulgating the ASEAN Declaration on the Protection and Promotion of the Rights of the Migrant Workers in January 2007.  By this action, ASEAN has demonstrated its commitment to provide a new regional arrangement that is fair and just to all workers.  

 

Although we recognize that the ASEAN Declaration is not a legally binding instrument, it clearly paves the way for new regional framework agreement for migrant workers.  We particularly note that Article 22 of the Declaration requires the harmonization of national labour laws with ILO core Conventions, which is also in line with the ILO’s Fundamental Principles and Rights at Work.  The harmonization of labour laws with ILO standards presumes that legal provisions will be applicable to all persons irrespective of their nationality, thereby providing the principle of national treatment.  As a leading member in the United Nations, Vietnam is playing an important role to ensure there is continued priority placed on building respect for the core ILO Conventions by Governments and civil society alike.

 

We further reiterate our belief that immediate implementation of the ASEAN Declaration is vitally important for ASEAN.  For this reason, we support the decision of the ASEAN Foreign Ministers on July 30, 2007, to set up an ASEAN Committee on the Implementation of the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers.  However, we are concerned that the progress of the national Governments in establishing focal points to serve on this important ASEAN Committee has been quite slow, since we believe that the earliest possible functioning of this Committee is in the interest of all ASEAN members.  We believe that this Committee has very important work that it must take up and therefore the members of the Committee should be named as soon as possible. 

 

We also express our appreciation for the continuous efforts of the CSO-TU Task Force on ASEAN Migrant Workers to assist the efforts to fulfill the promise of this Declaration. We strongly support the efforts of the CSO-TU Task Force on ASEAN Migrant Workers to move forward with its mandate under ASEAN’s Vientiane Action Plan to draft a model Framework Instrument on the Protection and Promotion on the Rights of Migrant Workers which will be proposed later to ASEAN for consideration.

 

We also wish to express our thanks to the Canadian International Development Agency (CIDA) and the CIDA-funded SEARCH regional project for supporting this National Consultation workshop and for their commitment to assisting the Task Force on ASEAN Migrant Workers in its work to expand the protection and promotion of the rights of migrant workers in ASEAN.

 

We call on the ASEAN Committee on the Implementation of the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers to work jointly with the CSO-TU Task Force on ASEAN Migrant Workers, thereby answering the call of the new ASEAN Secretary-General, H.E. Surin Pitsuwan, to support the greater participation and involvement of ASEAN civil society in important matters that affect the welfare of the peoples of ASEAN.

 

Reflecting this important spirit of cooperation between the Government, trade unions, national organizations, and civil society representatives, we the participants of this Vietnam National Consultation have come together to work on common ideas and recommendations that we hope will inform the Government’s agenda to protect and promote the rights of migrant workers. 

 

This National Consultation is particularly valuable because it provides the opportunity for dialogue on common concerns regarding migrant workers between the Government and all key stakeholders. We sincerely hope that this consultation will open more doors for increased communication and exchanges in the future among stakeholders in civil society groups and the Government about the importance of providing decent work and life for all migrant workers.

 

We sincerely hope that our efforts during this National Consultation will assist the Government in building a manageable and transparent safe-migration process that includes specific steps and procedures for pre-departure training in Vietnam, services and assistance provided in the country of destination by Vietnamese government officials, and policies that will assist returning migrant workers to successfully re-integrate back into Vietnamese society.  In both Vietnam and in the ASEAN region, we also believe it is important that existing measures to protect rights of migrant workers will be strengthened and new measures introduced.

 

We note that all member Governments of ASEAN are now members of the ILO, and as a condition of membership, must recognize the ILO Declaration on Fundamental Principles and Rights at Work. This Declaration obliges recognition of the concept of core labour standards, and many of the Governments in ASEAN have already included a number of these standards in their national labour laws. We encourage all countries in ASEAN to bring their laws into harmony with all of the ILO’s core labour standards.  We also urge all Governments of ASEAN to ratify the two ILO Conventions (97 and 143) concerning migrant workers.  Furthermore, we urge all ASEAN Governments to sign and ratify the United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.

 

The Situation in Vietnam

 

In 2006, Vietnam’s workforce was a total of 45.2 million persons. Vietnam’s economy has been creating additional employment opportunities for many of our citizens.  During 2006, there were approximately 1.5 million new jobs created that year, of which approximately 60,000 consist of Vietnamese citizens seeking overseas employment in that year..

 

The total number of Vietnamese migrant workers overseas increased to 300,000 between the years of 2001 to 2005.  Now in 2008, there are more than 500,000 Vietnamese migrant workers who are living and working overseas, deployed in over 40 countries and territories.  These workers provide important support for their family members who have remained behind in Vietnam and help contribute to the development of our nation.  However, since the number of Vietnam citizens working overseas has increased, we believe there is a need for improved laws, regulations, procedures and systems to protect them. 

 

We recognize and appreciate the fact the government has ratified 5 of the 8 ILO Core labour standards and encourage the government to ratify the remaining conventions. Vietnam has ratified conventions no. 29, 100, 111, 138 and 182. The core ILO Conventions are:

 

  • Freedom of association and collective bargaining  (C. 87  and  C. 98)  
  • Elimination of forced and compulsory labour  (C. 29  and  C.105) 
  • Elimination of discrimination in respect of employment and occupation (C.100 and C.111)
  • Abolition of child labour (C.138  and  C.182) 

 

We also appreciate and support the efforts made by Government to place strict limits on recruitment agency fees charged to migrant workers. We also support Government efforts to provide increased skill development for intending migrant workers and to design a credit program for Vietnamese migrant workers.   We sincerely hope that the Government will make continuous efforts to expand its important work to protect the rights of migrant workers now and into the future.

 

Challenges faced by overseas Vietnamese migrant workers:

 

We note that the ILO Tripartite Committee of Experts meeting in 1997 found that Asian migrant workers were suffering and described their plight as follows: “Malpractices exist where the treatment of migrant workers and members of their family is not in accordance with national legislation or ratified international standards and where such treatment is recurrent, deliberate and involves groups of people rather than merely individuals. Exploitation exists where such treatment incurs very serious pecuniary or other consequences, such as when migrants are charged fees bearing little resemblance to actual recruitment or placement costs, have remittance transfers imposed on them without their voluntary consent, are enticed into employment under false pretences, are made to sign work contracts by go-betweens who know that the contracts will generally not be honoured upon commencement of employment, have their passports or other identity documents confiscated, are dismissed or blacklisted when they join or establish workers\' organizations, suffer deductions from wages without their voluntary consent which they can recuperate only if they return to their country of origin, or are summarily expelled without regard to their rights arising out of past employment, stay or status.”

 

In the decade since that statement was made by this highly respected meeting, little has changed in the situation of most migrant workers in the ASEAN region.    

 

Unfortunately, Vietnamese migrant workers are not an exception to this common situation faced by migrant workers from countries all over Asia.  We have found some of the following challenges are faced by Vietnamese and other migrant workers in the region:

 

  • weak and limited protection of the rights of migrant workers; 
  • non-payment of salaries, or workers being paid significantly less than specified by the written contract;
  • unsafe working conditions, resulting in frequent injuries, and unhygienic living conditions;
  • harassment and abuse specifically directed at women migrant workers;
  • high recruitment fees in both the sending and receiving countries, leaving workers with significant debts and impoverishing their families because migrant workers cannot send home sufficient remittances;
  • cases of labour contracts being unilaterally changed by the final employer in the country of destination -- but the workers still must pay the recruitment agency high compensation fees or face alleged “breach of the labor contract” if they choose to leave the job;
  • frequent seizure of workers’ passport and personal documents by employers or agents;
  • in desperation workers are forced to become undocumented, leaving them more vulnerable to becoming victims of trafficking.

 

RECOMMENDATIONS

 

To the Government of Vietnam:

The government should take appropriate and prompt measures to ensure the protection of the migrant workers and to meet their basic needs (on the basis of the ILO principles on decent work) in the following ways:

Policies and Actions to Protect Migrant Workers Before Departure from Vietnam

Recruitment of Migrant Workers

  • We agree that MOLISA shall continue to be the administrative agency for migrant workers. However, we recommend that local authorities should be empowered particularly in relation to preventing deceptive recruiting practices at the village and commune level.
  • The process of granting labor recruitment licenses must be serious and strictly managed.
  • There should be continuous monitoring of the activities of migrant recruitment enterprises and prompt action to withdraw licenses of those enterprises which violate the law, or who are judged to not have mandate and capacity to effectively carry out their recruitment activities.
  • MOLISA should maintain and continually update a list of recruiting company owners and administrators who have been found to be involved in deceiving and cheating workers.  These owners and administrators on this list should not be allowed to be involved in any way with any company licensed to be involved in labor recruitment
  • The Government should ensure that information on the legal process of recruitment, associated procedures, recruitment fees allowed to be charged, and other related information is widely publicized at all levels of society.
  • Information on the legal status of labour recruitment agencies, including their mandate, responsibilities and authority should be publicized throughout Vietnam.
  • The Government should carry out a study of the experience of other ASEAN countries in adopting and implementing the “one stop service center” approach (meaning to consolidate procedures and services related to registration and administration of migrant workers in one service center, where representatives of all relevant Government agencies are present).
  • A study should be undertaken to develop comprehensive and factual information on the functioning and current practices of the formal and informal labor recruitment agencies in Vietnam.  A prominent part of this study should examine the degree to which these recruitment agencies comply with the law.
  • The Government should consider establishing a mechanism to record and update data derived from the registration and employment of migrant workers, and maintaining relevant paper-based information and documents as archives). Specifically, the Government should develop a plan that included designating a  focal point for this work, identifying the resources needed, providing for training on basic skills for the persons responsible for this work, and ensuring the sustainability of this work.

Contracts of Migrant Workers

  • The Government should ensure that all migrant workers receive and agree to a written contract with the employer in the receiving country and that contract should be in both the local language of the receiving country and in Vietnamese.  The recruitment agency should be required to provide a copy of each worker’s contract to MOLISA so that these contracts can be verified by the Government. 
  • Each worker contract should include at least the following information:
    • Specific provisions on the type of job, the salary, the position, hours of work, occupational safety and health, and other terms of employment, and other relevant binding provisions designating the rights and responsibilities of the worker and the employer.
  • All contracts must be strictly in conformity with both the laws of Vietnam and the laws of the receiving country.
  • The terms and conditions of the contracts should be in accordance with ILO core labor standards. 

Policies and Support for Migrant Workers

  • The Government should ensure that migrant workers are provided with pre-departure training (at no cost to the worker) and an information package before departing Vietnam to work overseas.  This training and information package should include at least the following:
    • Information about all relevant laws and regulations in the receiving country
    • Information about the cultural and social customs of the receiving country
    • Contact information about the focal points/complaint desks where migrant workers can file a complaint and receive assistance
    • Information about basic knowledge and skills required in emergency situations
    • Other information, as deemed necessary by the Government
  • There should be a system of effective legal aid that specifies measures that should be taken to assist the migrant workers when they lodge complaints about ill treatment and violations of the law.
  • The Government should be aware of the vulnerability of female migrant workers in jobs known to have a high level of potential exploitation and sexual harassment such as service sector jobs and domestic work. Special measures should be taken to protect women who choose to enter such employment.
  • There should be efforts to increase the resources and strengthen the capacity of agencies (such as the Committee on Managing Vietnamese Workers Overseas) which represents the interests and protect the rights.
  • The Government should consider the possibility of creating a “safe migration for employment” program and incorporating this into the teaching curriculum at the University on Labor and other universities.

Agreements between Vietnam and Labor-Receiving Countries in ASEAN

  • The Government should integrate provisions to protect the rights and interests of migrant workers in the bilateral and multilateral MOUs and agreements that are concluded between Vietnam and other countries.
  • The Government of Vietnam and the Governments of receiving countries should conduct a training needs assessment among intending migrant workers that will support the development of pre-departure training programs that are practical and relevant to the workers’ needs.

National Laws and Regulations in Vietnam

  • For the sake of effective implementation, the Law on Contract-Based Workers Abroad should be further clarified through additional Ministerial decrees and regulations.  Ministerial regulations must be simple and specific in order to guide effective implementation of the labor laws regarding the activities of the migrant recruitment agencies.
  • There should be Ministerial regulations that specify measures on the protection of migrant workers.
  • There should be increased monitoring to ensure the effective implementation of Chapter 3 of the Law on Contract-Based Workers Abroad, and that Law should be strengthened with more severe sanctions against those who violate the Law.
  • Further studies should be undertaken to inform next steps that the Government should take to harmonize national labor laws with the ILO core labor standards.
  • The Government should conduct a study on the feasibility and desirability of ratifying the UN Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.  As part of this process, the Government should conduct consultations with representatives of trade unions, NGOs and mass organizations. 

Protection and Support for Vietnam Migrant Workers in Receiving Countries

  • There should be a clear focal point to provide prompt protection measures for Vietnamese migrant workers in the receiving countries so that it is clear where and from whom the migrant can ask for support.
  • There should be efforts to build effective collaboration among all stakeholders in the receiving country -- representatives of the Vietnam labor recruitment enterprises, the Vietnam Embassy, trade unions and civil society organizations from the receiving country, and the migrant workers -- so that it is clear on the responsibility and procedures to handle cases/issues related to the migrant workers.
  • Officials at Vietnamese Embassies and Consulates should receive training and clear policy guidance on the importance of faithfully and diligently implementing policies to protect the rights of migrant workers. These officials should be provided with resources and information so that they can effectively intervene and provide support to migrant workers facing difficulties. Specifically, these officials should be required to reach out to representatives of trade unions, NGOs, and mass organizations in receiving countries to ensure that Vietnamese migrant workers receive prompt and practical support. The Government should establish a system to enable the posting of representative of the Vietnam trade unions overseas in Embassies to help protect the rights of migrant workers.
  • The Government should continually request the Governments of receiving countries to implement provisions to protect the rights of the migrant workers that the receiving Governments have committed to protect.
  • The Government and the receiving countries with which the Government concluded migrant labor agreements should negotiate general provisions on skill training for Vietnamese migrant workers which grant mutual recognition of skills possessed by the workers. 
    • As part of these agreements, the Government and the Government of the receiving country should negotiate and reach a consensus on certain fundamental standards for providing skill training for workers.

 

To the ASEAN and the Member Governments of ASEAN

 

The ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers is an important milestone. To fully realize its goals, the National Consultation firmly believes that there is a need for continued broad based consultations at national and sub-regional levels, especially involving trade unions and civil society organizations.

 

The National Consultation also believes that ASEAN should take immediate steps to encourage each member Government of ASEAN to immediately appoint their national focal point to the ASEAN Committee to Implement the Declaration on the Protection and Promotion of the Rights of Migrant Workers, as called for in the resolution adopted by the ASEAN Foreign Ministers on July 30, 2007.  We recommend that these focal points shall be appointed no later than the ASEAN Labor Ministers Meeting (May 6-9, 2008, in Bangkok, Thailand), and that the full membership of the Committee be formally announced as one of the results of the ALMM. 

 

We urge the ASEAN Senior Labor Officials Meeting (SLOM) and ASEAN Labor Ministers Meeting (ALMM) to also raise for discussion the statements and recommendations of the National Consultations conducted by the Task Force on ASEAN Migrant Workers in 2007 and 2008.      

 

We believe that ASEAN must recognize that there must be a new deal that affords rights to migrant workers regardless of their origin or current documented status.   We recommend that this new deal shall be set out in a binding framework and be based on the principle that migrant workers shall be guaranteed national treatment in their conditions of work and life outside of work.  We recommend that ASEAN consider using the model Framework Instrument on the Protection and Promotion of the Rights of Migrant Workers (being developed by the Task Force on ASEAN Migrant Workers through the national consultations process) as the basis for developing the binding framework discussed above.

 

The formulation of the above-mentioned ASEAN Framework Instrument should be done in a way that contributes directly to the harmonization of national labour laws with the eight ILO core Labour Conventions and the UN Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

 

We also believe that because of the very serious problem of human trafficking in ASEAN, especially affecting women and children but also now extending to impact men, we reaffirm the importance of ASEAN’s Vientiane Declaration against Trafficking in Persons, Especially Children and Women, adopted in November 2004.  Specifically, the National Consultation believes that ASEAN should now firmly implement its decision to “establish a regional focal network to prevent and combat trafficking in persons, particularly women and children, in the ASEAN region”, and urge that the network be given the support required to coordinate with governments, employers, trade unions, and NGOs to ensure effective implementation of that Declaration.    

 

In addition, we have the following specific recommendations for ASEAN, and the member Governments of ASEAN:

 

  • ASEAN should establish an office at the ASEAN Secretariat that is responsible for the supervision and evaluation of the implementation of laws and policies relating to the rights of migrant workers.

 

  • ASEAN member governments should sign bilateral and multilateral treaties on migrant workers’ rights and establish mechanisms to effectively oversee the implementation of those treaties.

 

  • ASEAN migrant-sending countries should encourage the establishment of networks composed of labor export companies, trade unions, NGOs, and Government offices for the purposes of sharing experiences and helping each other to protect migrant workers. 

 

  • ASEAN countries should develop and reach an agreement on the content of a common model labour contract that would be applicable for employment of all migrant workers in all ASEAN states.

 

  • ASEAN countries negotiate and reach agreement on common standard procedures for recruitment, pre-departure, transit, post-arrival briefing, dispute mediation and settlement, and repatriation and reintegration of migrant workers. 

 

  • ASEAN countries should agree that the principle of “national treatment” will be applied to all migrant workers.

 

  • ASEAN nations should accord special attention to issues of occupational safety and health affecting migrant workers, and take preventive measures to ensure that workers’ health and lives are not endangered as a result of their work.

 

  • ASEAN receiving countries set up socio-cultural community centers for migrant workers in order to improve their lives.

 

To Trade Unions and NGOs in the ASEAN region

  • Trade unions in ASEAN should actively engage and play the key role in the protection of migrant workers regardless their citizenship. They should accomplish this by working to establish effective links and building cooperative relationships between trade unions, NGOs, and community based organizations in the region.
  • Trade unions in countries of ASEAN that receive migrant workers should establish units to assist migrant workers, and set up mechanisms to carry out concrete activities to protect migrant workers working in their countries.  Activities should include educating their trade union members to not discriminate against migrant workers, helping build greater social acceptance for migrant workers, and supporting migrant workers in cases where they suffer maltreatment from employers and are involved in labor disputes.
  • The Vietnam General Confederation of Labor (VGCL) should work with the Government to ensure that VGCL representatives are posted to countries that receive significant number of Vietnam migrant workers, and ensure that Vietnam migrant workers know that VGCL’s support covers workers who may not be VGCL members.
  • NGOs and civil society organizations in ASEAN should use their close relationship with local communities to play an important role in the protection of migrant workers, through carrying out activities such as disseminating relevant information and providing them with legal and social education, and working to diminish discrimination by receiving communities against migrant workers.
  • NGOs and civil society organizations should link and cooperate closel

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