Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

Convention (n° 97) sur les travailleurs migrants (révisée), 1949 - Israël (Ratification: 1953)

The Committee notes that according to the Government, at the time of reporting, some 12,000 migrant workers were lawfully employed in the construction sector, 1,500 in manufacturing and 900 in restaurants. Data released by the Central Bureau of Statistics for 2007 suggest that migrant workers (excluding those from the occupied Palestinian territories) were employed in 69,900 jobs, out of which 10,100 were in construction and 23,900 in agriculture. The Committee understands that a large majority of foreign workers employed as caregivers are women. The countries from which the largest groups of migrant workers come to Israel are the Philippines, Thailand, Romania and China. The Committee requests the Government to provide updated statistical information on the actual number of temporary migrant workers present in Israel, disaggregated by sex and the sectors in which they work.

Article 6 of the Convention. Equal treatment. The Committee notes the decision of the High Court of Justice in the case of Kav LaOved Workers Hotline and others v. Government of Israel (HCJ 4542/02) of 30 March 2006. In this case, the Court held that making the residence permits given to temporary migrant workers conditional upon the workers working for a specific employer, which means that migrant workers leaving or losing their jobs automatically became illegal aliens, violates their dignity and liberty. The Court had before it information showing that the excessive power held by employers over temporary migrant workers under such a “restrictive employment relationship” resulted in situations where migrant workers are denied their rights under the labour legislation, including regarding remuneration and hours of work, with no possibility to seek redress without taking the risk of losing their jobs and residence permits. In considering relevant international law, the Court held that the Ministry of Interior, when making use of its power to determine conditions for giving a visa or residence permit is limited, inter alia, by the principle of non-discrimination between workers who are citizens and workers from foreign countries as enshrined in Article 6 of the Convention.

The Committee recalls that Article 6 requires ratifying States to apply, without discrimination in respect of nationality, race, religion or sex, to migrant workers lawfully within the country, treatment no less favourable than that which applies to its own nationals in respect of the matters referred to in Article 6 (1)(a) to (d), including remuneration, hours of work, and legal proceedings relating to the matters referred to in the Convention. These provisions of the Convention envisage equal treatment of migrant workers in law, but also in practice. The Committee is concerned that the information considered by the High Court of Justice in its abovementioned decision indicates that many migrant workers apparently do not benefit from the rights and protection available under the legislation, in practice. The Committee considers that reducing the migrant workers’ dependency on individual employers and thus limiting the power exercised by employers over their foreign workers, is indeed an important aspect in ensuring that equal treatment is applied to migrant workers in practice, along with dissuasive sanctions and effective enforcement of relevant laws.

The Committee notes from the Government’s report that resolution No. 447-448 adopted by the Government on 12 September 2006 sets out new modalities for employing migrant workers in the care-giving and agricultural sectors with a view to increasing the protection of migrant workers and to simplifying the process of changing employers. Migrant workers who lose their employment may register with the Ministry of Industry, Trade and Labour for a placement with a new employer. The Government also introduced legislation prohibiting private agencies from charging migrant workers abusive recruitment fees and established an Ombudsperson to deal with complaints from migrant workers. Following investigations by the Enforcement Division of the Foreign Workers Department in the Ministry of Industry, Trade and Labour, administrative fines were imposed on employers in 5,861 cases for offences related to migrant workers in 2006, and 3,743 new cases were opened. The Ombudsperson received 449 complaints in 2006. These figures demonstrate the attention paid by the authorities to law enforcement, but also suggest a high level of non-compliance with the legislation. The Committee requests the Government to take further measures to ensure that the treatment extended to migrant workers employed in Israel under the Foreign Workers Act, is no less favourable than that which is applied to nationals, in law and in practice, with regard to the matters listed in Article 6(1)(a) to (d) of the Convention. In this regard, the Committee requests the Government to continue to provide information on the number and nature of violations of the relevant laws and regulations identified and addressed by the various responsible authorities, including indications as to the sanctions imposed. The Committee also requests the Government to provide information on the practical implementation of the modalities adopted by Resolution No. 447-448 regarding the agricultural and care-giving sector, as well as information on how the concern of reducing the migrant workers’ dependency on the employer is addressed in other sectors, such as construction or manufacturing.

Equal treatment in respect of social security. The Committee further notes that under section 1D(a) of the Foreign Workers Act, the employer, at its own expense, is to arrange medical insurance for the foreign worker, which shall include the basket of services that the Minster of Health prescribes for this purpose by order. In this regard, the Committee notes that the Foreign Workers Order (Prohibition of Unlawful Employment and Assurance of Fair Conditions) (Health Services Basket for Workers), 5761-2001, lists in section 2 the services to be included in the insurance arranged for the foreign worker. Section 3 provides for certain entitlement exceptions and section 4 limits the entitlements regarding certain services for migrant workers, including entitlements related to pregnancy and medical conditions that existed before the migrant worker took up his or her employment in Israel. The Committee recalls that under Article 6(1)(b), migrant workers have the right to treatment no less favourable than that which applies to nationals in respect to social security, including in relation to sickness and maternity.  The Committee considers that the establishment of a separate health insurance system for migrant workers which excludes migrant workers from certain entitlements and which limits certain entitlements, may not be in conformity with Article 6(1)(b) of the Convention. The Committee requests the Government to clarify the reasons for establishing a separate health insurance system for migrant workers and for the exclusions and limitations provided for under sections 3 and 4 of the abovementioned Order. It also requests the Government to indicate how it is ensured that all migrant workers admitted to Israel under the Foreign Workers Act  fully enjoy their right to treatment no less favourable than that which applies to Israeli nationals regarding social security in respect of sickness and  maternity.

The Committee is raising other points in a request addressed directly to the Government.

[The Government is asked to reply in detail to the present comments in 2010.]