Observation (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

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

Statistics on migrant workers. The Committee notes from the Government’s report that in 2011, 5,470 permits were issued to migrant workers in the construction sector (with 83 per cent of the workers coming from China and 6 per cent from the Republic of Moldova); 24,582 permits to migrant workers in the agriculture sector (with 95 per cent of the workers coming from Thailand); and 45,886 permits to migrant workers in the nursing care sector (with 39 per cent of the workers coming from the Philippines, 16 per cent from the Republic of Moldova, 14 per cent from India and 13 per cent from Nepal). There are also skilled migrant workers in the industrial and restaurant sectors and foreign specialists. The Committee requests the Government to continue to provide statistical data, disaggregated by sex, nationality and sector of employment, on the number of migrant workers in Israel.

Article 6 of the Convention. Equality of treatment (foreign caregivers). The Committee recalls its previous observation raising concerns that the implementation of the Entry into Israel Law (Amendment No. 21) of 16 May 2011 – making it possible to restrict the transfer of foreign workers between employers by issuing work permits that are limited to certain geographical regions or to certain sub-branches of the caregiving sector – could result in reinstating the “restrictive employment relationship” of migrant workers with their employers, previously criticized by the High Court of Justice in 2006. The Committee also recalls the decision of the High Court of Justice in Yolanda Gloten v. the National Labour Court (HCJ 1678/07) of 2009 excluding live-in caregivers from the applicability of the Hours of Work and Rest Law 1951 and the concerns expressed by the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) that the Gloten judgment facilitated the application of a discriminatory and inferior legal regime to the work of women migrants. The Committee notes the Government’s statement that there are 63,000 female Israeli care workers in the long-term nursing sector who are, unlike foreign caregivers, mostly employed in part-time jobs through nursing care companies. The Government also details the various reasons for the dependency of the care sector on the work of live-in foreign caregivers and the difficulties related to the period of notice by caregivers who want to leave the employer with a disability or the elderly employer they care for. The Government further indicates that 18,801 foreign workers in long-term nursing care moved between authorized employers in 2011, and that there were no refusals regarding requests to change employers.

The Committee notes the Government’s statement that a governmental staff committee will submit recommendations regarding an appropriate legislative framework guaranteeing adequate pay and favourable working conditions for caregivers, after which a hearing will take place in the High Court of Justice. The Government also indicates that the Population and Immigration Authority (PIBA) of the Ministry of Interior is working on a new set of regulations and procedures for the caregiving sector. While the text of these regulations and procedures are not yet at its disposal, the Committee notes from the Foreign Workers’ Rights Handbook, to which the Government refers in its report and which was last updated on 1 October 2012, that foreign caregivers continue to be required to reside in the homes of their employers and that live-out arrangements or part-time employment are prohibited. Foreign caregivers are also required to respect a special and longer period of prior written notice (varying from seven days to one month), except in “circumstances in which it is unreasonable to require continued employment”. The written notice is to be given to the recruitment agency as well as to the employer or the employer’s representative. The Committee notes that a foreign caregiver who leaves the employer without prior written notice or before the minimum notification period may be liable to deportation after a hearing by the PIBA. Taking due note of the Government’s detailed explanations regarding the heavy dependence of the care sector on the work of live-in foreign caregivers, the Committee considers it all the more important in the context of the proposed reforms that proper working conditions, including remuneration, hours of work and overtime arrangements, and effective and accessible complaints mechanisms and means of redress, are being ensured for foreign caregivers so as to ensure treatment no less favourable than that which applies to Israeli caregivers in respect of the matters referred to in Article 6(1)(a)–(d) of the Convention. Considering that the caregiving sector is the largest sector in which foreign workers are employed, the large majority of whom are women, the Committee urges the Government to make every effort to ensure that the proposed legislative framework guaranteeing adequate pay and favourable working conditions for caregivers and the regulations and procedures to be developed by the PIBA are in accordance with the provisions of Article 6 of the Convention, and to expedite this process. The Committee requests the Government to provide detailed information on the outcome of this process, including copies of the text of any new regulations and procedures adopted or proposed as well as on the outcome of the further hearing in the High Court of Justice. The Committee also requests the Government to provide copies of any regulations adopted by the Minister of Interior pursuant to the amendments to the Entry into Israel Law, and information on the number of transfers to another employer of foreign workers in the caregiving sector requested on the basis that it would be unreasonable to continue employment, the outcome of these requests, and the applicable procedures to address such requests.

Enforcement and access to legal proceedings. Further to the above, the Committee recalls the exclusion of the largest group of foreign workers, foreign domestic caregivers who are primarily women, from the protection of the Commissioner for the Rights of Foreign Workers, except in cases of human trafficking, conditions of enslavement or forced labour, and cases of sexual abuse, violence or sexual harassment. The Committee had also noted that the monitoring of the employment relationship between these workers and their employers was apparently left mainly to licensed recruitment agencies. The Committee notes the Government’s reply that the Commissioner can suggest that the worker apply for mediation and that there is no obstacle for an employee in the nursing care sector to institute legal proceedings against the employer other than through the Commissioner. The Committee recalls the concerns expressed by the IUF that lower labour courts would be compelled to reject lawsuits from foreign caregivers for overtime pay due to the Gloten judgment. Recalling that foreign caregivers should be able to enjoy and claim effectively their rights on an equal footing with nationals, as provided in Article 6(1)(d) of the Convention, the Committee requests the Government to provide full information on the manner in which foreign caregivers lawfully in the country can assert their rights in respect of the matters referred to in the Convention in practice and claim compensation. The Committee also requests the Government to include information on the manner in which Israeli caregivers can assert and claim their rights and on the number and nature of complaints filed by foreign and national caregivers with the judicial and administrative bodies and their outcome. The Committee also asks the Government to continue to provide statistics on the number and nature of violations of the relevant laws and regulations identified and addressed by the various responsible authorities. Recalling the Government’s intention to study with a view to applying, in cooperation with the social partners, the best practices for the treatment of foreign workers in line with the provisions of the Convention, the Committee reiterates its request to the Government to indicate any progress made in this regard.

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