‫מוקד סיוע‬ ‫לעובדים זרים‬

‫התכנית למשפט ורווחה‬
‫התכניות לחינוך משפטי קליני ע"ש אלגה צגלה‬ ‫הפקולטה למשפטים ע"ש בוכמן‬

July 2006

Principles of an Arrangement for the Employment of Migrant Workers in Israel

Abstract
This position paper lists the problems created under the current arrangements for the employment of migrant laborers in Israel – primarily corruption and wrongful employment norms – and proposes alternative arrangements. The main recommendations are: 1. Bi-lateral agreements between Israel and the countries of origin of migrant workers. Such agreements would protect workers both at the phase of recruitment and arrival in Israel and at the phase of departure from Israel. The recruitment and classification of workers in countries of origin shall be performed by governmental or international bodies or by representatives of the Israeli embassies – but not by business entities. The manner of payment by the worker for the service will be determined with full transparency, and the work license will be handed over directly to the worker at the embassies. Deceleration of the pace of worker-substitution – the “revolving door” – by a series of means listed below. Equation of the conditions of migrant workers and Israeli workers, in a manner preventing discrimination and improving employment and payment norms, which also harm Israelis interested in working in sectors such as caregiving, agriculture or construction.

2.

3. 4.

The Association for Civil Rights in Israel, 75 Nahalat Binyamin St., T.A. 65154, Tel. 03-5608185, Fax 03-5608165 The Law and Welfare Program, TAU Law Faculty, Tel. 03-6405235, Fax 03-6407422 Commitment to Peace and Social Justice, P.O.B. 2713, Jerusalem 91026, Tel. 02-6222148, Fax 02-6222168 Hotline for Migrant Workers, 33 Hachashmal St., T.A. 65117, Tel. 03-5602530, Fax 03-5605175 Physicians for Human Rights, 52 Golomb St., T.A. 66171, Tel. 03-6783718, Fax 03-6873029 Kav LaOved, 17 Y.L. Peretz St., T.A. 61022, Tel. 03-6883766, Fax 03-6883537 Adva Center, P.O.B. 36529, T.A. 61364, Tel. 03-5608871, Fax 03-5602205

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5.

Equation of the social rights of migrant workers and Israelis, particularly with respect to legal assistance and representation, and the right of association. Such rights shall be preserved also in the process of the worker’s return to his country of origin.

The Main Problems with the Current Arrangement For over a decade, statements made by State officials have revealed the existence of a need, in certain work sectors, to employ migrant workers. Thus, Israel has joined the overwhelming majority of developed nations in the global economy era. At present, there are approximately 190,000 migrant workers in Israel. Most of them had arrived legally, with work permits, and a minority either arrived as tourists or were smuggled into Israel. Migrant workers arrived in Israel in the early 1990s, to replace Palestinian construction and agriculture workers, whose entry into Israel was denied due to the security and separation policy. In addition, caregiving workers were brought to Israel in the context of the trend to privatize health services in Israel. After the number of migrant workers peaked at approximately 250,000 in 2001, their numbers have declined following a massive deportation campaign, a recession and the unstable security situation. The number of migrant workers in Israel is now once again on the rise. The policy for the employment of migrant workers in Israel, outlined by the Government, encourages widespread exploitation of migrant workers and trafficking in persons for work purposes. The exploitative mechanism is based on the following elements: • Willful blindness to the collection of high brokerage fees (up to $15,000) from migrant workers in Israel and overseas, some of which find their way to brokers and employers in Israel. The brokerage fees force workers to borrow money and render them financially-dependent upon their work in Israel. The collection of brokerage fees is so profitable, that in no few cases migrant workers are brought into Israel with no intention of employing them.

The binding arrangement, which prohibits migrant workers from substituting employers. The binding arrangement prevents workers from dealing with exploitation, abuse and salary-withholding by finding an alternative employer. According to the binding arrangement, even workers who were traded without their knowledge or choice, lose their legal status. Studies by the Research, Planning and Economy Administration at the Ministry of Trade and Industry 1 (Ronny Bar-Tsuri and Yoram Ida) indicate that the main cause for migrant workers’ loss of legal status is not their overstaying the license period or working outside the original sector, but their leaving their employers due to substandard conditions and/or salary withholding. • Lax or non-existent enforcement of protective labor laws and against criminal conduct against migrant workers (violence, imprisonment, confiscation of documents, and threats). The lack of enforcement enables employers to abuse migrant workers blatantly, and without fear of penalty. • The “revolving door” policy – massive deportation of workers having lost their work permits, alongside the massive introduction of new workers. It is important to note that according to the data of the Central Bureau of Statistics, the number of deported workers has, in all years to date, been smaller than the number of workers brought into Israel legally with work permits. The policy described above has been recognized by the U.S. Department of State, UN bodies and the Israeli Supreme Court as a type of enslavement and trafficking in persons.
1

Yoram Ida, “The Factors Affecting Foreign Workers’ Transition to Illegal Employment”, November 2004, http://www.moital.gov.il/NR/rdonlyres/8C9F809F-85AB-4ABF-BF36F58EB8FB33BE/0/X6038.pdf, and Ronny Bar-Tsuri, “Chinese Workers Employed in Israel Without a Permit”, June 2005, http://www.moital.gov.il/NR/rdonlyres/AA7184E8-48EE-49D99689-8705BA96C30D/0/X6538.pdf.

3 In view of this situation, the State of Israel has to accept the following principles: • In Israel, as in other Western countries, labor migration is not a temporary phenomenon. The policy must propose long-term solutions for labor migration. • Migrant workers were invited to Israel in order to meet an economic need. Their treatment should derive from their important contribution to the growth of the Israeli economy. • Migrant workers are human beings for all intents and purposes, and are not to be treated as working tools. Being human beings, there can be no waiver, not even temporary, of their basic human rights.

The argument whereby migrant workers cause unemployment is demagogic and unfounded. Its objective is to eliminate governmental responsibility for unemployment. A study by the Research, Planning and Economy Administration at the Ministry of Trade and Industry2 (Shmuel Amir and Daniel Gottlieb) demonstrates that the entry of hundreds of thousands of migrant workers to Israel over the 1990s accounts for only a marginal percentage of the scope of unemployment. Obviously, each and every unemployed person is a world unto himself, but the figures demonstrate that the blame cannot be placed upon migrant workers, particularly in view of the economic need for migrant workers, declared by the State time and again. • Conversely, the exploitation and oppression of migrant workers erodes the salaries of Israeli workers, and ousts them from certain employment sectors. Ensuring fair employment conditions for migrant workers would enable fair competition between Israelis and immigrants (in which Israelis have “home court” advantage), and protect both groups as one. The principles proposed below do not seek to intervene in the State’s considerations in the determination of sectors or quotas, but assume that, in varying sectors and scopes, labor migration to Israel will continue over time. Consequently, the State of Israel has to take the following steps in order to ensure that the employment of migrant workers, in all phases thereof (recruitment in the country of origin, arrival, residence and return to the country of origin), does not violate human rights, extends proper and fair treatment to migrant workers, and protects Israeli workers against unruly competition and wrongful employment practices.

Principles for the Arrangement of the Employment of Migrant Workers in Israel International and Bi-Lateral Agreements with Countries of Origin The State of Israel is interested in introducing migrant workers into certain sectors in order to boost the domestic economy. The countries of origin are interested in having their residents work overseas as a means for the introduction of foreign currency and the reduction of the rate of unemployment. Herefrom derive the duties of both the State of Israel, which invites workers, and of the countries of origin, interested in sending workers, to respect the workers and their rights, and to grant them support on the basis of mutual cooperation. Recommendations

1.
2

The State of Israel, which constitutes a destination for migrant workers, has the duty to sign international conventions aimed at protecting migrant workers.
Shmuel Amir and Daniel Gottlieb, “The Entry of Foreigners and the Ousting of Locals from Employment in Israel”, June 2005, http://www.moital.gov.il/NR/rdonlyres/046863F8-7A024F1A-8172-E496672C9257/0/knisatzarim.pdf.

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2.

The State of Israel has to sign bi-lateral agreements with countries of origin, in order to regulate the residence of migrant workers and grant them protection at the stages of both recruitment and arrival, and of return to the country of origin.

3. 4.

Work licenses shall be issued only to migrant workers from countries with which Israel shall have bi-lateral agreements. Israel shall sign bi-lateral agreements with countries that meet minimal criteria, including the satisfactory protection of workers’ rights; the countries’ being a party to relevant treaties; the countries’ subjection to supervision and control by international bodies (such as UN bodies and NGOs); the degree of cooperation demonstrated by those countries with the country of destination and international bodies in the protection of workers. Combating the Collection of Brokerage Fees and the Detrimental Involvement of Middlemen It is universally known that migrant workers are charged a high brokerage fee, at the rate of thousands of dollars, with very high (extortionate) interest rates, starting from the phase of recruitment in the country of origin, through the phase of arrival and placement, and often also in the transition to a new employer, during their term of legal residence in Israel. Considering the accepted salary levels in the countries of origin, the brokerage fees constitute an unbearable economic burden for migrant workers, rendering them an easy target for exploitation and abuse by brokerage companies and employers, and creating patterns of bondage, which serve as a basis for trafficking in persons. Migrant workers’ dependency upon their long-term employment in Israel in order to repay the loans they had taken in their countries of origin in order to pay the brokerage fees, enslaves them to their employers, even if they did not actually partake in the receipt of the brokerage fees. Such debts drive workers to seek illegal employment in order to increase their income and meet the interest payments. As aforesaid, Israel has a duty to combat the brokerage-fee collection phenomenon, both in the countries of origin and in its own territory. Recommendations:

5.

Cooperation with the countries of origin in order to prevent the collection of brokerage fees and the remittance thereof to Israel, using the currently-existing means for the prevention of money laundering.

6.

The recruitment and classification of workers in the countries of origin shall be performed by governmental bodies, international bodies, or representatives from the Israeli embassies, but not by business entities. In the event of a need to charge a fee for such service from the migrant workers, the amount of the fee will be reasonable in terms of the country of origin, and the manner of payment will be determined with full transparency.

7.

In order to prevent the involvement of brokerage companies in the classification process, with brokerage fees collected ‘under the table’, the following steps shall be taken:

a.

The work-seeker shall be required to approach the classifying body in person, without any middlemen. The various registration forms shall be handed out to applicants only. The process of receipt of the work license at the embassies shall be performed vis-à-vis the work-seeker in person, and not vis-à-vis any broker or manpower company.

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b.

Information about employment opportunities in Israel shall be given out to any person, free of charge and without any bureaucratic process (such as by periodic lectures, open to work-seekers, or leaflets easily-obtainable at public places).

c.

The recruitment and classification process will be simple, and the forms written in clear language, such that no middleman’s assistance shall be required in order to fill them out. If the work-seeker shall require assistance in filling out the forms, such assistance shall be rendered to him free of charge by the classifying body.

d.

In order to prevent bribery, if work-seekers’ applications exceed the entry quotas, it shall be clarified to work-seekers that the choice among them will be based on a lottery.

e.

The criteria for the screening of candidates shall be determined so as not to produce “cash cows” in the countries of origin (such as expensive professional training offering worthless titles).

8.

A preparatory workshop of several hours (free of charge) shall be given to all migrant workers before departing for Israel, at which they shall be afforded the opportunity to ask questions and receive explanations.

9.

Each migrant worker shall receive a detailed ‘rights sheet’ in his country of origin, written in simple and clear language. The rights sheet shall include referrals to enforcement agencies and help organizations. Prevention of the ‘Revolving Door’ and Violation of Workers’ Rights Since brokerage fees are a primary motive for bringing migrant workers, the bodies bringing the workers have an interest in increasing their rate of substitution. A high substitution rate prevents workers from repaying the loans they had taken, thus dealing them a critical blow. The two tools for accelerating the rate of substitution are the legal mechanism that turns workers having come to Israel to work legally into illegal residents, and an enforcement mechanism that hastens to deport them. The threat of deportation and loss of legal status enable a violation of the rights of workers, who depend on the employer’s graces. In addition to the injury to migrant workers, entire employment sectors become inaccessible to Israeli workers. Recommendations:

10.

The authority to issue residence and work permits shall be transferred from the Ministry of the Interior to the Ministry of Trade and Industry, or to a body which will concentrate the handling of migrant workers (as, in practice, the authority to issue permits to Palestinians to work and reside in Israel has been transferred to a single body). The Ministry of the Interior lacks the economic viewpoint required to shape procedures on the matter, since it is not familiar with the contribution of migrant workers to the market and the economic importance of protecting their rights.

11.

The migrant workers’ residence permit will not be conditioned upon the work license, and will be issued in advance for the maximum period in which the State will allow the immigrant to work in its territory. A worker shall be entitled to seek legal employment freely, without being subject to the threat of deportation during periods of unemployment. A breach of the terms of the work license will not be deemed as a breach of the residence permit. The limited renewal of the residence permit and work license are nothing but another tool enabling the

6 revolving door. The supervision over the employment of migrant workers may be performed via the mechanism which will monitor their work licenses. 12. Workers will be entirely free to work for any employer, subject to the quotas and sectorial restrictions determined by the State, and to freely transition among employers entitled to employ migrant workers.

13.

The licensing process shall not be performed individually per employer, and the employment of migrant workers shall not be limited to several employers or placement agencies. Experience shows that employer-licensing processes are tainted by corruption and arbitrariness. Moreover, restricting employment approvals to certain employers confers upon them excessive power relative to the migrant workers, leads to cartelization, and allows for severe abuse and aggravation of working conditions relative to the rest of the labor market. To this is added the injury to workers’ rights which derives from the reduction or revocation of employers’ licenses. The State can limit migrant workers to working for employers who meet clear and transparent professional criteria (such as registered contractors, persons with national insurance entitlement, etc.

14.

Migrant workers will be able to look for work via private agencies, the National Employment Service and databases or placement services of their embassies (if any). The cost of placement in Israel shall be charged only to employers. The ability of workers to approach a variety of different sources in order to seek work will afford them genuine mobility and protection of their rights. It will also allow for the preservation of salary levels and competition by Israeli workers. The Employment Service shall cooperate with embassies to provide services to migrant workers.

15.

Quotas will not be cut down in a manner which will force migrant workers already in Israel to leave before expiration of their anticipated term of employment. Such cutbacks prevent workers from repaying the loans they had taken in order to work in Israel, and drastically violate their rights.

16.

The State shall prefer the placement of migrant workers already in Israel over the introduction of new workers from overseas. If vacant work licenses are still available after the present population has been exhausted, such licenses shall first be offered to persons already in Israel as tourists, to persons in the process of seeking asylum or refugee-status, and to persons having had refugee-status. Only after exhaustion of the foregoing populations, shall new workers be recruited from overseas. The only interest in bringing new workers from overseas in lieu of using local workers is the collection of high brokerage fees by brokers and employers.

17.

Enforcement mechanisms shall concentrate on employers rather than on workers in order to prevent unlawful employment and employment under illegal conditions. Deterrence of employers (i.e., deterrence of the “demand”) is more effective and more just than deterring workers, since the workers are both unfamiliar with the laws of the State and subject to more severe financial constraints. Enforcement that focuses on workers is a clear recipe for a “revolving door”.

18.

Quotas for arrest and deportation of migrant workers shall be cancelled. Such quotas encourage authorities to deport indiscriminately and create a “revolving door”.

19.

A transparent and graded process for the cautioning and penalization of migrant workers for a breach of the terms of their work license shall be held, subject to suitably-authorized judicial review. Arrest and deportation cannot be the immediate and chief solution for any event of breach of the terms of a working

7 license. It must be understood that migrant workers are not always able to discern the legal fine points of the possibilities available to them. Therefore, non-serial offenders, and workers having deviated slightly from the terms of their permit, should be cautioned and/or fined. The nature of the offense committed by the worker shall be made clear to him in a document written in his own language.

20.

No responsibility shall be imposed on employers to ensure the departure of migrant workers having lost their employment license or exhausted their permissible residence period. Employers are not enforcement agencies, and have no right to force a person to leave the country.

21.

The rights of migrant workers having been arrested due to illegal residence or a breach of the terms of their working license, in the context of proceedings for review of the arrest and accessibility to the legal process, shall be entirely identical to those of persons arrested in a criminal proceeding, including the right to free representation, translation services, and noncollection of fees for legal proceedings, in order to avoid unnecessary deportation and the operation of a “revolving door”.

22.

The State shall establish bodies which shall render direct services to migrant workers whose rights have been violated, while ensuring linguistic accessibility, orderly opening hours and telephone service, and comprehensive enforcement powers over all the relevant factors (employers, residence permits and working licenses, arrest and deportation). Equation of Migrant Workers’ and Israeli Workers’ Conditions There are two reasons for full equation of conditions. The first is the prohibition on discrimination fixed in international conventions, including ILO No. 97. The second is to prevent the deterioration of employment conditions in certain sectors, which harms migrant workers and leads to the ousting of Israeli workers. The equation of conditions must be substantive, and not merely formal, and must take into account the weakened status of migrant workers.

23.

Pension insurance shall apply to migrant workers according to the same conditions applicable to Israeli workers, via pension funds (other than the fine imposed on premature redemption). If the countries of origin offer pension insurance, insurance continuity shall be maintained through the bi-lateral agreements.

24.

Absolute equation of conditions as between migrant workers and Israeli workers with respect to national insurance, including unemployment insurance, shall be ensured. 25. The application of all labor laws and expansion orders to migrant workers shall be ensured, including the adjustment of clauses in the expansion orders pertaining to seniority grading for migrant workers.

26.

The creation of closed, migrant-worker labor markets shall be prevented, while prohibiting special taxation and other discriminatory conditions. The equation of employment costs shall be performed by the strict enforcement of full equality of rights as between migrant and Israeli workers, including, if necessary, the determination of a salary threshold no lower than the accepted salary for Israeli workers in the industry. Special taxation on the employment of migrant workers creates an incentive for the State to bring in migrant workers, also when the interests of migrant workers and of Israeli workers are prejudiced. In addition, experience shows that the means for ensuring the collection of such taxes distort the considerations for the construction of employment arrangements.

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27.

The State shall take steps to prevent the creation of cartels among employers or placement agencies, and will ensure competition over workers’ employment conditions. In the absence of such steps, both migrant workers and Israeli workers seeking to enter migrant workers’ fields of employment are harmed. Equation of the Human Rights and Civil Rights of Migrant and Israeli Workers Migrant workers are first and foremost human beings, and should not be treated as a commodity or as a mere instrument for economic development. The State may not ignore migrant workers’ needs and fundamental rights as human beings. Any person worthy of integrating in the local economy is worthy of integrating in the local society. Any concept to the contrary is racist, exploitative and intolerable.

28.

The human rights and social rights of migrant workers and Israelis shall be substantively, and not merely formally, equated, particularly with respect to education, religion, welfare, the right to legal representation and assistance and the right of association. The creation of ghettos of ignorance and poverty harms not only migrant workers, but is also damaging to the Israeli civil society. The existence of religious and community institutions and workers’ organizations are essential not only for the protection of migrant workers, but also in order to enable a dialogue between workers and the authorities.

29.

The National Health Insurance Law shall apply to migrant workers during their term of residence in Israel. Health insurance fees shall be collected from salaries, and services shall be rendered through the health funds [kupot holim]. Issues of insurance continuity and ensuring the propriety of migrant workers’ health examinations in countries of origin will be coordinated with the countries of origin in bi-lateral agreements. 30. There shall be no discrimination among work-seekers on the basis of family status. In particular, a person shall not be denied a residence permit and/or a work license due to a change in his or her family status (such as marriage or childbirth), or due to the presence of relatives in Israel. In addition, the State cannot ignore, over time, a person’s right to live in the company of his or her family.

31.

A person whom the State has deemed fit to allow to legally reside therein over time, shall not be denied access to residence and citizenship by the State, in the event that Israel has become his or her actual life center. A person’s contribution to the economy of the State entitles him also to integrate into its civil fabric. Process of Return to the Country of Origin The State of Israel’s responsibility to migrant workers does not end upon expiration of the migrant worker’s term of employment. The State of Israel and the country of origin must ensure an orderly process of repatriation, and help the worker re-integrate in his country of origin. The deportation of migrant workers must be an exceptional proceeding, and must take into account that illegal residents and violators of working license conditions are not criminals.

32.

The State of Israel shall establish a mechanism to assist migrant workers return to their countries of origin. The mechanism will handle issues such as ensuring the exhaustion of the worker’s rights and legal proceedings, the exercise of pension rights, pension continuity and insurance continuity (in accordance with the bi-lateral agreements). The mechanism will assist both workers leaving legally, and those deported by the State.

9 33. The country of origin shall establish a parallel mechanism to ensure, if necessary, the continued handling of issues mentioned in the previous section, and to assist workers in re-integrating in their countries of origin.

34.

The State shall determine criteria and allow discretion to enable a limited extension of residence permits and work licenses in order to ensure workers’ welfare, such as for the conclusion of legal proceedings, a child’s school year or medical treatment. 35. Migrant workers whose return to their countries of origin jeopardizes their lives or welfare, as determined in international conventions, shall not be forced to leave the State of Israel without a suitable solution.

36.

An illegal resident who cannot be deported by the State for whatever reason (such as a stay-of-exit order, lack of certificates, health condition, etc.) will not be kept in custody for the purpose of deportation for longer than a short and limited period of time.

37.

Illegal residents are not criminals. They shall not be kept in custody in the company of criminals and criminal detainees. However, the State shall not derogate from their rights relative to the rights of other detainees if they are arrested, particularly with respect to the right to file a prisoner’s petition.

Hanne Zohar, Director Kav LaOved

Oded Feller, Adv. The Association for Civil Rights in Israel

Shevy Corzan, CEO Hotline for Migrant Workers

Ran Cohen, Migrant Workers & Refugees Project Director Physicians For Human Rights Israel Dr. Yossi Dahan, Chairperson Adva Center

Itai Swirksi, Adv. The Law and Welfare Program

Gili Rei, CEO Commitment to Peace and Social Justice

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