Today, millions of people around the world migrate in search of work to sustain their livelihoods. Migrant workers encounter a multiplicity of vulnerabilities and challenges in their country of destination, including access to social protection. Access is hindered by migration, (un)employment, residency, and most pertinently, citizenship status (Fornalé, 2017). What’s more, due to absence from their country of origin, migrant workers are faced with the risk of losing social security benefits at home (ILO/IOM/OSCE, 2007).
Barriers in accessing social protection
Migrants face numerous barriers to accessing social protection, including (Panhuys et al., 2017):
- The principle of territoriality
- The principle of nationality
- Lack of coordination or bilateral agreements
The European Economic and Social Committee (EESC) has noted that certain categories of migrant face even greater restrictions in accessing social protection (Fornalé, 2017). Temporary and seasonal jobs, such as those in the agricultural or fishing sectors, are examples of occupations that experience heightened vulnerability (Panhuys et al., 2017).
Bilateral Labour Agreements and Memoranda of Understanding
Bilateral labour agreements (BLA) and memoranda of understanding (MOU) have become popular tools in the protection of migrant workers to address the challenges of ensuring social protection accessibility (Wickramasekara, 2015). The International Labour Organization (ILO) has recognised BLAs and MOUs as good practice in the governance of labour migration (Wickramasekara and Ruhunage, 2018).
BLAs describe the responsibilities and actions to be undertaken by each of the parties involved in order to accomplish their goals. It is important to note that BLAs impart legally binding rights and obligations. An MOU is a general agreement for cooperation between states. Unlike BLAs, which are more detailed and specific, MOUs are characterised by a broader framework, describing common goals and plans between parties. They are generally not legally binding (Wickramasekara and Ruhunage, 2018).
Although principally aimed at regulating the employment relationship of migrant workers, BLAs and MOUs have notable potential to minimise the vulnerability and precariousness of workers abroad, particularly with regards to social protection. This can be achieved by including specific reference to social protection terms and provisions (Panhuys et al., 2017).
The main reasons governments negotiate and establish BLAs includes the following considerations (ILO/IOM/OSCE, 2007):
- The economy: The country of destination may benefit from workers in sectors where there are shortages. Likewise, the migrant and country of origin may benefit from higher earnings and remittances.
- Politics: BLAs can be driven by political reasons, such as the reduction of irregular migration.
- Development: Agreements may be sought to prevent adverse international recruitment in certain sectors.
Incentives to the governance of labour migration
BLAs can be a tool for better governance of labour migration in a triple win scenario: Benefiting both the sending and destination countries, as well as the migrant workers themselves. Moreover, it can be a means for the sending country to make sure that migrant workers obtain work, and adequate employment arrangements, in addition to ensuring that they are covered by social protection (ILO/IOM/OSCE, 2007).
The terms of BLAs negotiated and established by states can vary to a great extent. Nevertheless, there are several characteristics that agreements may share in common. An example is that the country of destination provides protection for migrant workers from mistreatment in their employment and ensuring access to health care. The country of origin, on the other hand, may comply by controlling migration flow. While both countries, sending and receiving, generally agree to monitoring workers (Chilton and Posner, 2017).
OECD countries alone have established more than 170 BLAs (ILO/IOM/OSCE, 2007). Additionally, according to the ILO, the country of origin with the most BLAs in place is the Philippines, with a total of 13 (ILO, 2019). An example of an agreement that includes specific provisions for social protection is the Canada Seasonal Agricultural Workers Program (SAWP) with Mexico. This BLA specifically provides temporary workers in the agricultural sector with partial social protection coverage, guaranteeing access to social security and healthcare (Panhuys et al., 2017).
Challenges to implementation: Monitoring and inclusion
Although BLAs and MOUs have the potential to play a vital role in ensuring that migrant workers have access to social protection while they are abroad, and to contribute to a triple win situation for all parties involved, they are far from ideal. According to the ILO, BLAs require adequate administration and monitoring to ensure the provisions are put in to practice effectively. Such monitoring is generally poor, with greater attention paid to terms of recruitment rather than the protection and welfare of migrant workers (ILO, 2019).
Furthermore, not all BLAs and MOUs address the social protection of migrant workers in their provisions on social security. Research carried out by the ILO in 2015, which analysed 144 BLAs, revealed that only 30% addressed social security (Panhuys et al., 2017). Therefore, to reduce the vulnerability of migrant workers, in addition to targeting the regulation of employment and recruitment, governments should also consider addressing specific provisions for the social protection of migrant workers (Panhuys et al. 2017).
Chilton, A. S. and Posner, E. A. (2017). Why countries sign bilateral labor agreements, Coase-Sandor institute for law and economics working paper n. 807, The University of Chicago law school, p 51. Accessible: https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2497&context=law_and_economics
Fornalé, E. (2017). Global-regional interaction to extend access to social protection for migrant workers: insights from ASEAN and MERCOSUR, International social security review, V. 70, N. 3. pp. 31-52. Accessible: https://onlinelibrary.wiley.com/doi/abs/10.1111/issr.12140
ILO (2019). Bilateral agreements and regional cooperation. Accessible: https://www.ilo.org/asia/areas/labour-migration/WCMS_226300/lang--en/index.htm
ILO/IOM/OSCE (2007). Handbook on establishing effective labour migration policies in countries of origin and destination, International Labour Organization, International Organization for Migration, Organization for Security and Co-operation in Europe. 248p. Accessible: https://www.osce.org/secretariat/19242
Kulke, U. (2006). Filling the gap of social security for migrant workers: ILO’s strategy, International Labour Organization. 36p. Accessible: https://www.social-protection.org/gimi/gess/ShowRessource.action?ressource.ressourceId=1490
Panhuys, C. et al. (2017). Migrant access to social protection under bilateral labour agreements: a review of 120 countries and nine bilateral arrangements, ESS - working paper n. 57, International Labour Organization. 54p. Accessible: https://www.social-protection.org/gimi/gess/RessourcePDF.action?ressource.ressourceId=54405
Wickramasekara, P. and Ruhunage, L. K. (2018). Good practices and provisions in multilateral and bilateral labour agreements and memoranda of understanding, International Labour Organization. 92p. Accessible: https://www.researchgate.net/publication/330933589_Research_report_on_good_practices_and_provisions_in_multilateral_and_bilateral_labour_agreements_and_memoranda_of_understanding
Wickramasekara, P. (2015). Bilateral agreements and memoranda of understanding on migration of low skilled workers: a review, International Labour Office – Geneva, ILO. 64p. Accessible: https://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---migrant/documents/publication/wcms_385582.pdf