The aggressive military invasion of Putin in Ukraine has shocked us all deeply. While many of us are offering practical, first needs hands-on assistance for the many refugees making their way to safety in Poland. But what follows when they are safely here? What are their rights, especially with regard to work.
The European Union has condemned the military aggression perpetrated by Russia against Ukraine and called for a cease of hostilities, a withdrawal of Russia’s military from Ukraine and to respect the territorial integrity, sovereignty and independence of Ukraine. This has been followed by unprecedented support to Ukraine by financing the purchase and delivery of weapons and other materials to Ukraine and, among others sanctions against Russia by shutting down the EU airspace for Russians and by banning Kremlin’s media machine in the EU. Furthermore, the EU has been fast with the activation of article 5 of the Temporary Protection Directive 2001/55/EC of 20 July 2001, based on which people that are fleeing from the war will be granted temporary protection in the EU. A directive adopted on the basis of this provision enables a smoother migration regime, which will allow Member States ‘to manage the flows of displaced persons fleeing from Ukraine in a controlled and effective way, with full respect for fundamental rights and international obligations’ (proposal for a Council Implementing Decision, COM(2022) 91).
To manage the flow of refugees from Ukraine, the Commission coordinates a Solidarity Platform where Member States can exchange information about reception capacity. The activities of the Solidarity Platform will take place under the Migration Preparedness and Crisis Management Network, which is supposed to be in accordance with Commission Recommendation (EU) 2020/1366 of 23 September 2020 on an EU mechanism for preparedness and management of crises related to migration. The temporary protection entitles the refugees from Ukraine to harmonised rights across the Union, including a residence permit, access to education (for persons under 18), the labour market, housing, social welfare assistance, medical or other assistance, and means of subsistence.
With the number of refugees already above 1 million at the time of writing this blog and expected to rise to about 5 million, one can imagine that it is a huge challenge to ensure that all these people can enjoy their entitlements. The procedural side to manage the refugee flows is worked out in a Migration Preparedness and Crisis Blueprint (Annexed to Commission Recommendation (EU) 2020/1366). However, all these guidelines, platforms, and the blueprint, hold no information on how to ensure that the large flow of refugees can also enjoy their entitlements, among others, access to the labour market. For the latter we have to turn to the United Nations and its specialized organization, the International Labour Organization (ILO).
Based on the UN’s 1951 Refugee Convention and the 1967 Protocol relating to the Status of Refugees, refugees have the right to engage in wage-earning employment (Art. 17 Protocol), to self-employment (Art. 18 Protocol), or to practice a liberal profession (Art. 19 Protocol). When exercising these rights, the refugees should be treated as favourable as possible, however, ‘in any event, not less favourable than that accorded to aliens generally in the same circumstances.’ Poland acceded to the 1951 Convention and 1967 Protocol relating to the Status of Refugees on 27 September 1991.
The ILO takes it one step further and provides a normative framework for the inclusion of refugees in the labour market. The main instrument is the in 2017 adopted Recommendation 205 on Employment and Decent Work for Peace and Resilience (R205), which is a revision of the in 1944 adopted Recommendation 71 on Employment (Transition from War to Peace) (R71). The revision was needed to broaden the scope and to provide up-to-date guidance on the role of employment and decent work in ‘prevention, recovery, peace, and resilience with respect to crisis situations arising from both conflicts and disasters’ (preamble R205). For the ILO to deal with conflict is rather natural considering the fact that the organization itself was established after the first world war in 1919 with the idea that peace can only be achieved if it is based on social justice (La Hovary 2022, 275). While ‘disaster’ and ‘resilience’ are defined in R205, no definition can be found concerning ‘conflict’. However, from the travaux préparatoires, we can understand that it refers to conflicts in their broadest sense, both international and non-international as well as armed and non-armed (R205 expands R71 which was limited to international conflicts). Furthermore, many disasters can result into conflict situations. For example, natural disasters such as drought, earthquakes, cyclones may create conflicts over resources or provoke (internal) displacements of people that may breed conflicts (La Hovary 2022, 276).
The term ‘resilience’ in R205 refers to ‘the ability of a system, community or society exposed to hazards to resist, absorb, accommodate, adapt to, transform and recover from the effects of a hazard in a timely and efficient manner’ (par. 2(b) R205). As emphasized by R205, the world of work has important contributions to make in this regard. In general terms, from an ILO perspective, resilience is about promoting employment and decent work by fostering a healthy social dialogue that breeds inclusive societies; such a society offers socioeconomic and political stability, which in turn is the basis for sustainable development – and such development is the basis for decent work. One typical example of building a resilient society is through strengthening its social protection systems or its social dialogue institutions, including workers’ organizations In the current situation of the war in Ukraine, ‘resilience’ can be taken in two ways: the ability of Ukraine to deal with the manyfold hazards the war is exposing it to; and the ability of the EU, and Poland in particular, to absorb, accommodate, and adapt to the integration of a huge flow of people into its society and labour market.
Although, most international labour standards, such as the abolition of forced labour and child labour, equal treatment, occupational health and safety, encompass specific provisions for refugees when appropriate, R205 holds a set of special guidelines in part XI Refugees and returnees. The guidelines, worked out in paras 28-36 are in the annex to this Blog. As to be expected, these guidelines are not prescribing how refugees are to be integrated in the labour market, indeed they recognize that such depends on national and regional circumstances, resources and capacities. Instead, it is indicated what needs to be ensured, offered, and taken into account. This includes:
- taking into account applicable international law, fundamental principles and rights at work and national legislation (par. 28(a)); and
- ensure equal treatment (following from part IV), access to education and vocational training (as provided for in part VI), and ensure income security, access to health care and other basic social services (following from part VII).
To realise the goals of R205, it suggests two strategic approaches. The first, in par. 8, suggests that Member States should ‘adopt a phased multi-track approach implementing coherent and comprehensive strategies for promoting peace, preventing crises, enabling recovery and building resilience’. Par. 8 includes twelve of such tracks, including:
(c) promoting sustainable employment and decent work, social protection and social inclusion, sustainable development, the creation of sustainable enterprises […];
(d) ensuring consultation and encouraging active participation of employers’ and workers’ organizations in planning, implementing and monitoring measures for recovery and resilience […];
(g) applying a gender perspective in all crisis prevention and response design, implementation, monitoring and evaluation activities; and
(i) promoting social dialogue and collective bargaining.
The second strategic approach is found in par. 9, which deals with crisis response in the immediate aftermath of a conflict. These five responses include:
(a) a coordinated and inclusive needs assessment with a clear gender perspective;
(b) an urgent response to satisfy basic needs and provide services, including social protection, support to livelihoods, immediate employment measures and income-generation opportunities […]; and
(d) safe and decent working conditions, including the provision of personal protective equipment and medical assistance for all workers, including those engaged in rescue and rehabilitation activities.
Many of these strategic approaches are part of the EU’s
policies, therefore it could be expected that EU Member States have a certain
level of “resilience” to enable them to cope with the flux of refugees that are
currently coming from Ukraine. Especially in combination with the activation of
article 5 of the Temporary Protection Directive 2001/55/EC of 20 July 2001,
which should considerably lower the administrative burden migrants (workers) normally
have to face and enable the Member States to include them in their societies
more smoothly. Nonetheless, dealing with over one million refugees that have
entered just Poland in about a week, and with the number of refugees still rising,
one may wonder if it is possible to ever be truly “resilient” for such a huge
Annex R205 Part XI. Refugees and returnees, section ‘Refugee access to labour markets’
28. Any measures taken under this Part, in the event of refugee influx, are contingent on:
- (a) national and regional circumstances, taking into account applicable international law, fundamental principles and rights at work and national legislation; and
- (b) Members’ challenges and constraints in terms of their resources and capacity to respond effectively, taking into account needs as well as priorities expressed by the most representative organizations of employers and workers.
29. Members should acknowledge the vital importance of equitable burden- and responsibility-sharing. They should reinforce international cooperation and solidarity so as to provide predictable, sustainable and adequate humanitarian and development assistance to support the least developed and developing countries hosting large numbers of refugees, including in terms of addressing the implications for their labour markets and ensuring their continued development.
30. Members should take measures, as appropriate, to:
- (a) foster self-reliance by expanding opportunities for refugees to access livelihood opportunities and labour markets, without discriminating among refugees and in a manner which also supports host communities; and
- (b) formulate national policy and national action plans, involving competent authorities responsible for employment and labour and in consultation with employers’ and workers’ organizations, to ensure the protection of refugees in the labour market, including with regard to access to decent work and livelihood opportunities.
31. Members should collect reliable information to assess the impact of refugees on labour markets and the needs of the existing labour force and of employers, in order to optimize the use of skills and human capital that refugees represent.
32. Members should build the resilience and strengthen the capacity of host communities by investing in local economies and promoting full, productive, freely chosen employment and decent work, and skills development of the local population.
33. Consistent with the guidance provided in Parts IV, VI and VII, Members should include refugees in the actions taken with respect to employment, training and labour market access, as appropriate, and in particular:
(a) promote their access to technical and vocational training, in particular through ILO and relevant stakeholder programmes, in order to enhance their skills and enable them to undergo further retraining, taking into account possible voluntary repatriation;
(b) promote their access to formal job opportunities, income-generation schemes and entrepreneurship, by providing vocational training and guidance, job placement assistance, and access to work permits, as appropriate, thereby preventing informalization of labour markets in host communities;
(c) facilitate the recognition, certification, accreditation and use of skills and qualifications of refugees through appropriate mechanisms, and provide access to tailored training and retraining opportunities, including intensive language training;
(d) enhance the capacity of public employment services and improve cooperation with other providers of services, including private employment agencies, to support the access of refugees to the labour market;
(e) make specific efforts to support the inclusion in labour markets of refugee women, young persons and others who are in a situation of vulnerability; and
(f) facilitate, as appropriate, the portability of work-related and social security benefit entitlements, including pensions, in accordance with the national provisions of the host country.
34. Consistent with the guidance provided in Parts V, VIII and IX, Members should promote equality of opportunity and treatment for refugees with regard to fundamental principles and rights at work and coverage under relevant labour laws and regulations, and in particular:
(a) educate refugees about their labour rights and protections, including by providing information on the rights and obligations of workers and the means of redress for violations, in a language they understand;
(b) enable the participation of refugees in representative organizations of employers and workers; and
(c) adopt appropriate measures, including legislative measures and campaigns, that combat discrimination and xenophobia in the workplace and highlight the positive contributions of refugees, with the active engagement of employers’ and workers’ organizations and of civil society.
35. Members should consult and engage employers’ and workers’ organizations and other relevant stakeholders with respect to the access of refugees to labour markets.
36. Members should support host countries to strengthen their capacity and build resilience, including through development assistance, by investing in local communities.
Courtesy of: Prof. Beryl ter Haar