Consultancy – Call for Applications Terms of Reference ” Legal Policy Paper on the need for a Model Law on Labour Migration in Africa”

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International Labour Organization

Consultancy – Call for Applications

Terms of Reference

Legal Policy Paper on the need for a Model Law on Labour Migration in Africa

Background and context

The Southern Africa Migration Management (SAMM) project is modelled as a One-UN approach. It results from a collaborative effort between four UN Agencies with a development and/or humanitarian mandate: the International Labour Organization (ILO), the International Organization for Migration (IOM), the United Nations Office on Drugs and Crime (UNODC) and the United Nations High Commissioner for Refugees (UNHCR). The (SAMM) project forms part of the European Union Regional Indicative Programme (11th EDF RIP) for Eastern Africa, Southern Africa, and the Indian Ocean (2014–2020), which includes among its objectives the facilitation of safe, orderly, and regular migration and the prevention of irregular migration. It focuses on South-South migration flows, identifying positive spillover effects of international migration on regional integration and regional economic development.

Its overall objective is to improve migration management in Southern Africa and the Indian Ocean region, guided by, and contributing to, the realisation of the 2030 Development Agenda (Sustainable Goals 8 and 10).

It is comprised of two main project components: 1. Labour Migration and 2. Mixed Migration. The first component supports the implementation of the UN Global Compact on Safe, Orderly and Regular Migration (GCM) and the second one that of the UN Global Compact on Refugees (GCR), in addition to the GCM.

Regional Economic Communities (RECs) are key stakeholders in SAMM’s implementation. One of SAMM’s key project priorities is to support the formulation and realisation of International Labour Migration and Mixed Migration Frameworks of: i) the Common Market for Eastern and Southern Africa (COMESA), ii) the Southern African Development Community (SADC) and; iii) the Indian Ocean Commission (IOC).

The project focuses on the Southern African Region. It targets the following 16 SADC countries: Angola, Botswana, Comoros, the Democratic Republic of the Congo (DRC), Eswatini, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Tanzania, Zambia, and Zimbabwe.

One major component of the SAMM project’s support to Migration Management in SADC is the capacity building and technical support to Member States on International Labour Standards. One of the activities of the SAMM project is the production of a continental Model Labour Migration Law in which the gender dimensions of labour migration will be adequately taken into account. The aim of this consultancy is to support this activity.

Work under this consultancy is linked to SAMM’s Workplan as follows:

Output 1.5.3. Policies and legislation in the Member States (MS) reviewed and formulated in line with International Labour Standards, African Union Migration Policy Framework and Joint Labour Migration Programme, and RECs existing Labour Migration Policy Framework, particularly:

  • Activity 1.5.3.4. Develop material tools for Standard ratification

Technical Context (Global and at the SADC level)

In principle, all international labour standards, unless otherwise stated, are applicable to migrant workers. More specifically, the protection of migrant workers and their families is firmly rooted in ILO Migration for Employment Convention (Revised), 1949 (No. 97); Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143); and, the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) adopted in 1990 by the United Nations General Assembly.

Lack of labour protection for migrant workers undermines protection generally for all workers. In order to ensure an effective protection of migrant workers, the ILO and partner institutions need to continue strengthening their work on improving labour migration legislation at the country, RECs and continental level. At the same time, they should continue advancing work on advocating for the ratification and effective implementation of ILO Migrant Workers’ Conventions in Southern Africa.

The outcome of the discussion by the Committee on the Application of Standards of the General Survey concerning the migrant workers instruments stated the following: “the Office should undertake an awareness-raising and implementation campaign on Conventions Nos 97 and 143 and Recommendations Nos 86 and 151…. Such an awareness-raising campaign should include tools to assist member States which have ratified the instruments in working towards their full implementation, as well as to assist other member States that express an interest in the possibility of ratifying the instruments”[1].

Relevant ILO and UN Labour Migration Conventions, and regional Protocols in the SADC region with ratifications are as follows:

Relevant Policy Frameworks:

Support for the two specific ILO International Labour Standards on Labour Migration in Southern Africa has been tepid (Table below). Six SADC countries have ratified C.97. C.143 has only been ratified by two countries, Comoros and Madagascar, and they are furthermore the only two SADC countries to have ratified both conventions (in 2001 and 2019 respectively). Moreover, it is to be noted that while the United Republic of Tanzania, composed of both Tanzania Mainland and of Zanzibar, has not ratified any of the two Migrant Workers Conventions, Zanzibar has ratified ILO C. 97. There is thus a discrepancy within the country regarding labour migration.

In addition, it is important to mention that the Private Employment Agencies Convention has only been ratified by two SADC countries (Zambia, Madagascar) and four countries of the region have ratified the Domestic Workers Convention (Madagascar, Mauritius, Namibia and South Africa). Lastly, the Violence and Harassment Convention has been ratified by three of them: Mauritius, Namibia and Seychelles.

Table 1: Ratification of ILO Migrant Workers Conventions (C. 97 and C. 143) as well as the Private Employment Agencies Convention (C.181), the Domestic Workers Convention (C. 189), the Protocol of 2014 to the Forced Labour Convention (P 29), and the Violence and Harassment Convention (C.190) in Southern Africa.

Please email [email protected] for the PDF version of the terms of reference showing the mentioned table.

Women migrant workers, even more so than women workers in general, are particularly exposed to vulnerability during the migration process and deserve specific attention considering the following:

  • Low regard for women and the types of mostly low-skilled and semi-skilled jobs they perform and other discriminatory practices, thus often resulting in de-skilling.
  • Women are more likely to face multiple discrimination and various forms of exploitation and abuse (e.g. non-payment or withholding of wages, lowest wages, workplace violence, violation of or restrictions to freedom of movement, bad working conditions) and inequality (no right to family reunification, nor to family life, neither to childcare support services).
  • Often women migrant workers’ right to social security is denied by their inability to contribute to social security, mainly health coverage and pension (e.g. domestic workers).
  • Relatively more job opportunities for men migrant workers into safe, orderly and regular channels of migration
  • Remain outside the scope of application of national legislation
  • Too dependent on the employer for their working and residence permit

In itsGeneral Recommendation No. 26 on women migrant workers, the Committee on the Elimination of Discrimination against Women (CEDAW) addresses the situations of migrant women, who as workers, are in low-paid jobs, may be at high risk of abuse and discrimination and who may never acquire eligibility for permanent stay or citizenship. It refers to women migrant workers who migrate independently, those who join their spouses or other members of their families who are also workers, and undocumented women migrant workers who may fall into any of the above categories. Female migration should be studied from the perspective of gender inequality, traditional female roles, a gendered labour market, the universal prevalence of gender-based violence and the worldwide feminisation of poverty and labour migration and unequal access by women to opportunities. It includes recommendations to State parties structured as follows:

  • Common responsibilities of countries of origin and destination;
  • Responsibilities specific to countries of origin;
  • Responsibilities specific to countries of transit;
  • Responsibilities specific to countries of destination;
  • Bilateral and regional cooperation;
  • Recommendations concerning monitoring and reporting.

In itsGeneral Comment no. 1 on migrant domestic workers, the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW) states:

“60. […] Recognising that most domestic workers are women and girls and taking into consideration traditional roles, the gendered labour market, the universal prevalence of gender-based violence and the worldwide feminisation of poverty and labour migration, States should incorporate a gender perspective in efforts to understand their specific problems and develop remedies to the gender-based discrimination that they face throughout the migration process.”

“61. States parties should repeal sex-specific bans and discriminatory restrictions on women’s migration on the basis of age, marital status, pregnancy or maternity status (articles 1 and 7), including restrictions that require women to get permission from their spouse or male guardian to obtain a passport or to travel (article 8) or bans on women migrant domestic workers marrying nationals or permanent residents (article 14), or securing independent housing […].”

Moreover, in its Comment no. 2 on the rights of migrant workers in an irregular situation and members of their families, the CMW indicates that:

“21. Migrant workers in an irregular situation, particularly women, are at increased risk of ill-treatment and other forms of violence at the hands of both private actors, including employers, and State officials which include sexual violence, beatings, threats, psychological abuse, and denial of access to medical care, for example. Under article 16, paragraph 2, States parties have an obligation to protect all migrant workers and members of their families against violence, physical injury, threats and intimidation, whether by public officials or by private individuals, groups or institutions. This obligation requires States parties to:

(a) Adopt and implement legislation prohibiting such acts;

(b) Effectively investigate cases of abuse and violence;

(c) Prosecute and punish those responsible with appropriate punishments;

(d) Provide adequate reparation to victims and members of their families;

(e) Provide human rights training for public officials; and

(f) Effectively monitor the conduct of State agents, and regulate that of private persons and entities, with a view to preventing such acts.”

(g) Promote awareness-raising campaigns.

Objectives and Outputs

The Expert will technically assist the the ILO and the PAP Committee on Trade, Customs and immigration preparing; (1) a Legal Policy Paper on the Need for a Model Law on Labour Migration in Africa; and (2) a draft Model Labour Migratin Law. As per the PAP procedural guidelines for the formulation of model laws, the presentation of the legal paper by the ILO will allow the Committee to understand the need for the formulation of the model law. After the presentation, the Committee will formulate a Resolution on the formulation of the Model Law on Labour Migration in Africa which will be presented and adopted by the PAP Plenary during its next Ordinary Session.

The second output, namely the Model Law on Labour Migration in Africa, will include a gender angle and support concrete action by ILO constituents and other stakeholders on the promotion of the ratification and effective implementation of ILO migrant workers Conventions (C. 97 and C. 143), as well as ILO Conventions 181, 189, 190 and the 1990 UN International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW).

The Model Law on Labour Migration in Africa should be no longer than 40 pages and could include the following articles:

  1. Tripartism and Social Dialogue on Labour Migration Policies ;
  2. Definition of a Migrant Worker and his/her family members + Exemptions;
  3. Fundamental rights at work of all migrant workers;
  4. Equality of treatment between migrant workers in a regular situation and national workers;
  5. Equality of treatment and opportunity between migrant workers in a regular situation and national workers;
  6. Equality of treatment between migrant workers in an irregular situation with regard to rights arising out of previous employment;
  7. Addressing irregular migration;
  8. Contracts of Employment;
  9. Loss of employment and consideration of regularization;
  10. Free choice of employment after a period of 2 years and restricted access to limited categories of employment;
  11. Illness and injury situations and conditions of return;
  12. Fair recruitment of migrant workers;
  13. Recognition of skills
  14. Identification of labour market needs;
  15. Bilateral Labour Migration Agreements.
  16. Family reunification
  17. Methodology

The methodology to be used in the production of the Legal Paper and the Model Labour Migration Law will include:

  • a desk review of ILO Conventions Nos 97, 143, 181, 189, 190 as well as the 1990 UN Convention; and, the CEDAW General Recommendation No. 26 and CMW’s General Comments Nos 1 and 2;
  • UN and ILO General Surveys concerning migrant workers instruments;
  • good practices of existing National Labour Migration Legislation in Africa; and
  • related material.

Qualifications and Experience Required

Education: Advanced university degree in Law, Development Studies, Economics, Migration studies, Public Policy, Management, or other relevant Social Sciences degree.

Experience: At least 5 years of demonstrated experience on International Human Rights and International Labour Standards. Experience in working on labour migration governance particularly in SADC countries as well as working with COMESA, IOC, and demonstrable knowledge of mainstreaming gender and non-discrimination would be particularly welcomed. Country level experience in at least some of the SADC countries is an asset.

Languages: Excellent command of English. Working knowledge of French and/or Portuguese is an advantage.

Terms of Contract for Consultant

The service provider will be responsible for all expected outputs mentioned in the terms of reference.

Fees will be determined depending on the consultant(s)’ knowledge and experience, as well as knowledge of SADC countries and the technical area under study, namely International Human Rights and International Labour Standards, as well as labour migration governance.

The ILO will separately cover the cost of travel and DSA of the consultant in case of need to organise face to face meetings or interviews.

Timeline and payment breakdown

The consultant will work for a total of (30) non-consecutive working days

Starting date: ____day/month/year__________

End date: ______day/month/year__________

Total agreed consultant(s)’ fees represent_________ US dollars based on a daily fee of _______$/day for number of working days.

Payments will be disbursed as follows:

  • 30% of the total or _______ US dollars upon the completion of a first draft of both the Legal Paper and the Model Law no later than ___ day/month/year _____ to the satisfaction of the ILO.
  • 30% of the total or _______US dollars upon the completion of the second draft no later than __ day/month/year ______ to the satisfaction of the ILO.
  • 40% of the total or _______ US dollars upon the completion of the final product no later than ____ day/month/year _________ to the satisfaction of the ILO.

Supervision and Reporting

The service provider will report to Ms. Gloria Moreno-Fontes, Chief Technical Advisor of the SAMM project, who will coordinate with the Labour Migration Branch (MIGRANT) of the Conditions of Work and Equality Department (WORKQUALITY) in ILO HQ and share it broadly with other ILO Technical Departments.

The ILO will liaise with the IOM, UNHCR and UNODC (if pertinent) and be in charge of the overall supervision for incorporating inputs and comments and validation of the work.

[1] International Labour Organization: Report of the Committee on the Application of Standards, Third item on the agenda; Information and reports on the application of Conventions and Recommendations, Provisional Record 16 part one, 105th Session of the International Labour Conference, Geneva, May-June 2016.

How to apply

Application Requirements

Interested consultants are invited to submit their applications in their personal capacity by midnight South African Standard Time 17th December 2023 to the International Labour Organization at [email protected]. Applications will only be received through this means. Applicants should include the following documentation:

  1. CV/resume;
  2. Cover letter;
  3. 2 pages Technical proposal with sound description of the proposed research approach to carry out the required work,
  4. 3 weblinks or 3 attached writing samples;
  5. 3 references; and,
  6. Financial proposal mentioning
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