Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

276 | PRACTITIONERS GUIDE No. 6
port or equivalent document of a migrant worker or a member of his
or her family.” 1162
1. Non-discrimination and workplace rights
A range of international instruments and standards contain requirements
of non-discrimination in relation to workplace rights, these are
addressed below. The specific protection from discrimination on the
basis of sex, as it applies to women migrant workers, is dealt with in
Section 2 below. It should be noted that the prohibition of discrimination,
in particular as it relates to minimum work conditions, such as unfair
dismissal, vacation, overtime and pay is an obligation of immediate
effect (see, Chapter 5, Section I.2). 1163 The CESCR has also recognised
that the right to fair wages and equal remuneration for work of equal
value without distinction of any kind is of immediate effect. 1164
a) ICESCR and ICERD
The prohibition of discrimination in relation to workplace rights under
the CESCR and CERD covers migrant workers and their families, regardless
of legal status or documentation. 1165 The CESCR has been
clear that the “Covenant rights apply to everyone including non-nationals,
such as refugees, asylum-seekers, stateless persons, migrant
workers and victims of international trafficking, regardless of legal status
and documentation”. 1166 Although disparate treatment of migrants
or categories of migrants in respect of access to employment may be
lawful, it can seldom be justified in relation to rights in the workplace.
The CERD has stated that under ICERD, States must: “take effective
measures to eliminate discrimination against non-citizens in relation
to working conditions and work requirements, including employment
rules and practices with discriminatory purposes and effects; [. . .] to
prevent and redress the serious problems commonly faced by non-citizen
workers, in particular by non-citizen domestic workers, including
debt bondage, passport retention, illegal confinement, rape and physical
assault.” 1167 The CERD also defined the general principles applicable
to all migrants: “while State Parties may refuse to offer jobs to
non-citizens without a work permit, all individuals are entitled to the
1162 Article 21 ICRMW.
1163 CESCR, General Comment No. 20, op. cit., fn. 22, para. 7; CESCR, General Comment No. 18,
op. cit., fn. 1109, para. 19; Article 7 ICRMW; Concluding Observations on Republic of Korea,
CESCR, op. cit., fn. 244, para. 14; Concluding Observations on Japan, CCPR, op. cit., fn. 517,
para. 24; Concluding Observations on Kuwait, CESCR, op. cit., fn. 1160, para. 16.
1164 CESCR, General Comment No. 3, op. cit., fn. 147, para. 5. See also, Article 15 ACHPR.
1165 CESCR, General Comment No. 18, op. cit., fn. 1109, para. 18.
1166 CESCR, General Comment No. 20, op. cit., fn. 22, para. 30.
1167 CERD, General Recommendation No. 30, op. cit., fn. 18, paras. 33–34.