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

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 279
ject to derogation in private contracts or because of the irregular stay
status of the migrant worker. 1180 The Committee on Migrant Workers
has clarified that the list of rights in Article 25 is not exhaustive and the
“equal treatment principle also covers any other matter that, according
to national law and practice, is considered a working condition or term
of employment, such as maternity protection.” 1181
The ICRMW also requires States Parties to take positive measures to protect
equality of treatment for irregular migrants, and provides that “employers
shall not be relieved of any legal or contractual obligations, nor
shall their obligations be limited in any manner by reason of such irregularity”.
1182 Furthermore, the Committee has stated that “States parties
shall provide for appropriate sanctions for employers who derogate from
the principle of equality of treatment in private employment contracts
with migrant workers in an irregular situation, and ensure that those
migrant workers have access to labour courts or other judicial remedies
when their rights are violated and without fear of being deported”. 1183 The
Committee has dedicated its first General Comment to the category of
migrant domestic workers, who are particularly at risk of exploitation. 1184
d) Geneva Refugee Convention
Under the Geneva Refugee Convention, a refugee lawfully present on the
territory of a State enjoys equal treatment to nationals in “remuneration,
including family allowances where these form part of remuneration,
hours of work, overtime arrangements, holidays with pay, restrictions on
work, minimum age of employment, apprenticeship and training, women’s
work and the work of young persons, and the enjoyment of the benefits
of collective bargaining”. 1185 In addition, “[t]he right to compensation
for the death of a refugee resulting from employment injury or from
occupational disease shall not be affected by the fact that the residence
of the beneficiary is outside the territory of the Contracting State.” 1186
e) Inter-American system
The Inter-American Court of Human Rights, whose approach to discrimination
against migrants was addressed in Chapter 5, has stated
that “[a] person who enters a State and assumes an employment relationship,
acquires his labor human rights in the State of employment,
1180 Article 25.2–3 ICRMW.
1181 CMW, General Comment No. 2, op. cit., fn. 2, para. 62. See also, paras. 63 and 64.
1182 Article 25.3 ICRMW.
1183 CMW, General Comment No. 2, op. cit., fn. 2, para. 64.
1184 CMW, General Comment No. 1, op. cit., fn. 485.
1185 Article 24.1(a), Geneva Refugee Convention.
1186 Article 24.2, ibid.