Draft law on Labor Migration: New unreasonable barriers for business
- Excessive state interference in workplace relations
- The draft law creates unreasonable barriers for companies and lacks capacity to achieve its declared goal
- Creation of additional bureaucracy and increase in expenses of state administration
- Unconstitutionally expanded powers of Government
- Conclusion
The Parliament of Georgia has started consideration of the Government-initiated draft law on Labor Migration. The declared goal of the bill is to create effective mechanisms to regulate labor migration in Georgia which will encourage legal labor migration into the country and protect the local labor force. The law covers both immigration and emigration for labor purposes, our areas of concern are those to do with immigration. We believe that the law is being initiated without evidence of the need for such regulations or sufficient consideration of their potential impact.
The particularities of the Georgian labor market and challenges faced by the economy must be considered before initiating new regulations. The EU allows its member states to develop their own labor migration regulation, rather than having one unified position. This position is echoed by the IOM and support by best practice. Therefore, we think that Georgia should develop regulations appropriate to the local context based on consultation with stakeholders and consideration of its socio-economic needs. These regulations should at the same time support business and economic development of the country and the inflow of foreign investments. Without sufficient analysis there is a risk that the law will have a negative impact.
Below we present our comments on provisions of the bill and relevant recommendations.
1. Excessive state interference in workplace relations
According to the draft daw, a local employer wishing to hire a person who does not have permanent residency in Georgia will be obligated to register a relevant request with the administrative agency of the Ministry of Labor, Health and Social Affairs of Georgia. The employer will have to deliver information on the vacancy that the employer wants to hire a foreigner for, including the required professional background, qualifications and competences.
We assert this regulation allows the state to excessively interfere in labor relations. Labor relations are relations of private law based on the freedom of contract and autonomy of will. The state may only interfere in such relations in exceptional circumstances when there is an urgent necessity. The goal of any restrictive measure should always be the maximisation of social good. The creation of artificial barriers should not be their only goal.
Pursuant to the draft law, companies must provide job descriptions and requests to employ a foreign national to the administrative agency. The agency then selects candidates with matching skillsets from an existing database of local job-seekers. The agency then offers one of these candidates to the local employer within 7 days of the request being filed. If the administrative agency is unable to find an appropriate candidate within 7 business days or the local employer rejects the candidate, in writing with reasons, the request of the local employer to hire a foreign employee will be registered. The local employer will then be entitled to hire the candidate of its choosing. However, the draft law does not include the criteria which will be used to assess whether the reasons for rejection are sufficient. It also does not provide regulation on whether the rejection letter is final or subject to appeal.
As the criteria for assessment and issues of appeal are not covered in the draft law, these concerns will be regulated under general principles of civil law. In relations of private law, including in labor relations, it is impossible to force persons to enter into contracts against their will. Therefore, under civil law no employer can be forced to hire from the database of job-seekers should they not wish to do so. This regulation will, therefore, only serve as an artificial barrier and the employer will still be able to hire the person it selects, whether a Georgian citizen or a foreign national. The registration of the request and correspondence with the administrative agency will just be an additional bureaucratic obstacle prolonging the recruitment process. Moreover, the law will not be able to ensure more Georgian citizens are hired, which is its stated goal.
3. Creation of additional bureaucracy and increase in expenses of state administration
Implementation of the new procedures envisaged under the law will result in the creation of a new subordinate agency of the Ministry of Labor and Healthcare, with vague functions, powers and procedures. The draft law does not offer evidence that the human and material resources in the Ministry will be sufficient to create a new sub-agency and carry out its functions. We can therefore conclude that the bill will require the allocation of additional funds.
4. Unconstitutionally expanded powers of Government
A) Determining the Immigration and Emigration Policy will be within Government’s Powers
Article 5(a) of the draft law notes that the Government of Georgia will ensure development and implementation of a unified state policy in the area of labor migration.
The state policy on emigration and immigration is an important political issue that is directly linked to the economic development and investment climate of the country. Determination of policies in any area is within the mandate of the Georgian Parliament and not within the mandate of the Government of Georgia. Such policies should be developed in its entirety and not by a piecemeal approach. Such policies ought to be decided by the highest representative body of the country - the Parliament - after taking the general economic situation and social realities into consideration.
B) Determination of norms restricting labor rights will be within the powers of the Government
In accordance with Article 5(d) of the draft law, the Government will also be authorized to adopt certain restrictions with regards to paid employment of foreigners without a permanent residence permit in Georgia. Labor rights are important rights recognized by the Constitution. According to the Law of Georgia on Normative Acts, only a law may restrict rights. The draft law instead offers that this can be done by a Government decision. This is contrary to the Constitution and therefore inadmissible.
C) Draft law does not provide for issues which government may regulate under its Normative Acts
Pursuant to Article 16(8) of the draft law, the Government will regulate by resolution: the timeframe for registering a request, the rules and deadlines for the registration, the terms and rules for prolongation of validity of contract, issues related to denial or termination of registration, as well as other issues relating to the administration of the registration of a request to hire a foreign national. Further, under Article 25(1), the Government of Georgia must prepare and adopt normative acts of the government necessary to implement the Law, within six months of its publication.
Considering the importance of the issues regulated under the draft law, it is necessary that the significant issues covered in Article 16 (e.g. grounds for denial and termination of registration) are regulated under this law. In addition, the provisions of the draft law that cover implementation and transition should include what specific normative acts must be adopted by the Government of Georgia.
According to the existing wording of the draft law, determination of political issues that are important for the country and restrictions on human rights are deemed as powers of the government. This contradicts the conception of core rights guaranteed under the Constitution, as well as the principle of separation of powers.
It is important that labor migration policy is considered in a comprehensive manner based on the economic policy of the country as well as of its investment climate. Long-term social and economic consequences of migration should be taken into account both for migrants as well as for the recipient country. It should be studied whether a regulation will support or impede the economic development of the state, and relevant data should be collected and analyzed.
Finally, the draft law and its explanatory note does not include any information as to why these regulations need to be adopted – now or in this form. We are certain that adoption of the Law in this version will have negative effects on the economy of the country, its development prospects and investment climate.