The views expressed in this presentation are the views of the author and do not necessarily reflect the

views or policies of the Asian Development Bank

Institute (ADBI), the Asian Development Bank (ADB), its Board of Directors, or the governments they represent. ADBI does not guarantee the accuracy
of the data included in this paper and accepts no responsibility for any consequences of their use. Terminology used may not necessarily be consistent
with ADB official terms.

Marius Olivier, Adjunct-Professor: University of Western

Australia, Perth, Australia; Director: International Institute for
Social Law and Policy (IISLP)
Presentation: 8th ADBI-OECD-ILO Roundtable on Labor Migration
in Asia, Seoul, Republic of Korea, 30-31 January 2018
 International and regional standards framework
 Challenges facing migrant workers from a
social security perspective
 Key developments in Asia and globally
 Bilateral and multilateral social security
agreements - challenges and requirements
 Conclusions and the way forward
 Vast range of UN and ILO instruments providing for -
◦ Equal treatment (with nationals) (ILO Recommendation 202 of
2012: social protection floor to be extended to “all residents”)
◦ Reciprocity an important consideration
◦ Urgent medical treatment – also irregular migrants
◦ Human rights approach – vulnerable status of MW; prioritisation of
their plight; minimum protection also for irregular migrants

 Nuanced comparative experiences world-wide – trend

towards affording enhanced protection to regular and
longer-term migrant workers, on the basis of distinct
principles–
◦ Lawful residence
◦ Lawful employment
◦ Means of subsistence criteria
 Impact of Free Trade and Free Trade in Services
instruments in relation to national social security
systems and access to social security benefits of the
receiving country –
◦ E.g. GATS, and AFAS (ASEAN Framework Agreement on
Services) – in relation to national social security systems

◦ Most Favoured Nation (MFN) principle – MS have to give equal

treatment to service suppliers of different MS, including
services aimed at the supply of social security

◦ National Treatment principle – may be of assistance to a

temporary MW who contributes to the social security system of
a host MS
 Regional standards have been slow to develop in Asia (e.g., in SAARC),
although there have been some developments in ASEAN

 In ASEAN, the (limited) development of regional standards must be

seen against the background of free movement and regional
integration objectives -
◦ ASEAN Charter: Aimed at creating a single market and production base … in which
there is free flow of goods, services and investment; facilitated movement of business
persons, professionals, talents and labour; and freer flow of capital (ASEAN Charter),
but subsequent instruments have adopted a more restrictive approach

 The 2013 ASEAN Declaration on Strengthening Social Protection

provides for equitable access, gradual extension, progressive
realisation
◦ Everyone […] at risk, [including] migrant workers, and other vulnerable groups, are
entitled to have equitable access to social protection that is a basic human right
◦ But several other ASEAN instruments (including the recently adopted Consensus on
the Protection and Promotion of the Rights of MWs do not necessarily echo these
sentiments
 With some exception, Asian countries have been slow to adopt UN
and in particular ILO instruments, which provide for social security
protection as regards migrant workers
 Following concerns expressed by international supervisory and investigative
bodies concerning weak or non-compliance and implementation, some ASEAN
Member States have responded by allowing certain migrant worker categories
increased access to certain social security benefits


 Six ASEAN MS have ratified the ILO Equality of Treatment (Accident

Compensation) Convention, 1925 (No 19) – this emphasises their
being bound by the (equal treatment) provisions of this Convention
◦ This provides an opportunity to start with ensuring occupational working injury
protection for migrant workers at least in six ASEAN countries, and

◦ Constitutes the basis for inclusion of this risk category in bilateral agreements
involving any of the States and in principle also a multilateral agreement

◦ Similar possibilities are relevant for other Asian regions

 International and regional instruments strongly support the
conclusion of bi- and multilateral social security agreements
(BSAs/MSAs)
◦ Certain ILO instruments provide a model framework in this regard
◦ Also the newly adopted ASEAN Consensus emphasises the importance and
usefulness of these agreements, and the sharing of best practices of BSAs
between ASEAN Member States
◦ The ASEAN Forum on Migrant Labour (AFML) also recommended -
 The conclusion of BSAs and MSAs providing for portability of social security benefits
and better implementation of existing schemes
 Cooperation between the countries of origin and destination in providing assistance
to migrant workers with health concerns

 However, no formalised international standards regulate the

adoption and implementation of a rapidly growing phenomenon
in Asia, namely the adoption of unilateral social security coverage
measures by countries of origin
 "In the majority of the world’s countries, including many
ASEAN members, the legislative barriers limiting
migrant workers’ access to social security benefits are
compounded by the fact that social security systems
cover only part of the labour force. Moreover, in some
countries, migrant workers are often employed in
sectors of the labour market that either are not covered
by social security or in which compliance with social
security laws is poorly enforced. Even when migrant
workers are employed in covered sectors and social
security laws are enforced, irregular migrant workers
are usually disqualified from social security benefits due
to the fact that they are undocumented.“ (Tamagno)
 A worker’s specific immigration status may make them ineligible for
accessing benefits (compare: permanent residents versus contract workers
versus undocumented workers)

 A social security law may exclude migrant workers (MW) generally or

specific categories of non-nationals (e.g., family members); social
assistance largely restricted to citizens and, at times, permanent residents

 A MW required to contribute to the social security system may not fulfil the
requirements to draw a benefit from the receiving country (e.g., pension),
and may not be able to have their contributions returned once they leave
(cf India’s concern raised during GATS negotiations)

 Absence of bilateral social security agreements (BSA), providing for

equality of treatment; bilateral labour agreements make insufficient
provision
◦ In the absence of a BSA a MW may either have no protection at all, or may be
required to pay double contributions
 One or more multilateral arrangements at the regional level are,
despite the world-wide eminence of such arrangements, sorely
lacking in Asian regions, and despite the emphasis in core regional
instruments on regional integration and promoting the welfare of
peoples of the respective regions

 MW’s access to social security benefits is compounded by fact that

social security systems cover only part of labour force
◦ MW often employed in sectors of labour market that are not covered by social
security (e.g., domestic workers), or in which compliance is poorly enforced
◦ Informal workers and irregular workers are invariably excluded, but some new
developments are discernible (e.g., Thailand – comprehensive regularisation
processes have assisted with improving the status of many MW to Thailand)

 MW whose employment has terminated are forced to leave within a

short period of time and are unable to finalise arrangements to
access social security benefits
 MW may not be covered by social security system of host
or home country:
◦ Lack of extra-territorial application of domestic laws
◦ Nationality and/or residence requirements

 Impact of (a) certain documentation required for access –

e.g., passports; and (b) registration and contribution
payment by, e.g., the employers

 MW who return home may only be able to draw lump sum,

not regular, payments

 Maltreatment in host country: non-recognition of or lack

of enforcement of labour rights
 MW may lack equality of treatment with nationals, or even
other migrants (in particular skilled migrants), as regards
accident compensation and/or other social security risk areas
(e.g., health care; sickness insurance; retirement provision)

 Some Asian, in particular ASEAN countries have adopted

alternative measures and in principle inferior arrangements
for MWs social security coverage
◦ Voluntary coverage – e.g., Malaysia
◦ Even regular (or regularised) MWs may be exposed to less
beneficial treatment in social security terms, in comparison with
nationals
 Exclusion of MW from national health insurance
 Reduction of public subsidisation in health care
 Establishment of separate but less beneficial schemes
 Across Asian countries, regulatory activity in relation to social
security for MW has increased considerably
◦ While to some extent, on the one hand, access to benefits may
have increased, due the expansion of the social security schemes
themselves, on the other hand, less beneficial regimes (in
comparison to those applicable to nationals and higher-skilled
migrants

 Non- or inferior coverage of the social security plight of MW

in, for example, the Gulf countries but also in other Asian (in
particular, ASEAN) countries has resulted in the significant
development of comprehensive unilateral measures by
sending countries, in an attempt to extend some protection
to their own migrant workers
 Adopting unilateral measures for a country’s own MW, has become a
practice with many Asian countries – India serves as a good example

 These arrangements are often of a voluntary nature but increasingly

also compulsory (e.g., Indonesia; Philippines), supported by a range
of funding and institutional arrangements

 In ASEAN, seven out of the 10 ASEAN Member States have

introduced measures to provide some social security protection to
their own workers abroad, invariably strengthened by an extensive
raft of assistive measures, including a supportive, dedicated
institutional and operational framework
◦ However, despite their importance, these schemes invariably extend
protection, which is inferior to those provided to national workers in the
countries of origin
 Several Asian, including ASEAN countries are increasingly using
bilateral agreements and MOUs to ensure increased social security
protection of their workers abroad

 However, with notable, and increasing exception, most of these

agreements have been with countries outside Asia and ASEAN
respectively

 Together with MSAs, BSAs are world-wide the core intervention for
extending social security protection to migrant workers; the first BSA
was concluded in 1904; today there are more than 2000 worldwide

 Had it not been for the incorporation of the portability principle in

most multi- and bilateral agreements, fewer than the 30% of
migrants worldwide who return to their home country would have
done so (Paparella – ISSA paper, 2004)
 The key principles upon which BSAs (and MSAs) are
based include:
◦ Equal treatment (for purposes of coordinated schemes)
◦ Determining which legal system will be applicable
◦ Aggregation/totalisation of qualifying (e.g., insurance)
periods
◦ Maintenance of acquired rights and benefits
◦ Portability of benefits, irrespective of the country in
which the beneficiary resides
◦ Administrative cooperation (between the social security
institutions of the parties to the agreement)
◦ Pro-rata/shared responsibility of the affected
institutions
 To date no BSA has been concluded between any two
ASEAN countries, although the Philippines is currently
considering this

 Some of the ASEAN countries have experience of such

agreements – e.g., Thailand with the Netherlands

 Also, the Philippines have several BSAs in place (see

below), while a few other countries have a more modest
number of others ready

 Apparently, Viet Nam is upgrading its national laws to

enable it to commence with negotiations concerning BSAs
with Germany and the Republic of Korea
 By November 2016, 10 BSAs were in place, but not covering
any ASEAN or for that matter Asian country. Six further
agreements, two of which would involve other Asian countries
(Korea and Japan) had been signed, but were awaiting
finalisation and entry into force

 Regarding the scope and content of the BSAs:

◦ "Equality of treatment (right to benefits under same conditions as
nationals), export of benefits (payment of benefits to migrant worker’s
country), totalization of coverage periods (combining periods of
membership to determine eligibility), and mutual administrative assistance
(coordination to extend assistance to workers and implement agreements)
are among the major elements of the agreements. As to scope of
coverage, the agreements aim to put in place long-term benefits for
permanent residents and, at least, short-term benefits for temporary
workers.“ (Ofreneo and Sale)
 With the exception of India, BSAs have generally not been
concluded by SAARC member countries, although some
countries are considering BSAs (e.g., in 2016 BSA between
Sri Lanka and India was “in the pipeline”)

 In 2016, India had concluded BSAs with 19 countries; 16

had been operationalised
◦ Including Japan and South Korea; see Sri Lanka above

 These BSAs generally cover skilled workers and provide for

(a) totalisation; (b) portability; and (c) “detachment” – based
on a COC (Certificate of Exemption), migrant workers
contributing to the sending country’s social security system
need to contribute to the receiving country’s system
 There has been a rapid recent uptake of concluding BSAs – by
the last count nine such BSAs existed; negotiations with several
other countries were ongoing
◦ Only one of these nine is an Asian country – i.e. South Korea

 Scope of BSAs varies – while they mostly include employees and

self-employed persons, some also cover family members

 From a PRC perspective, generally pensions and unemployment

insurance are covered; partner countries may have different
schemes covered (thus: partial asymmetry)

 Seconded employees can be exempted (up to 6 years),

provided they contribute to the sending country’s system

 Provision is made for totalisation

 By August 2017, BSAs had been concluded with 17
countries (Japan Pension Service)
◦ BSAs exist with South Korea and India; Philippines BSA in
progress

 Scope varies – some BSAs are restricted to eliminate

dual cover only (South Korea, UK, Italy); others include
totalisation as well

 BSA with India does not cover the self-employed; also,

totalisation is only possible in relation to the
public/national pension arrangement (EPS), and not the
national provident fund (EPF)
 Range of BSAs exist, including with some
Asian countries – India, Japan, China and
Mongolia (latter: pensions and unemployment
insurance)
 Negotiations for agreement with Viet Nam in
process
 BSAs provide for workers contributing to the
social security system of the sending
countries to be exempted
 Central aim: standards and principles at regional level
informing bilateral and unilateral arrangements
(Baruah & Cholewinski)

 Also: these agreements serve/are expression of

regional integration and a recognition of intra-
regional migration
◦ Important: World-wide evidence in other regions (e.g., EU;
Latin America) that more preferable arrangements for MW
from a region (e.g., ASEAN; SAARC) than for MW from
elsewhere are possible

 These agreements reflect internationally recognised

social security cross-border coordination principles
 World-wide examples:
◦ European Union (since 1958): Regulation 883/2004
◦ Caribbean countries: Caricom Agreement on Social Security
◦ Mercosur
◦ Ibero-American Agreement on Social Security (Latin American
and 2 European countries)
◦ Africa: West Africa (ECOWAS), East Africa (EAC) and Southern
Africa (SADC)
◦ Gulf Cooperation Council (GCC): Unified Law of Insurance
Protection Extension for GCC state citizens working in other GCC
countries (2006): has resulted in better pension protection and
greater labour mobility

 Asia: no MSA yet in existence, nor being contemplated, for

any of the regions (ASEAN; SAARC; etc.)
 "The development of a comprehensive network of
ASEAN social security agreements – ideally in the
form of a multilateral agreement – may take time.
For most ASEAN countries, even the conclusion
of the first social security agreement may take
time. However, unless the process is begun, it
will never be completed, and most ASEAN
migrant workers will remain without social
security protection…the greater integration of
the ASEAN region…will be severely impeded."
(Tamagno, 2008)
 Particular challenges within the Asian context
(Tamagno)
◦ Asymmetrical nature of, for example, provident funds and social
insurance schemes (retirement)
◦ Administrative and technical capacity may be lacking in less
developed countries

 General challenges
◦ Principle of reciprocity – i.e. home and host countries should
extend same protection on basis of reciprocity and equality
◦ Multitude of bilateral agreements create different entitlements
for different categories of migrant workers – common standards
may be needed
◦ There may be a need to incrementally develop the scope and
content of these agreements
 Challenges
◦ Time-consuming to develop
◦ Political determination
◦ Freedom of movement principle
◦ Prohibition of nationality discrimination principle
◦ Institutional capacity

 Phased/incremental approach possible (see below)

◦ Types of schemes covered
◦ Types of benefits provided
◦ Categories of persons covered
◦ Countries included
◦ Social security principles involved
 Building on current exportability initiatives, strengthen
national legal systems and address legal deficiencies:
◦ Ensure an appropriate mandate in national legal systems
for
 The conclusion of bi- and multilateral agreements, and
 For these agreements to take precedence over provisions in the
laws
◦ Remove provisions amounting to nationality discrimination

 Capture (unilaterally provided) exportability

arrangements also in bilateral agreements with
countries of destination
 Consider carefully the adoption and implementation of core
international instruments relevant to portability (even if not
adopted), and consider in this regard in particular the
following, relying also on technical advice of the ILO, etc.:
◦ The complexities created by the implications flowing from principles and
criteria flowing from trade in services agreements, impacting on
professionals/business persons, but also temporary migrant workers, and
social security schemes themselves (e.g., Most Favoured Nation (MFN) and
national treatment principles, embedded in e.g. AFAS)
◦ With reference to comparative practice, reliance on key principles such as
lawful residence, lawful employment and means of subsistence criteria
◦ Coordination principles (including portability principles) embedded in
international instruments and applied in several multilateral agreements
◦ Ensure compliance with standards embedded in ratified international
instruments – e.g., compliance with ILO Equality of Treatment (Accident
Compensation) Convention – see the Thai and Malaysian experience
 Appreciate the rationale for cross-border access to
and portability of social security benefits, and
coordination of social security schemes

 Consider carefully the implications of regional (e.g.,

SAARC; ASEAN) objectives, undertakings and
standards:
◦ Implications flowing from regional integration & (where
relevant) free movement as well as enhanced social
protection
 The need for and possibilities of a regional ring-fenced regime
of social security portability and coordination arrangements –
i.e. a special and preferential regime for regional migrant
workers
 The importance of allowing for gradual approaches (1) –
◦ (1) Consider commencing with a non-binding instrument,
moving towards a binding one, or alternatively, a binding
instrument that allows for flexible approaches regarding
implementation (see below)
 (a) Comparative experience: Some of the comparative instruments
are binding, others non-binding in nature; in some cases - non-
binding instruments developed into binding ones
 (b) Consider also whether merely a framework document is
regionally developed (see the recent SADC Framework), or one that
contains and prescribes the application of specified coordination
criteria
 (c) In any event, ensure that, in the case of multilateral instrument,
provision of sufficient guidance and promotion of the conclusion of
bilateral social security agreements between regional Member
States
 The importance of allowing for gradual approaches (2) –
◦ (2) Contingencies/Benefit Types: Consider including (initially)
only some contingencies/benefit types to be covered – (a) E.g.
those prevalent in most of the Member States (e.g. employment
injury – 6 Member States have ratified ILO Convention 19 of
1925) or those that can more easily be implemented
 (b) It may also be possible to focus on long-term benefits, at least
initially, and to allow short-term benefits to be later covered
 (c) Note the significant extent to which coordination and portability
principles apply to retirement, invalidity, survivors and occupational
injury benefits
 (d) Note the special arrangements put in place to coordinate –
 Asymmetrical retirement schemes (see above)
 Asymmetrical criteria – e.g. contribution-based versus residence-based
 (e) Note also the complexities involved in making unemployment
and health benefits portable
 The importance of allowing for gradual approaches (3) –
◦ (3) (Legal) nature of scheme types: Important questions include:
 Should only public schemes be covered? And only statutory schemes?

 The importance of allowing for gradual approaches (4) –

◦ (4) Consider that also the categories of persons covered can be
gradually expanded – e.g., initially certain categories of
migrant workers, which can be expanded –
 Could commence with including skilled workers, to be expanded to
include other migrant workers (see the ASEAN Charter provisions)
 Later, even self-employed persons and other categories can be
included (e.g. students); consider family members as well
 Note the gradual scope extension of persons covered under other
(multilateral and even bilateral) schemes
 Ensure the coverage of temporary migrant workers in a way that
does not create anomalies for them – and others
 The importance of allowing for gradual approaches (5) –
◦ (5) Also, in the case of MSAs, the countries covered and/or
participating can be gradually expanding – could commence
with countries:
 That share geographical borders and/or experience large cross-border
flows
 That already have an underlying labour agreement or similar
arrangement in place – see, for example, Thailand and Cambodia,
Myanmar, Laos and Viet Nam; or Malaysia and Indonesia
 That are able/equipped to coordinate their systems regarding particular
benefit categories (this can be done bilaterally as well)
 The importance of allowing for gradual approaches (6) –
◦ (6) Incremental unfolding of various coordination principles:
 Consider applying only certain coordination principles first (in
particular, exportability of benefits and equal treatment);
 Others can follow later as experience is gained
 Focus also, and in particular initially, on the
conclusion of bilateral social security agreements
– most of the above issues arise here as well

 Capacity-building is crucial –
◦ E.g., institutional, human and technical capacity
(e.g., in relation to supporting data environment)
◦ Of particular importance is the need to establish
cross-border cooperation as well as interfaced
systems, with reference to among others
documentation, data exchange (e.g. the need to
verify records), etc.
 Consider whether there is a need to establish a
centralised cross-border agency to facilitate/support
Member States and to render a streamlined service

 Joint monitoring and evaluation is crucial

 Arrange for an implementing (i.e. an administrative)

instrument to be adopted – particularly important in
the event of a multilateral arrangement

 A range of supporting studies may be required, to

inform evidence-based arrangements