DECISION 545
Andean Labor Migration Instrument

THE ANDEAN COUNCIL OF FOREIGN MINISTERS,

HAVING SEEN: Articles 1, 3, 12, 16 and 30 of the codified text of the Cartagena Agreement in Decision 406; Decisions 501 and 503 of the Andean Council of Foreign Ministers; Decisions 40, 116, 439, 441 and 510 of the Commission; the Regulations of the Andean Council of Foreign Ministers approved by Decision 407; and the Regulations of the Andean Community Commission approved by Decisions 471 and 508;

WHEREAS: The meeting of the Eleventh Andean Presidential Council, held in Cartagena in May 1999, set itself the aim of establishing the Andean Common Market by creating the necessary conditions to add the free circulation of services, capital and people in the subregion to the unhampered movement of goods, and instructed the Labor Ministers of the Member Countries to take measures to advance policy coordination on the promotion of employment and labor migration;

The Twelfth Andean Presidential Council, gathered in the city of Lima in June 2000, stated that the objective of creating the Andean Common Market is to contribute to the human development of the inhabitants of the Member Countries, ratifying that the unhampered movement of people is one of the preconditions for the gradual formation of that Common Market, which should be in operation by December 31, 2005, at the latest. The Council declared that the free circulation of people is an aim that shall be addressed progressively as of the establishment of more flexible national provisions, bearing in mind the unique features of the traffic of workers, entrepreneurs and businesspeople, students, tourists and citizens in general in the respective border areas;

With the same aim of consolidating the human development of the subregion’s inhabitants, the Thirteenth Andean Presidential Council, meeting in Valencia, Venezuela in June 2001, agreed to grant maximum priority to the implementation of an interdisciplinary Andean Social Agenda, as an effective response by the Member Countries in their struggle against poverty, inequality and social exclusion;

The various meetings of the Advisory Council of Andean Community Labor Ministers have adopted the criterion of gradualness, among others, to seek the progressive organization of flows of migrant workers within the Community;

The international economic and social context has given the state a new regulatory role in mobilizing the factors of production, while the advances and projection of the Andean integration process have made Decision 116 approving the Andean Labor Migration Instrument inapplicable, thereby making its replacement necessary;

The Andean Labor Advisory Council, in Opinion 008 of June 2000, expressed its full backing for the comprehensive revision of Decision 116 approving the Andean Labor Migration Instrument, to make it responsive to the present needs of the Andean integration process;

The General Secretariat has put forward Proposal 5/Rev. 1, approving the Andean Labor Migration Instrument, which replaces Decision 116;

DECIDES:

To approve the following “Andean Labor Migration Instrument”

CHAPTER I
OBJETIVE

Article 1.- The objective of this Instrument is to establish provisions that will progressively and gradually permit the unhampered movement and temporary residence of Andean nationals in the subregion as wage workers.

CHAPTER II
SPHERE OF APPLICATION

Article 2.- This Decision shall be applicable to Andean migratory workers. Excluded from its sphere of application are people who work for the public administration and those whose activities threaten public morals, law and order, human life and health and the essential interests of national security.

CHAPTER III
DEFINITIONS

Article 3.- For purposes of this Decision, the terms that are given below shall have the following meanings:

a) Member Country: Each one of the Andean Community countries.

b) Country of Emigration: The Member Country whose nationals move to the territory of another Member Country as migrant workers.

c) Country of Immigration: The Member Country to whose territory nationals from other Member Countries move as migrant workers.

d) Labor Immigration Office: The division maintained by Member Country Labor Ministries to carry out the functions indicated in this Decision.

e) Andean Migrant Worker: The national of a Member Country who moves to another Member Country as a temporary or permanent wage worker.

f) Customary residence: Legal residence for a period of more than 180 days in the territory of a Member Country.

g) Regular migratory situation: Legal and effective stay or residence authorized by the competent immigration authority.

h) Public Administration: The central government, the regional and local governments, and institutions that exercise governmental authority.

i) Border work area (BWA): This is understood to be the economic area near the international border that Member Countries decide upon bilaterally.

CHAPTER IV
ON THE MIGRANT WORKERS

Article 4.- The following classification of migrant workers is established for purposes of this Decision:

Individually moving worker;

Company worker;

Seasonal worker; and

Border worker.

Article 5.- Individually moving workers are Member Country nationals who emigrate to another Member Country in order to work, as a result of:

a) Having signed an employment contract as a dependent worker; or

b) Having or answering an offer of employment from the Country of Immigration, as a dependent worker.

Article 6.- Company workers are Andean nationals who move to another Member Country other than that of their customary residence for a period of more than 180 days by order of the company by which they are employed, whether the enterprise is already established in the other country, has a legal project underway to become established there or is conducting a special project in that country.

Article 7.- Seasonal workers are Andean nationals who move to another Member Country to do cyclical or seasonal jobs, such as:

a) Farming tasks like, among other things, sowing, planting, cultivating and harvesting farm products;

b) Tasks associated with temporary animal husbandry processes;

c) Tasks related to temporary forestry activities; and

d) Other cyclical or seasonal farming, animal husbandry, and forestry activities.

To enter the Country of Immigration, seasonal workers must have a contract that covers one or several of them and specifies precisely the job to be done and the timeframe for that work.

In the hiring of seasonal workers, they shall be guaranteed appropriate housing, as well as the payment of relocation expenses by the employer.

Seasonal workers shall be guaranteed protection and the facilities they require for their working activities, particularly their unhampered movement that allows them to enter and leave the country freely at the start and end of their work.

Article 8.- Border workers are Andean nationals who, while keeping their customary residence in a Member Country, continually move to another Member Country’s border work area to perform their working activities.

CHAPTER V
PROVISIONS COMMON TO ALL MIGRANT WORKERS

Article 9.- Andean migrant workers shall enter and reside in a country in coordination with the competent national agencies of each Member Country and observing the Community legislation in effect or, if it is lacking, national legislation on the subject.

Andean migrant workers, on entering the Country of Immigration or accepting an employment contract in that country as such, should contact the corresponding Labor Immigration Office for registration and subsequent control by the competent national agencies.

The Labor Immigration Office shall issue a document certifying their status as Andean migrant workers and shall furnish the necessary information for their incorporation into the labor market and on the general living conditions and requirements to which they must submit in the Country of Immigration.

Article 10.- The principle of equal treatment and opportunities for all Andean migrant workers within the Community space is recognized. In no case shall they be subjected to discrimination by reason of their nationality, race, sex, creed, social status or sexual orientation.

Article 11.- Andean migrant workers shall have a right to unionize and collective bargaining, in keeping with national legislation in effect on the matter and the International Labor Conventions ratified in the Country of Immigration.

Article 12.- Member Countries shall take appropriate measures to protect the families of migrant workers.

To this end, they shall permit the unhampered entry and departure of migrant workers and their spouses or persons who maintain a relationship that according to the law in each Country of Immigration is equivalent to a marriage, minor children who are not yet emancipated, and older disabled children, and their parents and dependents, in order to facilitate their meeting and in accordance with the national legislation of the Country of Immigration.

Article 13.- Member Countries shall guarantee Andean migrant workers the following:

a) Freedom to transfer funds earned by their work, with the observance of the pertinent legal provisions insofar as tax obligations or judicial orders are concerned;

b) Freedom to transfer sums owned by migrant workers in payment for food; this cannot be impeded in any case;

c) That the income from their work can be taxed only in the country where it was earned;

d) Free access to the competent administrative and legal authorities in order to exercise and defend their rights;

e) Access to the social security systems, in keeping with the Community provisions that are in effect; and

f) The payment of social benefits to Andean migrant workers who work or have worked in the territory of the Member Countries, in keeping with the legislation of the Country of Immigration.

For purposes of the stipulation of item b) of this article, the letters rogatory issued between Member Country judges shall be executed with no need for official recognition or authorization to execute a foreign judgment. The transfer of sums of cash in fulfillment of the letters rogatory may not be subject to any obstacles or impediments.

Article 14.- The Member Countries shall maximize all pertinent measures so that their workers who migrate to the territory of another Member Country shall possess all of the travel documents that are recognized in the Andean Community.

Article 15.- In no case may the migratory situation of Andean nationals or their possible repatriation impair their labor rights before their employer. The national legislation of the Country of Immigration shall determine those rights.

CHAPTER VI
SAFEGUARD CLAUSE

Article 16.- In the event of a disturbance that seriously threatens the employment situation in a given geographic zone or a given sector or branch of economic activity, that is capable of causing effective damage or that poses an exceptional risk to the people’s standard of living, Member Countries may make a temporary exception of up to six months in the principle of equal access to employment and shall communicate that circumstance and the period of that exception to the rest of the Member Countries and to the Andean Community General Secretariat. The latter may propose the amendment or suspension of the measure if it is not proportional to the damage or risk that is to be avoided or is not in keeping with the principles established in Andean law. Venezuela may establish a temporary exception lasting up to one year, for reciprocal application by the rest of the Member Countries.

If the situation envisaged in this article makes it necessary to take immediate measures, the interested Member Country may apply those measures as an emergency response, and shall in that case communicate them immediately to the General Secretariat, which shall announce its decision within the following thirty days, either authorizing, amending or suspending the measures.

The Member Country that has adopted that exception, with the presentation of the pertinent substantiation, may extend that measure once only and for an equal period of time with the authorization of the Andean Community General Secretariat.

A Member Country that makes use of the safeguard clause contained in this article shall respect the stability of the workers who migrated before the date of its application. .

CHAPTER VII
ON THE LABOR IMMIGRATION OFFICES

Article 17.- Labor Immigration Offices shall have the following functions:

a) To execute their countries’ labor immigration policy with regard to Andean migrant workers established by their respective Labor Ministries in coordination with the other agencies of the Member Country in question;

b) To supervise the employment situation and working conditions of Andean migrant workers and the fulfillment of labor provisions by employers, in coordination with the labor inspection services of the Country of Immigration;

c) To establish local offices or divisions when required to accomplish their functions;

d) To issue to nationals of other Member Countries documentation that accredits their status of Andean migrant workers, qualifying them before the competent immigration authorities to make arrangements for residence in the country;

e) To coordinate with the competent immigration authorities the residence of seasonal workers and border workers;

f) To organize campaigns for orientation and information on and dissemination of the rights of migrant workers, in keeping with the legislation of the Community and of each Member Country;

g) To furnish information, particularly to employers and to their organizations, as well as to the workers, about employment-oriented migratory policy, laws and regulations;

h) To inform Andean migrant workers and the members of their families about work permits, as well as the employment and living conditions in the Country of Immigration;

i) To exchange information, hold consultations and collaborate with the competent authorities of the other Member Countries;

j) To seek the assistance of international organizations specialized in migratory matters to ensure that their structure and technical and organizational experience are used appropriately;

k) To oversee compliance with the stipulations contained in this Instrument;

l) All other functions that Andean Community provisions may duly establish.

Article 18.- The Member Countries shall promote the creation and optimizing of information services about the job offers and working conditions in the Community, in order to establish a cooperation network to facilitate the unhampered movement of workers in the subregion.

Article 19.- The Member Countries are required to institute or reinforce the administrative services that provide migrant workers with the necessary information to move around and reside in any of the Member Countries.

CHAPTER VIII
LIBERALIZATION PROGRAM

Article 20.- The Member Countries commit themselves:

a) To recognize the freedom of movement of Andean migrant workers within the subregion, the stipulations of Decision 503 and other Community provisions notwithstanding; and

b) Not to adopt any new measures that will restrict the right of Andean migratory workers to move around freely and to reside in those countries.

Article 21.- The following program is hereby established for the purpose of orchestrating and ensuring the full effectiveness of the principle of the unhampered movement and residence of Andean nationals within the territory of the Member Countries for employment purposes as wage workers:

As of the entry into effect of this Decision:

a) Andean migrant workers classified as “company workers” or “individually moving workers” who have employment contracts in the Member Country where they have their customary residence, may move throughout the territory of the other Member Countries, provided that they fulfill the necessary formalities with the competent national agencies.

b) Andean migrant workers may do temporary farming, animal husbandry or similar work within a border work area without any need for the corresponding visa, for a period of up to 90 days, which may be extended for an equal period of time once only during a calendar year. To do that, they must register with the Labor Immigration Office of the Country of Immigration. That office shall authorize any extensions of the workers’ residence, as stipulated in the Regulations for this Decision.

c) Andean migrant workers who wish to do any of the work cited in the previous paragraph, within a border work area for a period longer than the extension allows, must have a written employment contract registered with the Labor Immigration Office of the Country of Immigration and apply to the competent authorities for the corresponding visa covering the duration of the contract.

By December 31, 2003 at the latest:

Member Countries whose national legislation contains provisions that establish that only a given proportion of foreign workers may be hired per enterprise, geographic region or branch of activity, insofar as the number of workers or remunerations are concerned, shall consider Andean migrant workers as national workers for calculating those percentages. This annuls any stipulation of Community law that is contrary to the provisions herein on Andean migrant wage workers.

By December 31, 2004 at the latest:

Andean migrant workers may do temporary farming, animal husbandry or similar work in any area or region of a Member Country without any need for the corresponding visa for a period of up to 90 days, which may be extended for an equal period of time once only during a calendar year. To do that, they must register with the Labor Immigration Office of the Country of Immigration and the extension shall be granted by the Immigration Office.

By December 31, 2005 at the latest:

Individually moving Andean workers who enter another Member Country in response to a job offer may fulfill the formalities to change their migratory status with the competent national agencies of the Country of Immigration, without having to leave that country, provided that they are formally hired within 180 calendar days and that they register with the Labor Immigration Office of the Country of Immigration.

Member Countries should adopt a program to streamline administrative procedures for changing the immigration status of Andean workers.

Article 22.- The competent national agencies of the Member Countries shall authorize the periods for which visas or the change in migratory status for Andean migratory workers are extended, in accordance with the duration of the specific contract, job, activity or project.

The stipulation of the previous paragraph notwithstanding, the periods of residence for the different classes of Andean migratory workers defined in article 4 shall be established progressively through Decisions that provide for the exercise of the activity, its cessation and affiliation with the social security system.

FINAL PROVISION

Article 23.- Decision 116 of the Cartagena Agreement Commission approving the Andean Labor Migration Instrument is hereby repealed.

TEMPORARY PROVISIONS

FIRST- In the case of the Bolivarian Republic of Venezuela, the gradual elimination of restrictions on the unhampered movement and residence of Andean migratory workers to which article 21 of this Decision refers, shall be carried out in keeping with the program set out below. That program shall be reciprocally applicable to Venezuelan workers in the other Member Countries, the stipulations of article 10 of this Decision notwithstanding.

By December 31, 2010:.

Andean migrant workers classified as “company workers” or “individually moving workers” who have employment contracts signed from the Country of Emigration, may move around and reside in Venezuelan territory, provided that they fulfill the respective formalities with the Immigration Office of that country, as well as with the Labor Immigration Offices, without prejudice to their full compliance with the migratory provisions in effect at the Community level or, if these are lacking, the provisions of national legislation.

By December 31, 2010 at the latest:

Andean migrant workers may do temporary farming, animal husbandry or similar work in any border work area without any need for the corresponding visa, for a period of up to 90 days, which may be extended for an equal period of time once only during a calendar year. To do that, they must register with the Labor Immigration Office in Venezuela, which shall authorize the extension.

Andean migrant workers who wish to do any of the work cited in the previous paragraph within a border work area for a period longer than the extension allows, must have a written employment contract registered with the Venezuelan Labor Immigration Office and apply to the competent authorities for the corresponding visa covering the duration of the contract.

By December 31, 2011 at the latest:

In cases where its national legislation stipulates that only a given proportion of foreign workers may be hired per enterprise, geographic region or branch of activity, insofar as both the number of workers and the remunerations are concerned, Venezuela shall consider Andean migrant workers as national workers for calculating those percentages.

By December 31, 2012 at the latest:

Andean migrant workers may do temporary farming, animal husbandry or similar work in any area or region of Venezuela without any need to obtain the corresponding visa, for a period of up to 90 days, which may be extended for an equal period of time once only during a calendar year. To do that, they must register with the Labor Immigration Office in Venezuela and that same office shall authorize the extension..

By December 31, 2013 at the latest:

Individually moving Andean migrant workers who enter Venezuela in response to a job offer may fulfill the formalities with the Labor Immigration Office without having to leave the country, provided that they are formally hired within 180 calendar days

SECOND.- In order to comply with the provisions of this Decision, the corresponding Regulations should be approved within 6 months after its adoption, through a Resolution of the Andean Community General Secretariat, after having heard the opinion of the Advisory Council of Labor Ministers and the Andean Committee of Immigration Authorities (CAAM) in consultation with the Andean Council of Foreign Ministers.

THIRD.- For purposes of the implementation of article 8 of this Decision, Member Countries shall report bilaterally to the Andean Community General Secretariat no later than 90 days after this Decision enters into effect, the border work areas of their territories within the Border Integration Zones provided for in Decision 501. Those communications shall be published in the Official Gazette of the Cartagena Agreement.

FOURTH.- The Member Countries, in keeping with the Regulations for this Decision, shall take steps to help Andean workers who emigrated prior to the entry into effect of this Decision and whose situation is irregular within the territory of the Andean Community, regularize their migratory status.

FIFTH.- The stipulations of this Decision notwithstanding, until the harmonizing of national legislation referred to in article 11 of Decision 503 has been approved, each Member Country’s provisions on the subject, including those referring to visas, shall remain fully valid.

Signed in the Quirama Recinto, Department of Antioquia, of the Republic of Colombia, on the twenty-fifth of June of two thousand three.