CONDITION OF MIGRANT

WORKERS AND WORKERS IN

CHEAP LABOUR DESTINATIONS Internship Report (2nd November-21st November

2015)

PREPARED BY:- AUFA KARNALKAR

V BSL LLB. ILS Law College, Pune

1

PREFACE

In a bid to reduce the cost of production, manufacturers including high end fashion brands

outsource production and manufacturing process to countries with cheap labour. Over the past

decade, these cheap labour providing countries have become popular labour destinations in the

world. However the plight of the worker working in these so called “Sweatshops” very often go

unnoticed. Long hours of stressful work in unhygienic factories, presence of toxic and harmful

substances, and absence of safety measure add to their misery. Moreover, there are cases of

serious human rights violation in these factories. The problem arises because foreign companies

outsource the production or manufacturing process to contractors who in turn employ workers in

factories and do not abide by the local law. The outsourcing companies have most of the time

turned a blind eye towards the problems of these workers in sweatshops and often very little is

done to improve their deplorable condition. Media has played a vital role in bringing to light

such serious cases of human rights violations in these factories, compelling these high end

companies to redress the problem of the workers in order to protect their public image.

This paper identifies the labour destinations of the world and highlights the problems of the

workers in these countries. Various case studies are used to understand the impact that these

issues have in tarnishing the image of the outsourcing company, role played by various

international and local NGOs and the consumers in agitating to protect the rights of workers.

The second important issue brought forth in this paper is the migration of workers.

Unemployment in the home country compels these workers to seek better opportunities in third

world countries, often these workers being sole bread earners of the family. The rights of these

migrant workers are also not protected, and often they are apprehensive about enforcing their

rights due to the fear of losing their job.

Lastly, this paper also explains the ILO Conventions relating to right of Migrant workers and

Domestic Workers.

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TABLE OF CONTENTS

SR.NO TOPIC PG.NO

1. Export Processing Zones 3

2. Labour destinations of the world

Case study on Vietnam and Bangladesh

4

3. Migrant labour

GCC Countries

16

4. International Instruments concerning Migrant Labour 21

5. Conclusion 26

3

EXPORT PROCESSING ZONES (EPZs)

In order to reduce unemployment, many third world countries have promoted their country as a

labour destination. They have setup Export Processing Zones across the world (EPZs). Sri Lanka

is noted to have 12 EPZs. These EPZs must not be understood in the narrow sense of consisting

only specific designated zones outside the city. These EPZs are developed by the countries to

attract foreign investment for export oriented production. They provide various incentives and

benefits in order to promote foreign investment such as tax benefits etc.

The ILO defines EPZs as “industrial zones with special incentives set up to attract foreign

investors, in which imported materials undergo some degree of processing before being exported

again”.

At the time of inception, EPZs were mainly set up for the manufacture of traditional goods and

textiles to be imported. But now EPZs are not limited to these. Electronics and other consumer

goods are also manufactured in EPZs of cheap labour countries. Many high end brands of

developed countries resort to this method in order to reduce the cost of production.

As per ILO statistics in 2014, there are around 3,500 EPZs throughout the world, operating in

around 130 countries, employing around 66 million people. Asia accounts for 85% of all EPZ

workers worldwide.1

COUNTRY WORKERS IN EPZ

China 40 million

Indonesia 6 million

Bangladesh 3.5 million

Philippines, 1.1 million

Malaysia 500,000

Thailand 500,000

Japan 200,000

Cambodia 200,000

Sri Lanka. 160,000

Source: ILO Trade Union manual on Export Processing Zones (2014)

1 ILO Trade Union manual on Export Processing Zones (2014) at Pg 3.

4

Developing countries promote EPZs zones in order to create employment, earn foreign exchange

and boost exports. Though these EPZs are beneficial in the sense that they create employment in

the developing country, they are known for the tough working conditions and lack of adherence

to ILO norms on standards of labour and thereby the factories in these EPZ s are come to be

famously known as “Sweatshops”.

CHEAP LABOUR DESTINATIONS OF THE WORLD

The following is a study of the various EPZs in some famous labour destinations.

Bangladesh:

Textile export is the principal source of foreign exchange earnings in Bangladesh. Bangladesh

houses the second biggest garment sector, supplying many global and international brands. The

govt is also taking keen measures to expand this sector as it creates a lot of employment.

Bangladesh is top global exporter of Ready Made Garments (RMG). It is the top sought after

destination by western brands. As per the report of McKinsey & Company. 2011, the RMG

exporting sector accounted for 15 billion USD in export value in the year 2010 and accounts for

80% of the country’s manufactured exports. This sector has created more than 3 million jobs.2

The condition of labour are not far from satisfactory in the factories of Bangladesh. Though these

garment factories in Bangladesh manufacture for international brands, the factories are owned

and controlled by local investors.

Rana plaza collapse

In April 2013, A garment factory collapsed in Rana Plaza (near Dhaka in Bangladesh). More

than 1,100 workers were killed. This event sparked international outrage on the plight of garment

workers in Bangladesh. Following this event, the government introduced a number of reforms in

the labour laws, the most important one being the right to unionise without the permission of the

employer.

Following the incident of the collapse of building in Rana plaza, ILO stated that most of the

factories lacked in basic safety measures.3

This was not the first time when such unfortunate events occurred in the country.

2 McKinsey & Company. Bangladesh's ready-made garments landscape; the challenge of growth

(Report-2011) 3 As said by ILO country manager for Bangladesh Mr. Srinivas B Reddy in an interview with Thomas Reuters.

Can be found at http://www.trust.org/item/20151113094429-sxtte/?source=jtOtherNews1 last accessed on 14th

Nov 2015 at 5.47 pm

5

Fire in Garment Factory

In 2010, a fire broke in a garment factory owned by Hameem Group. The factory manufactured

apparel for well renowned brands such as GAP, Wrangler and BF Fashion. At least 28 garment

workers died in the fire. The factory was found to be lacking in adequate safety measures. Fire

exits were locked, making it difficult for the workers to escape.

In February 2010, the Garib and Garib factory in the Gazipur area of Bangladesh, which

produced sweatshirts for the brand H&M, caught fire. 21 workers died. According to the Dhaka

Fire Service and Civil Defence, safety measure employed in the factory were "virtually useless”

as none of the security guards on duty knew how to operate the fire-fighting equipment.

The major issue concerning these problems is that none of the audits conducted by the brands

revealed any inadequancy or non-compliance in safety measure. The audit conducted by H&M in

October 2009, stated that that there was compliance with safety requirements with all fire exits

clearly marked and presence of fire extinguishers.

However labour organisations such as the Clean Clothes Campaign and other local labour unions

state that the audits conducted are not satisfactory. Though these audits ensure that the factory is

equipped with fire safety devices and there are fire exits, most of the fire exits are blocked with

goods being dumped there and the security guards on duty are not trained to use these safety

devices.4

REFORMS IN LABOUR LAW IN BANGLADESH

The incident of collapse of building in Rana plaza sparked international outrage on the issue of

conditions of workers in garment factories in Bangladesh. ILO reports highlighting the

inadequacy of safety measure in factories in Bangladesh and the widespread activism from

international and local NGOs compelled the government to introduce the much needed reforms

in labour laws in the country.

Following the Rana plaza collapse the Govt. introduced a number of amendments to the labour

law in Bangladesh. Some of the important amendments to the labour Act 2006 are:-

1. The workers are given the right to unionise without the permission of employer. Prior to

2013, the permission of the employer was necessary to form a labour union.

4 http://www.cleanclothes.org/news/2010/12/14/at-least-28-more-garment-workers-die-in-bangladeshi-factory-

fire last accessed on 15 November 2015 at 3.15 pm http://www.cleanclothes.org/news/2010/03/11/garib-fire-survivors-call-for-justice-and-a-safe-industry last accessed on 15 November 2015 at 3.15 pm

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2. Any conflict between the workers and the owners over any legal issues including

financial ones will be resolved through arbitration and both the parties can file case at the

Labor Court in case of no mutual settlement.

3. Inspection of a factory has been made mandatory at the time of giving license to any

factory or its renewal.

4. All the exits should be kept lock-free.

5. If any worker dies after two years in service, the management of the industries will have

to pay compensation equivalent to one month’s salary. And, if a worker dies in an

accident during service, his relatives will be given a compensation equivalent to 45 days’

salary.

6. A permanent health center would be established if there are 5,000 workers or more who

are employed and a welfare officer should be employed and a safety committee to be

established in the factories that employ 500 workers or more.

The UN Agency in its initial review of the Amendments, said that though the Amendments

addresses some of the important concerns of the ILO, yet it falls short of the international norms

as per the ratified conventions.5 The UN agency also noted that the amendments do not prohibit

discrimination in employment or remuneration, nor do they prohibit debt bondage by children or

compulsory labour as a form of punishment.6

January 2014, Following the infamous Rana plaza collapse, The International Labour

Organization, represented by the International Labour Office (ILO), established the Rana

Plaza Donors Trust Fund to raise funds for the compensation of workers affected by the

collapse. Many companies buying from this factory, had refused to acknowledge their liability

and moral responsibility to compensate the workers.

Some brands were even tried to conceal the fact that they sourced from the Rana plaza factory.

workers and allies, including the Clean Clothes Campaign and the International Labor Rights

Forum, organized public actions to demand brands pay into the fund. Finally around 2 yrs after

the incident, the fund reached the goal of 30 million$.

THE ACCORD ON FIRE AND BUILDING SAFETY IN BANGLADESH (THE

ACCORD)

An accord known as The Accord on Fire and Building Safety in Bangladesh (the Accord)

was signed on May 15th 2013, to improve the health and safety conditions of labour in the Ready

Made Garment factories. At present, the Accord has over 200 apparel brands, retailer and

importer signatories from over 20 countries in Europe, North America, Asia and Australia; two

global trade unions; and eight Bangladesh trade unions and four NGO witnesses. A five year

5 http://www.un.org/apps/news/story.asp?NewsID=45470#.Vkg3wHmhfVg

6 http://www.un.org/apps/news/story.asp?NewsID=45470#.Vkg3wHmhfVg

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legally binding agreement between brands and trade unions to ensure a safe working

environment in the Bangladeshi RMG industry. It also requires Public disclosure of all factories,

inspection reports and corrective action plans (CAP).

The Accord is a proactive step to prevent incidents such as rana plaza from occurring again in

future.

The major problem in the (Ready Made Garment) RMG sector in Bangladesh is the sourcing

process.

These brands work under a sourcing process. Each factory supplies garments to a number of

brands. These brands at times rely on the CSR programmes and audits conducted by the local

factories. But the underlying problem is that most of these audits are far from satisfactory. This is

evident from the fact that social auditing and certification bodies SAI and BSCI had not noted

any inadequacy in health or safety measures to Ali Enterprises in its audit conducted a few

months before the Rana Plaza collapse, killing more than 1100 workers. Hence international

organisations agitate that brands must themselves ensure the compliance of safety, health, living

wages and other basic rights of the workers such as the right to unionise. However the problem

arises because each factory supplier has several buyers, each of them having a separate

settlement with the factory. The second reason is the absence of industrial bargaining.

IndustriALL

Hence in order to overcome these problems, a global union federation by the name IndustriALL

was founded in Copenhagen on 19 June 2012. IndustriALL works with major clothing brands in

a process known as ACT (Action, Collaboration, Transformation). “The ACT process will

develop the means to link the supply chain responsibilities of buying companies to the collective

bargaining process between local unions and employers. This will involve developing

contractual or other mechanisms that support suppliers to implement the negotiated wage.

Commitments to continued sourcing and greater stability of orders will be key, as will

commitments that prices paid will take account of negotiated increases.”7

In order to improve the conditions of workers in Bangladesh, the IndustriALL has formulated an

Accord on Fire and Building Safety in Bangladesh . At present there are more than 200

company signatories and 1,500 factories covered by the agreement.

The Accord divides the factories producing for signatory companies into 3 tiers. Depending upon

the tier in which the factory is placed, the accord mandates the factory to allow inspections to be

carried out in the factory by the signatory brand company itself. This direction was much needed

in the wake of unsatisfactory audits carried out as seen in the rana plaza collapse.

The Accord also provides for the setting up of a Steering Committee with equal representation of

trade union and company secretaries.

7 International Journal of Labour Research, (2015) Vol 7.

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Disputes between the parties are first attempted to be resolved by the Steering Committee and in

its failure it is referred to Arbitration.

It also provides for the appointment of an independent safety inspector to be appointed by the

Steering Committee. The safety inspector is required to present written safety reports within 2

weeks from date of inspection. The report of the safety inspector is open to the public also which

is a very good move in order to ensure transparency.

Signatory companies are mandated to implement corrective action on the basis of the report by

the safety inspector. Non-compliance of this requirement by the signatory company can even

lead to termination of the business.

The signatory company is also required to ensure that the supplier factory respects the right of

worker to work that he or she has reasonable justification to believe is unsafe, without suffering

discrimination or loss of pay, including the right to refuse to enter or to remain inside a building

that he or she has reasonable justification to believe is unsafe for occupation.

The accord also provides the workers with the right to raise issues regarding their safety and

health confidentially, with the safety inspector through a worker complaint process. Previously

the workers were afraid to voice their concerns in the fear of losing their job. This provision of

the accord helps the workers to raise their voice over matters of their health and safety and at the

same time maintaining confidentiality.

The Accord has conferred upon the signatory companies the much need power to ensure that

suppliers comply with all the safety and health requirements as per the accord. Not only has it

conferred the power over the signatory company but also mandates the signatory company, so

that it does not turn a blind eye toward the plight of workers, as was the scenario previously.

VIETNAM

The nike case study

In 1970s NIKE produced its goods in factories in South Korea and Taiwan. Over a period of

time, the workers union grew strong here and started demanding higher wages. So NIKE shifted

to Vietnam and Peoples Republic of China where workers did not have the right to form trade

unions at that time. Throughout 1990s, NIKE was vehemently critisised for producing goods in

sweatshops. Major agitators were college groups.

The report by Ernst and Young In its January 1997 inspection report revealed that NIKE’s

plant in Vietnam was unsafe for the workers as they were exposed to “toluene”, a carcinogen

(used as glue in soles of shoes) that exceeded the local legal standards by 177 times. Exposure to

high amount to toluene causes nervous, respiratory problems and depression. It was found that

77 percent of the workers in this factory suffered from respiratory problems due to high exposure

9

of this toxic substance toluene. The report also said that workers were forced to work for more

than the permissible hours as per Vietnamese law.

Widespread criticism followed and NIKE’s image had been tarnished following the release of

this report. On May 12, 1998, Nike’s CEO and founder Mr. Phillip Knight spoke at the National

Press Club in Washington, DC and made a number of promises. Knight promised that all NIKE

factories will meet the U.S. Occupational Safety and Health Administration’s (OSHA) standards

in indoor air quality.

In May 1998, the then CEO of Nike gave an interview in which he answered the issues raised by

the media and Rights groups against NIKE. He also made promises to improve its conditions for

workers and adhere to corporate social responsibility standards.

“After four years of extensive research and hard work with our partners in Asia...we

have developed and put into practice water-based cements, which allow shoes to be

cemented without the use of the most harmful solvents, including toluene. Today we use

water-based cements in 80 percent of all our shoe production. ….And so what we say, is

that with that major breakthrough in footwear manufacturing, that by the end of this

calendar year, all Nike shoe factories will meet OSHA standards in indoor air quality.”

-Philip Knight, National Press Club, 12 May 1998

The other promises made by Knight on behalf of Nike in the interview, were:-

To increase the minimum age of workers to 18 in footwear factories and 16 in apparel

factories.

To involve NGOs in its factory monitoring

Expand worker education programme and

Expand its micro-enterprise loan program to benefit four thousand families in Vietnam,

Indonesia, Pakistan, and Thailand.

While NIKE has taken steps to fulfil its promise, many NGOs still critisise the company. Rights

groups contend that though NIKE has formulated a process to monitor the air quality in factories,

the underlying problem is that there are no unannounced monitoring visits and giving advance

notice to factory managers of the inspections gives rise to the possibility of them minimizing the

emissions on that particular day.8

The worker education programme is critisised on the ground that the living wage is soo low that

the worker can hardly afford to avoid working overtime in order to attend the education

programme.9

8 Tim Connor “Still Waiting For Nike To Do It” Published by Global Exchange May 2001

9 Ibid

10

A number of philanthropic activities were undertaken by the company to repair its tarnished

image. In 1999, NIKE create the fair labour association to promote adherence to international

labor standards and improving working conditions worldwide.

This period witnessed a rise in a number of NGOs fighting for the rights of workers in NIKE

factories. One of the well acclaimed one is the NGO named “Team Sweat” founded by Jim

Keady, a soccer coach at the St. John University in USA. Since the inception of the NGO, he

visited a number of factories in Indonesia and China where he said the workers were paid mere -

$1.25 a day (as per his visit in 2001 to Indonesia). Nike says the country is its third largest

manufacturing base, behind China and Vietnam, with 140,000 workers in 14 factories.

Workers in the NIKE factories in Indonesia say that abuses from supervisors are common, and

workers are paid much below minimum wages.

A BBC documentary in the year 2001, revealed that children were made to work 16 hrs a day

in the NIKE factories in Cambodia.10

As per his visits in 2009 to Jakarta, he says that NIKE has still not fixed its sweatshop problems

and the workers are still paid much below the minimum wage. He also produced a short

documentary, "Behind the Swoosh" highlighting the conditions of workers in NIKE factories.

Boycott of NIKE products by college and university students played a proactive role to

pressurize NIKE to improve the conditions of workers in these countries. A national student

labor organization known as United Students Against Sweatshops was founded in USA in

1997, fighting for workers' rights with locals on over 150 campuses.

During the period between 2002 and 2004, NIKE carried out repeated audits in its factories.

Around 600 audits were conducted to ensure that the factories are compliant with the NIKE code

of conduct known as SHAPE (Safety, Health, Attitude, People, and Environment11

In 2010, USAS played an important role in bringing to light the fact that the workers laid off by

the closure of NIKE factories in Honduras were not paid adequate compensation under the

Honduras law. The student groups and retailers adopted the Slogan “just pay it” in place of the

NIKE slogan “just do it”. Facing pressure from universities and student groups, Nike agreed to

pay $1.54 million to help 1,800 workers in Honduras who lost their jobs when two

subcontractors closed their factories.12

As part of the deal between NIKE and the Honduras

Labour association, pledged that other factories it used in Honduras would give priority to hiring

workers laid off by the two subcontractors.

10

http://culturewarreporters.com/2013/11/26/shame-day-nike-nestle-coca-cola-2/

11 How Nike Solved Its Sweatshop Problem, The business insider, India. Max Nisen. May 10, 2013, 07.30 AM

12 Pressured, Nike to Help Workers in Honduras, Global Business. Steven Greenhouse JULY 26, 2010

11

At present, NIKE releases its timely reports as per the corporate social responsibility. However

the conditions of workers have still not reached a satisfactory level.

Workers rights groups criticize the collective bargaining clause of the NIKE Code of Conduct.

The right of collective bargaining and right to form trade union in the code is dependent on such

rights being conferred by the manufacturing country. Brands like Nike has taken advantage of

the inadequacy of such laws in certain countries like Vietnam, Bangladesh and Sri Lanka where

the labour laws are not favourable to workers.

12

This code was formulated in the year 1990. However instances of violation of worker rights are

found even till date in the nike factories.

Legal rights to workers in Vietnam.

Vietnamese law requires unions to be compulsorily affiliated with the trade union confederation

known as Vietnam general confederation of labor (VGCL).

According to Article 10 of the Constitution of Vietnam, the VGCL is the only trade union

organisation in Vietnam and represents the whole working class in Vietnam, not limited to its

members.

The U.S State Department’s Annual 2012 “country reports on human rights practices”

make clear that the restrictions laid down by the Vietnamese law in formation of trade unions

clearly violates the fundamental right of workers to form union.13

Although Vietnamese law requires that all enterprises must establish a trade union, unionization

is significantly less-prevalent in foreign-invested enterprises than in the state-owned sector.14

As regards the question of right to strike, the Vietnamese law prohibits strike in business of

essential services. The definition of essential services in Vietnamese law is very wide, and

broader than what is laid down by the international labour organisation. However the list of

essential services was reduced in the year 2011 from 142 businesses to 58 businesses.

A number of reforms were introduced in the Vietnamese labour law in the year 2013 to give the

workers their much needed rights.

“15

The new Labor Code supplements Decree 46/2011/ND-CP, which restricts the

management and employment of foreign employees. The new Code reduces the maximum term

of a work permit for foreign employees from three years to two years. As before, domestic

employers are only permitted to recruit foreign employees for jobs as managers, executives,

13

U.S. State Dept., Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices

for 2012 14

Made in Vietnam Labor Rights Violations in Vietnam’s Export Manufacturing Sector

Worker Rights Consortium, May 2013 15

Vietnam’s New Labor Code: Tilleke and Gibbins. Key Changes for Employers Vol. 4 No. 1 February 2013

13

experts, and technicians, provided that Vietnamese employees are not able to satisfy the

production and business requirements. However, now foreign employers may only recruit

foreign citizens to work in Vietnam upon explaining their needs to employ the foreign workers

and receiving prior approval in writing from the competent state authority.”

A responsibility is cast on the on the immediate upper level trade union to assist the union at the

grassroot level to perform its functions. The upper union has to advocate, educate and improve

the workers’ understanding of labour law and trade union law. When a grassroots level trade

union is formed in accordance with the Trade Union Law, the employer shall recognize and

create favourable conditions for the operation of the grassroots level trade union.

The amended labour code now also lists prohibited acts for employers related to the formation,

joining and operation of trade union. These are:-

Obstruct or create difficulties for workers to form, join or operate a trade union.

Coerce workers to form, join or operate a trade union.

Require workers not to join or to withdraw from a trade union.

Discriminate against a worker with regard to wages, hours of work and other

rights and obligations in labour relations, to obstruct the workers to form, join

trade unions or participate in trade union activities.16

On the other hand it also confers upon the grass level trade unions, certain rights such as:-

The right to Meet with employers to discuss and negotiate on employment and labour issues and

the right to visit workplaces to meet workers within their mandates of representation. 17

Other important changes in the Labour Code for the benefit of labour are :-

The minimum salary level during probation has been increased from 70 percent to 85 percent of

the full salary.

The maternity leave is increased from four months to six months

The Work Hours are also legally regulated as per the new code. As per the new Labor Code,

working hours can be determined on a daily or weekly basis; if on a weekly basis, the normal

working hours may not exceed 10 hours in one day and may not exceed 48 hours in one week.

With respect to overtime, employees are not allowed to work more than 50 percent of the official

working hours in a day (in cases where weekly working hours are applied, the total time of

normal work and overtime work may not exceed 12 hours in one day), 30 hours in a month, or

200 hours in a year.

16

Article 190 of the Amended Labour Code Vietnam 17

Article 191 of the Amended Labour Code Vietnam

14

This much needed change in the law will ensure that foreign companies do not make the workers

toil more than the permissible hours in order to meet their production mark.

Labor Outsourcing Services

“The new Labor Code introduces an entirely new section on labor outsourcing. This is good

news for foreign-invested companies in the manufacturing and construction sectors, given that

such work often requires seasonal workers and/or limited-time workers during certain periods.

However, the new Code imposes fairly extensive restrictions on labor outsourcing. Most notably,

the sublessor (defined as “an enterprise licensed to conduct labor outsourcing”) must pay salary

to a sublet employee at least equal to the salary that the subleasing employer pays its employees

who have the same professional qualifications and are doing the same job or a job of the same

value. Labor outsourcing is permitted only for certain types of jobs and the term may not exceed

12 months. Further, the labor outsourcing enterprise must, in addition to paying a deposit, be

licensed for labor outsourcing activities. The government will regulate licensing of labor

outsourcing activities, deposit payments, and the list of jobs for which labor may be outsourced.

It is also laid down that the labor outsourcing agreement must contain the following information:

Place and type of work Term of outsourcing Work and rest time and labor safety conditions for

the employees The respective rights and obligations of each party toward the sublet employees

Importantly, a labor outsource agreement may not contain any provisions that are less favorable

to employees than those in the labor contract which the labor outsourcing enterprise signed with

the employee.”

It can be said that the New Labour Code formulated in Vietnam was the need of the hour.

However this change has come only after a lot of criticism of the labour laws in Vietnam and

after various reports of the ILO and the US State Department’s country reports highlighting the

lack of proper employee friendly laws in Vietnam.

15

MIGRANT WORKERS

GCC Countries

Middle East houses a large number of migrant workers. In fact in some Middle Eastern

countries the number of expatriates outnumber the number of nationals.

The most critisised practice with respect to migrant workers in the GCC is the Kafala

System. This system is particular to migrant laborers, working mostly in the construction

and domestic sectors. The kafala system requires that the all unskilled laborers to have an

in-country sponsor, usually their employer, who is responsible for their visa and legal

status. The in country sponsor charges recruitment fees as per his whims and fancies and

there is no law to regulate or control the amount of sponsorship fees charged by these

local sponsors. Under the kafala system, a worker’s visa and legal status is tied to the

employer and the employer is responsible for the worker’s recruitment fees, possession of

an identity card. Moreover, the worker is required to obtain permission from the

employer or sponsor if he wishes to change his job or leave the country, giving the

employer “arbitrary power over the worker’s ability to change jobs or return to her

country of origin”. Most of these sponsors demand a certain share from the monthly

salary/wages of the worker. On the failure of the labourers to pay the exorbitantly high

recruitment/ sponsorship fees demanded by these local sponsors, they resort to

unjustifiable practices such as taking away the passports of the labourers. Migrant

workers in the United Arab Emirates (UAE) say their passports are still routinely

confiscated on arrival, despite a court order to the contrary.18

In the first Regional Conference on Human Trafficking, the ILO reported that an

estimated 6,00,000 migrant workers are tricked and trapped into forced labour across

Middle East. ILO presented the report “Tricked and Trapped: Human Trafficking in

the Middle East” for which it conducted about 650 interviews across 2 years in the

countries Jordan Lebanon, Kuwait and the United Arab Emirates (UAE). The workers

18 The Middle East’s migrant workers- Forget about Aug 10th 2013 Beirut, The Economist.

16

who were interviewed revealed how they were tricked and trapped into forced labour by

in country sponsors and agents, instances of sexual exploitation of female maid workers

and how their passports were witheld by sponsors to prevent them from going back to

their home country.19

Recently the ILO has voted for an investigation into the working conditions of migrant

workers in Qatar building the 2022 World Cup stadiums. 20

An investigation by Observer in 2013, investigated the conditions of migrant labour

building the New York University's Abu Dhabi campus in Saddiyat Island in Abu Dhabi.

The observer found the migrant workers residing in sub-standard conditons with up to 10

men occupying a single room in breach of the TDIC's (Emirate's Tourism Development

and Investment Company (TDIC), which runs Saadiyat) pledge to house them all in its

model Saadiyat accommodation village. Workers said they have to work for nine months

to a year just to pay back their recruitment fees.21

In April 2013, Qatar Foundation for Education, Science and Community

Development (QF) launched a workers right charter known as Qatar Foundation’s

Migrant Workers Welfare Charter 22

aimed at protecting the rights of migrant workers.

These mandatory set of standards apply to all contractors engaged for Qatar Foundation.

These regulations are a combination of the Qatari labour law and international best

practices. In order to ensure the compliance of the Qatar Foundation’s Mandatory

Standards of Migrant Workers’ Welfare, the government has also setup a Workers’

Welfare Department.

Violation of the Qatar Foundation Mandatory Standards of Migrant Workers’ Welfare

regulations will result in corrective measures and may even lead to termination of

contract of the contractor.

Recently, in Bahrain, a trade union known by the name Free Labour Federation (Al

Hurr), filed a case in the high Administrative Court of Bahrain against the amendment

in the Trade Union Act ,which excluded expatriates from forming a trade union. The case

19

http://www.un.org/apps/news/story.asp?NewsID=44604#.VkwPjXmheUk 20

TUC welcomes investigation into World Cup 2022 hosts. . Kadeem Simmonds The peoples daily. Morning star.

Wednesday 11th

Nov 2015 .

21 Calls for urgent labour reform after Observer reveals construction workers face destitution, internment and

deportation ,David Batty, Sunday 22 December 2013 00.04 GMT , The Guardian

22 Qatar Foundation launches workers' rights charter, on Apr 29, 2013 construction week online.com

17

was initially dismissed as the court did not consider it to be an urgent matter. The case is

subjudice, on a subsequent filing.23

Bahrain has made a proposal to segregate the accommodation of expatriate labourers. This is a

clear discrimination in terms of accommodation. However the government has justified this

move on the ground that it is done in order to secure better housing for the expatriate labour.24

The various country profiles in this issue and their laws are below:-

SAUDI ARABIA

Sr.no Issue Manner in which Issue is addressed by the country

1. Law relating to

domestic workers

Resolution No.310 of 1434 adopted on 15 july 2013 on

domestic workers.

The employer is prohibited from assigning the worker

any work which was not agreed upon in the contract. 25

A copy of the contract is to be kept each with the

employer, worker and the recruitment agency.26

It

contains ceratin other provisions for the benefit of

foreign domestic workers such as compulsory 1 day in a

week as paid leave, 9 hours of work per day and service

compensation equal to one month’s salary after four

years of workand one month of paid annual leave.

2. Exclusion from

local labour laws.

Total exclusion pursuant to Art 7(2) of the Labour Law

2006 (Royal Decree No. M/51

Article 7 of the Saudi Arabian Labour Law “domestic

helpers and the like from its applicability. 27

3. Kafala system There is no law prohibiting the employer from seizing

the passport or identity card of the worker. However

there are medis reports that Saudi arabia is planning to

setup authorized recruitment agencies to hire migrant

workers and these recruitment agencies will be

23

Sarah Townsend Wednesday, 11 February 2015 11:09 AM, “Bahrain trade union sues gov't over discrimination

of expats” – Arabian Business, can be accessed at http://www.arabianbusiness.com/bahrain-trade-union-sues-gov-t-over-discrimination-of-expats-581799.html#.VjxwtXmhdfw

24

Gulf digital news, 26th

January 2015 By Mohammed Al A'ali And Shahlaa Ahmed, Expat Bachelors To Be

Segregated. 25

article 2 26

article 3 27

Royal Decree No. M/51, 23 Sha’ban 1426/ 27 September 2005.

18

monitored by the Ministry.

BAHRAIN

Sr.no Issue Manner in which Issue is addressed by the country

1. Law relating to

domestic workers

Order No. 4 of 2014 on Regulating Work Permits for

Domestic Workers And Those that fall under this

category adopted on 2014-04-24.

2. Exclusion from

local labour laws.

Partial exclusion pursuant to Art 2 of the Labour Law

for the Private Sector No.36 of 2012

3. Kafala system Bahrain abolished the kafala system in 2009. It was the

fiorst country in te GCC to abolish the kafala system.

Under the new law, migrants are sponsored by the

Labour Market Regulation Authority and can change

from one employer to another without their employer's

agreement

KUWAIT

Sr.no Issue Manner in which Issue is addressed by the country

1. Law relating to

domestic workers

Ministerial decree no.68 of 2015 regarding domestic

workers adopted on 24th

June 2015. The law prohibits

the employer from withholding the passport or any

personal identification of the domestic worker without

the workers approval.28

It prohibits licensed recruiters or agencies from charging

any fees for recruiting or employing the domestic

worker.29

2. Exclusion from

local labour laws.

Total exclusion pursuant to Art 5 of the New Private

Sector Labour Law No.6 of 2010

3. Kafala system The kafala system is not abolished in its totality but only

a few changes are made. Under the amended provisions,

Foreigners in Kuwait are able to sponsor themselves if

they maintain an impeccable record after a two-year

stay in the country.

UAE 28

Article 12 of Ministerial decree no.68 of 2015 29

Article 4 of Ministerial decree no.68 of 2015

19

Sr.no Issue Manner in which Issue is addressed by the country

1. Law relating to

domestic workers

No specific law for migrant domestic workers.

2. Exclusion from

local labour laws.

Total exclusion pursuant to Art 3(c) of the Labour Law

No.8 of 2007

3. Kafala system Though the country has not abolished this system, but

has made certain laws to prevent the harassment caused

to workers by this system. The law requires that the

employer must pay the salary in bank accounts of the

worker.

OMAN

Sr.no Issue Manner in which Issue is addressed by the country

1. Law relating to

domestic workers

No specific law for migrant domestic workers.

2. Exclusion from

local labour laws.

Total exclusion pursuant to Art 2(3) of the Labour Law

2003 (Royal Decree No.35)

3. Kafala system This system is still present in Oman. However ceratin

changes are made such as the employer is not permitted

to sieze the passport of identity card of the worker and

the salary as provided in the employment contract must

be electronically paid in bank accounts. NOC from

previous employer is not required in case of change of

sponsor.

QATAR

Sr.no Issue Manner in which Issue is addressed by the country

1. Law relating to

domestic workers

No specific law relating to migrant domestic workers.

However Act No. 14, 1992, regulates the operation of

labour-importing agencies. Agents are strictly

forbidden to charge migrant job-seekers a fee for their

placement.

2. Exclusion from

local labour laws.

Total exclusion pursuant to Art 3(4) of the Labour Law

No.14 of 2004

3. Kafala system Qatar has setup a In order to ensure the compliance

of the Qatar Foundation’s Mandatory Standards of

Migrant Workers’ Welfare, the governement has also

setup a Workers’ Welfare Department.

20

An analysis of the law relating to domestic workers of these 6 countries, shows that while

the law of one country is favorable to the domestic worker, the law of the other countries

has not done much for the benefit of the worker. In order to remove this disparity,

currently, the GCC countries are planning adopt a standard contract for domestic

employment.

INTERNATIONAL INSTRUMENTS CONCERNING MIGRANT LABOUR AND

DOMESTIC WORKERS

1) CONVENTION 189- International Labour Organization’s Domestic Workers

Convention.

Convention concerning decent work for domestic workers (Entry into force: 05 Sep

2013)30

Under this Convention, a domestic worker is defined as “any person engaged in domestic

work within an employment relationship”. The domestic worker may be a national or an

expatriate/ migrant.

This Convention seeks to protect the rights of domestic workers. The ratifying country is

required by the convention to take measure to implement the obligations under the

convention and also periodically report to the ILO on measures ta ken in this regard.

As per ILO statistics, currently there are 53 million domestic workers in the world.

Women constitute major portion of them accounting to 83% of the workforce.31

Many international labour organisations and the UNO have repeatedly urged the middle-

eastern countries to ratify the convention 189. However at present, only 16 countries have

ratified this convention. The GCC countries, in spite of being a subject of widespread

criticism for the inadequacy of laws for protection of domestic migrant workers, none of

these countries have ratified the convention.

Some important provisions of the Convention are:-

1. While excluding the benefit of this convention, the ratifying country must consult

employers and workers.

2. The following are recognized as fundamental rights and right to work. Every member

must take steps to protect, promote and realise them.

30

http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C189 last accessed

on 19th November 2015 at 5.30 pm 31

http://www.ilo.org/global/topics/domestic-workers/WCMS_209773/lang--en/index.htm last accessed on 19th

November 2015 at 5.30 pm

21

(a) freedom of association and the effective recognition of the right to

collective bargaining;

(b) the elimination of all forms of forced or compulsory labour;

(c) the effective abolition of child labour; and

(d) the elimination of discrimination in respect of employment and

occupation.

3. Right to collective bargaining and freedom of association are upheld in this

convention.

4. The minimum age of domestic workers should not be less than the minimum age for

workers generally and must also be consistent with the Minimum Age Convention

1973 (convention 138) and the Worst Forms of Child Labour Convention 1999.

(Convention 182)

5. Domestic workers must have protection from all forms of abuse, violence and

harassment. In case the domestic worker resides in the employer’s house, the privacy

of the worker must be respected.

6. Weekly rest must be minimum 24 consecutive hours.

7. The ratifying country must ensure that the laws formulated for the domestic worker

must not be less favorable than those applicable to workers generally.

8. The provisions of the convention must be implemented by the ratifying country in

consultation with the most representative employers and workers organisations.

9. The member must take steps to establish effective and accessible complaint

mechanisms and means of ensuring compliance with national laws and regulations for

the protection of domestic workers.

regulate of the operation of private employment agencies, ensure adequate machinery

for the investigation of complaints by domestic workers, provide adequate protection

of domestic workers and prevention of abuses, in collaboration with other Members

where appropriate, consider concluding bilateral, regional or multilateral agreements

to prevent abuses and fraudulent practices.

2) CONVENTION 97 - Migration for Employment Convention (Revised), 1949

(No. 97)

Convention concerning Migration for Employment. Entry into force 22 jan 1952.

Adoption: Geneva, 32nd

ILC Session.

22

The member country is required to “so far as the national law permits, take steps against

misleading propaganda relating to emigration and immigration.

The member country must maintain adequate medical services at departure and arrival of

migrants and their families to ascertain that they are in good health.

Remuneration, accommodation and member ship to trade and collective bargaining must

not be less favorable to migrants compared to that for nationals.

The convention was followed up by Migrant Workers (Supplementary Provisions)

Convention, 1975 and United Nations Convention on the Protection of the Rights of

All Migrant Workers and Members of Their Families.

3) International Convention on the Protection of the Rights of All Migrant

Workers and Members of Their Families (ICRMW).

Adopted by General Assembly resolution 45/158 of 18 December 1990

This convention lays down the following rights for all migrant workers

“Right to leave and return to the State of origin (Article 1)

Right to life (Article 9)

Prohibition of cruel, inhuman or degrading treatment (Article 10)

Prohibition of slavery or servitude and of forced or compulsory labour (Article 11)

Freedom of thought, conscience and religion (Article 12)

Right to hold and express his opinion (Article 13)

Respect of honour, of dignity and of privacy (Article 14)

Prohibition of arbitrary depriving of property (Article 15)

Necessity to ensure an equitable procedure of recourse to migrant workers and

members of their family (Article 16 – 20)

Prohibition of arbitrary expulsion (Article 22)

Equal treatment to nationals of the State of employment (Article 25 – 28)”

This convention currently has 38 Signatories and 48 state Parties.

A committee known as The Committee on Migrant Workers (CMW) monitors the

implementation of the provisions of the International Convention on the Protection of

the Rights of All Migrant Workers and Members of Their Families (ICRMW).

However this committee is not found to be very effective because it cannot entertain

individual complaints of breach of the convention. However individual complaints can be

23

entertained by the committee only when the number of state parties to the convention

reaches 10. 32

The following table shows the countries that have ratified the various international

instruments and the date of coming of force of the instrument.

4) CONVENTION 143 - Migrant Workers (Supplementary Provisions)

Convention, 1975 No. 143

This Convention requires that members should adopt necessary measures to suppress

clandestine movements of migrants for employment and illegal employment of migrants.

The member country should formulate national laws and regulations for detection of

illegal employment of migrant workers.

Representation organisations of employers and workers should be consulted in

formulation of law, regulations and other measures to prevent and eliminate abuses of

migrant workers.

The convention also clarifies that it is not illegal to provide legal employment to workers

whoa re illegally residing or working within the country.

Part II of the convention lays down provisions for ensuring equality of opportunity and

treatment. It requires that member countries must pursue a national policy designed to

promote and guarantee equality of opportunity and employment, social security, trade

union and cultural rights to migrant workers. However this is also subject to methods

appropriate to the national conditions and practice of the member country, thereby

leaving less scope for the convention to be proved effective.

Name of international

instrument/ commitee

Date of coming

into force

No. of Countries that have

ratified it

Labour

destination

countries

and labour

migrating

countries

that have

ratified it.

Convention 189-

International Labour

Organization’s Domestic

05 Sep 2013 16 countries

Philippines

32

As per article 77 of the Convention

24

Workers Convention.

Convention 97 - Migration

for Employment

Convention (Revised),

1949 (No. 97)

22 Jan 1952 52 Countries

Pakistan

Philippines

kenya

International Convention

on the Protection of the

Rights of All Migrant

Workers and Members of

Their Families (ICRMW).

Adopted by

General Assembly

resolution 45/158

of 18 December

1990

38 Signatories and 48 state

Parties

United Nations

Convention on the Rights

of the Child

Ratification and

accession by

General Assembly

resolution 44/25 of

20 November

1989

entry into force 2

September 1990.

143 Parties Sri Lanka,

Philippines

Indonesia

Vietnam

Migrant Workers

(Supplementary

Provisions) Convention,

1975

09 Dec 1978 23 countries Philippines

25

CONCLUSION.

The ILO Conventions and UN instruments have also not been very effective to improve

the present scenario. Many of the provisions ILO conventions contain a rider “where the

national law permits”. This Rider is taken advantage of by the countries, and many have

formulated a law different than that of the Convention, thereby making the convention

ineffective.

Moreover most of the labour destination countries have not ratified the above discussed

conventions. There have been repeated requests from International Bodies and NGO and

Rights Groups to ratify the convention. However there has not been any assurances from

these countries to ratify the same.

Many of the cheap labour destination countries have not ratified the conventions of ILO.

It is required in the interest of the workers, that these conventions must be ratified by

these countries and appropriate steps must be taken by them to give effect to the said

provisions.

It is also noticed that none of the GCC countries have ratified the Convention 189.

Migrant workers of the GCC Countries are the most affected and hence there is a dire

need for the GCC countries to ratify the same.

It is also seen that Media, NGOs and Consumer Agitation has played a vital role in

bringing to light the deplorable condition of the workers in Export Processing Zones in

cheap labour destinations of the world. Many times the brands purchasing from them

have turned a blind eye towards their state and have attempted to refuse their corporate

social responsibility.

It is suggested that the countries must ratify the Conventions for the benefit of workers

and enact laws to regularise the migration of workers.

26