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Law and action to protect expatriate workers
Published Time: August 6, 2019, 12:36 am
Updated Time: August 6, 2019 at 12:36 am

M S Siddiqui writes for DOT

Thousands of Bangladesh workers are migrating to the Middle East and North Africa (MENA)
region for employment in construction, manufacturing and agricultural sectors, in food services and
the retail trade, and in private domestic services as home workers, gardeners, drivers and nannies.
The migration for employment/ migrant worker are defined in the ILO migrant workers
instruments (Article 11, Migration for Employment Convention (Revised), 1949 (No. 97); and
Article 11, Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143). Migration is
not new in the history of mankind. The rights to gain job in other countries through migration is a
rights of persons to improve their economic life, actually can be said as universal human rights,
since it is part of the “right to life”. (Paulina Tambakaki, 2010). By the end of twentieth century’s,
the moral truth of human rights clearly recognized by the international community (Robert
Meister; 2011).

The basic rights further has been formulated in details by the United Nations (UN) in 1990 with UN
Convention concerning, the protection of the rights of all migrant worker and members of their
families (ICMW) entry into force on 2003, (Jennifer Yau, 2005). It took 13 years for ratification and
adaption by the members countries. The convention has elaborated all the rights of the migrants
and the ICMW as modern Magna Charta of migrant workers (L PennaRao; 1993)
The Convention introduced the principle of non-discrimination, which permits only reasonable
differences in treatment between nationals and non-nationals and grants migrants many civil and
political human rights (Fitzpatrick 2003).
One study (McCormack, 2015) find that the workers’ experience in exploitation often began
at home country through deceptive recruitment practices, contract substitution and payment of
excessive recruitment fees. However, the coercion and exploitation gets significantly worse once
they are in the presence of their employer in the labour receiving countries. The findings are:
• All the workers in this study had their identity documents withheld.
• Some 87 per cent reported confinement to the place of employment.
• 76 per cent had their wages withheld.
• 73 per cent experienced psychological abuse.
• A further 61 per cent suffered physical abuse.
• Over half reported excessive working hours (52%), and almost half suffered deprivation of food
and drink (48%).

The majority of migrant workers in the Middle East work in private sector companies through
agent, who process and whereby an employer gains approval from the relevant ministry to sponsor
a migrant worker, and the employer then directly employs this worker through recruitment via a
recruitment agent (Dito, 2015). The employers pay recruitment costs of migrant workers (including
for permits, travel, medical examination and medical insurance), as per fair recruitment standards (
ILO, 2016). Employers often confiscate migrant workers’ passports (and work permits) even where
national legislation is in place to prohibit the practice (ILO, 2016).

This agent work with a sponsorship system is referred as the ‘kafala system’. While the
Term kafala itself is rarely used in legislation. The International Labour Organization’s independent
Committee of Experts on the Application of Conventions and Recommendations (CEACR) has stated
in its observations with regard to the Forced Labour Convention, 1930 (No. 29) that kafalaties
migrant workers to particular employers, limiting their options and freedoms.

The CEACR noted that “the so-called ‘kafala’ system in certain countries in the Middle East may be
conducive to the exaction of forced labour” and urged governments to “adopt legislative provisions
specially tailored to the difficult circumstances faced by this category of workers and to protect
them from abusive practices” (CEACR, 2015). The Committee of Experts on the Application of
Conventions and Recommendations (CEACR), 2015 (ILO, 2016) and and to “take the necessary
measures in law and practice, to ensure that migrant domestic workers are fully protected from
abusive practices and conditions that amount to the exaction of forced labour” (CEACR, 2016).
Migration is regulated under different framework of own country for both inflow and outflow. In
Bangladesh, the British-era Emigration Act of 1922 was replaced with the Emigration Ordinance in
1982 with the emergence of new business of recruitment of migrant for overseas employers,
government issues three rules namely – Emigration Rules, Rules for Conduct and Licensing
Recruiting Agencies and Rules for Wage Earners’ Welfare Fund. It is the responsibility of the
government to protect their migrant citizen in other countries. But the law of Bangladesh is not
sufficient for protect rights and interest of Bangladeshi migrants.

For example, Indonesia has already umbrella law in protecting its migrant workers in other
countries, it is Law No. 39/2004 concerning placement and protection of Indonesian Migrant
workers in abroad. Article 6 stating that, government is responsible for increasing protection of
migrant workers in abroad. Article 7 (d) said that for the optimal protection, government has to
conduct diplomatic efforts in receiving state. Regarding control to migrant workers in abroad
article 92 (2) gives such power to the office of Indonesian embassy or consular. The very important
provision is article 27 stating that the placement of Indonesian migrant workers only in the country
which had already a written agreement with Indonesia. Indonesian authority is bound to arrange
random visit as directly protection to the address of the maid or address of her employer, as well as
the maid reports regularly to the office of embassy or consular, regarding her real existence
(Diantha, 2015).

These protection mechanisms include laws, policies and practices related to discrimination against
migrants, passport withholding, victim identification, non-prosecution or detention of victims,
protection and support of victims, legal assistance, the specific needs of child victims, repatriation,
remedies and criminal justice responses. The law of Bangladesh and Middle East should be
evaluated and revised to address the problems of migrated employees.
The writer is a Legal Economist.