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Published: 12:27 AM, 27 January 2019

Evaluation of rule and policy of sending workers abroad

M S Siddiqui

Thousands of men and women from South Asia, South-East Asia and sub-Saharan Africa including
Bangladesh 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 right 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).

It has got momentum with globalization of trade and development of new concept of trade in service.
Under the General Agreement on Trade in Services (GATS), services can be traded internationally
in four different ways. The Mode 4 refers to the presence of persons of one WTO member in the
territory of another for the purpose of providing a service (WTO, 1995).

The rights and privileges are often violated by the employers. Historically, non-nationals have
enjoyed very little legal protection. The development of human rights, as a set of rights protecting all
individuals regardless of their status, has brought new forms of protection to aliens (Tiburcio 2001).

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 member countries. The convention has elaborated all the rights of the migrants and
the ICMW as modern Magna Charta of migrant workers (L PennaRao; 1993)

They 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) finds 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 'kafalas ystem'. 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).

Insan Association, a 'Members of the Migrant Domestic Workers (MDWs) Coordination Consortium'
study find the Kafala reform may also lead to higher satisfaction of employers, as many Employers
find current sponsorship responsibilities too burdensome (Hovsepian, 2014). The study further
suggests that 65 per cent of employers would support kafala reform if an alternative employment-
based visa and various options for reimbursement of recruitment fees in cases of early termination of
the contract would be offered.

The exploitation and abuse of migrant laborers are entrapped by inhumane conditions, deprived of
basic nourishment, susceptible to injuries and accidents, vulnerable to multiple types of abuse, and
deprived of basic health care (Sonmez et al, 2011).
Workers experience wage exploitation and excessively long work hours (between 16-21 hours a day
without rest breaks or days off and often exceeding 100 hours per week without rest); sleep and food
deprivation and inadequate living conditions; and verbal, physical, psychological, and sexual abuse.

The average monthly salary ranges between $150 and $200 and typical work hours range between
16 and 21 hours per day bringing hourly wages to between 15 and 30 cents (Gamburd, 2010)
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.

Email: mssiddiqui2035@gmail.com