Striking a balance between employee rights and employer obligations

By: Rita Ako Williams, Executive Board Chairperson, Excella Consult, LLC

For some time now, some employers of domestic workers in the Gulf Cooperation Council (Saudi Arabia, Kuwait, Qatar, Bahrain, United Arab Emirates, and Oman) commonly called the ‘Gulf States’ have been in the news for allegedly abusing and maltreating domestic workers.

With more than 90 percent of domestic workers being migrant workers, there has also been a mix of accounts by domestic workers, with some recounting good treatment by their employers, and others detailing stories of abuse and maltreatment.

Be that as it may, migrant workers and those intending to pursue employment as domestic workers in the Gulf States must ‘know before they go’; know what their rights are, if any, and what to do when faced with situations of abuse as well as be informed about some of the positive changes that are occurring in the legal policy environment in the Gulf States concerning domestic workers.

First, for those intending to pursue work in the Gulf States, here are a few things to consider. Generally, migrating to the Gulf States occurs in the form of work visas although there may be a few exceptions. People commonly find jobs through direct/online applications, recruitment agencies, or recommendations by friends and family who live and work there.

All foreigners entering the Gulf States are required to have a sponsor. This applies to visitors entering the country for residence or for work. A sponsor could be a business/company, or an individual. While most domestic workers may come under a company sponsorship (recruitment agency), some also come as direct employees of the host family.

Thus, unlike majority of situations that exist in other countries where a person seeking greener pastures could travel and overstay a visa and look for work, travelling to the Gulf States as a domestic worker requires having a sponsor or an employer to pre-authorise travel for work and pay for the associated costs.

Second, it is important for one to be properly informed about the true state of salaries for a domestic worker in the Gulf States as there is a misconception about high salaries arising from the idea that the Gulf States are oil-rich nations. This misconception of high salaries has been kept alive by scammers who extort money from unsuspecting victims with a promise of jobs and high US Dollar-denominated salaries.

It is pertinent to mention that domestic workers in the Gulf States are not paid in United States dollars of up to $1,500 a month as some recruiters may claim. According to an article published by HelperChoice, an online recruitment firm, the average salary in the Gulf States for domestic workers was between $384 and $440 in 2016. Prospective migrant domestic workers should flag offers for employment in the Gulf States with a salary promise of anything from $800 to $1500 as potentially a scam and advice themselves accordingly.

Third, recruitment charges also require some attention and discussion. During the process of being considered for a job to the Gulf States, a prospective employee is not required by the employer to provide money for the payment of visa processing, cost of visa, or money to buy an air ticket. It is the responsibility of the employer to bear such costs.

By contrast, once in employment in the Gulf States, should the employee decide to return to their country of origin before two years of employment, the employee is required to pay recruitment charges, which may include the cost of the ticket and visa fees the employer had paid. Recruitment charges do not include the return ticket an employee needs to purchase back home.

Fourth, changing of employment is another issue worthy of note. Due to the nature of the labour law, specifically the “Kafala” or “sponsorship system”, it is nearly impossible to change jobs once sponsored, although there are exceptions. Usually, the domestic worker who was employed through an agency may be able to switch families if the employee has issues with the current family employer.

However, if the recruitment was done directly without an agency acting as an intermediary, then the option of changing jobs is unlikely especially if there is a misunderstanding between the employer and employee. This is because the “Kafala or “sponsorship” system ties the employee’s legal residence to the employer.

In addition, the “Kafala” system also requires a foreign worker to obtain an exit permit from the employer if the employee wishes to exit the country or obtain a “No Objection Certificate” (NOC) if the employee wishes to change jobs. By year’s end, Dubai, Qatar and Bahrain had abolished the exit permit rule; however, Saudi Arabia, Oman, and Kuwait still enforce it to a certain extent.

Fifth, domestic workers are excluded from coverage under the labour laws in the Gulf States, meaning that domestic workers could be employed without a contract evidenced in writing, making them vulnerable to exploitation. Without a contract and enforceable rights, domestic workers do not have standing to file a complaint to the labour commissions in the Gulf States.

Although historically the rights of domestic workers have not been enshrined in law in majority of the Gulf States, recent efforts to change the status quo are emerging. Some of these efforts include adjusting the ‘Kafala’ system in some member states, prohibiting employers from retaining custody of the passports of employees and cancellation of exit permits. In addition, laws are being considered to provide rights for migrant workers. As an example, the Cabinet of Qatar has approved a draft bill which would include migrant workers in the labour law. Although details of the draft bill have not yet been revealed, it is expected that the bill would be similar to that of the 2011 bill which provided migrant rights and clearly stated the rights and responsibilities of both the domestic worker and employer.

As the draft bills continue to be under consideration in some of the Gulf States, other options aimed at addressing the issue or limiting opportunities for occurrence of the abuse of migrants must be considered. One option is to call for a total ban of the recruitment of domestic workers, including Ghanaians, from engaging in domestic work in the Gulf States. However, a total ban would not only infringe on the rights of persons to engage in employment and prohibit free movement of persons and related rights, it would also constrain the Gulf States’ ability to hire migrant domestic workers who make up more than 90% of the workforce in that sector.

Another option could be to adopt proper procedures to facilitate the recruitment of domestic workers to the Gulf States. This could be done by engaging a third party in performing due diligence and possibly acting as a quasi-government representative in the Gulf States that have no consulates and escalating the abuse of migrants to the consulates.

In addition, it is important that intending migrant domestic workers are provided information about agencies and organizations that they can report maltreatment or abuse before they depart from their country of origin. Some of the information could be to provide the telephone numbers of the police, immigration, and most crucially, the contact information of their nearest consulates.

To date, seeking assistance from consulates has proven to be very effective as was demonstrated recently by the intervention of the Ghana Embassy in Saudi Arabia when it intervened in several cases and facilitated the rescue and return of some Ghanaian migrant workers.

Furthermore, as part of the pre-departure procedures, intending migrants could be made to submit information about their employers to immigration authorities with a waiver provided to immigration officials to share the information with consulates and accredited non-state institutions. This will enable consulates and accredited non-state actors to periodically check on domestic workers in their employment and assist when cases of abuse and maltreatment are uncovered during routine visits. The cost of these visits and assistance could be borne by domestic workers who opt to be part of this innovative and accountability program.

Finally, there must be continuous education of migrant workers in employment or who are seeking to travel as domestic workers in the Gulf States about the realities of working in the Gulf States. Special focus should be on what they need to know and how they can get help when faced with some of the aforesaid issues.

As changes continue to evolve, it is important that countries in the Gulf States continue to strike a proper balance between employers’ interest to fill up domestic workers’ positions with migrant workers and the States’ and employers obligations to promote, respect, and protect the rights of domestic workers.

Rita Ako Williams is the Executive Board Chairperson of Excella Consult, LLC, a consulting firm specialising in providing innovative solutions to clients in the hospitality and related services industry in Qatar and Ghana. She also serves on the Board of the US branch of the Africa Center for International Law and Accountability (ACILA-USA), a 501 (c) (3) research and education non-partisan, and non-profit think tank specialising in international law, international criminal justice, and monitoring African states’ compliance with international instruments.