Your rights if you work abroad
SINCE the advent of globalization, it is a well-accepted reality that no country, no matter how rich, can absorb all the people into its own labour market. Lesotho is not an exception as we are all familiar with the fact that historically, the Mountain Kingdom has been exporting unskilled labour to the Republic of South African mines. Unemployment challenges present a new opportunity to export this time around, more skilled labour to other labour markets beyond South Africa.
The primary role of the Ministry of Labour and Employment is to safeguard the labour rights and welfare of Basotho migrant workers inclusive of their dependants. Activities that are pursued by the Ministry in trying to protect migrant workers include the following: Setting and enforcing standards including labour recruitment standards; Supervising recruitment agencies; Providing support services for migrants and their families; Facilitating or reducing the cost of remittances; Encouraging migrants’ savings and investments. The ministry fully supports the idea of exporting human capital. Furthermore, it is fully behind all endeavours in so long as the right channels are followed. However, a number of issues need to be addressed before issuance of a license to recruit Lesotho nationals to work abroad. Labour agents are strongly advised to familiarize themselves with the contents of the Labour Code Act of 1992 in relation to contracts of Foreign Service. They are also advised to be familiarized with International Conventions and Recommendations on the protection of migrant workers and on recruitment agencies and employment agencies. In most cases, labour agents licenses may only be issued with a license to recruit Lesotho nationals on production of valid job offers from employers. Licenses may still be issued to labour agents that show clear job prospects in other countries through research particularly on labour issues, demands and shortages of labour on certain sectors. It is also issued to employees (agents) applying on behalf of their employers.
The Ministry is bound by law to ensure that all the workers have voluntarily consented to work abroad. Their contracts will only be attested when it has been ascertained that they fully understand and have freely agreed to the contract without being coerced or unduly influenced as a result of misrepresentation or mistake. Labour agents/ recruitment agencies are bound by the law to protect the rights of migrant workers from the day they are promised job offers. The obligation extends to the period of actual recruitment, during the journey to their place of work, when taking up employment, during their stay and when they return. It is imperative to show how protection will be provided for, bearing in mind their working conditions, their work contracts and issues of human trafficking. In cases where migrants are to pay back the costs incurred on their behalf, the Ministry discourages high deductions on salaries over long periods.
International Recommendations state that deductions should not exceed a period of 3 months. This is done in order that a migrant worker is able to maintain a decent standard of living and also those they do not find themselves in debt bondage, a situation which may be interpreted as a case of human trafficking and or forced labour. Therefore, the Labour Code Act provides that employers shall bear the costs of transporting migrant workers to their place of destination and back to their place of recruitment, and also to provide them with accommodation. The proposal to deduct travelling expenses from the employees will therefore be unlawful and will not be sanctioned by the Ministry. This brings about the fact that payment of wages should not only enable workers to maintain a decent standard of living while working abroad but should also allow them the capacity to save and productively use their earnings in anticipation of their return and resettlement in Lesotho.
Labour agents are advised to negotiate with their clients (employers) to incur this cost. Individuals cases in which employers bear transport costs are instructive in this instance. While connecting the two parties (employer and employee) to make them relate to each other, it is important to note that the role of the labour agent with each employee does not end there. Labour agents are engaged throughout the whole process, until the employees get back home and after they have received all the benefits due to them.
According to the Labour Code Order 1992, a labour agent acts on behalf of the employer. Over and above the ‘Deed of Agreement’, Labour agents must enter into an employment contract with the employees; the contract should cover their working conditions. Labour agents are expected to submit a service level agreement with the employers for scrutiny by the Ministry of Labour. Whilst the Ministry conducts its own research, labour agents are also advised to research on the countries they wish to send migrants. These are some of the issues that should form part of the research: Are opportunities for decent work being offered? If yes, are there labour laws that adequately protect the rights of foreign workers? Are migrant workers likely to be employed in places where their safety is at risk? If yes, in cases of work related injuries and diseases, will there be compensation? Do these countries give due recognition to the skills and qualifications of the workers? These above questions serve as guidance and it is admitted the list is not ex-