ONE STEP FORWARD, TWO STEPS BACK?
WHILE HEADLINES LIKE "KAFALA SYSTEM ABOLISHED" WERE USED TO DESCRIBE QATAR'S LATEST LABOUR LAW, NOT MANY HAVE ACTUALLY FIGURED OUT WHAT THE CHANGES ARE.
While headlines like "Kafala system abolished" were used to describe Qatar’s latest labour law, not many have actually figured out what the changes are.
old wine in a new bottle; an eyewash. Everybody seems to have an opinion about Qatar's latest labour law which came into effect on December 14, 2016. The absurdity of the situation is heightened by the fact that either people don't want to talk about it, or are least interested in exploring it further. Many feel that the only thing in favour of the employees which did not exist before is that the maximum time required to spend in a company is five years, after which he/she can move on without a No Objection Certificate (NOC). But some feel that there are many riders attached to that.
One gets a number of versions of particular facets of the law. But on what basis is the public, mainly the expatriates, adding its two cents' worth? Is it more hearsay than anything? Have things actually changed on the ground? Are the blue-collared workers any better off now than before? Or does the new law simply raise more questions than it actually answers?
According to the latest development, Law No. 1 of 2017 on January 4 reinstated the exit permit system. Expatriates will now need to seek permission from their employers to leave the country. Earlier, under the new law which was announced in December 2016, employees would only need to inform the employer about their desire to exit the country, but apply directly to the ministry.
James Lynch, Deputy Director, Global Issues Programme at Amnesty International, has plenty to say on a wide range of issues regarding Qatar's latest labour law. However, isn't laying the blame solely on Qatar exercising the easier option?
“In recent years, Amnesty has published reports calling on the governments of India, Indonesia and Nepal to do much more to protect their citizens who are travelling to other countries for work,” says Lynch. “The governments of all countries sending migrant labour have an important role in preventing exploitation of their citizens. In particular, they should regulate recruitment agencies much more effectively, to prevent migrant workers being charged recruitment fees and being deceived about the nature and terms of their work in Qatar.”
Lynch adds that embassies should do everything possible to assist their nationals in distress, in particular to help them leave abusive employment relationships and to help them seek justice. “Most workers do seek help from their embassies at the same time as they lodge complaints with the Qatari authorities. Embassies sometimes face bureaucratic obstacles in labour cases, but many workers have also complained about the unwillingness of embassy staff to challenge exploitative employers. Ultimately, the most important thing that countries could do to protect the rights of their migrant labour abroad would be to advocate a fundamental and meaningful reform of Qatar's labour system.”
Amnesty International has talked about counter criminal cases being filed by employers as a retaliatory move against employees who seek legal help. According to Lynch, the UN Special Rapporteur on the human rights of migrants found that in Qatar “often when a migrant reports abuse by their sponsor, the sponsor retaliates by filing criminal charges against him or her.” Amnesty International has also documented cases of employers filing, or threatening to file, spurious criminal charges against workers when they have wanted to leave the country, which include accusations of "absconding", theft and physical assault.
To check this kind of vendetta, Lynch suggests that “one immediate step the authorities could take would be to disregard any ‘absconding' charges filed by employers against workers who have lodged complaints”.
He adds, “Additionally, when considering whether to press criminal charges against workers accused by the employers, prosecuting authorities should ensure that they take into account any ongoing dispute between the two parties as part of their deliberations into the circumstances of the case, in particular when assessing the reliability of testimonies. Employers found to have filed spurious charges against workers in order to prevent them from proceeding with labour cases should be held accountable.”
The removal of the two-year ban on employees wishing to return to Qatar after resigning from their previous job has been deemed by many as a much-needed amendment. This, to a certain extent, is also acknowledged by Lynch.
“The removal of the ‘two-year ban rule' could potentially have a positive impact, as the rule facilitated coercion and exploitation, with workers feeling unable to leave exploitative jobs, knowing that they would be prevented from securing a new job in Qatar and would therefore be
unable to pay off debts they had taken to migrate."
Lynch, however, is not jumping the gun. “It's not clear how the new law will be implemented. In October 2016 a government statement suggested that workers who terminate their job contracts and leave the country before the end of the stipulated duration will not be allowed to return to the country before the end of the contract period.”
As far as the new Dispute Resolution Committee – formed to resolve conflicts between employers and employees within a maximum of three weeks – is concerned, Lynch feels that there is little detail on these plans at this stage, in particular on the time frame for the committee's operationalisation.
“There is an urgent need to speed up and make more effective the process for workers to secure compensation and redress when employers abuse their rights. Quite often, employees are forced to drop their cases and go home as they cannot wait for the labour cases to reach a judgment. In such cases, workers return home without months of unpaid salaries which their employers owe them. The current Labour Court system also imposes a hefty fee on every worker in order to have an expert report commissioned in their case, which prevents many people from accessing justice. If the Dispute Resolution Committee which has been proposed by the government can address these issues, it would certainly be welcome.”
The GCC countries signed an extradition treaty in 2015. The Philippines and Saudi Arabia are also in the process of negotiating an extradition treaty. Knowing that foreign nationals who have indulged in unlawful activities will be returned to them might be one less reason to have the exit permit. Lynch has mixed views on this and is of the opinion that instances of unlawful activity by foreign nationals cannot justify the retention of a blanket restriction on migrant workers' fundamental human right to return to their country.
“While extradition can – if conducted in a manner which does not violate the individual's human rights or return them to a country where their human rights are at risk – provide a legitimate means to hold accountable those accused of criminal activity, raising the signing of extradition treaties as an alternative to the exit permit risks legitimising the misleading view that the exit permit is designed to act as a crime prevention measure.”
“Instances of unlawful activity by foreign nationals cannot justify the retention of a blanket restriction on migrant workers' fundamental human right to return to their country. Qatari courts frequently issue travel bans to prevent individuals – citizens and foreign nationals – from leaving the country while they are involved in ongoing civil or criminal cases. The exit permit provides no additional value in preventing crime; it serves little purpose other than to award employers an additional tool with which to control or coerce their migrant workforce.”
Lynch also feels that Qatar has made almost no progress in protecting the rights of domestic workers despite promising to do so formally at the United Nations. “Domestic workers in Qatar are particularly at risk of abuse for a number of reasons. In addition to being subject to the sponsorship system, their exclusion from existing labour protections and complaint mechanisms implies that they are entirely dependent upon the goodwill of their employers with almost no means of complaining or changing their circumstances if they are in an abusive situation. The fact that domestic workers' workplace and accommodation is the private home of their employer means that they are at risk of being isolated and trapped in exploitative situations and of being subjected to serious abuses including physical and sexual violence.”
He adds, “Priority of the authorities should be bringing domestic workers, and other excluded professions, under the protections provided in Qatar's 2005 labour law, and ensuring that these protections are enforced. The implications of Law No. 21 of 2015 for domestic workers are not yet clear, but it can be said with certainty that the new law will not achieve this."
And finally, the fine for confiscating someone's passport
has been increased from QR10,000 to QR25,000. In a strange development though, unlike in the previous law, workers can now request their employers to keep their passports. Lynch comes down hard on this alteration of the law.
“Until now, it has simply been illegal for employers to hold workers' passports. This prohibition has rarely been enforced though and almost all employers have flouted the ban. The new legislation effectively legalizes the current practice by allowing employers to keep passports of workers if the employee has provided permission. It is not clear why Law No. 21 of 2005 introduces this regressive loophole on passports.”
“Employers in Qatar enjoy a disproportionate level of influence and control over their employees. It will be impossible to ascertain whether employees who have asked for their passports to be retained did so freely. It is important that the Qatari law contains robust punishments to prevent abusive treatment by employers, and to that extent the increased fine for employers found guilty of passport confiscation is welcome. However, the introduction of this loophole undermines the potency of the increased fine. The authorities should rethink their approach and enforce an unambiguous prohibition on passport confiscation, requiring that all employers provide each worker with a safe, lockable space to individually store his passport.”
Moving on to the flip side of the coin, what do employers feel about the latest labour law? While the human resource departments of some of the companies in Qatar opted to stay mum on being contacted, Khalifa Saleh Al Haroon, Founder & CEO of the iloveqatar.net website, tried to give a balanced point of view.
Haroon defends the contract system, saying, “As a business owner myself I have to think about people who may accept a job, get the benefits, get a free flight to Qatar, have me pay for training and then job-hunt somewhere else. So basically I've paid for someone to find a job in Qatar. Of course what protects me is the contract. At the end of the day, what protects both the employee and the employer is a solid and fair contract."
Having said that, he also opens up on the problems faced by him while dealing with the Labour Department. “They make it so difficult that as a business owner I am better off sticking to a terrible employee than finding someone new just because the processes are tedious and sometimes complicated. In one case I was denied permission to hire a female Canadian and a female South Korean and no reason was given for it. It should be the law that official organisations must provide a satisfactory reason for rejecting a candidate."
Haroon adds that right now recruitment is one of the biggest reasons which is holding Qatar back. “The startup landscape is limited and people are less likely to invest in Qatar if things don't change. Setting up a business should give people independence and encourage growth within the country. Some rules and systems seem to discourage that.”
Professor Mohammed Ramzan Ali Miya, Community Representative & Consultant, National Human Rights Committee (NHRC), talks about the importance of understanding the amendments to the law. Miya addresses the problems of the Nepalese as well as Sri Lankan and Bangladeshi workers. He says that the labour law needs to be translated into different languages and that it's the duty of the community heads of the respective countries to do so.
“Nobody makes the effort to try and understand the new law. There is not enough awareness about Metrash, the electronic service system, which can be used to exit
the country. I have been involved in 2-3 cases where the sponsor has been messaged using Metrash and the concerned person has got the permission to leave the country within 10 minutes.”
He further says, “In case there is an emergency because of which an employee has to leave for their home country the same day and they have messaged the sponsor or informed the administration about it and there is no response from their side. In that scenario the grievance committee comes into play; they will intimate the sponsor from their side. They will repeat the process the next day, and if there is still no response then your exit will be arranged for within a maximum of 72 hours. You will also be guaranteed reentry. Your employer cannot block your entry back to Qatar. In fact, action will be taken against the sponsor for not approving his employee's exit from the country.”
Miya points out that an important aspect of the latest law is that the contract which is signed by an employee in their home country is the one which will be valid. “This actually existed before as well but, under the new law, a copy of the contract will have to be shown at the immigration department before the candidate can enter Qatar. The visa will be issued on the conditions which have been mentioned in the contract, and it has to be attested by the Ministry of Social Development and the Ministry of Labour and Social Affairs.”
Miya also goes into the details of the procedure required to acquire a visa in case someone is looking to change their job under a different profession. According to the latest rules, a company looking to hire an individual has to have the visa for that person's gender, nationality and expertise.
“Let's say a person is working as a labourer and he acquires a driving licence during his stay in Qatar. If he now wants to upgrade himself as a driver, he needs to present his licence, along with other documents which prove the fact that he is competent enough to be hired as a driver. A fee has to be paid for switching to another profession. One also needs to fill in a form which is available at the Ministry of Interior Qatar and provide bank statements for the last six months.”
There has been another interesting development lately which has put employees in a bit of a fix. The old law will continue in force till mid-January 2017. Miya mentions this particular case where a person was looking to take advantage of the new law but was unable to do so because of the extension of the old labour law. He was hindered by the fact that he required an NOC.
So it seems that job-hunters within Qatar who have been sponsored by their companies are caught between a rock and a hard place. They are feeling the ill-effects of the old as well as the new rules.
But then is that the major issue facing the vast majority of employees? Miya gives examples of workers whose sponsor is demanding QR5,000 to issue a residence permit (RP), and another who is charging money to provide the required attestations for attaining an NOC. It goes without saying that they are not in cushy, white-collared jobs. Does it even matter to people like Surendra Thakur, Lakshmi Mahara and Bhajoshyam Harijan, who have been working as foremen in Qatar for the last ten years, that there has been a "change" in Qatar's sponsorship law? Their RPs have not been renewed for almost a year.
“We don't care about the changes in Qatar's labour law. We have had enough. We just want to go back to Nepal but our gratuities have been held up,” say all three of them in unison
FOUNDER & CEO ILOVEQATAR.NET KHALIFA SALEH AL HAROON
JAMES LYNCH DEPUTY DIRECTOR, GLOBAL ISSUES PROGRAMME AMNESTY INTERNATIONAL
MOHAMMED RAMZAN ALI MIYA COMMUNITY REPRESENTATIVE & CONSULTANT NATIONAL HUMAN RIGHTS COMMITTEE