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.

Qatar Today - - INSIDE THE ISSUE - BY UDAYAN NAG

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.

AM­BIGU­OUS;

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

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