April 28, 2010

Labor Reforms

We are fully aware in the UAE of the need to improve the situation of domestic workers and have been working systematically towards that goal.
— Dr. Anwar Gargash, minister of state for federal national council affairs, United Arab Emirates, October 27, 2009[9]

Several labor-receiving countries in Asia and the Middle East have begun to acknowledge the precarious situation of domestic workers and to enact reforms. These reforms typically take the form of a standard employment contract that outlines the monthly wage and arrangements over repatriation costs, but that falls short of providing the comprehensive protections provided under national labor laws, such as limits to hours of work, overtime pay, benefits including maternity leave, and social security. While such standard contracts are usually legally binding, measures to publicize the requirements or enforce the provisions often remain limited.

Jordan amended its labor laws in 2008 to include domestic workers, and the United Arab Emirates, Saudi Arabia, Kuwait, Bahrain, Lebanon, and Malaysia are considering either reforms to existing labor codes or drafting new legislation.[10] The dynamic policy environment provides optimism about increased protections for domestic workers, but despite active debates, these proposed legislative changes have moved slowly, often stalling for years. The points of greatest contention typically involve establishing weekly rest days in which domestic workers have the freedom to leave the workplace, a limit on working hours, and classification of private homes as workplaces subject to government inspection and intervention.

Standard Employment Contracts

Several governments, for example, the United Arab Emirates in 2007 and Lebanon in 2009, have introduced mandatory standard employment contracts.  In other countries, such as Singapore and Saudi Arabia, these contracts may be formulated and implemented by private recruitment agencies. These standard contracts represent a significant improvement over informal work arrangements with no written terms of employment, often establishing for the first time a set of minimum standards for domestic work.

However, standard contracts vary in their level of protections, and typically provide much weaker protection regarding hours of work, rest days, overtime pay, workers’ compensation, safety and health requirements, annual and sick leave, or other benefits than would be found in the country’s labor law. For example, Singapore’s contract only requires at least one day off per month instead of one per week; furthermore, it recommends but does not require eight hours of continuous rest.  Lebanon’s unified contract, adopted in 2009, provides for a weekly rest day, but gives employers the ability to negotiate the conditions of this arrangement, in deference to many employers’ preference to prevent domestic workers from leaving the house on their days off. 

Provisions regarding adequate food, accommodation, and overall treatment tend to be vague and do not establish clear minimum standards. For example, many contracts simply call for provision of adequate food, but do not clarify that no deductions should be made from the salary for meals, or specify the quantity, quality, and frequency of these meals—a significant omission given the high numbers of complaints about food deprivation.

It is harder to monitor and enforce the provisions regarding terms and conditions of work in standard employment contracts in the absence of accompanying reforms in labor laws. Unlike other labor sectors, oversight of domestic workers falls under the interior or home ministry instead of the labor ministry in Malaysia, Saudi Arabia, Kuwait, and the UAE. Interior ministries oversee immigration and policing and officials tend to emphasize oversight of migrant domestic workers as an immigration enforcement problem rather than a labor issue. These officials do not have the level of expertise about labor standards and relations housed in labor ministries, and domestic workers do not have equal access to labor-dispute resolution mechanisms as categories of workers overseen by labor ministries.

There is often lack of clarity whether contractual labor disputes can be resolved through procedures at labor courts or other dispute-resolution mechanisms. Instead, such disputes often continue to be mediated by embassy officials or recruitment agents in situations where workers have far less bargaining power than their employers and end up with disadvantageous outcomes.[11] Legislative reforms that place the protection of domestic workers under the purview of the labor ministry and subject to the labor protections provided for other workers are key to enforcing their rights.

Bilateral Agreements: the Example of Indonesia and Malaysia

Another strategy in lieu of comprehensive labor reform has been to forge bilateral labor agreements between countries. Such agreements have been negotiated between Malaysia and Indonesia; Sri Lanka and the UAE; Sri Lanka and Indonesia with Jordan; and the Philippines with several host countries. These bilateral labor agreements normally represent an improvement on the status quo but, like standard contracts, offer fewer and weaker protections than those in national labor laws, and have unclear enforcement mechanisms and penalties.

Indonesia and Malaysia are revising a 2006 Memorandum of Understanding regulating migration of domestic workers. The 2006 agreement allowed employers to keep workers' passports, lacked clear standards on a minimum wage or rest periods—including a weekly day off—and did not establish clear penalties and enforcement mechanisms.  Large numbers of complaints from domestic workers of nonpayment of wages and a series of high-profile abuse cases in 2009 led Indonesia to suspend migration of domestic workers to Malaysia until new protections were provided in a revised agreement. This suspension was still in effect as of late April 2010.

After several bilateral meetings and missed deadlines, Indonesia and Malaysia have agreed on revisions that will permit domestic workers in Malaysia to keep their passports and have a weekly day of rest. However, the two governments still disagree on Indonesia's demand for a minimum monthly wage, and employers will have the option of paying a worker to forego the day of rest. This provision can be abused easily since a worker who prefers a day off in lieu of extra payment may not have the bargaining power to demand it, especially if she fears termination of her employment. The negotiations to date suggest that rights such as freedom to form associations and reasonable limitations on hours of work will not be covered in the agreement.

Legislative Reform

Jordan stands out as a country that, after introducing a standard contract in 2003, amended its labor laws to include domestic workers in 2008 and issued the associated implementing regulations in 2009.[12] This reform is an important model in the region and includes provisions such as requiring employers to pay monthly salaries directly into workers’ bank accounts, buy the worker health insurance, and limit work to ten hours per day. While these amendments are an advancement, the true test of this reform will be the government’s commitment to publicizing and enforcing the new standards.

Furthermore, the implementing regulations also contain provisions that restrict domestic workers’ freedoms. These include requiring a domestic worker to obtain her employer’s consent to leave the workplace, including during time off, and holding her liable for damages caused by “mistakes” in housework.  The regulations also lack a specific prohibition for employers to engage in the common practice of holding their domestic worker’s passport.

Other governments have announced intentions or have already begun to draft separate legislation on domestic workers, such as the UAE, Kuwait, Bahrain, and Lebanon.[13] Proposed provisions in current drafts represent significant improvements in legal protections for domestic workers and have begun to address the unique circumstances of domestic work such as employers’ responsibilities to provide decent accommodation and adequate food. A risk of developing separate legislation is that it will fall short of equal and comprehensive protections as provided to workers under the main labor laws. Furthermore, the development of these bills has not involved broad consultation with different stakeholders or an opportunity for public debate and comment. These processes have stagnated for years, often receiving lower priority than labor reforms to other sectors with higher visibility, such as construction, and have no specific timelines for action.

Malaysia and Saudi Arabia are considering amendments to labor laws that would improve protections for domestic workers but fall short of providing equal protections as those accorded other workers. For example Malaysia in 2009 proposed amending the Employment Act of 1955 to extend a weekly rest day to domestic workers, but did not announce plans to remove the exclusions of domestic workers from other protections, such as limits to working hours, public holidays, annual and sick leave, maternity protection, and fair termination of contracts.[14]  Saudi Arabia’s Shura Council, after years of discussion, passed an annex to the labor code on domestic workers in 2009 that greatly improved existing protections but stopped short of regulating fair working hours. According to news reports, a clause requiring employers to provide domestic workers rest between 10 p.m. and 5 a.m. was dropped because it “contradicted” the needs and traditions of Saudi families.[15]

Of the countries surveyed here, only Singapore has made no movement to amend their labor laws to include domestic workers. Government officials often cite reliance on market mechanisms alone to set domestic workers’ wages and recruitment fees, even though this leaves domestic workers at high risk of exploitation because of their weaker bargaining position relative to employers and recruitment agents. Singapore’s ministry of manpower also argues, “it is not practical to regulate specific aspects of domestic work i.e. hours of work, work on a rest day, and on public holidays. It would also be difficult to enforce the terms of the Employment Act for domestic workers as: [they] work in a home environment; and [the] habits of households vary.”[16] While minimum labor standards for domestic work may require additional enforcement strategies than those used in factory or office settings, the success of such regulations in Hong Kong, South Africa, Brazil, and other countries demonstrates its feasibility.

[9]Samir Salama, “Maid draft law is 'a major step,’” Gulf News, October 27, 2007, http://gulfnews.com/news/gulf/uae/government/maid-draft-law-is-a-major-step-1.208457 (accessed April 25, 2010).

[10] Human Rights Watch interview with Majeed al Alawi, minister of labor, Kingdom of Bahrain, Manama, February 3, 2010; Human Rights Watch interview with Alex Zalami, advisor, UAE ministry of labor, Manila, October 30, 2008; Government of the United Arab Emirates, Responses to the list of issues and questions with regard to the consideration of the initial periodic report, CEDAW/C/ARE/Q/1/Add.1, October 19, 2009, p. 27; International Labor Office, “Did you know? Frequently asked questions and answers about live-in domestic workers in Lebanon,” ILO Beirut factsheet, August 31, 2009, http://www.google.com/search?hl=en&client=safari&rls=en&q=Frequently+asked+questions+on+women+migrant+domestic+workers+in+Lebanon+&aq=f&aqi=&aql=&oq=&gs_rfai= (accessed April 25, 2010); Human Rights Watch telephone interview with Saleh Ashour, member, national assembly of Kuwait, Geneva, Switzerland, April 22, 2010.

[11]Lack of information, time, money, and representation impose barriers to redress even in countries such as Bahrain where domestic workers fall under the purview of the labor ministry and are able to pursue complaints through regular administrative and judicial channels.

[12] The Jordanian Labor Law, No. 8, 1996, article 3, section B and Regulation of Workers in Homes, Home Kitchens  and Gardens, and their Like [نظام العاملين في المنازل وطهاتها وبساتيينها ومن في حكمهم], No. 90, published in the Official Gazette No. 4989, October 1, 2009, p.5348.

[13] See footnote ten.

[14] 1955 Employment Act of Malaysia, part XII.

[15]“Shoura passes bill on domestic helps' rights,” Arab News, July 9, 2009, http://archive.arabnews.com/?page=1&section=0&article=124397&d=9&m=7&y=2009 (accessed April 6, 2010) and “Saudi law defines rights of domestic workers,” Khaleej Times Online, July 10, 2009, http://arab-reform.net/spip.php?article2231 (accessed April 25, 2010).

[16]Ministry of Manpower, “Employers' Guidelines: Employment Laws and Contracts,” Ministry of Manpower website, http://www.mom.gov.sg/publish/momportal/en/communities/work_pass/foreign_domestic_workers/employers__guidelines/Employment_Laws_and_Contracts.html (accessed April 6, 2010).