H.E. Ghazi al-Shubaikat

Minister of Labor

Ministry of Labor

Amman

Hashemite Kingdom of Jordan

 

Dear Minister al-Shubaikat,

We write to urge you to introduce amendments to the draft Regulation for Domestic Workers currently under consideration by your office. We have recognized Jordan's pioneering role in amending  its labor law in July 2008 to include domestic workers, whose rights and duties were to be spelled out by a separate ministerial regulation, now under consideration. Almost one year after the law's amendment, the current draft of this separate regulation, which spells out rights and duties of employers and domestic workers and defines a role for the Ministry of Labor, includes both positive clarifications and points requiring further scrutiny and revision. We have based our comments on international human rights and labor standards, which are also the basis for a proposed new International Labor Organization Convention regulating domestic work. We have attached a guide to the proposed new ILO Convention.

I thank you for your attention to this matter and would be pleased to meet with you to discuss ways to protect the rights of migrant domestic workers in Jordan.

Sincerely,

Christoph Wilcke

Senior Researcher

Middle East and North Africa Division


Suggested Amendments to Jordan's Draft Regulation on Domestic Work

Proposed by Human Rights Watch

June 19, 2009

Article 2:

Definitions: Definition of the term "home owner" should include a the condition that he be of legal capacity , and we recommend that term "using" be replaced by "or contracting with" or at a minimum that there is clarification that the "use" by the home owner of the domestic worker is a contractual agreement.

Definition of the term "domestic worker" should include a minimum age of at least 15 years of age for Jordanian domestic workers and 18 years of age for non-Jordanian domestic workers.

Article 4 - Home Owner Obligations

It should be made clear that these are minimum obligations, and that employers and workers may agree on further contractual guarantees.

2. We welcome the introduction of obligations by the home owner to pay the worker's salary every month into the worker's bank account. This article should specify that the amount stipulated in the contract is due in full to the worker every month. Because late or non-payment of salaries is commonplace, the regulation should include fines for employers who violate this provision.

3. We welcome the restriction of places of work to the home owner's current or temporary place of residence. We think it prudent to add that only the home owner's family members are authorized to issue instructions to the worker, in order to help shield the worker from having to perform tasks outside the scope of the contract.

4. We welcome inclusion of specific home owner obligations to provide the domestic worker with adequate living conditions. We recommend specifically obliging the home owner to provide safe and healthy conditions of work, with respect to the type of work, the tools used to work, and the work premises. Furthermore, the clause should specify that the worker's accommodation be safe, private, and lockable from the inside, and that the worker have access to the bathroom and shower. Furthermore, the clause should make clear that domestic workers have the right to seek accommodation off the premises of their employer's household.

6. We welcome the prohibition of interference with the worker's right to "hand- written" correspondence, but urge you to remove the word "hand-written" in order to safeguard the worker's right to correspond freely with others through any means. Furthermore, we welcome the home owner's obligation to pay for the worker's call home once a month, but the clause should specify that workers have the right to make additional calls at their own expense.

8. We believe that the home owner should be required to pay for repatriation costs incurred by the worker not only after the end of the two-year contract, but also earlier, under certain conditions. The home owner should pay in cases in which he chooses to terminate the employment when the worker is not at fault, and in cases in which the worker terminates the employment because he has been charged with, sued for, or found guilty of committing violations of Jordanian law or the contract with the worker that caused the worker to terminate the employment. In addition, the home owner should be obliged to provide the worker with free accommodations (not necessarily in his home) for a reasonable amount of time before the worker can arrange for her repatriation or new employment in cases in which he terminates the employment before the end of the contract without fault of the worker.

In cases in which the worker terminates employment, the recruitment company should be held liable for the costs of repatriating the worker as is current practice, with the Ministry of Labor paying those costs if the agency fails to do so promptly. The Ministry shall have recourse to reclaim those costs from the agency. Workers do not have the means to pay for tickets home and get trapped and indebted if they do not have the ability to quickly return home.

9. We welcome the obligation on the home owner to medically insure the worker, and recommend including obligations for social security on terms provided by Jordan's Social Security and Labor Laws and maternity protection on par with what Jordanian law provides to other types of foreign workers.

11. We welcome explicit recognition of the worker's freedom of religion but are troubled by the current restrictions on practices that "conflict with normative behavior and acceptable ethics and morals," which are vague and could be abused by home owners unfamiliar with religious practices other than their own. Such restrictions, if they remain at all, should be drawn far more narrowly, for example stating "apart from exceptional cases where such religious practices are impossible to reconcile with public morals in Jordan."  We also suggest adding that the worker shall have the right to perform her religious duties during her work hours for short durations, provided the work does not suffer as a result, and outside her work hours in association with others outside of the home. And also we suggest adding a specific requirement that home owners respect worker's dietary requirements, unless it is impossible for them to do so.

12. We strongly recommend adding a clause that prohibits the home owner from holding the worker's passport, residency papers, and the work authorization, regardless of the worker's consent, and in any event requires all such papers to be given to the worker immediately on request of the worker. This practice has facilitated a host of other abuses, including non-payment of salaries, forced confinement, verbal, physical, and sexual abuse, and lack of judicial redress.

Article 5 - Domestic Worker Obligations

a. We strongly urge you to cancel this clause conditioning a worker's freedom of movement outside the house on the home owner's permission. Such conditions condone unlawful deprivation of liberty, punishable by Jordanian law and no domestic regulation should facilitate a crime taking place in Jordan. Jordan is required by international law to respect the freedom of movement of everyone without any discrimination. Restrictions on workers' freedom of movement are pervasive abuses and often contribute to other violations, such as unpaid salaries, physical and sexual abuse, and conditions of forced labor. We strongly urge you replace it with language specifically guaranteeing a worker's freedom of movement and freedom to choose her place of residence. We recommend including specific language indicating that any contractual clause conditioning the worker's freedom of movement outside the house on any type of permission  is void.

c. We believe that this clause holding the worker liable for damages caused as a result of "mistakes" is overly broad and subject to abuse by employers. The worker should only be held liable for willful or grossly negligent damages caused in the course of carrying out her work duties. The employer  should not have any right to deduct damages from salary which is open to abuse, but instead should only be able to require payment after proving willful or grossly negligent damage. Damage caused off duty should be subject to normal procedures in the courts.

d. and f. We suggest cancelling these clauses obliging the worker to perform her duties with utmost loyalty and honesty and not to disclose any confidential information because they do not add legitimate, concrete, and verifiable obligations on the worker that are not already covered in clause b. obliging the worker to respect the home owner's privacy and the general obligations under the terms of the work contract.

We would also suggest removing the clause requiring the domestic worker to respect prevailing customs and norms. This is not appropriate in a Regulation, especially as it is very vague. The domestic worker will in any event have to comply with all applicable Jordanian law, which presumably sets out those customs and norms that are appropriate to be enforced by law.

g. We welcome the restriction on the worker's liability for paying for her own repatriation costs in cases in which the employer caused the worker to "escape," but suggest "termination of employment," in lieu of "escape" (see also our comment on art.4.8. above). Furthermore, we recommend that the worker not have to pay for repatriation costs in any circumstance

Article 6 - Working Hours

a. We welcome the limit of the work day to eight hours but suggest that the clause say "no more than" eight hours, instead of specifying that the "total hours" spent working per day shall be eight hours. Additional work hours should be accorded overtime pay and not exceed what the Labor Law specifies. This clause should also include acknowledgment of the right to take meal breaks.

b. The freedom of the home owner to set the worker's hours needs to be better specified. This clause should define hours worked to include any "stand-by time," that is, time that the worker spends without concrete duties but is not free to dispose of as she wishes. It is acceptable to discount stand-by time at a reasonable rate compared to worked hours. Daily and weekly work hours, including stand-by hours, should have a maximum ceiling. Workers should be entitled to compensate stand-by time with time-off instead of accepting additional pay.

c. We strongly urge you to raise the minimum amount of continuous rest time per day to which a worker is entitled to an absolute minimum of eight hours per day, but recommend raising it to 12 hours.

d. In light of our comments to clause 6.a., we strongly urge you cancel in its entirety this clause allowing the home owner to confine the worker to the home during non-work hours.

Article 7 - Weekend and Holidays

a. We recommend that you replace the word "one day" of weekly rest with the words "36 hours." If the worker and the employer by mutual consent agree that the worker postpones her weekly time of rest and works instead, the hours worked should be compensated at the standard overtime rate, or be compensated by a reduction in the number of future working days as set forth in the Labor Law. Furthermore, we recommend that this clause include the worker's obligation to take 36 hours of rest once every week, or the minimum set in the Labor Law.

b. We recommend increasing the amount of annual leave to four weeks. We also recommend that this clause specify that the worker has full freedom of movement during her leave. We also recommend that this clause specify that accompanying the home owner on vacation shall not count toward the worker's annual leave of 14 days. The worker should be able to take her leave at other times during the contract in part or in full, not just at the end.

c. We welcome the inclusion of 14 days medical leave, but suggest the addition of an obligation on the employer to facilitate visits to the doctor, including by providing lists of specialists and general practitioners with whom the worker can communicate, if needed, with the help of the worker's embassy and the ministries of Labor and Health. This is due to the generally isolated nature of domestic work and language barriers.

We suggest a specific clause that the home owner will grant leave for all religious holidays of the worker on request, unless the home owner can show it is impossible to do so in a particular instance.  Such leave for religious purposes may be taken from the worker's annual leave.

Article 9

We recommend that the "Non-Jordanian Domestic Workers' Affairs Committee" include representatives of the embassies of domestic labor-sending countries as well as non-Jordanian domestic workers as members, or at least as observers should selection of domestic worker representatives prove difficult.

We also recommend that this article expressly recognize the right of non-Jordanian domestic workers to organize collectively, to form associations, and to freely assemble and express themselves.

Article 10-Ministry of Labor Obligations [suggested title]

We strongly recommend that this Regulation include an obligation on the Ministry of Labor, in cooperation with the Public Security Directorate, the Commission on Family Affairs, the Commission on Women's Affairs, and the Ministry of Health, to provide for removal and recovery programs for workers facing abuse, including the provision of safe, temporary accommodation free of charge, physical and psychological health care, and legal assistance. The Ministry should provide accessible complaint mechanisms, including a fully-staffed, multi-lingual 24-hour telephone hotline with emergency response capabilities and helpdesks at the airport and at areas domestic workers regularly frequent. These services should be publicized widely through public awareness campaigns directed at domestic workers.

The Ministry of Labor should keep a registry of domestic workers' personal and employment data and provide all domestic workers with a handbook listing telephone numbers of embassy officials, labor offices, police, and social services translated into the relevant languages. The Ministry should further conduct orientation seminars for employers on their legal duties and issue guidelines on how to resolve conflicts resulting from employing non-family members in the home.

a.  Ministry of Labor duties should include efforts to promote occupational safety through monitoring and regulation and to identify and remediate hazardous work environments for domestic workers, including protection from toxic substances and exposure to falls from high altitudes.  The Ministry of Labor should provide training course to home owners and workers on occupational safety, health requirements, and legal obligations of both parties.

b. The Ministry of Labor should put in place a mechanism of financial guarantees, involving the recruitment agency and the home owner, depending on the situation discussed above in arts 4.8. and 5.g. to ensure that the worker does not bear costs of repatriation.  This clause should include language ensuring that financial guarantees for repatriation of a worker without outstanding legal claims or who wishes to return despite outstanding legal claims by her against another person should be made available to the worker without delay.

d. The Ministry of Labor, in cooperation with the Borders and Residency Department at the Ministry of Interior, should put in place regulations to ensure that the worker can obtain legal residence in cases where acts by the home owner or the recruitment agency have led to a termination of employment under the contract. Legal residency should be available for the duration of the settlement of any legal claims. The Ministry of Labor should consider issuing ad-hoc work permits to persons in such situations.

Article 11 - Inspection

a. We suggest that this clause be removed,  or at a minimum the "shall" be replaced with "may" and a provision added that amicable resolutions of a complaint under this clause be "within the rights and duties established by this Regulation, the Labor Law, and other legislation in force" to avoid settlements that infringe on the rights of the worker. It is important to stress that the conflict resolution approach may not be appropriate in all cases, especially those with allegations or other evidence of serious abuse. In such cases requiring the abused worker to attend a meeting with their abuser, and then return home with them, will put pressure on them to withdraw any complaint.

b. We recommend that complaints of a criminal nature be immediately referred to the nearest police station and prosecutor's office for prompt investigation, and that the inspection by Ministry of Labor officials be restricted to complaints arising from this Regulation that are not covered by other legislation in force. It is important that the police and others are under a duty to investigate, speedily and fairly, all cases where there is credible evidence of serious abuse, and not only where there is an official complaint.  In the event of substantiated complaints of a violation of law or a serious violation of the contract, workers should be able to suspend or terminate their employment without penalty, and not be obliged to remain at work pending a possible resolution of the violation or an improvement in the situation.

c. We recommend that the Ministry of Labor require the worker to appear at the Ministry of Labor inspection office without the presence of the home owner within the first month of work to ensure she is aware of her rights and duties under her employment contract and under this Regulation, of which she should receive a copy in a language she understands.