Observation (CEACR) - adoptée 2016, publiée 106ème session CIT (2017)

Convention (n° 29) sur le travail forcé, 1930 - Emirats arabes unis (Ratification: 1982)

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Observation

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Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the Constitution of the ILO)

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 31 August 2016, as well as the Government’s report.

Articles 1(1), 2(1) and 25 of the Convention. 1. Legal framework for migrant workers. The Committee notes that, at its 326th Session (March 2016), the Governing Body approved the report of the tripartite committee set up to examine the representation made by the ITUC alleging non-observance of Convention No. 29 by the United Arab Emirates. The tripartite committee noted that the complainant organization alleged there is a lack of an adequate legal framework that prevents migrant workers from falling into situations or practices amounting to forced labour. It also noted that the Government maintains that it has developed a national legal system which provides for the necessary safeguards to protect the rights of migrant workers from the exaction of forced labour, including the Constitution and a number of subsidiary laws which prohibit practices that may lead to forced labour.

The Committee further notes that, while welcoming the recent measures taken by the Government as a significant step towards the protection of migrant workers, the tripartite committee also encouraged the Government to continue to take proactive action with regard to: (i) recruitment fees and contract substitution issues; (ii) the passport confiscation issues; (iii) the sponsorship system; (iv) the payment of wages; (v) migrant domestic workers; (vi) labour inspection and effective penalties; and (vii) access to justice and protection of victims.

(i) Recruitment fees and contract substitution

The Committee notes that the tripartite committee observed that the legislation, particularly the Labour Law, Ministerial Decree No. 52 of 1989, Ministerial Decree No. 1283 of 2010 and Cabinet Decision No. 40 of 2014 prohibit licensed recruitment agencies from soliciting or accepting any fees from workers. The tripartite committee also noted that clause 8 of the 2015 Standard Employment Contract contained in Ministerial Decree No. 764 of 2015, which entered into force on 1 January 2016, provides for the same prohibition. The tripartite committee further pointed out that although the abovementioned legislation constitutes an important step towards the protection of workers, necessary measures should be taken for its effective implementation.

The Committee notes the Government’s indication in its report that, an action plan to ensure better protection to migrant workers has been developed that is organized around six main priorities, including: (i) the elimination of contract substitution; (ii) the payment of recruitment fees; (iii) termination of employment and transfer of the sponsorship; (iv) housing and accommodation; and (v) awareness raising of domestic workers. This action plan will be adopted in the near future.

With regard to the issue of contract substitution, the Government states that the Ministry of Human Resources has undertaken a series of measures, such as: (i) the obligation of the employer to inform the migrant worker about the conditions of work before he/she leaves the country; (ii) the registration of the Standard Employment Contract in the database of the Ministry of Human Resources; (iii) upon arrival of the migrant worker, the Ministry has to ensure that the worker signs the same contract that he/she has been offered in his/her country; (iv) the Standard Employment Contract has to be issued in three languages (Arabic, English and the mother tongue of the worker) and has also been translated into 11 most prevalent languages for migrant workers; and (v) the prohibition for both parties to amend any clauses included in the Standard Employment Contract without an explicit authorization from the Ministry.

The Committee notes that the ITUC asserts in its observations that construction workers are confronted with the payment of high recruitment fees, as well as relocation costs (including visas and air ticket costs) in cash to recruitment agents in their home countries. According to the ITUC, the recruitment details of these workers were not traceable due to the absence of a formalized structure and/or internal process in place within the contractor’s/subcontractor’s entity. The ITUC nevertheless indicates that the newly adopted Ministerial Decree No. 764 of 2015 addresses the issue of contract substitution by introducing several requirements, including: (i) the employer must provide evidence that an offer letter was issued to the employee, which he/she has accepted (by signature) and the labour contract has the same terms as the offer letter; (ii) no alteration of the Standard Employment Contract is allowed, unless it is for the benefit of the employee and has been approved by the employee as well as the Ministry; and (iii) no new clause(s) can be added to these labour contracts unless they are consistent and compliant with the Labour Law, do not conflict with other legal provisions and are approved by the Ministry. While duly noting the newly adopted Ministerial Decree No. 764 of 2015, the Committee requests the Government to continue to strengthen its effort to ensure that, in practice, migrant workers are not exposed to practices that might increase their vulnerability, in particular in matters related to the payment of recruitment fees and labour contract substitution. It also requests the Government to ensure that the national legislation, in particular Ministerial Decree No. 764 of 2015, is effectively applied, and to provide information on results achieved through the implementation of the Action Plan on migrant workers, once adopted.

(ii) Passport confiscation

The Committee notes that the tripartite committee observed that migrant workers are still confronted with the practice of passport confiscation, although the Ministry of Interior’s Circular No. 267 of 2002, as well as the Standards Employment Contract, clearly prohibit such practices. The tripartite committee requested the Government to continue strengthening its efforts to ensure that the legislation is regularly monitored, to investigate such abuses, to sanction employers who are in breach of the legislation, and to strengthen the law to provide for criminal sanctions in cases of serious or repeated violations.

The Committee notes an absence of information in the Government’s report with regard to the issue of passport confiscation. In this regard, the Committee requests the Government to take the necessary measures to ensure that the Ministry of Interior’s Circular No. 267 of 2002 is effectively implemented. Please also provide statistical data on the number of migrant workers who have filed complaints regarding passport confiscation, on court decisions handed down on the issue of passport confiscation, as well as on the penalties that have been imposed in practice.

(iii) Sponsorship system (Kafala)

The Committee observes that the tripartite committee noted with interest that, in order to grant migrant workers more flexibility to change their employment relationship, the Government enacted in 2015 a set of laws, including: (a) Ministerial Decree No. 765 of 2015 on Rules and Conditions for the Termination of Employment Relations, (replacing the abovementioned Ministerial Decree No. 1186 of 2010); (b) Ministerial Decree No. 766 of 2015 on Rules and Conditions for Granting a New Work Permit to a Worker whose Labour Relations with an Employer has Ended; and (c) Ministerial Decree No. 764 of 2015 on Ministry of Labour-approved Standard Employment Contracts, all of which entered into force on 1 January 2016.

The Committee notes the ITUC’s reference to the newly adopted regulation that grants migrant workers greater flexibility to change jobs. The ITUC states that Decrees Nos 765 and 766 of 2015 introduce the possibility for the worker to terminate the employment contract unilaterally (and be considered for a new work permit). Such unilateral termination is now possible if a notice period of up to three months is observed.

The Committee notes the Government’s indication that, in order to renew the employment contract, the worker has to sign a new contract that will also lead to the renewal of the work permit. The Government also indicates that in 2015, 2,914 workers transferred to new employers. It also states that for a contract of unspecified duration, a one- to three-month notice period has to be respected, whereas for a fixed-term contract either party can terminate the contract, either by mutual consent of the two parties during the course of the term of the contract, or unilaterally, provided the terminating party complies with the requirements of Ministerial Decree No. 765 of 2015 on Rules and Conditions for the Termination of Employment Relations. The Committee welcomes the adoption of this new regulation and trusts that they will be effectively applied. In this regard, the Committee requests the Government to provide further information on the application in practice of the abovementioned legislation, including data on the number of transfers of employment that have occurred following the entry into force of the recently adopted Ministerial Decrees.

(iv) Payment of wages

The Committee observes that the tripartite committee noted that in 2009 the Government set up the wage protection system (WPS) requiring that workers’ salaries be directly deposited in their duly held individual accounts. The tripartite committee also noted that Cabinet Decision No. 40 of 2014 sets monetary fines on employers for, among others, failure to pay the worker through the WPS.

The Committee notes that the ITUC has cited several cases concerning the non-payment or delayed payment of wages of workers, particularly with regard to migrant domestic workers, and migrant workers in the construction sector, where workers often report a delay in the payment of their wages ranging from 30 days to nine months.

The Committee notes the Government’s indication that since the establishment of the WPS, 4.5 million migrant workers working in 300,000 companies have electronically transferred money abroad. The Government also indicates that Ministerial Decree No. 739 of 2016 was also adopted to ensure the payment of wages without delay. Any delay is punishable by law with administrative sanctions, and might lead to the transfer of the employee to another employer. The Committee considers the establishment of the WPS to be a positive measure which, if implemented effectively, could contribute to addressing the recurring issue of the non-payment or delayed payment of wages. The Committee requests the Government to ensure that Ministerial Decree No. 739 of 2016 and the WPS are implemented effectively, so that all wages which are due are paid on time and in full, and that employers face appropriate sanctions for the non-payment of wages. The Committee also requests the Government to provide information on the penalties effectively applied for non-payment of wages.

(v) Migrant domestic workers

The Committee notes that the tripartite committee pointed out the lack of legal protection of migrant domestic workers, who are not covered by the Labour Law.

The Committee notes the ITUC’s reference to the adoption in 2014 of the new standard contract for the employment of domestic workers. According to the ITUC, the contract details the nature of work, remuneration and obligations of the employer. It however contains no limit on working hours (other than the daily eight-hour rest period), no provisions for overtime pay, and no workers’ compensation. The ITUC also alleges that, unlike other migrant workers, migrant domestic workers cannot legally leave an employer before the end of their contractual period (generally two years). According to the ITUC, those who wish to change employers have two options: the first option is a three-step process which requires workers to: (i) complete their contract term and give their employer one month’s notice that they will not renew; (ii) get their sponsor to cancel their work permit and residence visa at the General Directorate for Residency and Foreign Affairs; and then (iii) procure a new sponsor within 30 days. The second option requires them to secure their sponsor’s approval to transfer the sponsorship before the end of their contract by means of a “no-objection” certificate signed by the sponsor, and to pay a sponsorship transfer fee to the immigration department. The ITUC further adds that a domestic worker who leaves his/her sponsor before the end of his/her contract without the approval of the employer is deemed by law to have “absconded”. “Absconding” is an administrative offence that can result in various sanctions and fines.

The Committee notes the Government’s indication that a draft bill regulating the working conditions of migrant domestic workers has been prepared and the Council of Ministries approved it, and all the constitutional measures are being taken for its adoption. The Government also indicates that the registration of the Standard Employment Contract in the Ministry of Human Resources is also mandatory for this category of workers. It further states that the Standard Employment Contract clearly stipulates the obligations of the employer towards migrant workers, such as: (i) ensuring the payment of the monthly salary within seven days; (ii) ensuring that the employee can transfer money abroad; and (iii) providing medical care coverage.

Moreover, the Government indicates that the breach of any provision of the Standard Employment Contract by an employer entitles a migrant domestic worker to lodge a complaint against their employer through the Dispute Settlement Office in the Ministry of Labour. If the Ministry, through its arbitration mechanism, is unable to resolve the dispute within two weeks of its reception, then the dispute is referred to a specialized labour court.

The Committee also notes that in its 2015 concluding observations concerning the UAE, the Committee on the Elimination of Discrimination against Women (CEDAW) noted with satisfaction the 2014 amendments to the standard contract regulating the employment relations between women migrant domestic workers and their employers, the assurances given by the delegation of the State party that foreign women working as domestic workers may change employer and that the State party is currently drafting a law on domestic workers. The Committee observes, however, that the CEDAW regretted that, under the new standard contract, women domestic workers may still be required to work 16 hours per day, are not guaranteed a minimum wage, remain excluded from the application of the Labour Code and, therefore, from access to the labour courts, and may still not change employer without running the risk of facing charges of “absconding”. The CEDAW also expressed its serious concern about the exploitative working conditions under which many of those women work, the numerous cases of violence, including sexual abuse, that they suffer and the detention of those who become pregnant as a result of rape by their employers, who generally enjoy impunity for such a crime. The Committee further notes the CEDAW’s concern that, while the confiscation of passports by employers has been prohibited, the practice remains widespread and prevents women from escaping abusive situations (CEDAW/C/ARE/CO/2-3, paragraph 43).

The Committee recalls the importance of taken effective action to ensure that the system of employment of migrant domestic workers does not place the workers concerned in a situation of increased vulnerability, particularly when they are subjected to abusive employer practices, such as retention of passports, non-payment of wages, deprivation of liberty, and physical and sexual abuse. The Committee therefore urges the Government to take the necessary measures to ensure that migrant domestic workers are fully protected from abusive practices and conditions that amount to the exaction of forced labour. In this regard, the Committee expresses the firm hope that the bill regulating the working conditions of migrant domestic workers will be adopted in the near future. The Committee requests the Government to provide information on the progress made in this respect.

2. Law enforcement and access to justice. The Committee notes that the tripartite committee pointed out that the prohibition of forced labour requires that the penalties imposed by law are adequate, commensurate with the offence and strictly enforced. To this end, the tripartite committee highlighted the importance of: (i) strengthening the labour inspectorate body; and (ii) providing access to justice and protection to the victims.

(i) Labour inspection and effective penalties

The Committee notes that the tripartite committee took note of the adoption of a certain number of measures to strengthen the capacity of the labour inspectorate, including: (i) the establishment of a Department of Worker Orientation, comprising 27 full-time inspectors, to implement post-arrival and periodical worker orientation programmes; (ii) the establishment and training, within the inspection division of the Ministry of Labour, of two specialized units mandated to combat human trafficking and monitor private recruitment agencies; and (iii) the signature of a Technical Cooperation Agreement between the UAE and the ILO in April 2015 with the aim of improving the capacity of labour inspection. The Committee also notes that the tripartite committee has encouraged the Government to continue to take measures to strengthen the capacity of the labour inspectors and to reinforce the monitoring mechanisms of the working conditions of migrant workers, with a view to ensuring that penalties are effectively applied for any violations detected. The Committee notes an absence of information on the measures taken in this regard in the Government’s report. Underlining the important role of labour inspection in enforcing the labour rights of migrant workers, the Committee trusts that the Government will continue to take measures to strengthen the capacity of the labour inspectorate. It also requests the Government to provide statistical information on the number of violations of the working conditions of migrant workers that have been recently detected and registered by the labour inspectors, and to indicate the penalties applied for such violations.

(ii) Access to justice and protection of victims

The Committee notes that the tripartite committee observed that, although complaint mechanisms have been established for migrant workers (such as the arbitration mechanism in the Ministry of Labour, or the specialized labour court), the Government has not provided information on measures taken or envisaged to protect potential victims of forced labour practices.

The Committee notes the Government’s indication that awareness-raising activities have been organized for migrant workers, such as the distribution of informative booklets in different languages, radio and TV broadcast campaigns about migrant workers’ rights, as well as the establishment of informative sessions on different institutions that can provide assistance to migrant workers.

The Committee recalls that the situation of vulnerability of migrant workers requires specific measures to assist them in asserting their rights without fear of retaliation. In this regard, the Committee requests the Government to take measures to strengthen the capacity of migrant workers to enable them, in practice, to approach the competent authorities and seek redress in the event of a violation of their rights or abuses, without fear of retaliation. The Committee also requests the Government to provide information on the measures taken to ensure that migrant workers who are victims of abuse receive psychological, medical and legal assistance, and to provide information on the number of existing shelters as well as the number of persons benefiting from this assistance. Lastly, the Committee requests the Government to provide statistical information on the number of migrant workers who had recourse to the complaints mechanisms and the outcomes.

The Committee is raising other matters in a request addressed directly to the Government.