Peer Review Exercise: Do ILS matter in your country?
Bangladesh began sending its citizens to work overseas in 1976. Despite impressive GDP per capita growth in recent years, formal job creation remains weak while informal jobs and underemployment are common in Bangladesh. The annual flow of Bangladeshis in search of employment overseas has increased fourfold. Initially the rate of migration was few but by 1989 more than 100,000 people were moving abroad annually in search of work. From 1996 to 2012 the total migrated population is about 85 lakh. In 2012-2013 total 432,069 people moved abroad as migrant worker. The growth in the number of Bangladeshis who wish to work abroad is driven by the country’s relatively youthful population , which offers a large pool from which to draw able-bodied workers. In fact, the intention to migrate among Bangladeshi youth is the highest in South Asia and is also higher than in most South East Asian countries. A 2011 survey shows that 35 per cent of Bangladeshis aged 15-24 want to move permanently abroad. This increase was driven largely by demand for less-skilled workers in the Gulf countries. Unfortunately, these young migrants frequently get trapped in exploitative and abusive jobs, including forced labour. And too often, they – like other migrants – become scapegoats for the shortcomings of economic and social systems.
Among the 8.5 million Bangladeshis who had moved as overseas workers (OWs) almost half (51.87%) of them are less skilled laborers, while only 0.17% are professionals in high-skill fields; the remaining individuals are skilled (32.68%) or semi-skilled workers (15.28%). , Most of these workers are employed in the construction, fisheries, agriculture, and manufacturing sectors. The most common destinations for the country’s migrants are the Kingdom of Saudi Arabia (KSA), the United Arab Emirates (UAE), Malaysia, Oman, and Singapore.
Reasons for Choosing the Subject
About 61 percent of the population of Bangladesh is of working age (15 to 64-years-old), while 34 percent is under the age of 14, indicating a moderate youth bulge. Those who are employed in the formal labor market often work just a few hours a week at low wages. Thus, while the estimated unemployment rate is relatively low at about 5 percent, the problem of underemployment prevails. Widespread poverty, underemployment, and a youthful age structure have all contributed to the predominance of economically motivated international migration from Bangladesh. The contract labor migration of less-skilled men to the Arab Gulf states and to the emerging economies of Asia has been especially prominent. On average, a Bangladeshi migrant sends home approximately US$2,760 a year, with low skilled workers sending the largest amount. Though the overseas workers (OWs) contributes significant amount of remittance which are contributing nearly 11.1% of the total GDP of Bangladesh this sector is ignored by the government and the other concern sections.
The unskilled or uneducated migrant workers are extremely vulnerable to various mistreatments. High fees to middlemen before departure, the seizure of their passports upon arrival, and coercion into signing new contracts in a foreign language, low wages or nonpayment of wages, and lack of medical care are examples of common abuses. The conditions they face are often inhuman and dangerous. Besides, another most frequent and devastating violation is deportation. On the other hand female OWs are especially vulnerable to abuse and exploitation, as well as subject to regulations which make it difficult for them to earn a living wage. While work in the formal sector like nursing, garment workers, or other factory workers. is preferred because it is better regulated and its workers more protected, most female OWs find work in the informal sector. The most common position found in this sector is as a private domestic worker or Migrant Domestic Workers (MDW) where the abuses occur high.
Relevant ILO instruments for the Migrant Workers in Bangladesh
ILO standards on migration provide tools for both countries of origin and destination to manage migration flows and ensure adequate protection for this vulnerable category of workers. The ILO elaborated labour standards specifically to cover migrant workers. The two ILO specific instruments on migrant workers, the Migration for Employment Convention (Revised), 1949 (No. 97) and the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), as well as their accompanying Recommendations, provide a framework for guidance on what should constitute the basic components of a comprehensive labour migration policy, the protection of migrant workers, the development of their potentials and measures to facilitate as well as to control migration movements.
The ILO Convention No. 97 (Revised)
Bangladesh has not ratified the Convention and also has not submitted it to the National Parliament.
The convention [Migration for Employment Convention, 1949 (No. 97)] is very strong instrument for achieving the rights of migrant workers of Bangladesh who are migrating in regular way or conducting safe migration. It is comprehensive and the foundations for equal treatment between nationals and regular migrants in areas such as recruitment procedures, living and working conditions, access to justice, tax and social security regulations. It sets out details for contract conditions, the participation of migrants in job training or promotion and deals with provisions for family reunification, appeals against unjustified termination of employment or expulsion and appeals against unjustified termination of employment or expulsion and other measures to regulate the entire migration process.
- Article 6 of Convention No. 97 provides for equality of treatment in respect of:
a. remuneration, including family allowances, hours of work, overtime arrangements, holiday with pay, restrictions on home work, minimum age for employment, apprenticeship and training;
c. social security legal provision in respect of employment injury, maternity, sickness, invalidity, old age, death, unemployment and family responsibilities, and any other contingency, which is covered by a social security scheme.
d. dues or contributions payable in respect of the person employed.
- Article 9 of Convention No. 97 provides that each party to the Convention undertake to permit, taking into account national laws and regulations, the transfer of such part of the earnings and savings of the migrant for employment as the migrant may desire to employment.
Legal Framework in Bangladesh
Bangladesh is directly and indirectly involved in promoting out-migration, since it is a crucial strategy in national economic development. Bangladesh unconditionally acceded to the UN Convention on the Protection of all migrant workers and Members of their Families, 1990, which had entered into force on 1 July 2003, on 24 August 2011. The Convention became binding for Bangladesh on 1 December 2011 under Article 87, paragraph 2. Despite Bangladesh’s sincere efforts, could not be met because of certain institutional coordination gaps and limitations. The accession itself had been a significant step by Bangladesh towards protecting the rights of migrant workers and members of their families, and fulfilling the Convention obligations.
Upon ratification of the ICRMW in 2011, the government, in consultation with all relevant stakeholders and in technical cooperation with the ILO, undertook the work of drafting a new migration law that would be in compliance with the Convention. Eventually, the Parliament of Bangladesh in 2013 enacted the Overseas Employment and Migrants Act 2013 (Act No. 48 of 2013). The OEM Act 2013 adopts a rights-based approach to the cause of Bangladeshi migrant workers, seeking to incorporate the rights-provisions of the ICRMW. The preamble to the 2013 Act declares that its aim is to enact provisions in tandem with international standards as enshrined in this Convention and other labour and human rights treaties ratified by Bangladesh, in order to create “opportunities for overseas employment and establish a safe and just system of migration, to ensure rights and welfare of migrant workers and members of their families”.
In addition to specifically translating certain Convention-rights (such as the right to be informed; the right to receive legal assistance/aid; the right to sue for compensation; the right to return to home country; and the right to receive diplomatic and consular assistance/services) into domestic law, the Act has also enacted other provisions concerning the processes relating to international migration in line with the Convention.
In addition to the Overseas Employment and Migrants’ Act, 2013, the legal regime of international labour migration consists of the following three sets of sub-ordinate legislation (implementing Rules):
• The Emigration Rules 2002;
• The Wage Earners’ Welfare Fund Rules 2002; and
• The Recruiting Agents’ License and Conduct Rules 2002.
These instruments were informed of the imperatives under the Convention and they sought to comply with the Convention Provisions.
Examples of Non-compliance
The following issues are the most savior non compliances issues from which the migrant workers of Bangladesh as well as south Asian countries’ workers are facing. These issues are directly non compliances with the Article 6 and 9 of The Migration for Employment Convention (Revised), 1949 (No. 97) of ILO.
High Labour Migration Cost
The high cost of migration is the result of several causes persisting at both countries of origin and destination. Visa trading and involvement of intermediaries at different stages spiral migration cost and the whole cost has to be borne by the migrants. For example, a work permit issued by the destination countries’ government is immediately sold at the local market. Changing hands for 2/3 times when a Bangladeshi recruiter buys the work permit he has to pay as much as US$ 2,000 upfront. On the other hand, Bangladeshi recruiting agencies, local intermediaries and dishonest public sector functionaries retain their margin from the same amount. Under these circumstances, when a migrant secures a visa s/he has to pay the entire amount which is much higher than the actual cost. Due to lower wage rate it takes more than a year for a migrant worker to recover the money spent to acquire the work permit.
The kafala system (also spelled "kefala system", Arabic: نظام الكفالة niẓām al-kafāla, meaning "sponsorship system") is a system used to monitor migrant laborers, working mostly in the construction and domestic sectors, in Lebanon, Bahrain, Iraq, Jordan, Kuwait, Oman, Qatar, Saudi Arabia, and the UAE. The system requires all unskilled laborers to have an in-country sponsor, usually their employer, who is responsible for their visa and legal status. This practice creates easy opportunities for the exploitation of workers, as many employers take away passports and abuse their workers with little chance of legal repercussions.
In Qatar there are about 1.2 million foreign workers, mostly from India, Pakistan, Bangladesh, Nepal, and the Philippines, make up 94 percent of the labor force. There are nearly five foreign workers for each Qatari citizen, mostly housemaids and low-skilled workers.
Most of the workers labor under near-feudal conditions that Human Rights Watch (HRW) has likened to "forced labor". Sharan Burrow, General Secretary of the International Trade Union Confederation, stated "In late 2010 we conducted a risk assessment looking at basic fundamental labor rights. The Gulf region stood out like a red light. They were absolutely at the bottom end for rights for workers. They were fundamentally slave states." An exit visa system prevents workers from leaving the country without the sponsor's permission. Employer consent is required to change jobs, leave the country, get a driver's license, rent a home or open a checking account. Amnesty International witnessed workers signing false statements that they had received their wages in order to have their passports returned. The organization called for an overhaul of the 'sponsorship' system. Arab-American businessman Nasser Beydoun described their situation as: "Foreign workers in Qatar are modern-day slaves to their local employers. The local Qatari owns you." International media attention increased after Qatar was named the host of the 2022 FIFA World Cup
In Saudi Arabia under the kafala system an employer assumes responsibility for a hired migrant worker and must grant explicit permission before the worker can enter Saudi Arabia, transfer employment, or leave the country. The kafala system gives the employer immense control over the worker. HRW stated that "some abusive employers exploit the kafala system and force domestic workers to continue working against their will and forbid them from returning to their countries of origin" and that this is "incompatible with of the Universal Declaration of Human Rights" and also with the ILO Conventions. HRW stated that "the combination of the high recruitment fees paid by Saudi employers and the power granted them by the kafala system to control whether a worker can change employers or exit the country made some employers feel entitled to exert 'ownership' over a domestic worker" and that the "sense of ownership ... creates slavery-like conditions".
In October 2014, Human Rights Watch estimated that there were 146,000 female migrant domestic workers in the United Arab Emirates (UAE). HRW interviewed 99 of them for its October 2014 report. HRW listed abuses claimed by their interviewees: most had their passports confiscated by their employers; in many cases, wages were not fully paid, overtime (up to 21 hours per day) was required, or food, living conditions or medical treatment was insufficient. Twenty four had been physically or sexually abused. HRW claimed that the UAE had "a long record of violating the rights of domestic workers under international human rights and labor law by failing to adequately protect them against exploitation and abuse" HRW made many recommendations to the UAE, including repeal or amendment of Federal Law No. 6 of 1973 on the Entry and Residence of Foreigners, so that domestic workers can decide on their own to change between employers without losing their immigration status.