While the “employer pays principle” has gathered strong support at international level, the reality is that every year, hundreds of thousands of migrant workers continue to pay the cost of their own recruitment and migration.
Employers know, or should certainly know, that the true costs of recruitment in such cases are being passed onto the workers. The reason that many make such little effort to interrogate the real costs of recruitment or to attempt to pay it themselves is that they are under limited pressure to do so. The sometimes intense competition for jobs generates an expectation in origin states that payment is necessary in order to secure a role, regardless of the law.
Meanwhile destination states generally make insufficient efforts to intervene in the recruitment market to ensure that migrants can access these jobs without paying fees. While some legislate against worker payment of recruitment fees, most do not fully incorporate the “employer pays principle”, with worker payment allowed or even required for certain fees.
Meanwhile, few place substantial efforts into implementing laws on recruitment fees - with labour inspectorates tending to focus on important employment issues such as pay, benefits and health and safety, but neglecting recruitment practices. Recruitment can be seen by such institutions as a niche, or “difficult” technical issue, in part because of the number of actors involved, and the fact that some are located in different jurisdictions.
Enforcement in destination states related to the payment of recruitment fees by workers is rare. As a result, businesses face limited regulatory pressures that would stop them from abusing their market position. The effect of this unregulated space in destination countries is effectively to create a demand for unethical recruitment in origin states.
Destination states need to stimulate demand for ethical recruitment by creating a world where their employers expect to be paying the full cost of migrant workers’ recruitment and face consequences for not doing so.
While this on its own will not cause origin state agents and their brokers to act ethically and stop charging workers fees, it would level the playing field for ethical actors, and mean that origin state regulatory agencies could enforce laws that were not swimming against the tide of market pressures. They should use a range of legislative, enforcement and financial measures to achieve this:
1.1. Prohibit the payment of recruitment fees and related costs, in line with the ILO definition, by migrant workers to any entity, including third parties who may be located outside the country.
1.2. Ensure that laws hold employers and recruiters based in the destination country legally liable for the actions of third parties, whether in the destination, origin or third country, in the recruitment process. Require employers to conduct due diligence on their recruitment supply chains to ensure that no recruitment fees have been charged to workers, and to refund any worker who has paid fees for their job.
1.3. Strengthen the capacity of the labour inspectorate to identify cases of recruitment-related abuse, including through a consistent and large-scale programme of random inspections of employers, including interviews with workers without employers present. Ensure that recruitment-related abuse is meaningfully integrated into inspection programmes, and not marginalised. Require that employers provide evidence during inspections that they have paid for the costs of workers’ recruitment and related costs.
1.4. Establish and promote a process for all migrant workers to safely disclose to the authorities and seek reimbursement for any payment of recruitment fees, as well as to report contract substitution.
1.5. Require any individual providing recruitment services for migrant workers to obtain a licence. Institute an Ethical Recruitment Framework into the licensing system, such that prospective or existing agencies need to demonstrate compliance with ethical recruitment principles, and for this compliance to be verified and audited by an independent third-party. Ensure that the licensing system, including the outcomes of compliance audits, is transparent and accessible to workers and employers.
1.6. Subject to enhanced regulatory scrutiny businesses or persons which generate revenue by the employment of migrant workers and subsequent subcontracting out of these workers to other businesses.
1.7. Improve coordination between government bodies that are mandated to regulate and inspect employers and recruitment agencies, and law enforcement bodies responsible for investigating fraud and abuse by unregulated actors, and forced labour and/or trafficking - with the aim of normalising the referral of employers and recruitment agencies whose actions constitute criminal offences for investigation and prosecution.
1.8. Proactively investigate, through law enforcement agencies, corrupt practices linked to recruitment, including the phenomenon of employers or recruiters receiving “kickbacks” from origin state recruiters in return for job offers.
1.9. Incentivise ethical recruitment by requiring companies to budget transparently for recruitment costs, including in their contracting chains, in public procurement bidding processes.