Key Recommendation 4: Incentivising ethical recruitment in origin states
Origin states should remove incentives that push recruiters towards unethical practices, in particular making all worker fee payment illegal and increasing enforcement efforts with private recruiters.
The recruitment industry in many origin states - including all four in this study - has attracted a reputation for fraud and abuse. This reputation is in many respects well-earned, but it is overly simplistic to depict origin state recruiters as the root of all evil.
One expert interviewee warned against an “automatic tendency to vilify the recruitment industry”. To a significant degree, recruiters follow the signals sent by regulators. Policies and practices of origin states, including those held up as “protective” measures, in many cases create incentives to behave unethically.
The laws of many origin states, including three of the four in our study, continue to allow the payment of recruitment fees by workers. They place varying limits on the sums that recruiters can charge depending on the job and the country of destination. Regardless of what level they are placed at, the fact that it is legitimate for agents to collect some fees from workers creates a grey zone, whereby workers expect to pay fees.
This seriously disadvantages agents who attempt to implement an employer-pays policy. Origin states, supported by credible analysts, argue that they are caught in a bind on this issue: if they strictly implement a no worker fee payment policy, destination countries are likely to switch to other origin states which offer cheaper workers - reducing job offers and associated remittances. The solution is of course for origin states to act jointly, but they have yet to demonstrate the capacity or the will to negotiate effectively as a bloc for better rights for their nationals.
Alongside policies on fee charging, ethical operators struggle to find a market because there are relatively few consequences for agencies who follow the “worker pays” model. Origin states’ effort to enforce laws on recruitment abuse are often way out of step with the depth and scale of problems, providing limited deterrents to unethical practices. In addition, regulatory and enforcement bodies with overlapping jurisdictions often fail to coordinate effectively, creating a patchwork approach to implementation of laws, and leaving gaps that leave workers exposed to abuse and unable to hold recruiters accountable. Governments should:
4.1. Adopt the ILO definition of recruitment fees and related costs and - in coordination with key destination states and where feasible, with other origin states - mandate that no recruitment fees or related costs should be paid by workers, in line with the ‘employer pays’ principle. Ensure that prospective workers are made aware of this.
4.2. Require any individual providing recruitment services for migrant workers to obtain a licence. Institute an Ethical Recruitment Framework into the licensing of recruitment agencies, 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.
4.3. Ensure that labour inspectorates are instructed, resourced and trained to identify abuses, in particular fraudulent and abusive recruitment, by licensed recruitment agencies.
4.4. Ensure effective coordination between government bodies that are mandated to regulate recruitment agencies, and law enforcement bodies responsible for investigating fraud and abuse by unregulated actors, and criminal offences related to 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.
4.5. Ensure sufficient resources are devoted to investigating and prosecuting corruption in the recruitment of migrant workers; hold accountable any official accused of demanding or accepting illegal payments, including through referring them to law enforcement agencies, and make information publicly available, on at least an annual basis, on the number and nature of such cases identified.
4.6. Carry out and publish a review to consider the introduction of incentives for recruitment agencies who can demonstrate due diligence, commitment to zero-fee recruitment and a duty of care for migrant workers.
4.7. Proactively investigate unlicensed recruitment agencies and intermediaries and hold accountable those who subject migrant workers to fraud and abuse.