Key Recommendation 5: Grievance mechanisms to suit migrant workers
Origin and destination states should design grievance and remedy processes that take account of the power imbalance between employers and recruitment agents, on the one hand, and migrant workers on the other.
Poorly designed and implemented processes to deal with grievances against recruiters and employers present numerous practical problems for migrant workers, in many cases resulting in them settling for a fraction of what they are owed and what they could be reasonably due in damages.
The power dynamic between recruiters/employers and migrants can be so strongly skewed against the migrant that the concept of a negotiated settlement may be unrealistic. In the case of employers, their control over migrants’ immigration status is particularly difficult for migrants to confront.
Domestic workers, isolated in their employers’ homes, find it almost impossible to make complaints without leaving their employers and risking becoming undocumented. If a migrant does not want to accept what (if anything) is offered in the mediation process, the employer or recruiter knows the worker’s alternative option is generally to proceed through a lengthy and difficult court case, significantly lessening their leverage.
For migrants this can mean waiting, potentially without income or documentation, for an uncertain outcome. Both origin and destination states must design grievance and remedy processes that take account of and are suited to the realities of migrant workers’ situations.
They should design mechanisms that deliver remedy simply and quickly, where cases are straightforward. In destination states, grievance mechanisms must provide simple means for workers to secure their immigration status and potentially find new work for the duration of the process. Governments should also explore the use of technology, where feasible, to bridge geographical barriers that can make it impossible for workers who have return to their home countries to bring a case against employers, and open regional offices to accept and process complaints, rather than force workers to cross countries in order to lodge cases in capital cities.
5.1. Provide simple and clear grievance processes, and consider the introduction of fast-track processing to reflect the particular vulnerability of migrant workers to delay and its impact on their ability to pursue remedy.
5.2. Where state-run mediation processes exist, appoint skilled, trained and impartial mediators. Ensure that no employer or recruitment agency associations are involved in the administration or funding of mediation processes.
5.3. Ensure migrant workers, including undocumented workers, have the right to adequately-funded legal aid for labour cases against employers and recruiters, and are able to access legal aid services.
5.4. Ensure - in destination countries - that the status of undocumented migrant workers raising grievances is not shared with immigration authorities.
5.5. Develop mechanisms to facilitate the filing of anonymous complaints.
5.6. Provide sufficient walk-in shelter facilities for domestic workers / live-in caregivers to be able to leave employers in order to lodge grievances safely.
5.7. Explore the feasibility of video-technology and other cooperative mechanisms, in allowing returnee workers to access judicial and non-judicial grievance mechanisms in destination states.