Instead of zero-cost migration for workers, the MOU recruitment system has made it zero-cost recruitment for many Thai employers. In fact, Thai employers may even be profiting by selling demand letters to Myanmar recruitment agents via Thai agencies and brokers. Invariably such payments also are shifted to the workers, who bear the burden of much higher recruitment fees and costs. Currently, Thai law forbids recruitment agents from charging workers migrating to Thailand: service fee and costs are to be paid by the employer. On the ground however, these charges have been shifted to prospective migrant workers in the origin state. In such a situation, a zero-cost model for workers would only be feasible if there was agreement between both Myanmar and Thailand to synchronize fee and costs rules and ensure that the ‘employer pays’ principle is enforced.
In Myanmar, recruitment agencies are now permitted by MOLIP to charge approximately US$230. In practice, Myanmar workers pay much more to migrate to Thailand under the MOU - ILO estimates are US$441. We interviewed 25 workers who all paid much higher amounts to agents or brokers, ranging from US$465 to US$1045, with an average of US$730. That workers pay more than the fee-cap is well known. All the six Myanmar recruiters we spoke to admitted to charging more than the official cap-fee. There is also lack of clarity over what is included or additional to the fee-cap imposed by the Myanmar Government. There is no public breakdown of the fee-cap, making it easier for brokers and recruitment agents to charge more from the usually rural and semi-literate workers. There are tough legal provisions for overcharging (3 years imprisonment and fine), but there is no enforcement.
Service contracts with lower protections (including “no refund of fees’’ clauses) are commonly used by recruitment agencies in Myanmar. Employment contracts are by and large a formality. While the requirements for contracts in the MOU are adequate and some recruiters use a standardised trilingual contract, this is not mandatory. Workers are often told different terms by brokers and sub-agents at the start and are informed of different terms and conditions just before the signing of the contract. By then they have already invested time and money in the process and want to get to Thailand, reducing any ‘informed consent’ to a mere formality. Many have not completed basic education and the signing ceremony is conducted en-masse, with little opportunity to ask questions. Contract substitution is also common in Thailand, with many employers giving new contracts when workers reach the workplace. This is aided by many workers not being given copies of the contract. Contract substitution is also a byproduct of subcontracting and the practice of moving workers to entirely different jobs from those agreed initially. In addition to routine exploitation, workers not having an accessible contract also affects their ability of migrants to move jobs under the MOU system - an employer’s failure to comply with the contract is one of the limited grounds on which the worker can change employers. The situation with contracts is not better for fisher workers (who are largely hired in Thailand and regularised), despite the extensive inspection regime. Although the DLPW proforma contract is in three languages, in practice most of those workers who had contracts had them in Thai. Most fisher workers are unaware of detailed terms of the contract.
Recommendations to the Government of Myanmar:
- Adopt the ILO definition of recruitment fees and costs and, in coordination with Thailand, mandate that no recruitment fees or costs should be paid by workers, in line with the ‘employer pays’ principle. Ensure that prospective workers are made aware of this, in addition to their rights in the event of being overcharged.
- Refuse to allow addendums or modifications to the standard employment contract that result in workers being forced into agreeing to different contractual terms than initially agreed. Require that workers are given the contract at first instance, at time of initial interview, and not on the day of the signing.
Recommendations to the Royal Thai Government
- Enforce the provisions of the Foreign Workers Ordinance under which Thai employers are liable to pay for fees related to recruitment, and hold accountable employers and recruiters where fees are charged from workers, including in Myanmar.
- In cooperation with Myanmar authorities, amend the MOU agreement to include the ‘employer pays’ principle; and amend the “internal MOU” system to ensure that workers already in Thailand do not have to pay fees and costs to be regularised and brought within the MOU recruitment system.
- Enforce provisions against contract substitution, including by ensuring that inspections routinely check for such practices; ensure that such substitution is meaningfully sanctioned and that substituted contracts with contractual terms less favourable to migrant workers are disregarded by all authorities.