Nepal - Kuwait: Grievance and remedy

Nepal’s Foreign Employment Act (FEA) provides a framework for migrant workers seeking redress for recruitment-related abuses both at home and abroad. Practically, however, a nexus of obstacles – financial, legal, bureaucratic, geographical, and personal – lead most victims either to abandon complaints against recruiters, or to accept mediation processes resulting in lower compensation, and which fail to achieve accountability. This is even truer for undocumented workers, many of whom are women, than for those who migrate through official channels. Within Nepal, the FEA mandates a range of government bodies to investigate complaints against recruiters, affording them powers to oversee mediations, require payment of compensation, issue fines, withdraw licences, and even sentence perpetrators to prison terms. Even assuming the victim is aware of the existence of these rights (which most are not), the reality of pursuing a claim is that it is so lengthy, complicated and expensive a process – often involving travel to Kathmandu despite measures to enable the filing of complaints by post or through an online system – as to be beyond the means of all but a few. Authorities have little capacity to conduct investigations, and even if victims win compensation at the Foreign Employment Tribunal (FET) level, they must spend more time and money obtaining an enforcement decision from district courts. All the while, claimants have little to no protection against threats or intimidation from recruitment agencies pressuring them to drop cases, and no access to state-funded legal aid, forcing them to rely on help from civil society organisations, which are often dependent on donor funding. As a result, most accept low settlements through mediation. Abroad, the FEA mandates the Nepali diplomatic missions to assist citizens in whatever way required, often in coordination with migrant resource centres established in Nepal under the Swiss-Nepali Safer Migration initiative. However, Nepali migrant workers in Qatar and Kuwait consistently told us that their embassies are inefficient and do not provide sufficient assistance with navigating the complex grievance mechanisms in these countries. This appears to be due to such severe restraints on resources that they can only take on the most serious cases and a lack of case management or referral systems.

Kuwait’s domestic workers and private sector laws provide for free access to a grievance mechanism, which envisages that most labour disputes will be settled within one month through a process of mediation, with any unsettled disputes being then referred to the courts. In reality however, the resolution of disputes is far from being swift and costless, and the whole system is actually weighted firmly against complainants. Key factors include: language barriers, since all documents need to be submitted in Arabic, and very few pro bono interpreters are available in the Public Authority of Manpower’s labour relations or domestic work departments and in the courts; costs, since there is limited access to free legal aid, and little knowledge among workers of the basic free assistance provided by the Kuwait Bar Association; and time, since grievances that are not resolved at the mediation stage can take one to three years to be addressed by the courts. In addition, inadequate legal safeguards mean that migrants may place themselves at actual risk by commencing a grievance process, which involves submitting a complaint to PAM’s offices either in person, online or through a mobile phone application as a first step before a mediation process with employers can begin. However, even this first stage may be impossible for the most vulnerable migrants, including domestic workers in abusive situations, who may fear that leaving work will result in a charge of “absconding”, resulting in possible arrest and deportation. Furthermore, the Domestic Workers Law fails to address the issue of retaliation, which has created a culture of impunity regarding reprisals – including refusal to pay wages, verbal and physical abuse, and threats of deportation or legal action – against workers who submit grievances.

Recommendations to the Government of Nepal:

• Provide legal aid programmes in locations where migrant workers live, to help victims reach out to appropriate agencies (DAO, local police) without having to travel to Kathmandu.
• Conduct an independent policy review to assess the effectiveness of current mediation processes. This review should specifically address the question of whether mediation by DOFE, as it functions presently, supports or prevents migrant workers from receiving an effective remedy.
• Significantly strengthen the capacity of diplomatic missions in Qatar and Kuwait to support migrant workers facing exploitation and other abuses in seeking redress including by providing legal advice and representation.
• Ensure that missions are adequately resourced to carry out thorough checks on prospective employers as part of the “demand letter” attestation process.
• Effectively implement the 2018 guideline on legal assistance abroad.
• Explore with groups such as the ILO the feasibility of video-technology in allowing returnee workers to access judicial and non-judicial grievance mechanisms in destination states.

Recommendations to the Government of Kuwait:

• Amend the Domestic Workers Law to expand the grounds for seeking compensation beyond refusal to pay for overtime work, to include access to compensation for passport confiscation, contract substitution, and any failure to provide adequate housing, food and medical expenses or labour exploitation.
• Significantly reduce the time period migrant workers have to wait for court processes to proceed and ease the process of sponsorship transfer during this period.
• Increase availability of interpretation at all stage of grievance mechanism processes; provide easily accessible state-funded legal aid for migrant workers throughout grievance mechanism processes, and free services for translation of documents and complaint forms for submission.
• Amend the Private Sector Labour Law, Domestic Workers Law and Anti-Trafficking Law to criminalise retaliation against workers making complaints and protect victims from prosecution on fleeing abusive employers, and explicitly prohibiting dismissal from employment for any worker involved in lodging an official complaint against their employer.