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
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.