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.
The Qatari Labour Dispute Resolution Committees, which began operating in 2018, were set up to address the failings of the previous labour complaints system, where extensive delays to rulings, court fees for expert reports, and the need to obtain separate enforcement decisions, all colluded to prevent migrant workers’ access to redress. The new Committees hear cases from all categories of migrant workers, regardless of nationality, job or immigration status. Claims can be submitted via a mobile application or hotline established by the labour ministry. The Committees do not levy court fees, provide free translation during hearings, hold some sessions outside of most migrants’ working hours, and were designed to issue decisions that have executory force within a period of six weeks. In 2021, ADLSA launched an online platform to enable workers to submit complaints against employers, including as “whistle-blowers”, meaning their employers would not be notified. Complaints can only be made in Arabic and English, though there are user guides in ten other languages. A government fund set up to pay migrant workers the sums awarded by the court, when their employers are unwilling or unable to do so, became operational in August 2020. These undoubtedly represent improvements on the previous system. Nevertheless, migrants continue to face obstacles that can in some cases be too difficult to surmount. Large cases cannot be heard collectively by the court, meaning that cases involving large numbers of workers almost identically subjected to wage theft by the same employers are split up, forcing migrant workers to each individually win their case and slowing down processes. Many employers simply fail to participate and despite efforts by the authorities to expedite the process, it can still in some cases take up to eight months to get a court decision issued. Enforcement of judgements can then be as time consuming as the court process itself. The absence of widely accessible state-funded legal aid means that claimants who seek legal advice can end up paying the equivalent of two months’ wages for this, and then more for translation of documents.
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 Qatar:
- Significantly reduce the average time taken to issue rulings at Labour Dispute Resolution Committees. Consider legislative changes to allow for collective complaints, when large number of workers make complaints. Where employers cannot or will not comply with court judgements, ensure that the Workers’ Support and Insurance Fund (WSIF) disburses money owed to workers in a timely manner.
- Expand the scope of damages which can be recovered at Labour Dispute Resolution Committees, beyond loss of wages and end of service benefits, to include access to compensation for passport confiscation, contract substitution, recruitment fees, and any failure to provide adequate housing, food and medical expenses or labour exploitation.
- Provide 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 2004 Labour Law, Domestic Workers Law and 2011 Anti-Trafficking Law to explicitly protect workers against dismissal for filing an official complaint by criminalising retaliation against workers making complaints and fleeing abusive employers. Prohibit dismissal from employment for any worker involved in lodging an official complaint against their employer.
- Significantly increase government provision of shelters for domestic workers and allow walk-in access.