WHEN IS JUSTICE ELUSIVE? At the beginning of 2021, MFA sought to assess the existing justice mechanisms to understand its responsiveness and promptness in resolving wage theft cases filed by migrant workers and their representatives. The Justice for Wage Theft campaign has been calling for an establishment of a transitional justice mechanism that is expedited, accessible, affordable, and efficient for migrant workers who are seeking redress after experiencing wage theft. Along with a transitional justice mechanism, the campaign has been advocating for the reform of existing national justice mechanisms that are unable to respond to the influx of cases. 35 total wage-theft related complaints filed by MFA 3 national jurisdictions 1 state jurisdiction The following challenges highlighted may apply to only select jurisdictions and not universally across all jurisdictions where migrant workers access justice. nt s Fi lin g C om pl ai Employm ent While Pursuing the Case In response to a Writ Petition filed at the High Court, the High Court reverted to the petitioner to make use of the existing mechanisms in place. Interestingly, all existing mechanisms were exhausted before filing the Writ Petition. The complaint can be filed in the labour court through one of the government authorities, free of charge, but it will be necessary to engage a lawyer to submit the documents and responses to the court subsequently. Filing complaints totally free of charge before the Labour Court is not true in all cases. In one labour case, migrant workers who become disabled due to workplace occupational accidents must pay exorbitant charges before the court to undergo a medical examination to conclude the percentage of disability. Complaint charges and court fees are sometimes out of the range of the complainant even if it is a minimal amount. If the worker has not been paid for a few months and, therefore has no money, the worker would not be able to lodge a complaint. Pro-bono legal aid programs, where available, do not shoulder such costs. Pursuing the Case The Employer deliberately fails to appear for the hearing before the Court with the intent to prolong proceedings. Three chances will be given to the Employer before the case will be disposed of. For the 1st and 2nd NonAppearance, the migrant worker has to pay for the Private Courier Service to serve the Court Notice towards the Employer, which is exorbitant. All the documentation is in Arabic (in the case of Gulf countries) which prevents the worker from filing a complaint online directly (even if they have the technical knowledge). Most workers have no technical knowledge. In some jurisdictions, undocumented workers cannot file a claim for their dues after they leave the country. Some must also obtain special passes to remain and pursue a case in the country of destination. While settlement is possible through mediation processes, through the involvement of local authorities/stakeholders, the worker might still get a raw deal. Although migrant workers are permitted to stay in the country for a short period of time after their work permit has expired, there is no certainty as to when they would be deported as ‘illegal’ even if they have a pending case in court. Only a one-month grace period is provided after the expiry or cancellation of the visa for finding another job and obtaining a visa in some countries. Thereafter, the worker would become undocumented/irregular ("Illegal"). Change of employment is sometimes only possible with the consent of the original employer. In some cases, migrant workers are not allowed to find alternative employment while pursuing formal redress mechanisms. Once the case is closed, the migrant must leave the country. A worker who has no money to pay a lawyer cannot pursue the case. Furthermore, he would have to leave the country if he is unable to secure employment. ·Even though the change of employment is permitted in some jurisdictions, the procedures are cumbersome despite newly introduced regulations on mobility. In reality, the workers are not allowed to change employment even when they are not paid for months as they are not able to meet the prescribed requirements for change. Du rin g Re co ve ry Pro ce du re Even if the final decree is in favour of the worker, it may be difficult if the company has declared bankruptcy. The procedure may be time-consuming and some companies refuse to pay. The Employer may Appeal the final decree in a Higher Court of jurisdiction, but it will be time and resourceconsuming. The migrant worker has to file an Execution Petition by attaching the Assets of the Employer. Carrying out this legal procedure entails charges paid to the court by the worker. Some courts have now appointed private agencies for carrying out the execution of court orders for recovery. This could be expensive for the workers particularly if the amount of the claim is ‘small’. Despite the labour court issues an order within a reasonable time, there may be a long delay in getting the money through the execution court as there is a lapse of time between the two court orders. In some cases, migrant workers are cheated and exploited by individuals/lawyers whom they have given a Power of Attorney by not issuing the claim amount towards the migrant workers.

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