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.