Call for an Urgent Justice Mechanism for Repatriated Migrant Workers

The COVID-19 pandemic has severely impacted millions of migrant workers in destination countries, many of whom have experienced job loss or non-payment of wages, been forced by employers to take unpaid leave or reduced wages, been confined in poor living conditions, and with little or no engagement in the work options before them. Many migrant workers also struggle with the dilemma of exercising their right to return in these circumstances, while others remain stranded in cities without access to services or support, or in border areas, living in precarious conditions posing as quarantine facilities.

Countries of destination and origin have begun repatriation procedures of these workers, without giving thought to their predicament and presenting the returns as inevitable. Millions will be repatriated to situations of debt bondage as they will be forced to pay off recruitment fees and costs, despite returning empty handed.

Under the above conditions, repatriation poses additional challenges, as, without proper controls, employers might take advantage of mass repatriation programs to terminate and return workers who have not been paid their due compensation, wages and benefits. Without ensuring that companies and employers are doing their due diligence to protect and fulfill the human rights and labour rights of repatriated migrant workers, states across the migration corridor become complicit in overseeing procedures where millions of workers will be returning without their earned wages or workplace grievances being heard, nor seeing justice in their situation.

This is a gross violation of labour rights on a large scale. Wage theft will account for millions of dollars to the detriment of workers and the benefit of businesses and employers who will be exempted from any accountability, even if states and banks extend a helpline to reestablish themselves and adjust to the new normal.

The repatriation procedures have been undertaken hastily by countries of both origin and destination, without any proper redress mechanism, since courts and other labour dispute mechanisms have also been closed during the period of the lockdown. Therefore, these violations will pile up and either not be addressed or overburden the existing dispute resolution mechanisms.

In this regard, Migrant Forum in Asia (MFA), Lawyers Beyond Borders (LBB) Network, Cross Regional Centre for Migrants and Refugees (CCRM), South Asia Trade Union Council (SARTUC), and Solidarity Center (SC) call upon countries of origin and destination to urgently put in place a transitional justice mechanism with the following objectives:

  1. The transitional justice mechanism will address grievances, claims and labour disputes of repatriated workers who have lost their jobs as a result of the pandemic. That the mechanism needs to be expedited, accessible, affordable, and efficient.
  2. It should be a priority to guarantee that all repatriated workers with legitimate claims are able to access justice and some kind of compensation.
  3. While it must be of the utmost importance to ensure that cases are resolved as soon as possible, without delay, especially in cases involving labour disputes, safeguards must be put in place to ensure that migrants are able to pursue their cases post return. Access to legal advice and support, facilitating power of attorney procedures, and easing requirements for in-person testimony and court appearance or appearance in front of a tribunal/grievance mechanism are paramount.
  4. States should require employers and businesses to keep all employment records, including payroll, employee lists, and hours worked and allow workers to take copies of their records with them.

If we are to ‘Build Back Better’, we cannot continue to turn a blind eye to the issue of wage theft that has been persistent across migration corridors for years, and will be unprecedented in the case of repatriated migrant workers in the COVID 19 pandemic.

Many migrant workers have reconciled to the situation of wage theft in the form of unfair or unpaid wages for months and years before the COVID 19 pandemic. They have accepted it as their fate and refrained from complaining lest they lose their jobs, or, worse still, live with the fear of being made undocumented.

Each year, millions of dollars are lost in potential remittances due to wage theft, even as countries of origin continue to explore new markets for deployment of migrant workers while countries of destination thrive on cheap and exploitable migrant labour.

Repatriation of migrant workers without due diligence by states in the time of the COVID 19 pandemic will only serve to leave unattended the injustices that migrant workers bear, exonerate employers and perpetrators of violence against migrant workers, and wipe away all records of legitimate claims and grievances.

The millions who are and will be repatriated will impact the development trajectory of families for whom a single migrant worker is a source of hope for a better future for generations to come. This dream, this resilience of the migrant’s journey must not be stifled as the COVID 19 pandemic runs its course.

If unaddressed at this time, we run the risk of forever delinking the patterns that connect migration to development, as the stories of the lives of migrant workers will bear witness to this mass injustice for years to come.

ENDORSED BY:

  • Asian Peoples’ Movement on Debt and Development (APMDD)
  • Building and Wood Workers International (BWI) Asia Pacific
  • Business & Human Rights Resource Centre
  • Civil Society Action Committee (AC)
  • Campaign for Good Governance-SUPRO
  • DIGNIDAD Coalition
  • Environics Trust
  • Equidem
  • Equidem Nepal
  • Fishworkers Forum
  • Focus on the Global South
  • Freedom from Debt Coalition
  • Growthwatch India
  • HIMALAYA Nithi Abhiyan
  • Human Rights Watch
  • Indian Social Action Forum
  • International Trade Union Confederation (ITUC)
  • Migrant-Rights.Org
  • Mines Minerals and People
  • PacificwinPacific for Pacific Islands Association of Non-Government Organisations (PIANGO)
  • Pakistan Kissan Rabita Committee (PKRC)
  • Public Services International (PSI)
  • Sanlakas Philippines
  • Woman Health Philippines

Urgent Justice Mechanism for Repatriated Migrant Workers Now

On 1 June 2020, a coalition of civil society organizations and trade unions launched an appeal for an “Urgent Justice Mechanism”, to address the plight of millions of migrant workers who have been repatriated or are awaiting repatriation as a result of pandemic-related job loss. The appeal called on governments to establish a transitional justice mechanism that would specifically address the huge volume of cases of wage theft and other outstanding claims heightened in the course of the pandemic, ensuring migrant workers are able to access justice and receive their due compensation.

A month later, the situation of migrant workers has significantly worsened. Large scale returns, deportations and repatriations have become a reality. Hundreds of thousands of migrant workers have returned home empty handed with nothing but a few personal belongings and the prospects of falling further into debt and poverty. Those numbers will continue to rise exponentially well beyond the availability of a vaccine even as markets struggle to stabilize.

Faced with this grave crime, we renew our call and we urge governments and UN agencies to take immediate action in three main areas:

1- Establish an International Claims Commission:

Due to the vast volume of emerging claims, a specialized body should be set up to specifically ensure the expedited and just resolution of wage-theft and other outstanding claims of repatriated migrant workers.

An International Claims Commission must be set up as a specialized international quasi-legal body of expedited justice to adjudicate on claims of migrant workers on an expedited basis in cases related to wage theft and other outstanding claims and to provide equitable remedies. Cases could be received directly from migrants themselves or through entities providing support or legal representation to migrants. All pre-existing case documentations should be referred to the Claims Commissions for resolution.

The International Claims Commission could be administered jointly by ILO and IOM, together with other relevant stakeholders. Given its quasi-legal nature, the composition of the Claims Commission could draw on seconded judges, independent lawyers, legal experts, migration experts, and academia among others. It would be desirable if sub-commissions are also set up regionally and nationally where capacities exist to address the huge volume of emerging cases. The diverse multi-disciplinary composition of the claims sub- commissions would ensure no additional stress is placed on already overburdened justice systems at the national level.

Creating operational national-level sub-commissions will help streamline the submission and verification of claims. As a process of due diligence, and under procedures established by the International Claims Commission, national-level sub-commissions must evaluate claims of wage theft and other outstanding claims covered in the Terms of Reference.

Procedures for filing claims should be affordable, simplified, publicized and made available in different languages. Based on a review of available evidence, claims sub-commissions should be able to make authoritative determinations as to whether rights violations did occur and determine appropriate compensation to be dispensed by the compensation fund. Decisions by the claims sub-commissions should be binding and expedited.

Types of Admissible Claims

Claims commissions should look into all cases of wage theft and other outstanding claims:

  • Non-payment of wages for work prior to the onset of the pandemic, for which it became impossible to pursue claims due to pandemic-related lockdowns, repatriations, etc.
  • Non-payment of wages or reductions in wage payments for work as the pandemic and associated economic effects started taking hold
  • Non-payment of other contractually owed benefits (allowances, end-of-service benefits, housing benefits, leave benefits, unpaid overtime, medical costs, costs of travel to country of origin, etc.)
  • Loss of expected wages due to layoff, reduction in hours, or reduction in hourly wage
  • Non-payment of wages for work required in excess of what is contractually agreed

2- The Compensation Fund:

A Compensation Fund set up at the global and national level should accompany the work of the Claims Commission and act as its executive branch, dispensing appropriate compensation in cases determined as wage theft.

Funds must be set up at the national level, and contributions to them could be ensured by the government, private contributions, business, and philanthropic foundations.

Funds advanced by the government could be later recouped from employers and businesses who were involved in wage-theft. This approach would ensure that migrant workers are paid their dues without delay, and that their cases are resolved swiftly. It will also ensure that employers and business that have not respected their contractual obligations face accountability for their actions.

A global solidarity fund also needs to be established for those workers whose cases have been determined as a genuine wage theft but are unable to access compensation from national funds.

3- Reforming National Justice Systems:

National and global claims commissions and compensation funds are no substitutes to fair and functioning justice systems at the national level. Availment of remedies under the transitional justice mechanism is not exclusive, and without prejudice to the availment of more favourable legal remedies available under the existing national justice systems.

So far, national justice systems have largely failed migrant workers; this failure should no longer be accepted or normalized. Even in the best of times, migrant workers suffer insurmountable obstacles accessing justice and seeking legal redress.

Challenges in accessing justice for wage theft at the national level cuts across various areas. Access to courts and police stations, documentation and proof of violations, cost and duration of litigation, language barriers, status dependency on employers, requirements for in person testimony are among the chief challenges to justice in the context of migration. Domestic workers are frequent victims of wages theft and face additional barriers to access to justice, which are not limited to restrictions on freedom of mobility alone. Lack of political will and weak enforcement mechanisms are also obstacles to justice for migrant workers.

The current pandemic provides us an opportunity to ensure that this systemic and structural barriers are forever removed. Ensuring justice systems are able to overcome those challenges and find workable and sustainable solutions becomes paramount. States must rebuild migrant-centered justice systems at the national level, that recognize the vulnerabilities and barriers in accessing justice for migrant workers, and ensuring employer accountability in order to respond to the influx of cases exacerbated by the pandemic. We urge governments to urgently take action now to reform national justice systems.

Measures at the national level that have addressed claims related to wage theft need to be intensified and infused with greater political will. These include setting up expedited labor courts, waving court fees, putting in place wage protection systems, operating worker hotlines in different languages, ramping up documentation in cooperation with missions, facilitating power of attorney procedures, allowing for remote testimony post repatriation, providing legal aid, and encouraging workers to come forward to register their labor grievances. Allowing migrant workers full freedom of association and collective bargaining rights in destination countries would also allow for the creation of workplace grievance mechanisms that are easier and quicker to access.

Building Back Better Cannot Be at the Expense of Migrant Workers

The need for more robust mechanisms to expedite payment of wages and other entitlements owed must be recognized and addressed. This is a matter of great importance to migrants, to the family members and communities who depend on their remittances, and to the resilience of the economies in their countries of origin. More broadly, it is a matter of great importance to the efforts of the international community to “build back better”.

In building back better, we cannot continue to turn a blind eye to wage theft. For too long migrant workers have suffered this indignity. Transformative justice demands that we act now in ways that ensure that every aggrieved migrant worker is no longer denied the full rights and dignity they deserve.

COVID-19: A Time for Businesses to Act Responsibly in Ensuring Justice for Migrant Workers

The COVID-19 pandemic has severely impacted millions of migrant workers in destination countries, many of whom have faced job loss or non-payment of wages, been forced to take unpaid leave or accept reduced wages, or been confined in poor living conditions, and with little or no choice in the work options before them.

On June 1st and July 9th, 2020 a large coalition of civil society organizations and trade unions launched two urgent calls for a justice mechanism to address the situation of migrant workers who have been repatriated without being given an opportunity to lodge a claim for their due wages and other benefits.

The appeals call on governments and UN agencies to take immediate action to establish a transitional justice mechanism addressing wage-related grievances, claims and labor disputes of repatriated workers who have lost their jobs or who have been sent on forced unpaid leave as a result of the pandemic.

The Role of Business in Preventing Labor and Human Rights Abuses

The UN Guiding Principles On Business and Human Rights, which were unanimously endorsed by the UN Human Rights Council 2011, make clear both the duty of states and the responsibilities of companies to respect human rights.Principle 13 notes the responsibility to respect human rights and requires that business enterprises to:

  1. Avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur;
  2. Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.

The COVID-19 pandemic has undoubtedly deeply affected businesses, many of whom had to permanently or temporarily close down, reduce the scale of their operations, or significantly cut their workforce. With the pandemic continuing to unfold, it has become increasingly difficult for employers to predict what the final impact on their struggling businesses will be. Entire sectors such as tourism, entertainment and aviation sector are at risk of being entirely wiped out if the current situation continues.

While businesses face massive challenges of unprecedented scale, workers face even more challenges. The International Labour Organization has predicted that the equivalent of 495 million full-time jobs will be lost in the second quarter of 2020. Workers in the informal economy, day laborers, migrants, temporary workers, and those without social security coverage are amongst those who are most severely affected.

For migrant workers in particular, the pandemic has heightened pre-existing problems of wage theft. Some businesses have taken advantage of the current pandemic, to unlawfully dismiss and withhold the wages of the migrant workers that they employ. Many workers return home empty handed, having been coerced to forgo their due wages and benefits they were entitled to, while other continue to work under exploitative conditions and reduced wages for fear of losing their livelihood in the climate of a global economic recession.

While many businesses worldwide have started to receive some kind of government assistance or bailouts, those schemes have rarely if ever included migrant workers as beneficiaries. When such benefits are provided to the migrant workers through the employers, there is no mechanism to monitor and ensure that the migrant worker, who is the ultimate beneficiary, actually receive the benefits.
Now more than ever, businesses must fulfill their legal obligations to protect the fundamental labor and human rights of migrant workers, including paying them what they are entitled to. The choices we make right now will have a bearing on the future that we shape together. In times of crisis, acting to uphold migrant workers’ rights is a strong reflection of the core values of the businesses and our collective responsibility to shaping a better world post pandemic.

What Must Employers do to Protect Migrant Workers from Wage Theft?

  1. Employers must ensure that all salaries are paid in full and without delays. Employers should not take advantage of a health crisis to justify short term actions in reducing workers’ job security and income.
  2. Employers must not deduct wages for time away from work due to mandatory quarantines, lockdowns or to recover from COVID-19, which must be treated as an occupational illness.
  3. Employers must not impose or coerce workers into new contracts that reduce wages and benefits or weaken worker protections.
  4. Companies should ensure that there are no cash flow issues that will affect payment of wages to workers in the supply chain.
  5. Companies should observe and comply with all applicable laws, regulations in accordance to international standards and with collective agreements with regards to wages and work conditions including safety in the work place.
  6. Companies should take measures to ensure workers’ labour rights are respected regardless of their migratory status in countries where COVID-19 related economic, health, labor and other key policies have been introduced and are discriminatory.
  7. Any contractual change must be temporary, and mutually agreed with workers. Contractual changes must be justified, and the company must settle all end of service benefits as per the old wage, before starting the new contract terms.
  8. Companies should encourage governments to include migrant workers in any and all social safety net schemes.
  9. When contracts are terminated, companies should observe their obligations regarding notice periods, the payment of wages, compensation and end-of-service benefits.
  10. Companies must continue to provide food and accommodation for laid off migrant workers in cases where immediate repatriations are not possible. Companies should also cover the costs of return flights should workers wish to leave.
  11. Companies should take into account the consequences of lay-offs and other employment measures on the visa status of their migrant workers and facilitate the transfer of workers to other employers in cases where this is possible, without withholding entitlements or levying any penalties.
  12. During the recovery period, companies should prioritize reinstating repatriated workers who lost their jobs due to the pandemic before carrying out any new recruitment.
  13. Companies should cooperate with the national claims commission when investigating cases of wage theft and should open itself to investigation.
  14. As an expression of solidarity and social responsibility, companies could make monetary contributions to a compensation fund. Money from the fund would be used to compensate migrant workers who are victims of wage theft.

Justice Delayed is Justice Denied States Must Act Now to Address Wage Theft for Migrant Workers

On the 1st of June 2020, a large coalition of civil society organizations and trade unions released an urgent appeal calling for a transitional justice mechanism for migrant workers stranded and repatriated during the COVID-19 pandemic.

The appeal highlighted the urgent plight of migrant workers terminated from their jobs, stranded in countries of destination or forced to return home without receiving their wages, dues and benefits. Due to the absence of effective mechanisms to address wage theft even in normal times, during this extraordinary time of crisis more migrant workers have been unable to file complaints and register grievances. By focusing solely on facilitating (or forcing) return and repatriation and failing to address this systematic form of exploitation, countries of destination and origin have become complicit in exacerbating wage theft.

The pandemic has taken a bigger toll on migrant workers than what was foreseen. Although hundreds of thousands of migrant workers have already been repatriated, lockdowns and restrictions remain in place; many migrant workers are forced to live without jobs, without their earned wages, and remain stranded in countries of destination, waiting to be repatriated.

While the call to justice has resonated with various stakeholders, States have done little to address the issue with the urgency it demands in recognizing this as a major crisis in labour migration governance today.

Unprecedented times require extraordinary measures. It is a legal and moral imperative that States act now to fast track the dispensation of justice in cases of wage theft to prevent migrant workers from falling into a vicious cycle of debt, poverty and despair, and work towards long-term solutions to the common practice of wage theft against migrant workers.

Objective 6 of the Global Compact for Safe, Orderly and Regular Migration (GCM) clearly iterates that States must : “Provide migrant workers engaged in remunerated and contractual labour with the same labour rights and protections extended to all workers in the respective sector, such as the rights to just and favourable conditions of work, to equal pay for work of equal value, to freedom of peaceful assembly and association, and to the highest attainable standard of physical and mental health, including through wage protection mechanisms, social dialogue and membership in trade unions”.

We commend the action of some States in recognizing the need to ensure the protection of migrant workers during this time of crisis:

  • The mobile court of Abu Dhabi has recently delivered 261 million Dirhams worth of unpaid wages to the doorstep of 26,000 workers in Abu Dhabi for grievances filed from January to June of 2020.
  • The government of Singapore has set up a multi-ministry task force which includes the Manpower Ministry (MOM), to assure that in situations where migrant workers are not being paid their salaries, the Singaporean government must be alerted and informed so that they can approach employers to take up the matter as part of its commitment to ensure that employers exercise their due diligence in paying their workers.
  • The Philippines has extended legal advice and assistance related to salary claims for displaced Overseas Filipino Workers (OFWs) in countries of destination whose contracts were terminated due to the pandemic;
  • In response to Public Interest litigation (PIL), the Honorable High Court of Kerala drew attention to all national mechanisms that could address the issue of wage theft and called for their full utilization.
  • Qatar has announced pioneering labour reforms including a minimum wage which when implemented will go a long way in ensuring the progress toward a decent work agenda. Qatar has also introduced a number of improvements to its Wage Protection System making it better at detecting additional violations such as wage deductions and contract violations as well as taking action against companies and employers violating the law.
  • In Kuwait, the Public Authority of Manpower activated its website to register through an online portal complaints related to wage theft, passport confiscation and other labor matters of migrant workers and book appointments to follow-up with the assigned department.
  • In July 2020, following an inquiry into wage theft in Queensland, Australia, the Queensland government introduced the Criminal Code and Other Legislation (Wage Theft) Amendment Bill 2020 (Bill) to combat wage theft.

We call upon more States to recognize the urgency of addressing wage theft and to take immediate and extraordinary measures and publicize them in order to resolve this issue before it grows out of proportion.

Online complaint procedures, task forces, mobile courts, speed resolution arbitration bodies, collective bargaining, and labour law reforms, are but a few examples of what needs to be done. It is also important to stress that whatever mechanisms put forward must fully take into consideration its accessibility for women, particularly domestic workers.

States must reiterate to employers that wage theft will not be tolerated and take steps to hold employers accountable through administrative, civil and criminal actions. Specifically, governments should be called on to provide inclusive solutions that address the conditions of domestic work and workers. Enforcement measures against employers will serve as a deterrent to wage theft practices.

We renew our call for States to set up sub-commissions at national level that look at the need for a reform of the justice system wherein migrant workers will not have to endure wage theft as the most significant recurring issue in any given year. We also appeal for the process of enabling the workers to give a power of attorney before they leave the country so that their claims for the statutory dues could be pursued in their absence as it becomes difficult to issue a power of attorney after they leave the country.

The United Nations Secretary-General has emphasized that we cannot go back to the failed policies that have resulted in the fragility we see around us - in healthcare systems, in social protection, in access to justice.

As Member States prepare for the Regional Reviews on the implementation of the GCM, we call upon all States to share the exemplary and extraordinary measures they have taken in addressing the concerns of migrant workers in the time of the COVID-19 pandemic and particularly around wage theft and access to justice.

As States come together in the GFMD 2020 preparatory process focusing on Governance of Labour Migration and Protection Gaps, we call upon all stakeholders to hold a dedicated discussion leading to the adoption of an action oriented resolution to address the issue of wage theft and access to justice.

We have heard too many stories of migrant workers and the impact of the COVID-19 Pandemic on their lives and livelihood. Listening Sessions must move towards transformative action or else we succumb to the paralysis of inaction, questioning our capacity to be able to respond in critical times.

We must act and act now to ensure justice for migrant workers.