Reforming the framework for migrant worker welfare: A matter of paramount national interest
Although OEMA 2013 is a relatively robust legislation, reform is needed in several key areas
On the 26th of October, 2013, the Government of Bangladesh (GoB) enacted the 'Overseas Employment and Migration Act (OEMA), 2013, which effectively superseded the Emigration Ordinance of 1982. The Act was framed for promoting opportunity for foreign employment of workers and ensuring safe and fair migration governance systems as well as ascertaining rights and welfare of migrant workers and their families while remaining in conformity with the ICRMW.
Framing of this law (OMEA) was necessary to fulfill the obligations of the government following Bangladesh's ratification of the 'UN convention on the protection of the rights of all Migrant workers and Members of their Families, 1990. Ratification to the convention obligated the government to effectuate necessary changes in its existing relevant law. With that aim, the OEMA 2013 was enacted.
Nature of OEMA 2013
This legislation is predominantly a regulatory law which comprises multiple key features. At the outset, it is clearly stated that the law is framed to make national laws compatible with the 1990 UN Convention and other labour and human rights conventions. The enactment of this law signaled to the global community that Bangladesh is committed to honor its international obligation as well as put a section on rights of migrants. In addition, the OEMA has endorsed migrants and their families the right to lodge criminal cases against any persons that deceive the migrants as well as civil cases for seeking compensation.
What does this Law entail?
Part 1 of the act is Preamble which presents the title of the law and definition of all the terms used. Part 2 deals with the mechanism of sending workers abroad (equality section).
Part 3 is regarding recruiting agents, their licensing etc. Part 4 determines the system of workers registration and method of clearance to leave the country.
Part 5 and 6 provide the regulatory framework for the job contract and migration agreements and role and function of the office of labour attaches.
Part 7 documents the rights of migrants. Part 8 determines what constitutes offence, punishment and concerned authorities for dispensing justice. Part 9 presents all other relevant issues under the heading of Miscellaneous.
Shortcomings of this Law
Majority of the key provisions of the law are directory rather than mandatory, which undermines its strength. The Act is also short of incorporating the provisions facilitating rescue of migrant victims, witness protection, joint or mutual legal assistance, cross-country collaboration, extrajudicial powers of the Courts, admissibility of electronic proof and evidence, camera in trial etc.
The OEMA fails to provide affirmative measure(s) to safeguard and fulfill the rights of vulnerable groups such as women migrating into domestic work as is required under the UN 'Convention on the Elimination of all forms of Discriminations against Women' (CEDAW), 1979. The OEMA 2013 imposes significant obligations, fines, suspension, and cancellation of license in order to ascertain compliance. However, penalties for the other violations, such as physical, sexual and psychological violence, committed by agents are not particularly stated.
Both the OEMA and its subsequent Rules fail to address the protection or rights of those workers who are engaged in overseas employment beyond formal channels. In theory, migrant workers who depart Bangladesh irregularly should have equal access to the country's all redress mechanisms. In practice, such workers usually find themselves unable to access justice because they lack documentary evidence such as receipts and contracts to support their claims. The law did not provide remedies for those workers who inadvertently depart Bangladesh in an unorthodox manner compared to most.
The complaint procedures (for workers) are not defined elaborately and government monitoring and inspection procedures for recruiting agencies are not set in detail in the Act. In 2020, "Probashi Ovijog Desk" (Migrant Complaint Desk) implemented by Bangladesh Police at the district level has been providing necessary assistance to the victims. However, the Act or the Rules failed to specify the Police's role in collecting such complaints from aggrieved migrants.
Considering the pivotal role of recruiting agents or agencies in overseas employment and workers migration, the Act provides a separate chapter (Chapter III) that deals with Recruiting Agents, License, and others. Nevertheless, it does not specify the roles of the sub-agents of the recruiters, even if they are major suppliers of migrant workers. Due to which, the agencies or agents tend to deny responsibility and thereby are shielded from liability by claiming to be unregistered. The Act must provide penal provision to deal with the registered and unregistered agents or agencies or brokers.
Section 16(3) predicts that the factors to be considered while classifying the recruitment agents into various grades shall be prescribed by the Rules. However, the Rules do not have any such prescription yet.
The Overseas Employment and Migrants Act 2013 allows workers to claim compensation under section 18 (2) & (3). However, The Act did not specify the basis of calculation of compensation or the criteria of compensation as well as how to address compensation claims for more serious abuse and exploitation at the hands of agents, recruitment agencies or employers.
Section 22 of the Act puts recruiting agents under obligation to discharge certain duties and responsibilities as a representative of the employer relating to labor migration but does not empower them to enter into any contract with the migrant workers. The Law does not provide a general right to redress in the event of a worker's contractual right being violated.
Also, workers' complaint procedure is not elaborately defined, and the Government's method for monitoring and inspecting the recruitment agents is not specified in the Act.
Section 27 gives every migrant worker who was victim of fraudulence at the time of migration right to legal aid, but this section remains ambiguous about (1) nature of legal aid, (2) who will provide this aid, (3) who will bear the cost of litigation.
The civil suit for compensation in section 28 essentially requires ad-valorem court fees to be filed by the plaintiff but an affected or aggrieved migrant worker can rarely afford this. However, neither the law nor its rules clearly specify the costs of such litigation including the court fees for filing civil cases claiming compensation.
As unlawful migration or receiving money by giving false undertaking to provide overseas employment as per Section 31 is a serious offence, it is imperative to integrate it into the Act as a cognisable offence under Section 39.
Procedural Shortcomings in Overseas Employment and Migration Rules (OEMR), 2017
Among the various procedural shortcomings in OEMR, Integrated Digitisation in the migration management system is not defined in Rule 3. In Rule 6, each function of BMET is not elaborated. Rule 8 fails to explain the function of Labour Welfare Wings. Settlement of complaints by Labour Welfare Wings is not clarified properly either in Rule 9. OEMR further fails to describe the process for submission of complaints at BMET/DEMO offices.
Conclusion
Although OEMA 2013 is a relatively robust legislation, reform is needed in several key areas. In addition to legislative rectification, significant human and financial resources are also required to produce an effective and sustainable framework. Greater political commitment and strong leadership could potentially be crucial in implementing and enforcing the existing or revised legislation and could succeed in extending support to Bangladeshi workers throughout all stages of the migration process. If the aforementioned can be attained, we might very well be successful in providing a sustainable framework for ascertaining the welfare of migrant workers who remit significant sums to the national economy.
