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| WOMEN CONSTRUCTION WORKERS IN GURAON, INDIA PHOTO BY MICHAEL CANNON (COMPROCK) |
INTRODUCTION
Labor
law is law which mediates the relationship between workers,
employing entities, trade
unions and the government.
Collective labor law relates to the tripartite relationship between employee,
employer and union. This paper analyses the Migrant women rights, mechanisms of
international and national instruments, issues, burning case studies of Migrant
women struggles and the recommendations to safeguard the rights and lives of
them.
DEFINITION TO THE MIGRAND WOMEN
The United Nation Convention on the Protection of the rights of all migrant
workers and members of their families defines migrant workers as follows “the term migrant workers refers to a person who is engaged or has been engaged in a remunerated activity in a state of which he or she is not a national. Migrant workers
convention provide comprehensive definition
who is a migrant worker refers to a person who is to be engaged,
is engaged or has been engaged in a remunerated activity in a State of which he
or she is not a national. Migrants are to every country where they bring their labor. Let us give them
dignity they
deserve
as human beings and the respect they deserve as workers[1].
Women migrant
workers are considered as a vulnerable group than the other workers. Their
problems are increasing day by day. Some of the problems are sexual harassment,
physical and mental abuse, rape, torture. In some circumstances are that they
have to work beyond the statutory working hours. Therefore, it is imperative
that the government must ensure the Working environment where migrant workers
can work freely without any violence being made against them. Further,
government should periodically analyze the existing policies and laws relating
to women migrant workers of Sri Lanka in order to ensure their safety.
WHY THE WORKERS IN SRI LANKA MOVING TOWARDS TO IN
ANOTHER COUNTRY?
Many migrants move economic reason because poverty
in their home country and
see no choice but migrating to survive, but not only move due to economic factors, but also manmade disasters and conflicts can drive them in large number
as we
observe now and migration can be engendered due to poverty and lack of human
development, gender inequalities, discrimination
abuse and neglect, gang
violence, political instability, Socio ethnic tension, bad governance, food in
security, environmental degradation and climate change.
STATE RESPONSIBILITY TOWARDS THE MIGRANT
WOMEN
The countries from which these workers come and those in which they work have responsibility to state to lessen the burdens on them by protecting and promoting their
rights. Countries can engaging regular dialogue and co-operation on labor
migration policy for the protection of workers and their rights and state can entered into bilateral, Multilateral and regional agreements.
International co-operation in further and increasing opportunities for decent work is also of great benefit to migrant workers. Another
one that, the role of the state in order to
protecting individuals involved in the labor migration process during the pre-departure
and return stages when they are physically present and during post departure and work stage when they are not physically present. Migrant rights
using a life cycle approach in the context of temporary migration programs and
stress that protection of
migrant workers responsibility to the
state.
ISSUES RELATING TO THE MIGRANT WOMEN WITH THE
CASE STUDIES
Domestic workers are vulnerable to multiple forms of abuse like verbal abuse mental and psychological abuse physical and sexual abuse. Domestic workers in
the Gulf States are live in maids specifically
Saudi Arabia, Kuwait, Qatar, Jordan,
and Lebanon.
There are lots of problem faced migrant workers, there are numerous violence happen those countries. More than 600 female/male
migrant workers, who had left the country in search of greener pastures abroad are languishing in jail several countries for various offence, with 496 Lankans in
prison is Saudi Arabia alone,
According to Sri Lanka Bureau Foreign Employment (SLBFE) Statics
ten of the Sri Lanka Migrant workers have been sentenced to death, Five in Dubai, Two each is Saudi Arabia and Abu Dhabi and one in Lebanon.
BURNING PRACTICAL
INCIDENTS RELATING TO THE MIGRANT WOMEN
The brutal
execution of Sri Lanka house maid Rizana Nafeek in 2013 which captured international attention was a wakeup call for
Sri
Lanka to rekindle the ongoing debate about the safety of expatriate workers in the Middle-East and
about the poverty which drive people such as a Rizana to work in foreign countries particularly Middle-East countries. In the case Rizana, she was
accused of killing in infant while in her care in Saudi Arabia prosecutors choose
to practice Sharia (Islamic Law) and she was unable to prove her innocence she had
inadequate legal representation and there were no translators available when she
was tied at courts[2].
Another case that, Sri Lankan house maid who has been made
to work in Kuwait since 2003 without being paid for 11 years was paid what was owed to her in the way of salary arrears and brought to back the country. The women was identified as Mohamed Aliyaar Kairuniza, Age-28,
resident of Batticaloa. Who went to work Kuwait to work as house maid when she was
14 using fraudulent document.[3]
Another incident
similar to Rizana Nafeek was reported recently, refocusing the
spotlight on issues pertaining
to Sri Lankan maid,29-year old housemaid Manikkam Rani was also on death on row charges of allegedly killing a nine-month
infant in her care in Al Quarayat, Saudi Arabia. After unwavering of
efforts made by the Sri Lankan Embassy and Sri Lanka Bureau of Foreign Employment, under the direction of foreign employment minister, Rani was able to escape from the death.[4] as well as , B.R Niluka Nilmini Jayathilaka(38), a mother
of two; returned to Sri Lanka in a coffin October 25, after she died so called gas tank explosion in her work place in Kuwait her kidneys removed and
sold at Aden Hospital in Kuwait for Rupees 1,500,000
with her Saudi Employed estranged Husband udaya Kumara Agreement. According to reports and autopsy
done in Sri Lanka, she died on October 04; her corpse was flown to Sri Lanka on 25th October after long struggle by her family and relatives. She was buried at the gallewa
public cemetery on
27th October.[5]
STRUGGLES TOWARDS TO THE MIGRANT WOMEN WORKERS
(A) Harassment: women
migrant workers in domestic employment are faced harassment including assault,
insults, false allegation, deprivation of food, frequently scolding, no rest
and also they sweep and dust daily, climb ladders and clean high wall, they are
compelled to do the work in this such instance there is no complain or seek
redress. Most of the women migrant workers are wet as housemaids because of
their poverty. Sometime lady housemaids false allegation against them and
started to assault them. According to Sri Lanka Bureau of Foreign Employment
statistic that, lot of complaints were received in relation to sickness in
2009, majority of complaint originated from female migrant workers.[6]
(B) Non-payment of
salary: one of the main problem faced by the women migrant workers
non- payment if salary by their employer. It is breach of the term and
condition of employment as well as most of the women migrant workers went to
overseas employment under debt to so many people by way of sell or mortgage or
sell or pawn the jewelry or borrow money on interest to pay the employment
agency their aim to went the overseas pay back the loans. As well as children
education and build the house these expectation at that time went to the
overseas. In such situation when domestic migrant workers do not receive the
salaries by the employer, when ask for the wages they were ill-treated and
abused. In June 284 women had return to Sri Lanka who had been subject to
violence, abuse and Non-payment of wages.[7]
(C) Sexual Harassment:
another aspect violence that sexual harassment faced by the women migrant
workers by the employer or agency. Before departure the country most of the
Agents are start to exploit the women by way of sexual harassment. After
departures the country they suffers sexual harassment from the head of the
house (From his son and from his friends) if she refused she may ill-treated.
In the month of June 2004, 90 women returned to Sri Lanka on the ground of
sexual harassment.[8]
(D)
Lack of legal protection: women migrant worker face long or undefined
working hours according to the ILO 2005 state that in Bahrain average number of
working hours for female domestic workers was 108 per week, in Kuwait 101 and
in UAE 105.[9]
All these thing it is impliedly control the freedom of movement and also women
migrant workers are subject to mandatory health testing related to sexual and
reproductive health without consent or counseling in the contract of
employment, conditions are set according to the employers direction and many
cases there is no contract at all.
Furthermore women are
subject to helpless and injustice even they can not to make any complaint
against them. Who are violating the migrant workers‟ rights, they cannot escape
without passport, because passport is taken by the employer when they arrived.
If they go agency they will not allow to them make a complaint. So in these
circumstances there is no institution or procedure for these people to seek the
redress in destination countries. Not only their Foreign Employment condition
but their human rights as well as is violated.
INTERNATIONAL
FRAMEWORK FOR MIGRANT WOMEN WORKERS
The UN Committee on the Elimination of Discrimination against Women
(CEDAW Committee)[10]
and the Committee on the Protection of the Rights of all Migrant Workers and
Members of Their Families (Migrant Workers Committee) also concerned migrant
domestic workers have addressed common issues that affect women migrant
workers, with a special focus on the domestic work sector. The Migration
for Employment convention[11]
promotes free services and information to migrants by the State. Presently
pre-departure training gives to the female migrant workers. The Migrants Workers (Supplementary
provision) Convention 1975 establishes the rules for adoption of measures
to suppress clandestine movement of workers, illegal employment of migrants and
against the organizers of such movements. Private
Employment Agencies Convention[12]
deals with regulation of employment of Agencies, Specially Aricle-07 deal with
private agencies shall not directly or indirectly, in whole or part, any fees
or cost to workers.
Another
Convention Specially dealt with women that, convention on the Elimination of All Forms of Discrimination
against Women (CEADW)[13]
if there is any discrimination against women it becomes a violation of
principle of equality of rights and respect for human dignity. This convention
attempts to eliminate such discrimination by set out the legal standards for
member’s countries. Further this charter directly address to the state must
take appropriate measures to ensure the rights of migrant workers within the
country and host country through bilateral agreements. Article-07 of the
Convention on Elimination of All forms Discrimination against the women
provided that, equal right to participate the Non-governmental organization and
association. Further a convention that, International Covenant on Economic
Social and Cultural Rights, Article-08 guarantees the rights of every one and
join the trade union and also guaranteed every one right to freedom of
association with others including right to form and join the trade union.
Article-14 of the women charter requires to state take necessary measures to
eliminate the all forms of exploitation. Trafficking and prostitution of women
especially within the migration process and also required to all state must
prevent the gender-based violence at the workplace. These include rape, incest,
sexual harassment, physical and mental abuse, torture and cruel inhuman or
degrading treatment.
As well as main
Human rights Treaties ensure the rights of migrant workers through the
provision of the rights of freedom association, equal participation in public
life, freedom form and join trade union and other organization, minority rights
and freedom from discrimination on the basis of sex, race, color, national or
ethnic origin, ethnicity or religion. According to the Committee on The Protection of The Rights of All Migrant workers
and members of their families, Committee can examine the report to submit by
the State parties. It may also complaints from the state and individual.
Initially these report submitted once a year after entry into force the
Convention, thereafter every five years whenever needs the committee. State can
submit communication to another state. If is consider State party is not
fulfilling the obligation under the convention if the problem not resolved
within the 06 month of initial communication, either State may refer the committee.
Article- 77 of this Convention provides for Individual complaint procedure.
However these
Convention not ratified by the labor receiving countries in the Middle-East.at
the same time most of the labor receiving countries still not ratify migrant
workers related Convention including International Labor Organization
convention. On the other hand labor sending country likes Sri Lanka interest to
accede the migrant workers Convention in order to ensure the strong legal
protection of right of migrant worker through minimum international standard.
NATIONAL
FRAMEWORK ON MIGRANT WOMEN WORKERS
The Sri Lankan
constitution offers another avenue for safeguarding the rights of migrant
workers and their children left behind. Fundamental rights and freedom were
first introduced in the 1972 constitution, but this constitution did not vest
any court with jurisdiction to remedy breaches of these rights by state. Then
after 1978 constitution was come to the stage and contain a number of
fundamental rights. article 12(1) all person are equal before the law and
entitled equal protection of law, article 12(2) nondiscrimination clause,
article 14 (1) freedom of speech, assembly, association, occupation, and
movement. One’s instance is the freedom of citizen to return to sri lanka[14]
Therefore some of the civil and political rights of Sri Lankan Constitution may
be viewed as having direct relevance to migrant workers and their families.
Another is the authorization of affirmative action or positive discrimination
for the advancement of women, children or disabled persons.[15]
The 1978 constitution goes further in establishing a remedy for the
infringement of fundamental rights by executive or administrative action.[16]
An additionally 1978 constitution has facilitated number of directive principle
and state policy, which are intended to guide parliament, the president, and
the cabinet of ministers in the enactment of laws and the governance of Sri
Lanka for the establishment of a just and free society.[17]
These principles include the objectives that,
ü State
shall recognize and protect the family as the basic unit of society
ü State
shall promote with special care the interest of children and youth, so as to
ensure their full development, physical, mental, moral, religious and social
ü Protect
them from exploitation and discrimination[18]
Domestic
Law
The government
attempted to ban the labor migration of mothers with children less than 5 year
of age in a cabinet decision on the eve of international women’s day in 2007.
However which failed to become law due to the procedural difficulties. Sri Lanka Bureau of Foreign Employment Act
No 21 of 1985 Amended by Act No 4 of 1994 - the government issued a serious
of Circulars (effective January 15, 2014) mandating that a “family background
report” be completed by all women wanting to migrate as domestic workers. This
has been superseded by a more recent Circular (effective August 1, 2015) which
extends these reporting requirements to all women migrating overseas for employment.[19]
As outlined by the
government, the range of government officers such as women development
officers, child right promotion officers and social service officers are
involved in the preparation of the report. If woman are identified as having
children under 5 years of age, aforementioned officers specially are required
not recommend them for migration.
Ø The
Circulars also stipulate that mother with children over the age of 5 should be
recommended only if satisfactory arrangement have been made for the children
care and protection
Ø In
addition to these measures, the circular establish a maximum age for women
55years and set minimum age for migrating to Saudi Arabia 25 years, other middle east countries 23
years and other countries 21 years[20]
Ø In
order to give massive consideration to the united nation special rapporteur on
the human rights of migrant stated, Sri Lankan government however has argued
that these state intervention have to be developed in response to the growing
evidence about the negative impact of maternal migration for domestic work on
young children and they are and effort to balance the multiple interest and
rights involved in a mother’s decision to migrate as a domestic worker.[21]
Domestic
Policy
The important area of
policy development in Sri Lanka is the 2009
National Labor Migration policy, this organizes the inherent risk of low-
skilled labor migration for workers and their children and it emphasis the need
to reduce migration in favor of skilled migration.[22]
A Sri Lanka labor
migration policy was guided by the ILO’s multilateral frame work and recognizes
the “social cost of migration, in term of impact on families and children left
behind” within the policy the government commit to safeguarding the vulnerable
children of migrant workers.
CONCLUSION
Foreign employment is important to
Foreign exchange in many Countries. Therefore many countries engage the foreign
employment. In most of the situation, migration for foreign employment become a
one of the most popular choices it is depend on the many reason, main reason is
achieve the economic stability. Particularly women who live in rural areas and
who is in poverty they choose migration to resolve the economic problem.
According to the Sri Lanka Bureau of Foreign Employment report that, most of
the women migrant workers are very low educational level. Therefore they have
to select the foreign employment as a household maid.
When it comes to migration it is
contain both negative and positive aspect, when we consider the economic side
it is directly increase the level of Sri Lankan economy by way of earning
exchange but when we consider cultural side, it is negatively affect the Sri
Lankan culture. Most of these uneducated migrants have face lot of problem
including harassment by employer or agents, they forced to work beyond the
capacity, not receiving the salaries regularly. In this such instances there is
no person or organization seek the remedy. At the same time if we consider
migration of educated and experience (High skill) workers they are not facing
difficulty.
All people are entitled
to fundamental human rights and basic labor protection, including migrant
workers and their families. At the same time that violates the rights of
migrant workers do not have any proper penalties system given both domestic law
as well as international law. Because those are less protective system, they do
not have sufficient protection. Therefore responsibility of domestic law and
international law should concern rights of migrant workers‟ rights by way of
introduce the proper procedure and penalties system.
Furthermore, Sri Lanka
past year focus on migrant workers issue particularly unskilled workers.
However still women migrant workers are started to exploit by various form, one
of the important reason is lack of control over private recruiting agencies in
Sri Lanka where much of exploitation arises. Another one is lack of NGOs serves
issue of migrant workers and also lack of proper networking and coordinating
taken by the NGOs in Sri Lanka and the host countries. Few numbers of NGOs are
only speaking on behalf of voice of women migrant workers. The Other problem is
that, lack of mechanism for the collection and sharing of migration and other
information. Therefore should make the legislative, Administrative measure in
order to implement the policy At the same time State provide educate and
effective protection of these women migrant workers and their families by way
Enacting and implementation laws. Therefore National law associated with
International human rights treaties standards and bilateral agreement with
hosting countries, which is protect them from various violence.
RECOMMENDATIONS
v Sri
Lanka is a country has Number of foreign employees. Increase the women
participation in domestic sector significantly change in the labor market in
the Middle-East. Sri Lanka Bureau of
Foreign Employment Act need to amend to incorporate migrant workers‟ rights lay
down by the Convention including all stakeholders and prohibit the board’s
members from engaging recruitment agencies. As well as establishment of
sufficient Sri Lanka Bureau of Foreign Employment branches in all districts in
order to facilitate the service. National policy need to be implemented regarding
its contents and goals. Another affective initiative that, state should ensure
the bilateral agreement with hosting countries in order to protection of
migrant workers for human rights violation against the migrant workers.
v Sri
Lankan government establish through Sri Lankan Human rights Commission, that
should make the special unit for the protection of migrant workers, coordinate
with workers and hosting countries including Complaint procedure. Government
should organize with Department of probation and child care initiate the
program support primary caregivers to address the emotional and intellectual
needs of children of migrant workers.
v State
must have clear database on migrant workers and also population and labor force
survey format should be amended to obtain better quality information on migrant
workers. Migration data should include return migration data.
v Sri
Lankan embassies and Consulate as well as hosting countries receiving Sri
Lankan migrants improve the data collection especially with regard to irregular
migrants. Therefore Sri Lanka Bureau of Foreign Employment should assist with
Department of Immigration and Emigration. The Sri Lanka Bureau of Foreign
Employment committees should maintain the separate data-base on the children of
migrant workers and monitor their welfare; education and health ensure a safety
environment within their homes or families. And also government can promote
self-employment opportunities among women who have already abroad, government
bank can provide loans with low interest.
v Further
development is consular services need to reconstruct in order to protect the
migrant workers and establish the separate department for maintain 24 hours
hotlines in order to monitor the country situation.
Key Words : Labour law, Labor law, Employment law, Workers, Workman, Women
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12. Sriyani Tidball, University of Nebraska-Lincoln,
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13. Daily News
[1]
”(Juan somavia, Director general of the International
labor organization making
first UN designated International Migrants day 18 December 2001)
[5]
“Mystery
over mothers death in Kuwait”- 08/11/2016,Daily news
[6]
“Ill
treatment in Sri Lankan Housemaids, Daily mirror,22 august-2011
[7]
Daily
Mirror-08 Feburaury-2011
[8]
Daily news 19-August-2008
[9]
Sri Lanka Bureau of Foreign
Employment
[10]
Elimination of All Forms of Discrimination
against Women (CEADW) 1979
[13]
Elimination of All Forms of Discrimination
against Women (CEADW) 1979
[14]
Article 14(1)(1)
[15]
Article 12(4)
[16]
Article 17, 118, 126
[17]
Article 27(1)
[18]
Article 27(13)
[19]
Sri Lankan Bureau of Foreign Emp. Circular No MFE/RAD/10/13
[20]
Sri Lanka Ministry of Foreign Emp.. Circular No. 2015/1/ MFE/RAD/10/13/1-2
[21]
Bureau of Foreign Emp..Circular No 13/2013
[22]
Sri Lanka Ministry For Foreign employment promotion and welfare .