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.
Every year, over 200,000 migrant workers leave Sri Lanka for employment. The total number of migrant workers is currently around 1.7 million and their remittances which exceeded US $6 billion last year was the largest foreign revenue from a single sector.
In the face of the COVID-19 pandemic, while businesses face massive challenges of unprecedented scale, workers face even more challenges. The International Labour Organization (ILO) has predicted that the equivalent of 195 million full-time jobs will be lost in the second quarter of 2020. Workers in the informal economy, day labourers, migrants, temporary workers, and those without social security coverage are amongst those who are most severely affected.
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:
(a) Avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur;
(b) 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 are at risk of being entirely wiped out if the current situation continues.
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.
Threat of wage theft
Recently, a large coalition of civil society organizations and trade unions across the globe urged the private sector employers to protect their migrant workers who either lost jobs or are facing difficulties as a result of the COVID-19 pandemic, from wage theft.
These civil society organizations and trade unions recently came up with a 14-point list of recommendations on how businesses could support a campaign to guarantee that migrant workers are properly compensated by employers before they are repatriated.
This is an extension of the two urgent calls made by civil society organizations and trade unions on June 1 and July 9 for a justice mechanism as part of a global campaign to address the situation of migrant workers who have been repatriated without their due wages and benefits.
The two appeals call on governments and UN agencies to take immediate action to establish a transitional justice mechanism addressing wage-related grievances, claims and labour disputes of repatriated workers who have lost their jobs as a result of the pandemic.
The joint statement issued by the stakeholders said, “While the massive challenges businesses have to face in these unprecedented times have been evident, workers consequently face even more barriers. We also understand that the private sector has a vital role to play in this campaign to ensure its success. Now more than ever, businesses must fulfill their legal obligation to promote and protect the labour and human rights of their workers.”
“In this regard, we are renewing our call, this time to the private sector, to protect their workers from wage theft.”
Sujeewa Lal Dahanayake, attorney-at-law, and national coordinator of Lawyers Beyond Borders in Sri Lanka, a stakeholder to the 14-point proposal to protect migrant workers from wage theft said that in Sri Lanka all stakeholders led by government authorities should get together and prepare an action plan to address the issues of repatriated migrant workers due to COVID-19 pandemic.
Dahanayake said repatriation of migrant workers, especially from the Arab Gulf, is happening hastily so that workers do not get to claim their unpaid wages.
“Countries of destination and origin have begun repatriation procedures of these workers, without giving thought to their predicament and treating their return as inevitable. Without proper controls in place, employers are taking advantage of mass repatriation programmes to terminate and return workers who have not been paid their due compensation, wages and benefits. Many migrant workers had reconciled to the situation of wage theft in the form of unfair or unpaid wages for months and years before the COVID-19 pandemic,” he said.
Dahanayake said that in the Middle East region alone, an estimated five million jobs will be lost, many of which are held by migrant workers. Since the start of the pandemic, more than 200,000 migrant workers have been repatriated to Asia from different parts of the world.
Third appeal
The third appeal which is specifically to the private sector breaks down into a 14-point list of recommendations on how businesses could support the campaign and guarantee that migrant workers are properly compensated by employers before they are repatriated.
The list of 14 points which are mentioned below is endorsed by Migrant Forum in Asia, Cross-Regional Center for Refugees and Migrants, Lawyers Beyond Borders, Solidarity Center, SARTUC (South Asian Regional Trade Union Council) and ASEAN Services Employees’ Trade Union Council.
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, labour 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.
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