From 'Act' to 'Action': Protecting migrant workers through the Overseas Employment and Migrants Act

Following a sharp dip in the number of outgoing migrant workers during the peak of the Covid-19 pandemic, Bangladesh experienced its highest-ever outflow of workers in a single year in 2022. 

More than 1.1 million workers migrated from the country last year, and collectively sent back about $21.2 billion in remittances. The trend continues this year, as nearly 214,000 migrant workers have already left Bangladesh in January and February alone. 

With significantly weak labour rights, and often poor working and living conditions, migrant workers remain a highly vulnerable segment of the population. To this end, the Overseas Employment and Migrants Act 2013 (OEMA 2013) serves as an important legal document in Bangladesh pertaining to the protection of the interests and rights of migrant workers. 

Laid out in nine chapters, the OEMA 2013 establishes rules, regulations and penalties for migrant workers and recruitment agents to ensure a "safe and fair system of migration, [and] to ensure rights and welfare of migrant workers and members of their families." While the OEMA covers important grounds for protecting migrant workers, including necessitating written employment contracts, establishing Labour Welfare Wings in receiving states to address workers' complaints and forbidding illicit recruitment activities, there remains a large gap between the intentions of the OEMA and its implementation over the past decade since its enactment.

On employment contracts

The OEMA 2013 postulates that recruitment agents must ensure each worker has an employment contract, detailing agreements with their employer inclusive of the monthly salary and that these contracts are to be submitted to the Bureau of Manpower, Training and Employment (BMET). 

Additionally, it states that migrant workers have the right to information about the "migration process, employment contract, and the terms and conditions of the work overseas" to allow them the opportunity to file complaints, should there be any violation of their contract, such as unpaid wages, excessive working hours and any other precarious working conditions.

While in theory, this should have served towards the safeguarding of migrant workers against exploitative and fraudulent recruitment and employment activities, data shows that there exists a large gap between the Act and the actions on the ground, as a significant number of workers each year migrate without a written contract. 

The Cost of Migration Survey published by the Bangladesh Bureau of Statistics (BBS) and International Labour Organisation (ILO) shows that 41% of the 2.73 million Bangladeshi labourers who migrated between 2015 and 2018 had not been provided with any written contract from their employer or recruiter. To add, a disproportionately higher 45% of the female migrant workforce was without written contracts in the same period. 

The survey found that the skill type of migrant workers is strongly correlated with the status of written contracts – 44.5% and 51.1% of "unskilled" and domestic migrant workers, respectively, were without written contracts while the figure was only 20.3% for skilled migrant workers. Such disparities along the lines of gender and skill type signal that already marginalised groups, particularly women, "unskilled" migrant workers such as construction workers, and migrant domestic workers, are placed in an expanded state of precarity.

On the role of migration intermediaries

A migrant worker's trajectory from Bangladesh to the receiving country typically involves a vast and intricate network of stakeholders, including the workers themselves, their employers, concerned government bodies, recruitment agents, and intermediaries such as dalals (local informal brokers). 

A 2017 study by the Refugee and Migratory Movements Research Unit (RMMRU) found that dalals are typically the first point of contact and source of information for aspiring migrant workers, but are also the primary source of fraudulent activities and exorbitant recruitment costs. 

To combat such activities, the OEMA 2013 necessitates that a recruiter must hold a licence issued by the government to perform migrant recruitment activities (though it does not explicitly mention the role of intermediaries). This, in theory, illegalises recruitment by informal intermediaries, and so workers, by law, are required to use only formal streams of migration via registered and licensed recruitment agencies.

In practice, however, the role of dalals remains deeply embedded in the migration process as aspiring migrant workers navigate the complex structures of attaining jobs, visas and work permits, flight tickets, accommodation, and so on. 

The RMMRU study found that 90% of the 5,400 interviewed migrant households had paid either partial or the full cost of migration to unlicensed dalals, demonstrating their prevalence despite the laws set in place by the OEMA 2013 to abolish their involvement. 

While dalals are often at the centre of fraudulent activities in the recruitment process, their involvement continues to be persistent, and the issue remains largely systemic, driven by the failure of authorities in implementing what has already been explicitly set out in the OEMA. 

Consequently, migrant workers continue to depend on unsupervised local dalals, placing them at high risk of exploitation and deception in informal channels of migration.

On high recruitment costs

Recruitment costs associated with migration are often extremely high in Bangladesh, exacerbated by the exorbitant service fees charged by dalals or recruitment agencies. Frequently, migrant workers have to take on significant amounts of loans to finance recruitment costs, making them vulnerable to debt bondage even before they set foot on their journey abroad. 

To prevent such practices, and to curb the costs of migration, the OEMA 2013 requires recruitment agents to submit an affidavit to the government declaring that "while sending migrant workers overseas, fees and other amounts in excess of the ceiling fixed by the government shall not be charged." 

As evidence from BBS reports shows, however, the reality is quite different. 

The OEMA's stipulations are undermined by the absence of monitoring unlawful recruitment activities, particularly concerning visa trading, whereby employers in receiving states illegally auction and sell visas at high prices to recruitment agents or dalals, who then pass on the costs to migrant workers.

Data shows that year after year Bangladeshi migrant workers incur some of the highest recruitment costs in the world. 

In 2021, Bangladeshi workers migrating to Qatar, an important receiving state for low-skilled migrant workers were paid $3,136 on average, three times higher than their Nepali counterparts. The BBS-ILO Cost of Migration Survey shows that Bangladeshi workers migrating to Saudi Arabia pay higher amounts of money still, at an average of $4,085 while earning only about $205 per month. 

A Bangladeshi migrant worker in Saudi Arabia is therefore required to work for nearly two years just to recover the recruitment costs, shedding light on the glaring deficiencies of the OEMA 2013 in controlling costs of migration.

Towards a framework for implementing the OEMA

In December 2022, the Ministry of Expatriates' Welfare and Overseas Employment (MEWOE) reported that a revised version of the OEMA 2013 will be implemented in June 2023. The revision will seek to reduce migration costs through "negotiation with employers, recruiting agencies and service providers." 

In addition, MEWOE hopes to further streamline the migration process by including provisions for the role of intermediaries within the revised OEMA and by launching an accountability framework for such stakeholders. 

While these considerations are certainly a step towards the right direction for protecting migrant workers, strengthening the institutional capacity of the concerned government bodies to enforce the provisions of the Act is crucial for the success of the revised OEMA. 

Alongside the revision of the law, the government must prioritise establishing an efficient implementation and monitoring and evaluation system. At the pre-departure stage, registration of outgoing migrant workers together with a record of their employment contract, clearly outlining details of their work and pay, should serve as an essential step that must be further emphasised in the revised OEMA. 

The absence of a well-structured grievance mechanism for migrant workers in the current iteration of the OEMA leaves a stark gap between the punishable offences laid out in the Act on paper and its execution in practice. As such, adequate resources will need to be allocated to Labour Welfare Wings established in receiving countries to equip concerned officials with the capacity to meaningfully address migrant workers' complaints and concerns. 

It is imperative that such discussions on the revision and implementation of the OEMA include representatives of migrant workers as well as independent experts.

As the government works towards its target of sending at least 5 million migrant workers abroad between 2020 and 2025, as set out in the 8th Five Year Plan, it must at the same time ensure that a migrant rights- and safety-focused approach is pursued by considering migrant workers not just as numbers but as citizens who are vastly contributing to the development of Bangladesh. 

The aspirations of the revised OEMA will only be achieved if an effective structure for monitoring the implementation of the Act is employed. 

Sanjana Prachee Rahman, Political Science PhD Candidate, York University, Canada