In Need of More Protection

Author(s): Sudeshna Thapa

Year of Publication: 2019

As reported by the Ministry of Labour and Employment, a total of 5,892 of our emigrant workers have died in 29 destination countries over the course of the nine fiscal periods between 2008/09 and 2016/17. Notably, 451 of these deaths were caused by suicide and 795 by ‘unidentified’ causes. Workplace accidents have been another major cause of death for migrant workers, especially in Malaysia and the Gulf countries. In addition, an overwhelming majority of the reported cases of injury and disability—over 70 percent—have also been caused by workplace accidents. These figures shed light on the dark side of labour migration, and call for attention to the sorry state of workers’ Occupational Safety and Health (OSH) in particular.

Inadequate laws

The right of workers to a safe and healthy working environment is a fundamental right enshrined in numerous human rights instruments, such as the Universal Declaration of Human Rights, and the international labour standards established by the International Labour Organisation. The Constitution of Nepal 2015 and the Labour Act 2017 also safeguard workers’ right to fair labour practices and to appropriate facilities with regard to OSH. Effective compensation and remediation mechanisms for occupational injuries and diseases are integral to protecting workers’ right to OSH.The Foreign Employment Welfare Fund, established under the Foreign Employment Act (2007) for the social security and welfare of migrant workers, provides compensation to migrant workers who die or sustain major injuries/illnesses during their course of duty in foreign lands.

The Foreign Employment Promotion Board has reportedly doled out compensation for disability to 818 migrant workers through the Fund over the nine-year period between 2008-09 and 2016-17. However, the effectiveness of the compensation mechanism is a cause for concern as only a fraction of affected workers and families have access to such compensation. Awareness regarding the compensation mechanism among workers is limited and compensation is only provided to workers who seek help and request compensation. Also, labourers engaged in work without valid permits and those who emigrate through informal channels do not have access to the compensation mechanism.

While the welfare fund is a noteworthy initiative towards building a safety net for migrant workers, the criteria for entitlement to compensation under the Foreign Employment Act is grossly restrictive. Compensation is only provided to workers with major physical injuries or illnesses. In cases regarding the death of workers, their families or nominated beneficiaries are compensated instead. Workers who have been mutilated or rendered helpless in destination countries are also assisted with repatriation and consequent reintegration through the fund. In addition, the recent amendment to the Foreign Employment Rules (2017) stipulates that family members of migrant workers who die, whether in destination countries or in Nepal, during their contractual period are also to be compensated through the fund. Despite these provisions, a gaping inadequacy in the law is the lack of attention to workers suffering from psychological distress and mental illnesses. Only workers with palpable physical injuries have been compensated.

There is a plethora of research-based and anecdotal evidence depicting the grave psychosocial hazards our workers are constantly subjected to in destination countries.  Many of the workers have reported having suffered extreme mental anxiety and trauma from working long hours without adequate breaks or overtime pay.  Many have also reported having to live in squalid and congested dormitories with little to no freedom. Many have even had their passports confiscated by employers and thus held hostage. Such occurrences have a profound impact on the psychological and emotional wellbeing of workers, resulting in grave mental issues.

Long-term solution

What’s more, the Foreign Employment Act also fails to acknowledge long-term occupational hazards associated with the workplace environment. Most of our migrant workers employed abroad have been classified as unskilled workers. Over 70 percent of workers who left the country in the fiscal year 2016-17 for Malaysia were factory workers and general labourers.  The statistics are also similar for other major destinations such as Qatar and the UAE.

Among others, factory workers in the manufacturing sector have been known to work with machinery without adequate protective equipment. Such workers are also predisposed to other physical hazards such as prolonged exposure to loud noise or vibration. Similarly, workers in the construction and agricultural sectors come into contact with toxic and dangerous substances and chemicals.Various chronic respiratory illnesses and certain types of cancer have also been linked to exposure to risky working conditions.

The need for providing assistance and compensation to migrant workers affected from such long- term health issues cannot be understated. Also important is the need for comprehensive studies on returnee migrant workers with health conditions that might have surfaced after their return but which can be linked to working conditions during their employment abroad.

While expanding the entitlement criteria for receiving compensation to include workers affected mentally and those dealing with long-term health issues is crucial on the part of the Nepali government, the need to monitor and follow up on the remediation and compensation of workers in destination countries is also pressing. Although the Ministry of Labour, Employment and Social Security maintains data on the number of migrant workers who have died or have been injured in destination countries, it does not appear to have records indicating whether such workers were compensated by employers. Securing compensation for occupational injuries from employers in destination countries is extremely difficult for migrant workers after their return, if not impossible.

Notably, cardiac arrests have been cited as the major cause of death for migrant workers in top destination countries following ‘natural’ death. Needless to say, receiving compensation from employers abroad for long-term health conditions that develop after their return is all the more complicated and challenging for migrant workers.

In such a scenario, bilateral agreements and memoranda of understanding signed with destination countries should explicitly govern matters relating to the OSH of migrant workers, including arrangements for remediation and compensation in particular.  Due enforcement of such legislation calls for a conscious effort from all stakeholders. The recently enforced Contributions based Social Security Act (2017) and the Operational Directives (2018) could also be amended to include provisions relating to security against occupational injuries and diseases for migrant workers in particular.

Thapa is a research associate at the Centre for the Study of Labour and Mobility, Social Science Baha.

Published: 06-02-2019, 07:37

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