Fair recruitment, but on paper only: Time to implement the Employer Pays Principle

Migrant workers have been the engine of many countries’ economic growth. According to Malaysia’s Department of Statistics, migrant workers in various sectors of the economy make up about 15% of the country's 15 million workforce.[1] The number of Malaysia-bound workers has been on a sharp rise since the country resumed intake of migrant workers after the Covid-19 pandemic. According to the data provided by Nepal’s Department of Foreign Employment, over 125,000 new labour permits were issued for Malaysia in the first five months of the current fiscal year, making Malaysia the top country of destination for Nepali migrant workers.[2]

Nepal introduced a free-visa and zero-cost scheme for Nepali migrant workers in 2015, obligating employers from the seven labour-receiving countries including Malaysia to pay the fees relating to visa processing and air tickets for workers from Nepal.[3] Malaysia and Nepal also signed the memorandum of understanding in 2018 which contains a provision that exempts workers from paying recruitment fees as the Malaysian employer is required to bear all the expenses of recruiting Nepali migrant workers.[4]

Nearly a decade has passed and migrant workers are still being made to pay recruitment fees. Hundreds of South Asian migrants in Malaysia are reportedly stranded without work for months after failing to find jobs promised to them by recruitment agencies.[5] Many took out loans to pay hefty recruitment fees, but are unable to start repaying them without wages. Some reported arriving in Malaysia on a three-month work visa that was meant to be upgraded to a work permit, but did not materialise. These migrant workers are left in limbo, with no job, no money and no freedom to leave for fear of being sent home penniless.

Fair recruitment is critical in preventing migrant workers from being trapped in forced labour. One of the key principles of fair recruitment is that no recruitment fees and related costs are charged to the workers. As well as being unfair, hefty recruitment fees can leave workers in situations of debt bondage. Many borrow money to pay the recruitment fees and may end up working excessive hours and/or have their wages withheld in order to repay the loans.

The 2030 Sustainable Development Goals recognises “the positive contribution of migrants for inclusive growth and sustainable development” and calls for the protection of labour rights and promotion of safe and secure working environments for all workers, including migrant workers. There is a global consensus that migrant workers should not be responsible for paying recruitment fees and related costs. Not only is it a core provision of the ILO Private Employment Agencies Convention, 1997 (No. 181) but the ILO General Principles and Operational Guidelines for Fair Recruitment and Definitions of Recruitment Fees and Related Costs also provide that “recruitment fees or related costs should not be collected from workers by an employer, their subsidiaries, labour recruiters or other third parties providing related services”.[6]

Many governments have committed to zero-cost recruitment, but implementation of this policy is a whole different story. The hard question is why, how and if it can be enforced. There are definitely success stories. In Jordan, for example, the Jordanian national stakeholders applied the zero-recruitment fee policy in the garment sector through a tripartite agreement among the government, employers and workers, a model which is worth exploring in other countries.[7] It is about time for the governments of both sending and receiving countries to adopt a single voice on zero-recruitment fee and fully enforce this scheme, taking a step forward in ensuring fair recruitment for all. Perhaps having clear and transparent bilateral MOUs that state clearly (i) what labour protections must be available to workers and by what means/mechanisms these can be enforced in the event of a violation; and (ii) providing a clear list of pre-vetted recruitment agencies that are also committed to the Employer Pays Principle.

[1] Source: https://www.reuters.com/world/asia-pacific/malaysia-migrants-say-they-are-limbo-after-promised-jobs-fall-through-2023-05-11/

[2] Source: https://kathmandupost.com/money/2023/02/03/nepal-asks-malaysia-to-apply-zero-cost-migration-policy

[3] Source: https://kathmandupost.com/money/2023/05/11/task-force-studying-effectiveness-of-free-visa-free-ticket-policy

[4] See note 2

[5] See note 1

[6] Source: https://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---migrant/documents/publication/wcms_536755.pdf

[7] Source: https://migrationnetwork.un.org/practice/zero-recruitment-fee-policy-migrant-workers-jordan