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Be careful what you wish for

by Dr. Jill Wells, EAP Senior Policy & Reserch Advisor

21st May 2014

Dr. Jill WellsQatar hosts the FIFA World Cup in 2022 and the attention of campaigners and the international media has been on the conditions of workers employed to build the infrastructure. EAP’s Senior Research and Policy Adviser Jill Wells considers what might happen if the controversial ‘kafala’ system was removed.

 
Human rights organisations have done a good job in exposing widespread abuse of migrant construction workers in Qatar, but they have paid less attention to proposing measures to tackle the issue beyond calling for the abolition of the kafala (sponsorship) system. If the kafala is abolished nobody is asking what will be put in its place.

 
This is a complex issue.  The desire of Qatar and other countries heavily reliant on migrant labour to exercise some control over the migration and residence of foreign workers is not only understandable, it may also offer better protection to the workers than the alternative of a free and open labour market. Would the workers be better off under a system of uncontrolled migration? The exploitation by recruitment agents of migrants desperate for work in Qatar will not go away but with no sponsor there is less likelihood of work. Greater freedom for workers to switch between employers would almost certainly lead to similar demands from employers for the right to fire workers no longer needed.  If the kafala is properly implemented the worker is guaranteed work and he will be better off so long as he is paid. 

To understand why workers are not always paid we need to recognise the pressure for a flexible supply of labour in the construction industry and the system that has developed to accommodate it. In the past contractors in many countries (including the Gulf) employed a large workforce directly and bore the risk themselves of at times having more workers on their payroll than were actually needed, while employing subcontractors only to provide specialist skills. Today contractors around the world outsource the bulk of their labour requirements, thus passing the task of balancing labour needs, and the risks involved, to subcontractors and particularly to labour-only subcontractors.

In most countries it is the workers who will ultimately bear the risk of a flexible labour system, with only short term contracts and inevitable periods of unemployment. But under the kafala the contract is for two years, so the risk rests firmly on the subcontractor who has to pay his workers whether or not he has work for them to do. The added risk to subcontractors of slow payment by the client and lead contractors for the work that they have done is well recognised and has been detailed in a recent EAP report. Model contracts and other recommendations to improve workers’ welfare are now putting even more responsibility onto the subcontractors who are the main employers of construction labour. Of course those who deliberately abuse the system should be punished, but assistance is also needed to help emerging contractors to meet their obligations.

One obvious solution would be to ban outsourcing and oblige all contractors (particularly lead contractors which are generally large international firms with financial backing) to take back the workforce in-house. Although worker abuse would not cease it would be easier to identify and prosecute. However, efficiency would decline and tender prices rise. Qatar public sector clients could afford to pay but even wealthy clients like to drive a hard bargain, so it is unlikely to happen. 

The alternative is to preserve the best parts of the kafala system and bring in other measures to address its abuse and the underlying reasons. EAP’s recent report recommended steps that could be taken by the industry itself to tackle the issue of late or non-payment of workers’ wages. The recently released report commissioned by the Qatar Government from DLA Piper has endorsed all of EAP’s recommendations and suggested ways in which the kafala could be modified to further protect the workers. Particularly important is the proposal that employers who fail to pay wages on time, or are in breach of other obligations to the workers, should forego their right to refuse a No Objection Certificate (NOC) for the worker to change sponsor.

EAP supports all of the recommendations of the DLA Piper report. We call upon the Government of Qatar to accept them and also to consider commissioning research into the constraints facing contractors at the bottom end of the subcontracting chain.

Date Published: 21 May 2014
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