On 8 September 2020, the caretaker government’s Minister of Labor Lamia Yammine adopted a new standard employment contract for migrant domestic workers. Adopting such a contract is among the powers reserved for this minister, who sets the requirements for foreigners wishing to work in Lebanon to obtain work permits. The contract is important because the Labor Code excludes domestic work from its protection, thereby deepening the imbalance between the parties, increasing the workers’ precarity, and obstructing their access to justice. The adoption occurred after two former ministers of labor, namely Charbel Nahas and Camille Abousleiman, took steps to amend the previous standard contract, which human rights observers unanimously agreed was deficient.

While Yammine exaggerated the contract’s effect in the tweet she posted on the day of its adoption, declaring that it abolishes the Kafala [sponsorship] system, she later lowered expectations by stating that it is a significant step in that direction. The reality is that although the contract includes important positive principles and ideas that could be built upon, it requires several supplementary steps in order to guarantee the necessary protection for domestic workers.

This article will discuss the contract’s main clauses and their implications in two sections. The first will address the positive ideas in the contract. The second will address the other side of the coin, i.e. its flaws and its limited ability to achieve the desired change if not paired with other steps whose adoption the contract has made more pressing.

Positive Ideas in the Contract

Applying Minimum Wage to Domestic Workers

The application of the minimum wage is one of the most important positive ideas in the contract, especially in terms of equalizing domestic workers with other workers in Lebanon. Article 3 states that the employer shall, at the end of each month of work, pay the worker her agreed-upon monthly salary, which shall be no less than the minimum wage, deducting the rate for in-kind benefits provided by the employer (i.e. the food, clothing, and housing fee), which shall be set by the Ministry of Labor. As the Ministry of Labor capped this rate at 30% of the wage in a circular it issued on 11 September 2020, the minimum wage permitted after the allowed deductions is LL472,500. After the contract was issued, the Council of Notaries of Lebanon pointed out that applying this article would be difficult amidst the discrepancy among exchange rates in Lebanon. Should this minimum be calculated based on the exchange rate of LL1,500 to the dollar, as occurs in government departments, such that it exceeds USD300? Or should it be calculated based on the rate among banks and money exchangers, i.e. approximately LL3,900 to the dollar? Or should it be calculated based on the market (or so-called “black market”) rate, which exceeds LL7,000 to the dollar? This decision is not easy: while adopting the last rate would put the acceptable minimum at approximately USD50, which is lower than all current domestic worker wages, and therefore mean that it provides no real safeguard for the worker, adopting the rate of LL1,500 to the dollar could substantially raise many domestic workers’ wages at a time when employers face increasing difficulties in securing financial resources, especially hard currency. This difficulty in deciding among disparate exchange rates to determine the minimum wage could, it is feared, ultimately preserve the status quo whereby the wage is simply decided by the two parties.

Hence, although adopting the national minimum wage is very symbolically important because it underscores that domestic workers are equal to other workers and enjoy the standards adopted to ensure a decent life, its practical importance remains limited given the national currency’s collapse and the current economic and financial circumstances.

Charging Employers with Responsibility for Renewing Residency

Article 8 obliges the employer to secure all required legal documents, most importantly by obtaining the residency and work permits and renewing them whenever necessary. This provision accords with the reality that workers are rarely able to complete any of the transactions necessary to renew their residency permits and need several approvals from the employer to do so. However, it conflicts with Article 36 of the Law on Foreigners, which punishes any foreigners who fail to request a renewal without an acceptable excuse. While some courts have sought to mitigate this article by including the employers in the worker’s prosecution, they are only held liable as accessories while the worker remains the principal offender in the eyes of the law. Although amending the contract in this manner forms an “acceptable excuse” that increases the likelihood of the worker’s acquittal, this amendment is not enough to criminalize deliberate failure by the employer to undertake the legal procedures to renew the residency permit or employment contract unless it is accompanied by a similar amendment to the Law on Foreigners.

“Flight” No Longer the Only Solution for Terminating the Contract

Before the contract was issued, the only choice for a worker not wanting to continue working for her employer (the sponsor) was to leave the home against the latter’s wishes and without informing them beforehand. This action has been termed “flight” [firar] – a genuine expression of the worker’s situation that brings to mind the practices used in the slavery era to combat the flight of its victims. By resorting to this choice, the worker would lose her legal residency in Lebanon and be forced to live in hiding. Often, a search or arrest warrant would be issued against her because of employers’ widespread practice of filing flight and theft complaints, most of them arbitrary.

Employers generally behave on the basis that because they paid large sums to bring the worker into Lebanon and must protect this “investment”, they are justified in restricting her right to retain her personal documents, restricting her freedom to leave the home, and denying her right to cancel the contract. From this perspective, the worker is hostage to the employer at least until this “investment” is recouped, i.e. until the end of the two-year period for which the employer recruited her from abroad.

In this area, the contract seeks to liberate the worker from this hammer-and-anvil situation by enabling her to unilaterally cancel her contract at will as long as she informs the employer one month in advance. In anticipation of the resistance that this clause could face from employers, the contract allows them to recover part of the recruitment cost in this scenario, not from the worker but from the new employer (should she wish to work for one) or the recruitment agency (should she wish to return to her country).

In the first case, this provision effectively aims to split the recruitment cost between the old and new employers based on how much each one benefits from the worker’s services during the period for which she was recruited (generally two years) and to prevent the latter from enrichment at the former’s expense. This intent is evident from the means for calculating the amount that the old employer recovers: “The total cost of recruitment shall be divided by the number of months of the contract, and the new employer shall bear the cost of the contract’s unused months”.

In the second case, the recruitment agency pays part of the cost of the recruitment process in accordance with Ministry of Labor decisions regulating foreign recruitment agencies. Hence, in practice, this provision divides the burden of the risk that the worker will not want to remain in Lebanon between the recruitment agency and the employer and is therefore expected to elicit resistance from these agencies. The contract does not define the sum that will return to the employer in this scenario; rather, it defers to the aforementioned decisions that the Ministry of Labor has issued or may issue.

Thus arises the question, is the worker’s right to cancel the contract contingent on the employer’s actual recovery of the aforementioned sums or can she exercise it irrespectively? This question is especially pressing because the compensation provision appears in the context of the paragraph that recognizes the worker’s right to cancel the contract.

Another, equally important question raised by the inclusion of this right in the standard contract is: Will the General Directorate of General Security bring its own decisions and practices, particularly those related to the Kafala system (which it itself introduced), into conformity with the contract’s provisions? And if so, when? Such practices include requiring a worker to obtain an agreement from the employer to relinquish sponsorship before extending her residency in Lebanon under a contract with another sponsor.

In all these matters, the contract leaves the door wide open for divergent interpretations, and the Ministry of Labor must therefore continue its steps in this regard. This concern is not allayed by the argument that a rights-based reading requires interpreting the contract in a manner that guarantees the worker the broadest possible freedom because, over the past decades, well-established General Security and Public Prosecution practices have usually given precedence to interpretations that restrict the worker’s freedom and reduce her rights.

Finally, the contract should have clearly shown that the worker is free to change employer after working for the one that recruited her for two years, i.e. after the employer has recouped the cost of recruiting her and lost the contractual right to recover part of it as compensation from the new employer. However, even in this scenario, the question of this clause’s effect on General Security’s practice of requiring the sponsor’s consent before the worker can transfer to another employer still stands.

Guaranteeing the Right to a Room and Privacy

Another improvement included in the contract is the stipulation in Article 5 that the worker be provided her own separate, well-ventilated, well-lit room that meets sanitary requirements, that is equipped with a lock for which only the worker has a key, and where her privacy is respected. This obligation is very important as it guarantees a minimum level of privacy, i.e. that she has her own small space inside the home where she lives. The Legal Agenda has documented several cases in which employers invaded the spaces allocated to the workers, giving themselves the right to search the workers’ belongings and then filing theft allegations based on what they claimed to have found with no other evidence. Such violations have elicited no reservation from some Public Prosecution offices, which in turn initiated actions based on what they [supposedly] produced, or even some trial judges.

If properly implemented, this amendment allows the provision of a room to become a condition for granting permits to recruit workers, which would reduce the recruitment of domestic workers to Lebanon and limit it to the wealthiest families.

Conversely, the Ministry of Labor refused to allow the worker to be given the choice between residing at her workplace and selecting a separate residence. While the contract remains open to interpretation, particularly in light of the principles of freedom and the right to privacy, it is once again feared that administrative and security authorities may enforce the most restrictive interpretation of this freedom. The justification for insisting that the workers live in their employers’ homes is that it implicitly charges the employers with monitoring them and is a precaution against them (at least those with legal residency permits) engaging in freelance work. This accords with the nature of Kafala, which essentially enjoins the employer to inform General Security if the worker “flees” and provide it with information about her without guaranteeing anything else.

The guarantee of the worker’s privacy is accompanied by other provisions that help ensure that it is respected. Most of these rights were already established by Summary Affairs Judge in Beirut Jad Maalouf in two extremely important decisions issued in 2014 and 2016, whereby he deemed them constitutional rights derived from the Universal Declaration of Human Rights and deemed their violation tantamount to racial discrimination against the worker. The most important include:

 

• The worker’s right to retain her personal documents, including her passport, ID, work permit, residency permit, and insurance card (Article 8). Besides enshrining this right, the contract imposes consequences for noncompliance by deeming an employer’s confiscation of these documents cause for the worker to cancel the contract without notice.

 

• The worker’s right not to be confined (Article 9), which is another self-evident right as nobody may deprive someone of liberty outside the narrow contexts specified by the law. This right stems not only from the personal liberty enshrined in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, both of which are included in the Preamble of the Constitution and are therefore part of it, but also Article 8 of the Constitution, which prohibits the deprivation of any person from liberty except in accordance with the law. Moreover, deprivation of liberty is a criminal offense under Article 569 of the Penal Code.

Although this right is self-evident, mentioning it in the contract is important because it is often violated. In a study that surveyed a sample of employers, 23% admitted that they have no qualms about locking their workers in their homes. However, ideally, the right would have been mentioned as one that must be respected under the exigencies of public order in the contract’s introduction, not a right agreed upon by two parties.

• The worker’s freedom of movement and communication and right to leave the home and act freely during weekly time off, annual leave days, and holidays. While this right is just as self-evident as the previous one and a natural consequence of respecting the worker’s personal liberty and banning her confinement, its phrasing in the contract is not absolute as Article 9 and Article 10 link it to weekly and annual holidays without mentioning daily time off, i.e. the worker’s time after daily working hours. This constitutes a failure to protect or emphasize the workers’ rights and opens the door for the violation of her right in this regard to continue. However, the declaration of this right is still important as the aforementioned study showed that 25% of employers forbid the worker from going out alone on her weekly day off. In the process of emphasizing this freedom, the contract also absolves the employer of any harm that the worker may cause during such periods.

• The right to acquire a mobile phone, which is another right related to privacy. It is also another right that employers often violate, arguing that the worker is in Lebanon to serve them and no other purpose. Moreover, in one theft case filed against a worker, judicial records show that the worker was interrogated about acquiring a phone without informing the employer. Such questioning suggests that doing so constitutes a basis for suspicion that the worker is contacting outsiders and, by extension, committing theft.

• The right to access the internet “within reasonable limits if available”, which is necessary for the worker to communicate with her relatives and friends abroad and in Lebanon. Hopefully, this clause allows workers to enjoy another private space at no cost to the employers, who usually have internet plans.

Working Hours and Guaranteeing the Right to Time Off and Paid Leave

The contract also caps daily and weekly working hours and guarantees the right to time off and paid leave. Fortunately, the contract largely accords with the Labor Code in this regard. However, it does neglect to take into consideration the peculiar nature of this work and the worker’s situation, as I shall detail below:

• Regarding daily workings hours and time off, the contract enshrines several rights that completely conform to the Labor Code. After setting working hours at eight per day, it allows employers to ask workers to work overtime at a rate 50% higher than the regular hourly rate provided that the daily working hours exceed 12 and overtime only occurs on an exceptional basis. The contract also guarantees the worker an hour-long break after every five working hours, as well as nine consecutive hours off every day. The problem is that the contract leaves it up to employers to distribute the working hours however they please without any controls. Hence, given that the worker resides at her workplace, the contract (assuming compliance with it) could lead to her being on standby for 15 consecutive hours each day (after subtracting the 9 consecutive hours off) and deprived of an hour-long break during the day on the pretext that her work is intermittent, not continuous. Exacerbating these concerns, the contract guarantees the worker’s right to leave the home on weekly and annual holidays but not during her daily time off, i.e. after working hours. While this clause is important given current prevailing practices, which verge on forced labor, and although it is extremely difficult to enforce, ideally the contract would have specified how standby hours are calculated and guaranteed the workers’ right to leave the workplace outside of working hours.

• Regarding weekly working hours and time off, the contract caps the former at 48 and requires a weekly break of at least 24 consecutive hours scheduled by agreement. The employer may request work during the weekly break as long as the worker receives an alternative day off as soon as possible and such work only occurs on an exceptional basis. When defining the day off, the contract does not take into consideration the workers’ particular situations, e.g. by considering their religious beliefs or facilitating a minimum social life by standardizing the day off (to Sunday) so that they can meet up.

• Regarding paid annual leave, the contract sets it at 15 days to take effect one year after the employment begins, in line with the Labor Code. The contract goes beyond the Labor Code by adding three more days for workers employed longer than three years, in conformity with Article 2 of Holidays with Pay Convention no. 52, which requires gradually increasing the days of annual leave with the length of service, and Arab Agreement No. 1 on Labor Standards, which calls for the same. While the contract allows the worker to carry leave owed for a given year over into the following year, it opens the door for the two parties to agree on the leave being consecutive or intermittent and does not explicitly guarantee the workers’ the right to the former. Here too, the contract neglects to take into account the particular situation of the worker, who usually wants to spend a consecutive holiday in her home country using the plane ticket that the contract requires the employer to purchase every two years.

• Regarding sick leave, the contract sets the period of paid sick leave to 15 days at full pay and 15 days at half pay. However, the contract includes a clause that could harm the worker. This clause allows the employer to terminate the contract immediately and without prior notice if the worker is afflicted with a “serious illness” without emphasizing that her right to paid sick leave must be observed or requiring that the illness prevent her from continuing the contract either permanently or for a significant period. The biggest concern is that employers will exploit this article to terminate contracts with workers afflicted with COVID-19, perhaps through infection by the employers or the employers’ family members.

The contract also guarantees a two-day bereavement leave and just two days of holiday, upon request, for cultural, religious, or social needs.

Providing the Right to Healthcare and a Safe, Suitable, and Sanitary Environment

The contract remarkably and repeatedly addresses the employer’s duty to provide a work environment that is suitable (Article 5) and safe and sanitary (Article 7). While this obligation is general, international interpretations of it guarantee workers a series of rights, particularly against any form of abuse, attack, harassment, intimidation, and – more generally – any violent action. In this regard, the contract goes further than the Labor Code, which includes no such general obligation. The duty is derived from Article 7 of the International Covenant on Economic, Social and Cultural Rights.

Besides obligating the employer to take out a healthcare and accident coverage policy (a provision also stipulated in the previous contract), the contract distinguishes itself by allowing the worker, if compelled to undertake work that endangers her health and safety, to “stay away” [ibti’ad] until the issue is rectified. Although this idea is important, applying it will be very difficult in the absence of any explanation in the contract of the term “stay away”, especially as the worker resides at her workplace and her freedom to leave is restricted to holidays.

The Worker’s Right to Nominate a Representative to the Ministry of Labor

In another extremely important improvement, Article 14 enables the worker to nominate a person or institution to represent her in Lebanon at the Ministry of Labor in all matters aiming to protect her contractual rights should an emergency arise. The contract also allows the worker to change the person or institution provided that the employer and the authority with competence over disputes are informed. The adoption of this right is intended to address cases in which the worker is confined and difficult to contact.

The Other Side of the Coin

Although the rights that the contract establishes are important, as explained at length above, some provisions reflect previous discriminatory practices and others contain setbacks in the workers’ rights in relation to their current situation. Some of these setbacks have been portrayed as necessary compensation for granting the workers some of the aforementioned rights. This I will show below.

Striking Workers’ Job Security

In exchange for granting the worker certain freedom to cancel the contract with notice or even without notice should the employer commit certain violations (including breaching the contract), the contract grants employers similar or perhaps even broader rights, as I shall explain later. Hence, the contract enables employers to escape their contractual obligations toward the workers extremely easily and therefore deprives the latter of job security and increases their precarity in Lebanon.

In this regard, three issues appear in the contract or can be deduced from it. Firstly, the contract grants the employer the same power to cancel the contract at any time with notice that it grants the worker. While the contract allows the employer to recoup part of the recruitment expense in several cases, it grants the worker no right to compensation or even a ticket to return home. This disparity reflects ignorance of the reality that, contrary to international standards governing fair recruitment, the worker often incurs exorbitant costs to leave her country, expecting a contract for a fixed term. Hence, in the absence of any guarantee that she can find an alternative employment contract, burdening her with the cost of the contract’s termination by will or fault of the employer is unfair. This aspect of the contract dilutes it from being a fixed-term contract (lasting two years) to a month-by-month contract implicitly renewable for two years.

Moreover, merely giving employers this right increases, in practice, the privileges that they can use against the worker as they can dismiss her at any time without her being able to sue or demand wages owed for the subsequent period, as is currently possible if she is discharged. The notice period also remains fixed at one month rather than increasing with the length of service, unlike in contracts subject to the Labor Code.

Secondly, in parallel with enabling the worker to cancel the contract without prior notice for certain reasons, the contract again allows the employer to do the same. The Labor Code surrounds employers’ right to terminate a contract on account of worker error with several controls that limit the likelihood of its abuse. Yet remarkably, the standard domestic worker contract contains no such controls, as not only is its definition of worker errors loose but it also does not obligate the employer to notify the Ministry of Labor of worker errors within a short time of their occurrence (such as three days, as stipulated in Article 74 of the Penal Code).

In this regard, one of the most controversial clauses enables the employer to terminate the contract if the worker repeatedly fails to carry out her contractual obligations without cause. Unlike the Labor Code, which requires employers who want to terminate a worker’s contract based on repeated worker error to have already issued three written warnings to the worker in one year, the contract requires only two warnings and they can be delivered verbally, i.e. without leaving any trace or giving the worker any chance to respond to them.

Moreover, it is truly grievous that the contract only mentions harassment in the context of the violations perpetrated by the worker that justify canceling her contract, rather than in the context of violations committed by the employer, where it only mentions “unacceptable conduct and practices”. This alone reflects a discriminatory perspective in the employer’s favor.

While the employee’s precarity reduces the likelihood that she will abuse the right to cancel the contract on account of employer error, the granting of this right to the employer, who has broad authority and privileges, is fraught with chances of abuse, especially given the imprecise description of errors and the absence of the various safeguards and controls.

Thirdly, the contract mentions no right to compensation for the worker not only when it is canceled by her will or error (in which case depriving her of compensation only makes sense if the error is substantial) but also when it is canceled unilaterally by the employer or on account of employer error (in which case the lack of compensation is incomprehensible). From this angle, the contract constitutes a regression not only from the Labor Code, which allows a worker dismissed in any such cases to claim arbitrary dismissal compensation ranging up to 12 months of wages, but also the Code of Obligations and Contracts, to which the domestic worker employment contract is subject.

Given the above, the fear is that the amount of precarity caused by the destruction of the worker’s job security will turn the new standard contract in the employer’s favor, at least in many situations.

Forms of Discrimination Against the Workers

Additionally, there are various provisions that discriminate against the worker, including:

• The provisions that implicitly deprive the worker of fundamental rights given the usual interpretation of such provisions by the public authorities. The most prominent include those that implicitly prohibit the worker from residing outside the employer’s home and going out after working hours on workdays.

• The provisions that cause the worker to enjoy rights inferior to those afforded to workers under other employment contracts, as I mentioned in several places while presenting the rights granted. The most prominent of these provisions are those that deprive her of the right to end-of-service compensation even in cases where the cancellation occurs by will or fault of the employer, that deprive her of the Labor Code’s safeguards for substantiating errors attributed to her and reporting them to the Ministry of Labor, and that fail to take into account length of service to determine either dismissal notice or sick leave.

The Contract’s Limited Ability to Instigate Change

The standard employment contract is a simple step that a minister of justice can take alone using their power to set the conditions for granting work permits. However, it cannot produce positive results unless followed by reforms in other areas such as legislation, General Security practices, institutions, and the judiciary. The main issues that the contract clearly has a limited ability to address include:

• Criminal liability for not renewing residency permits. As I explained above, absolving the worker of responsibility for not renewing her residency requires more than just rearranging her relationship with the employer. Primarily, it requires abolishing the criminal punishment that is still imposed upon her for causes beyond her control.
• The Kafala system. This system is based on linking the legality of a foreign worker’s residency to the continuation of their employment by a specific person. If the contract ends for any reason, the worker’s residency is no longer legal unless the sponsor agrees on the worker’s transition to another sponsor’s employment. Hence, enabling the worker to end the contract for specific reasons or at will does not in and of itself destroy this link. Rather, the General Security’s internal instructions and practices must also be amended such that the worker is given a grace period to find a new employer and her transition to working for the new employer in no way depends on the will of the original employer.
• Guaranteeing employers’ right to recoup their investment. Clearly, the system cannot be changed only via the enactment of texts whose application depends on the balance of power between the contractual parties, especially given the difficulty domestic workers face accessing justice and the weakness of the judicial establishment itself. Rather, such change requires addressing the employers’ concerns about losing the investment they made when they paid the recruitment expenses, concerns that usually prompt them to treat the worker as a hostage and restrict her freedom. The employer’s fear of the worker’s freedom cannot be addressed by granting her more freedom, as the contract does, or by assuming that the employer will recover part of this investment from the new employer or the recruitment agency as that is not guaranteed and the parties might enter into disputes that often occur at the worker’s expense.

Hence, there appears to be no way to properly implement this system without a third-party guarantor, which should, in principle, be a governmental body. While the National Employment Office may seem like the relevant institution in this area, it appears unprepared to perform this role with its current composition and resources.

Soon, the high cost of recruitment from abroad and the regulation and oversight over recruitment agencies will need to be revised, in line with the aspirations of abolishing the Kafala system truly and in practice.

• The provisions that discriminate against workers. Clearly, the provisions intended to make the contract less discriminatory remain limited and open to several interpretations unless this category of workers is made equal to all other workers via the abolishment of domestic work’s exclusion from the Labor Code. Unfortunately, while the Ministry of Labor is signaling its intent to abolish the exclusion, the contract includes several discriminatory provisions that go in a completely different, unjustified direction.

 

This article is an edited translation from Arabic.