Clearance and Discharge Documents: Instructions without Legal Basis Undermine Egyptian Workers’ Rights

egyptian worker in jordan

Photo credit: Zainab Abu Sitta.

Reporter: Farah Radi Al-Darawi.

August 9, 2020

Egyptian Abu Alaa* (40s) was unable to obtain a new permit for his current work, after the original employer who had brought him in 2016 to work on a farm in Madaba city refused to grant him a clearance, in order to move to work elsewhere, despite the expiration of his permit.

What prompted Abu Alaa to seek clearance was his need for money to support his family in Egypt, while the owner of the farm did not pay him any compensation throughout the winter season, and threatened him with deportation every time he requested a clearance of responsibility, so Abu Alaa accepted to work for him for an additional year, and he incurred the costs of the medical examination and the renewal of his permit at his own expense, because he did not want to work illegally, but by his work on that farm, he was not able to secure the needs of his family, so he continued to ask the employer to grant him a clearance of responsibility so that he could move to another job after the expiry of his second permit, but to no avail. Note that agricultural workers are allowed to transfer from one employer to another in the same agricultural sector, after the end of the permit period, in accordance with Article 12 of the Instructions for Conditions and Procedures for the Employment and Recruitment of Non-Jordanian Workers for the year 2012.

The employer asked Abu Alaa for 500 dinars in exchange for granting him a clearance, taking advantage of his need, and the Ministry of Labor’s emphasis on the existence of a clearance from the sponsor to accept the issuance of a new permit for him before moving to another job. This situation prompted Abu Alaa to work in another farm in the city of Salt in violation of the law.

Abu Alaa is one of four Egyptian workers this report documents the employers’ refusal to give them the clearance required by the Ministry of Labor from the worker wishing to transfer to a new employer after the expiry of his permit with the first employer, as well as refraining from giving them the discharge document that the worker must obtain if he wants to move to a new job while his permit is valid, which causes a violation of workers’ rights to move freely and choose their work, and expose them to forced or coerced work, in contravention of Article 77 of the Labor Law.

“I don’t want to be illegal”
Abu Alaa’s condition is similar to that of the Egyptian Mahmoud*, who worked since his arrival in Jordan in various sectors, despite having an agricultural permit, until he was caught in January 2019 while working as a watchman in Amman, during an inspection campaign carried out by the Ministry of Labor, and then he was imprisoned for about two weeks during which, he moved between several security centers until he was able to pay the fine he was required to pay. Desiring to improve his situation, he started looking for his sponsor, whom he did not know personally, but through an intermediary person, to obtain a clearance in order to obtain a new permit, and after ten months he met his sponsor, and the latter granted him a clearance for 60 dinars.

Mahmoud was expecting the Ministry of Labor to announce a period to correct the conditions for violating workers in the first months of 2019, hoping that he would be able to convert his agricultural permit into a free construction permit, which was not announced by the Ministry until September, and since his permit expires in February, he was forced to renewing his agricultural permit again, even though he now works in a medical warehouse, and wishes to work legally, saying: “The free permit allows you to be free, not working for anyone and not a slave. You may collect money as you work freely …), as for me, I don’t want to be illegal.”

Egyptians are among the unrestricted nationalities, which the conditions and procedures for recruiting and employing non-Jordanian workers for the year 2012, defined the mechanisms for their transfer from one employer to another, as workers brought in (from outside Jordan) and employed (from inside Jordan) of restricted and unrestricted nationalities are allowed to transfer to an employer another, after the expiration of the permit period, in the same sector or another sector except the agricultural sector.

As for workers in the agricultural and construction sector, they are allowed to transfer from one employer to another in the same sector, with the agreement of the worker and the owners of the previous and new work, subject to the approval of the Ministry and the issuance of a new work permit. It is also permissible to employ the worker for an employer other than the one who is authorized to work for him and in the same sector for a specific period without canceling the work permit, provided that permission is obtained from the ministry, and that this is done according to an employment agreement that shows all the obligations of the worker on each of the original employer and the business owner who will use him.

In other sectors, it is permissible to transfer the worker brought from the employer who recruited him to another after 6 months of the work permit, subject to the approval of the Ministry and the owners of the original and new work, and the issuance of a new work permit.

As for the worker employed from inside Jordan, he is allowed to move from one employer to another, provided that he obtains a clearance from the original employer, cancellation of the work permit, and a new work permit is issued.

Wasting worker rights and fortifying the employer
Egyptian worker Saeed * and two of his brothers came to Jordan in March 2018 to work on a farm in the southern Jordan Valley, but they faced difficult conditions such as working for about 12 hours a day without charge for overtime, and getting low wages ranging between 150-190 dinars, and deprivation of vacations, and reservations of passports.

The employer also refused to grant them a clearance to move to a new employer, as a condition of transfer during the validity period of the permit, which prompted them with other colleagues – and with the help of a legal support center – to file a case against the employer to the Ghor al-Safi Magistrate’s Criminal Court in late October 2018.

The Public Prosecution in the court charged the employer and his agent with the crime of human trafficking and seizing the passport, but Saeed was unable to work during the first six months of the hearing of the lawsuit, because he did not have a clearance from the original employer, and for fear of being arrested by the inspection committees of the Ministry of Labor, especially that the employer submitted an absconding report against Saeed and his brothers days after the case was filed, but his brothers were forced to work in contravention to the ministry that deported them to Egypt upon their arrest, and Saeed took advantage of the period of corrections that enabled him to issue a new permit.

However, the case was dropped because the crimes were included in the General Amnesty Law of 2019, “We did not get anything from our rights, neither a release, nor compensation, nor anything, because the case fell with a general amnesty,” Saeed says.

Attorney Enas Zayed points out that there are no legislations that prevent the employer from tampering with the worker through a clearance or release, and there is no explicit provision to punish or prevent the employer from taking a sum of money in exchange for them.

Linda Al Kalash, Executive Director of Tamkeen Center, explains that the wording of the release form submitted by the employer means that the worker relinquishes the responsibility of the employer and that he will not claim any right now and in the future, considering that this formula is in the interest of the employer, as the worker waives all his rights and entitlements, from the leave allowance and the end of service bonus, which, in her opinion, is a kind of violation of international conventions, such as the International Covenant on Economic, Social and Cultural Rights, which gives the right to the worker to choose work and the employer, and the International Covenant on Civil and Political Rights, which gives any person the right to leave any country, including his country of origin, in addition to the Convention against Discrimination and Forced Labor.

There are two forms for the discharge. The first form called “Discharge and End of Service Clearance” is reserved for the worker who wants to terminate his work and return permanently to his country, and the second form is “Discharge and Waiver” which is used to obtain the employer’s consent for the worker’s transfer to another employer, and the issuance of a new permit. This waiver eliminates any previous absconding reports against the worker, according to the clarification of the Ministry of Labor, indicating that all forms are accepted in all cases.

No Legal Basis
The court does not rule on granting the discharge document in the cases that the workers raise against the employers, and it does not oblige the employer to do so, while obliging him to give the worker a certificate of experience, and the reason for this is that the request to discharge document is not based on any legal text that helps the judge, according to the clarification of lawyer Ahmed Al-Arimi.

This is what happened with the Egyptian worker Atwa, who hired Al-Araimi in his case against the owner of the restaurant in which he worked as a baker for a year and a half (from July 2017 to January 2019), to collect his rights after the restaurant owner refused to pay his wages, physically and verbally assaulted him, and refused to grant him discharge document to transfer to another job, after Atwa refused to provide a false testimony in his favor in a dispute between the employer and another person who Atwa witnessed against, according to what was stated in the court ruling.

“You caused me troubles and caused me to lose the case; I will force you to work for me.” This is how the owner of the restaurant responded to Atwa’s behavior, according to his brother, who works in Jordan, and he witnessed the details of the problem. This prompted him to file a labor rights lawsuit to demand a discharge document and a certificate of experience, his weekly and annual leave allowance and work off days, arbitrary dismissal allowance and overtime work.

About five months later, in late June 2019, the court decided to compensate Atwa with an amount of approximately 10,000 dinars for the damage he suffered as a result of arbitrary dismissal after the employer had beaten him, an overtime allowance, an allowance for religious, weekly and official holidays, annual leave, and an end-of-service bonus. Whereas, the court rejected Atwa’s request to discharge him because it “is not based on any valid basis of the law,” and considered it obligatory to refuse it “for not relying on any legitimate legal reason,” and ruled to oblige the employer to provide an experience certificate only according to Article 30 of the Labor Law.

During the period of reviewing of the case, Atwa was unable to work to secure his needs and the needs of his family in Egypt, because the Labor Office refused to issue a new permit for him, because he did not have the clearance from the original employer, and despite his lawyer addressing the Ministry and indicating that there is a case between him and the employer, the Ministry deported Atwa in August 2019 after he was caught working in violation without a permit, without obtaining the financial compensation that the court decided, despite the compensation decision, and without obtaining a certificate of experience.

Former Secretary-General of the Ministry of Labor, Hamada Abu Najma, says that the conditions for transfer from one employer to another are not mentioned in the Labor Law, and may change from one period to another depending on the circumstances. However, the employer may take advantage of the workers and refrain from granting them a clearance or discharge document, forcing them to work for low wages.

Lawyer Mahmoud Al-Aqtash agrees with him, seeing that the dilemma lies in the instructions issued by the Ministry, considering them in violation of the law, since the discharge document is not based on a legal article, as the worker can file a case against the employer, but he will not be able to obtain a clearance because the court do not oblige him to do so, and therefore he cannot obtain a permit except with a discharge or clearance, which forces him to work illegally, and this may expose him to deportation or a fine, according to his saying. Al-Aqtash believes that the court’s decision to cancel the work contract must give the right to the labor offices (affiliated with the ministry) to issue a release for the worker instead of the employer.

For its part, the Ministry of Labor responded to a request for information submitted by the reporter that the legal basis for the discharge and clearance is “the decision issued by His Excellency the Minister of Labor.”

These practices contradict Article 5 of the Agreement on Cooperation in the Field of Manpower between Jordan and Egypt in 1985, which states that “the workers of both countries working in the other country shall enjoy the same treatment, privileges, rights and duties established for local workers in accordance with applicable laws, regulations and instructions.”

Al-Kalash says that Jordan violated the Egyptian-Jordanian memorandum of understanding several times, and practiced discrimination when it requested the discharge document to leave the country, or move to another employer, as well as excluding non-Jordanians from the minimum wage, including Egyptian workers. Meanwhile, the Ministry of Labor considers this as part of its duties to “regulate the labor market”, indicating in its written response to the information request that “there are internal regulatory matters for the purposes of controlling the labor market.”

Confusing Circulations
The Minister of Labor issues decisions and circulars that regulate the work and the relationship between the worker and the employer in different sectors, and these circulars often change, causing confusion for both the employer and the worker, according to Lawyer Noor Al-Imam, Vice President of the Jordanian Jurists Association, explaining that the state of confusion results from not having access to the circulars and decisions issued by the Ministry of Labor, as obtaining them is limited to specific persons.

Also, these circulars are not published quickly and directly on the ministry’s website, and they are not sent to all concerned authorities, including employers and workers, and the circulars may be canceled or amended without their knowledge, and this results in violations, according to Al Imam.

In addition, in 2017 a circular was issued requiring the adoption of a declaration form to be filled out by workers whose work permits expired or canceled (before December 01, 2015) and wish to move to work in the bakery, construction, industry, gas warehouse distributors, and housing companies, as an alternative to Clearance, and the circular also adopted the form of “Discharge and Waiver” as a clearance.

A new circular was issued in 2019 in which it was decided to allow a migrant worker to transfer to another employer without the need to obtain a clearance, 3months after the expiration of the work permit, unless he has been proven to have an absconding record, and it applies to all sectors except those closed to foreign workers, i.e., sectors restricted to Jordanian workers only.

Last July, the Minister of Labor decided to allow non-Jordanian workers who are employed and have work permits in the agricultural sector, to transfer from one employer to another in the agricultural sector, provided that they obtain a clearance document from the previous employer and that his permit is expired. Non-Jordanian workers whose permits expired prior to the date of this decision were permitted to transfer to any other employer within the agricultural sector without a clearance.

Abu Alaa was among those cases that were confused by these Ministry’s circulars. He says: “The old farm owner is asking me for 500 dinars until now, and the new one is asking me to go to the labor office in order to have a new permit and ask about the 3 months decision. What should I do now?

Abu Alaa wants to secure the needs of his family in Egypt legally, without returning to his old employer due to his mistreatment and exploitation. His situation is similar to the case of other Egyptian workers whose permits have expired, and the recent decision caused confusion, as they were hoping to transfer to new employers three months after their permits expired without the need for a clearance document according to the previous decision.
________________________________________________________
* A pseudonym was used at the request of the worker, in order to preserve his privacy.
** This report is supported by “Journalists for Human Rights”.

 

Original posted here: https://bit.ly/3fOcjKy

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