The Truth about Fair and Ethical Recruitment (FER): A Primer
In a new primer by APMM, we explore what Fair and Ethical Recruitment (FER) is and some of the issues surrounding it in different area contexts namely, Indonesia, the Philippines, and Hong Kong. The primer critiques FER’s current configuration and provides recommendations toward improving it, and ultimately, to address the problem of forced migration.
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Introduction
The continuing dominance of labour migration today persists to be one of the major drivers of globalisation. A report from the International Organisation for Migration (IOM) last March 2023 highlighted the exponential increase in migration within the Asia Pacific region in the last few years. In 2020 alone, Asia received 85.6 million migrants in which 80% were from the continent itself. Obviously striking is the dominant role of overseas employment where “migrant workers represented 62% of all international migrants worldwide, of which 14.2% (or 24 million) were hosted in the Asia Pacific region” (based on 2019 figures).
Along with intensifying migration patterns, migrants continue to face violence and discrimination starting from recruitment processes. Many times, they are forced to pay unnecessary fees, put up bonds, or are given misleading and incorrect information about their job and workplace. Tactics like these, mostly done by private labour agencies, significantly impede their rights and further drive many migrants into poverty.
The face of recruitment in Asia normally takes three routes – (a) direct recruitment through job announcements and screening, (b) through public employment services, and (c) through private intermediaries that include licensed recruitment agencies and social networks. Oftentimes, traditional recruitment processes pose risks to migrants as existing policies and their implementation tend to have loopholes which can be bypassed easily. Due to limited streamlined regulations, states also confront challenges in monitoring recruitment processes. Furthermore, high recruitment costs lead to graver indebtedness and wage deductions which make conditions more precarious for migrant workers in the region.
In response to unfair recruitment practices, IOM and the International Labour Organisation (ILO) have established guidelines and recommendations concerning fair and ethical recruitment (FER) of migrant workers. However, it must be noted that these are still in their incipient stages. Nonetheless, they warrant initial critique that aims to forward and amplify migrant voices in various policy spaces.
What is Fair and Ethical Recruitment (FER)?
According to the International Recruitment Integrity System (IRIS) Standard, the IOM’s flagship initiative to promote ethical recruitment of migrant workers, FER means “hiring workers lawfully and in a fair and transparent manner that respects and protects their rights.” Under IRIS, fair and ethical recruitment can be realised by:
Promoting respect for migrants workers’ rights
Enhancing transparency and accountability in recruitment
Advancing Employer Pays principle
Strengthening public policies, regulation and enforcement mechanisms
IRIS is currently being rolled out through pilot projects in selected countries in phases. The first phase focused on testing the IRIS Standard to assess if it is fit-for-purpose in different contexts and tested against needs of employers and recruitment agencies. The second phase, which began in 2018, dived into testing the IRIS audit and certification framework. Lastly, the third phase took on initiatives to deliver the IRIS Capacity Building Programme as technical support for recruitment agencies, employers and governments to align with international recruitment standards.
Under Objective 6 of the Global Compact for Safe, Orderly and Regular Migration (GCM) which states that relevant bodies and authorities must “Facilitate fair and ethical recruitment and safeguard conditions that ensure decent work”, improvement of recruitment policies and their implementation, and alignment of national regulations to international labour standards should be upheld. Through this initiative, migrant workers and their rights are hoped to be better protected from unlawful agents. To note, some governments implementing the GCM have adopted “fair and ethical recruitment” mechanisms and are already in the process of institutionalising them.
Similarly, ILO launched their Fair Recruitment Initiative (FRI) in 2014 as part of the Director General’s call for a Fair Migration Agenda. Its vision is to “ensure that recruitment practices nationally and across borders are grounded in labour standards, are developed through social dialogue, and ensure gender equality.” In their 2021-2025 FRI Strategy, four pillars were identified to guide in the implementation of their policies:
Enhancing, exchanging and disseminating global knowledge on national and international recruitment processes
Improving laws, policies and enforcement to promote fair recruitment
Promoting fair business practices
Empowering and protecting workers
Under these pillars, particular targets have been established to assess progress in achieving FER.
FER in various national contexts
Indonesia
In accordance with international labour regulations, Indonesia ratified the Employment Service Convention of 1948 (No. 88) and the Forced Labour Convention of 1930 (No. 29). The former speaks of adhering to the essential duty of employment services in countries to “ensure, in cooperation where necessary with other public and private bodies concerned, the best possible organisation of the employment market as an integral part of the national programme for the achievement and maintenance of full employment and the development and use of productive resources.”
Aside from the ratifications, Indonesia also has existing policies aligned with international labour migration standards. One of these is Law No. 18/2017 on the Protection of Indonesian Migrant Workers (2017). The law outlines provisions aiming to protect migrant workers through mechanisms that forward decent work and income, and equal opportunities. While the law is welcomed, it is very limited in terms of creating avenues for effective assistance reserved to Indonesian migrants.
Local and provincial agencies are merely tasked to manage situations when the migrant is already under a contract. However, no ample regulations are expounded in the context of recruitment. In addition, employment agencies are expected to implement due diligence policies which is risky as their operations are not being overseen properly.
Another policy in place is the Regulation of the Minister of Manpower on Procedures for Placement of Indonesian Migrant Workers (2019). Considerations to terminate contracts in cases of security issues, human rights violations, unequal job opportunities, and concerns on the availability of manpower in a certain country can only be applied when the migrant is already in the destination country. This is not processed during the recruitment phase which further heightens risks for would-be migrant workers.
Outside of policies, difficulties faced by Indonesian migrant workers continue. A 2022 report significantly highlights how a big number of Indonesian migrants are given limited information about job offerings, recruitment processes, and contracts. In addition, recruitment fees are very expensive despite existing regulations on zero-cost recruitment. In an attempt to help migrants, the Indonesian government has institutionalised the People’s Credit Program. However, this only forces individuals to take up low-interest loans to pay for recruitment needs. Essentially, this is merely a strategy by the government to ‘outsource’ its obligations to banks.
It is also extremely worrisome how employers are permitted to confiscate important documents from migrants and many contracts include clauses that do not allow unionisation. Gender equality is also undermined by the government itself as women migrants are required, according to Law No. 18/2017, to acquire consent from their spouses to be cleared for migrating.
In the case of Indonesian women who wish to work or renew their contracts as domestic workers in Hong Kong, the consulate general of Indonesia required them to provide a guardian letter to be allowed to work starting 2021. This places a whole other layer of restriction to women migrants who are already made to undergo burdensome recruitment processes in the first place. Thanks to strong objections from migrants, the implementation of this regulation has been delayed so far.
Philippines
In adherence to international labour conventions, the Philippines have also ratified the Employment Service Convention, 1948 (No. 88) and the Forced Labour Convention, 1930 (No. 29). In addition, the government ratified the Migration for Employment Convention (Revised), 1949 (No. 97) which aims to hold governments responsible in giving “(i) information on national policies, laws and regulations relating to emigration and immigration; (ii) information on special provisions concerning migration for employment and the conditions of work and livelihood of migrants for employment; (iii) information concerning general agreements and special arrangements on these questions concluded by the Member.” Aligning policies with said convention is relevant to FER as it sets a baseline in creating regulations that would ensure the protection of migrant workers.
Under the Philippine’s Revised Rules and Regulations Governing the Recruitment and Employment of Land-based Overseas Filipino Workers (2016), the private sector is considered a primary actor in the recruitment and placement of Filipino migrant workers in different countries. The comprehensive regulations on the sector’s role in bringing many Filipinos abroad is a demonstration of the government’s advances to make private entities largely responsible in shaping the conditions of labour migration in the country. Although there are several provisions outlining various sanctions to recruiters and employers involved in illegal recruitment and other violations, the regulations largely give way to the legitimation of a market-oriented approach to labour migration.
Prior to working, Filipino migrant workers are also obligated to submit a myriad of documents and even pay a placement fee equivalent to a month's basic salary specified in a Philippine Overseas Employment Administration (POEA)-approved contract (except for domestic workers and workers deployed to countries that do not allow direct or indirect charging of placement fees). In addition, migrant workers would have to apply to become members of Philhealth, Pag-Ibig, and the Social Security System (SSS). These requirements tend to be a burden to many Filipino migrant workers who have to shell out large sums of money before even being assured of a job.
Also concerning is the continuing and worsening trend of illegal recruitment and scams that many migrant workers have to go through. Several cases handled by Migrante International expose how some placement companies ask more than PHP 100,000 (roughly almost USD 2,000) from their victims in the Philippines and even other countries. After obtaining the money, these placement companies proceed to neglect their OFW clients. A specific case from a group of Filipino migrant workers who wished to work in South Korea had to pay a recruitment fee of PHP 30,000 (USD 540) in addition to flight tickets and medical service payments, among others. When they reached the airport in Jeju Island, they were immediately abandoned, left homeless and penniless. Such schemes are a blatant manifestation of a privatised system that favours profit over the obligation of both the government and agencies to secure their migrant clients.
At times, the Philippine government is also involved in bilateral agreements with other countries to promote labour migration. One example is the Agreement on Domestic Worker Recruitment between the Kingdom of Saudi Arabia and the Republic of the Philippines, 2013. The agreement highlights the obligation of the receiving country to adhere to sound recruitment regulations. At face value, bilateral talks are made to “protect” migrant workers since agreements are directly made between two countries. But in reality, these are instruments that further reinforce forced migration of certain groups, especially women, by governments themselves.
Hong Kong
In Hong Kong, the Code of Practice for Employment Agencies is put in place to aid in the work and obligations of employment companies. Unique to the code is the inclusion of provisions particularly catering to foreign domestic helpers (FDHs). Evidently, this reflects the labour migration conditions in Hong Kong where a large portion of migrants are domestic helpers.
The Code outlines crucial policies pertaining to the role of employment agencies to inform FDHs of their rights and individual employers of their duties. Furthermore, it highlights that no exorbitant fees shall be collected from FDHs beyond the required amount they should pay. However, a problematic feature of the Code is the short and even negligible portion concerning honesty and due diligence. Employment agencies are given sanctions for violating administrative and business-related matters but not when it comes to giving accurate information to both job-seekers and employers. This makes the recruitment process unsafe for FDHs who might not be knowledgeable enough about particularities of the Hong Kong job market.
Hong Kong is considered a “hotbed for illegal recruitment schemes.” Just like in the previous country case studies, Hong Kong-based placement companies extract excessive fees from their clients alongside promises of employment opportunities in other countries. A research from the Asia Pacific Forum on Women, Law and Development (APWLD) with Indonesian domestic workers exposed how placement companies manipulate workers by giving bogus information and allowance money to convince workers, mostly women, to work abroad. Furthermore, they are also forced to pay high placement fees, amounting from HKD 9,000 to 24,948 (USD 1,156 to 3,206) and other succeeding payments, with high interest rates, extracted from their salaries.
In response to the constant increase in unjust ethical practices in Hong Kong, a number of organisations have sprung up to advocate for the transformation of the current system. Hong Kong-based organisations, such as Mission for Migrant Workers (MFMW), have been active in giving support to migrant workers who are victims of abuse. For several years now, they have been tirelessly giving support to many disenfranchised migrants by releasing informative materials and providing other forms of assistance when needed by migrant workers in Hong Kong. They also provide relevant data that expose the real conditions of migrant workers in the country.
Critique on FER
Despite a seemingly positive perspective revolving around FER, it is critical to note that it continues to hinge on the perpetuation of forced migration. Efforts done by governments and the UN to make recruitment more bearable are strategies to mask the reality of labour migration today. Ultimately, FER does not tackle why migrants are forced to leave their home countries in the first place. While it is indeed important for recruitment schemes to align with the needs of migrants, at the end of the day, it is a singular and insufficient response to the bigger and overwhelming root causes of poverty and inequality that pushes people to go abroad.
FER legitimises and fast-tracks forced migration of people, especially the marginalised. Initiatives from the UN and governments that recognize and institutionalise FER processes will continue to perpetuate mechanisms that uproot people from their communities. Through FER, a greater leeway is provided to recruitment agencies, employers, and big businesses to commodify migrant workers. On the one hand, it aims to remove barriers such as unnecessary fees, and discriminatory and risky procedures, but on the other, it is an avenue towards making it easier for the migration regime to extract manpower that will satisfy market demands. Without the acknowledgement that migration is largely driven by unfair socioeconomic conditions, FER merely becomes a tool that undermines the lived realities of migrant workers.
FER would allow for more deregulation in the labour migration arena. FER largely engages private agencies and businesses to actualise its goals. Simultaneously, governments are tasked to collaborate with recruitment agencies and employers to uphold policies and principles regarding FER. The downside of this, however, lies in the truth that the effective implementation of FER regulations are placed on the shoulders of private entities. Obviously, these actors have a major role in upholding due diligence while doing business. But the decision of governments to somehow take the backseat in ensuring that FER is being implemented across the board is flawed. History shows that leaving policy implementation on the hands of private entities does not lead to positive outcomes on people and communities. Critical development processes where the private sector is involved usually results in profit-making at the expense of peoples’ rights and genuine progress. By favouring private sector-led recruitment initiatives, replication of decades-long deregulation strategies enforced by governments will only reproduce the same hazards faced by migrants in the region and beyond.
Placing the responsibility on the private sector to implement FER policies dilutes the government’s mandate to provide reliable public services to the people. By diminishing the role of states in recruitment mechanisms, greater issues that must be tackled such as the root causes of forced migration are neglected. Not only is deregulation in place but also the expansion of privatisation in matters that are very sensitive. In the Philippines, the Overseas Workers Welfare Administration (OWWA) and the Department of Migrant Workers (DMW) are just two of the major players that have a hand in sending Filipinos abroad. They largely work with employment agencies to streamline migration processes but the privatised design of their procedures contribute a significant burden to many people whose skills and earnings are maximised for profit.
In the “General principles and operational guidelines for fair recruitment” by ILO, the government’s role is merely to promote schemes ensuring that employers and recruiters will be accountable for respecting the rights of migrant workers throughout the recruitment process. Similarly, IOM’s Fair and Ethical Recruitment Due Diligence Toolkit merely states that establishing accountability instruments rests on the hands of recruitment businesses. Under GCM’s objective on FER, no mention of strong accountability mechanisms from the government to the agency level was stated as well. There was only a specific target on ensuring “supply chain transparency”.
Even within the UN space, Sustainable Development Goal (SDG) 8 (on decent work and economic growth) explicitly mentions that businesses must “Install a firm policy against unfair hiring and recruitment practices, particularly of vulnerable groups such as migrant workers.” While this is important, implementation remains to be vague in many areas and further creates an amenable environment for businesses to control recruitment agendas.
Gaps between policies and their implementation wash down FER principles. In essence, the call to promote FER is welcomed given that it aims to make recruitment manageable and relatively safer for workers. However, its implementation is questionable given that several countries lack follow through from paper to actions. In the cases of Indonesia, the Philippines, and Hong Kong, even though policies exist in relation to labour migration, loopholes allow actors in recruitment to neglect their duty to provide effective and reliable services.
Furthermore, even if implementation of FER is done in respective countries, it would just be a band aid solution to the problems posed by labour migration. Beyond the recruitment phase, abuses continue inside the homes of employers and within the halls of factories. As mentioned above, FER merely masks the bigger issues concerning migration. It is crucial to assess how recruitment processes are heavily interlinked with other labour migration mechanisms. Even though “fair and ethical” processes are adapted by states and the private sector, if overall labour laws in migrant-sending and receiving countries continue to be backwards, the current cycle of exploitation will persist.
There is a glaring lack of meaningful participation of migrants in policy spaces to discuss FER. IOM and ILO pride themselves as pro-migrant but the limited avenues they provide for migrants to speak up about issues manifest otherwise. National consultations on promoting FER exist such as the one on the Cambodia-Thailand labour migration corridor. However, at the fundamental level of policy making, migrant workers are not able to present their perspectives and share their real conditions, limiting the capacity of FER to respond to the recruitment woes of migrants in the region. Aside from the limitations present within the policy making arena, migrants are not given proper logistical and financial support to be able to go to critical venues such as the UN. Assessing this, there is clearly a neglect when it comes to involving migrants and their organisations in shaping policies and principles that affect them greatly. The unbalanced participation of governments and private sector compared to that of grassroots migrants is a telling reality of how issues in and of migration are mainly misdirected away from those directly affected from it in the first place.
Towards amplifying migrant voices
Given that FER policies are in their incipient stages, its provisions are still flexible and the potential for it to be truly migrant-centred is still in the horizon. Having said this, recommendations and critiques are pivotal to ensure that future regulations will be based on the needs and demands of migrant workers and civil society.
Meaningful participation of migrants from the national to the regional and international levels must be institutionalised. At the outset of the policy-making level, migrant workers must be placed at the forefront of crafting principles and regulations towards pursuing genuine FER. Simultaneously, governments in Asia Pacific must strengthen policies and procedures surrounding FER having in mind the complete involvement of migrants themselves. These must be migrant-oriented as well as aligned with rights-based approaches and other international standards. Recruitment agencies and their interests should be reassessed and migrants’ perspectives must be paramount in decision-making.
In time for important consultations and discussions regarding FER, relevant UN agencies such as the IOM and ILO must provide enough financial and logistical support to migrants who wish to participate in official processes. Furthermore, part of meaningful participation and supporting key stakeholders is ensuring that information materials are understandable especially to grassroots migrants through the use of local languages in crucial documents. This is very important step towards ensuring that migrants are able to articulate their positions and calls in pursuing genuine FER.
Transparency and accountability mechanisms are also key in securing meaningful participation of migrants. By giving them sufficient and intelligible information and data, institutions and governments will be setting a baseline for protecting the rights of migrants in the region.
Promote conversations and debates concerning forced migration and commodification of labour migration. As presented above, while FER initiatives by IOM, ILO, and governments are welcomed, these are just a part of responding to the broader issues faced by migrants today. Even more crucial is for these same entities to acknowledge and immediately address the root causes of why people leave their home countries and therefore, push them to take risky routes to earn income from abroad. Part of tackling the root causes is by ensuring that public services are accessible and inclusive to all citizens. Being able to depend on effective services are key to minimising the likelihood of forced migration. In addition, governments and multilateral institutions must establish stricter rules to alleviate the impacts of deregulation and privatisation schemes in migration, as well as limit actions that only reinforce their dominance. Not having an option to stay or leave the country for work is already one thing, but coupled with other neoliberal instruments, migrants become more entrenched in the existing exploitative system.
Strengthen solidarity among migrant organisations, civil society, and other relevant stakeholders. Beyond working on policy and implementation-related issues, it is essential for the migrant movement and organisations, and civil society to fortify solidarity towards calling for better conditions for overseas workers from the recruitment phase and beyond. Asserting the demands of disenfranchised migrants and pressuring governments, multilateral institutions, and the private sector to be accountable for their role in reinforcing exploitation in the migration arena are major tasks to embark on. Through these actions, migrants are bound to positively influence decision-making that will transform migration practices and trends in Asia Pacific away from its current formulation.
