Are you an OFW in Saudi? Read this FAQ on Saudi labor law
MANILA - The Philippine Embassy in Riyadh, Saudi Arabia urged the Filipino community to take time out and read a document it prepared regarding the three-month grace period given to foreign workers and employers who are in violation of its Saudization policy (nitaqat).
In a press release dated April 10, the embassy said the grace period which is until July 4, 2013 will allow illegal workers and erring employers to correct their residency and work status.
"The Saudi government will go after the erring original sponsor, the current employer and the illegal worker if they do not correct their papers once the grace period is over," the embassy said.
However, the embassy clarified that those who have long run away from their original sponsors and no longer have valid residency permits (iqamas) or passports are a different category.
"Theirs is an immigration problem. There are existing procedures -- Under Saudi law -- for addressing their issues," said the embassy.
Those affected by the Saudization policy need to return to their original sponsor or to transfer sponsors to their actual current employer by following existing regulations.
The embassy also reminded workers that it is a violation to work with a freelance or dependent visa.
"They should take steps to transfer their iqama immediately before the end of the grace period," the post said.
It added that for workers falling under the immigration problem category will need to be ready with their last valid residency card (iqama) and valid passport or a copy of the last passport. If they do not have a copy of their iqama, they can obtain a print out of the information from the Jawazat.
"They will also need to get in touch with their original sponsors when they first arrived in Saudi Arabia and request from them a No-Objection Certificate. And they will need to go to the General Directorate for Passports (Jawazat) for the payment of fines and penalties, and the airfare for the flight to the Philippines," it stated.
Below are the frequently asked questions (FAQs) on Saudi Labor Law:
Q1 What is the instrument that will govern the employment of OFWs in the Kingdom of Saudi Arabia?
A: The Work or Employment Contract signed by the worker and the employer. However, any stipulation that contradicts the Saudi Labor Law (SLL) including release and settlement of worker’s rights, unless more beneficial to the worker, is null and void (Art. 8, SLL).
Q2 What is a “Work Contract”?
A: A Work Contract is a contract concluded between an employer and a worker, whereby the latter undertakes to work under the management or supervision of the former for a wage (Art. 50, SLL) The Work Contract for Non-Saudis shall be written and of specified period. Otherwise, the duration of the work permit shall be deemed as the duration of the contract. (Art. 37, SLL)
Q3 What is the Saudi Labor Law?
A: It is Royal Decree No. M/51 dated 23 Sha’ban 1426/ 27 September 2005, which took effect on 27 March 2006.
Q4 What are the latest amendments to the Saudi Labor Law?
A: On 25 March 2013, the Saudi Council of Ministers approved amendments in the Saudi Labor Law specifying that foreign workers are not allowed to work for anyone other than their employer, and that the employer is not allowed to leave his workers to engage in jobs for their own personal gains.
The specific amendment made was to Article 39 of the Saudi Labor Law, which now states:
“It is not allowed for an employer to let his (foreign) worker go out and work for others. It is also not allowed for a worker to engage in work for another employer. The employer is not allowed to employ workers who are under the sponsorship of others. The Ministry of Labor shall inspect the firms and investigate the violations discovered by its inspectors, and then forward them to the Ministry of Interior to take penal actions against them.
The employer is not allowed to let his worker engage in work for his own benefit. The worker would also not be permitted to work on his own account. The Ministry of Interior shall arrest, deport and take punitive measures against these violators who are working for their own benefit in the streets and public squares as well as against those who run away (from their sponsors).”
Q5 Who are deemed to have violated these amendments?
A: Those affected fall into these categories:
(i) Those who are working with employers other than their own sponsor, with the knowledge of the original sponsor. This includes those who are in the process of transferring their sponsorship, but have not finalized it yet.
(ii) Those so-called “freelancers” or those who have an iqama but do not or have never worked for the sponsor in the iqama.
(iii) Those who are holders of a dependent’s visa, but are employed by an individual or company, whether licensed or not as an employer.
(iv) Those who have absconded from their sponsor, have a valid iqama and are working for another sponsor.
It should be pointed out, however, that those who have long absconded from their sponsor, do not have a valid iqama and are working for various employers are not directly covered by the amendments. They are nevertheless in violation of Saudi immigration law, and there are different procedures and regulations to be followed in these cases.
Q6 What are the remedies for these violators?
A: The Saudi Government has implemented a three-month grace period until 4 July 2013 to allow illegal workers and erring employers to correct their residency and work status.
Those working with an employer other than their sponsor should return to their original sponsor and work exclusively under that sponsor. They can also transfer to a new sponsor provided they follow existing rules for such a transfer.
“Freelancers” should desist from working until they are able to contact their sponsors and rectify their iqama/sponsorship status.
Workers with dependent visas should be conscious of their visa status, and desist from working even on part-time basis.
Q7 What are the possible penalties for the violators?
A: A violator can expect jail time, fines and deportation. It is possible, however, that a worker can be spared from arrest if the worker and the original sponsor will correct his work status during the three-month grace period. In the case of a worker with a dependent’s visa, the penalty will include deportation of the dependent and the head of the family, as well as a penalty for the employer.
Q8 If the worker has long absconded from the employer and stayed in Saudi Arabia with an expired iqama, what can the worker do to be able to go home to the Philippines?
A: The amendments to the Labor Law do not directly affect workers who have absconded from work and no longer have a valid iqama. Nonetheless, they are advised to do the following:
Contact their sponsor and request a No-Objection Certificate to clear the way for their repatriation.
Proceed to the Saudi General Directorate of Passports (Jawazat), along with the sponsor, for settlement of penalties and fines.
Seek appropriate guidance and assistance from POLO with regard to contacting the sponsor and transacting with the Jawazat.
TRANSFER OF SPONSOR/ RELEASE
Q9 What is the so-called sponsorship rule?
A: The so-called “sponsorship rule” refers to the need for foreign workers to have a sponsor for his visa to work in the Kingdom. The sponsor under the rule must be the employer of the foreign worker. Thus, working with a person who is not the worker’s sponsor or guarantor is considered illegal and a ground for deportation. The parties involved are also liable for fines of not less than five thousand riyals and not more than twenty thousand riyals, which fine shall be multiplied by the number of person subject of the violation. The worker shall be repatriated at the expense of the person who employs him. (Art. 233, SLL)
Q10 May a worker demand for a change or transfer of sponsor?
A: No. Transfer of sponsorship is not a legal right. It is subject to the discretion of the sponsor and approval of the official authority.
Q11 What are the requirements and procedure for the change of sponsor?
A: The act of transferring sponsorship of workers is sanctioned by the Ministry of Labor. Under current rules, a worker can only transfer to other sponsor/employer after having worked with his current employer for at least two years.
The first thing that the worker should do is to secure the consent and approval of his sponsor to transfer to another employer.
The procedure then is for his prospective sponsor to write a letter expressing his interest in the worker’s service and requesting for his release. If the conditions are so acceptable to the present sponsor, he should formally consent thereto and sign the release papers.
Thereafter, the prospective sponsor should present these documents with the application for transfer of sponsorship and iqama for official approval of the Ministry.
Unless the legal rules and procedures are followed, an employer may not allow his worker to work for others and a worker may not work for another employer.
Similarly, an employer may not employ workers of other employers. An employer may not allow a worker to work for his own account and a worker may not work for his own account. (Art. 39, SLL)
Q12 Is repatriation of the worker an obligation of the employer?
A: Repatriation, which is the act of sending the worker back to the point of origin or place of hire, is a mandatory obligation of the employer in the following cases: (1) expiration of contract: (2) when the contract has been terminated for valid reasons or just cause as provided for in the contract or law; (3) resignation of the worker after complying with the advance notice requirement and satisfaction of the conditions set by the employer: (payment of indemnity, etc.) (4) death of the worker; and, (5) when repatriation has been decided or determined by the Saudi Labor Office and such other analogous cases.
Under these circumstances, the worker can demand for his repatriation as a matter of right subject to clearance in cases there are other offenses or legal impediment, either civil or criminal, imputed against the worker.
Q13 Who shall bear the cost of repatriation?
A: The employer shall bear the cost of exit visa and return ticket to the worker’s home country at the end of the relation between the two parties. (Art. 40 par 1, SLL)
Q14 Under what circumstances will the employer be exempted from shouldering the cost of repatriation?
A: The employer shall be exempted from shouldering the cost of return ticket if the worker shall have absconded or worked for another employer (Art. 233, SLL), or shall have stopped or resigned from work prior to the end of contract. Likewise, a worker shall incur the cost of returning to his home country if he is unfit for work or if he wishes to return to his home country without legitimate reason. (Art. 40 par 2, SLL)
Q15 Can a runaway worker demand for his repatriation?
A: A runaway worker can demand for his immediate repatriation if his employer fails or refused to send him home for a reasonable length of time and his situations falls under any of the circumstances stated above. Should the employer refused to do so, the worker must file a complaint at the Saudi Labor Office.
However, if the worker ran away or absconded from his employer for no valid reason or cause, repatriation may be demanded after indemnifying the employer, unless the latter waives the payment thereof. Absconding from the employer will also give the employer the right to report the matter to the police and immigration authorities. Once reported, a worker can only be repatriated through deportation.
It is noteworthy to remember that if a worker has valid ground or causes of terminating the contract, such as clear violation of contract by the employer, the proper course of action is to file a complaint at the Saudi Labor Office if conciliation is not successful, and not to abscond from the employer.
Q16 Can a worker immediately be repatriated if he or she has the money to buy his or her own air ticket?
A: No. A worker found to have violated Saudi labor and immigration laws has to undergo a legal process first before he can be deported by Saudi authorities. Certain penalties will imposed, particularly the penalty fees for an expired iqama.
NO OBJECTION CERTIFICATE
Q17 Can the employer be obliged to issue a No-Objection Certificate (NOC) in favor of the worker?
A: No. A worker cannot compel the employer to issue a no-objection certificate for the purpose of returning to the Kingdom. However, the employer is required to give the worker upon his request and free of charge, a Certificate of Work Experience, indicating the date of his employment, date of end of his work, his profession, and the last wage received. If the certificate contains any remarks that are prejudicial to the worker’s reputation or likely to limit his employment chances, the reasons shall be given. (Art. 64 par 1, SLL)
Q18 When is a No-Objection Certificate needed in case of workers who want to return and work again in the Kingdom?
A: As a general rule, a worker would not need a No-Objection Certificate to return to the Kingdom for work. However, if he had been previously holding a sensitive or highly confidential position where he was privy to his employer’s business or trade secrets, he needs NOC if he returns for work within 2 years.
This is necessary especially if the Work Contract of the worker contains provision prohibiting re-employment within two years. (Art. 83, SLL)