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As per Indian Emigration Act, 1983 which regulates recruitment of Indian workers for Overseas, an “Employer” is defined as a person providing or offering to provide employment (in his/her own establishment) in any country or place outside India.
Thus, an employer” is one who provides employment to Indian workers in his establishment or who offers to provide employment to Indian workers in his establishment. It may be noted that Indian Emigration Act does not recognize role of any intermediaries in the process of recruitment other the employer. Hence the employer should take up the recruitment on his own (either after obtaining his own permit or through the Registered Agent) as per legal provisions in India without involving any intermediaries both in his country as well as India.
The permit shall be subject to the following conditions,namely;
- The permit is not transferable;
- the permit is valid for period of six months from the date of issue or the date of completion of the recruitment, whichever is earlier;
- Workers recruited on the strength of this permit shall not be repatriated on the ground that they do not possess the required skill;
- The holder of the permit shall not obtain the assistance of recruiting agent in any manner;
- The employment agreement with the worker shall be signed by the holder of the permit;
- The holder of the permit shall be under obligation to treat the contract entered into with the worker as enforceable under the Labour Laws of the country of employment. It shall be his responsibility to file copies of the contracts with the concerned authorities in the country of employment;
- The holder of the permit shall not supply manpower recruited on the strength of this permit to any other agency or concern;
- The holder of the permit shall be responsible for the general welfare and redressal of specific grievances of the workers recruited on the strength of the permit during the period of contract;
- The holder of the permit shall not extend the services of a worker after the expiry of contract without entering into a fresh contract or without extending the existing contract;
- The holder of the permit shall notify to the Indian Mission in the country of employment each case of death or disability of a worker within 48 hours of the occurrence of the event. Similarly, information should be communicated to the next of kin in India in case of disability/death within 48 hours;
- The holder of the permit is prohibited from supplying manpower for a work in another country to a country other than the country from which the permit has been issued.
- The holder of the Permit shall-
- Provide details of employment, including contract conditions, to the intending emigrants before recruitment;
- Ensure proper reception of the emigrant in the country of employment;
- Ensure that subsequent to the employment, the employer shall not alter the contract of employment;
- Ensure timely action for renewal of documents authorizing stay of emigrant in the country of employment;
- Not deprive the emigrant of the custody of his travel and employment documents;
- Ensure advertisement for the genuineness of employer’s in respect of recruitment before it is released and shall refrain any inducement of misrepresentation in this regard;
- File copies of all advertisements for recruitment to the Protector General of emigrants immediately after their publication or release.
The following are the three major mandatory documents required to be authorized by the employer in his letter head and given to the Registered Agents in Indian to undertake recruitment of Indian workers.
- Demand Letter: A “demand means” the category wise, skill-wise number of workers required by the employer for being employed in his establishment. This includes description of job-specifications and salary offered. This should be in the letter head of the employer addressed to the registered agent in India.
- Power of Attorney: An employer shall authorize a recruiting agent in India, registered under the provisions of the Act, by a power of attorney executed in favour of the recruiting agent authorizing that recruiting agent for the purposes of the recruitment of persons on his behalf.
The above power of attorney shall be valid for the period of the employment contract of the recruited workers even if the certificate of registration of such recruiting agent ceases to be valid before that period. Unless specified normally the power of attorney is construed to be valid for one year from the date of issue.
- Specimen Contract of Employment: In addition to the above, the employer is also, required to provide a “Specimen Contract of employment” in his letter head duly authorized to indicate the various terms and conditions of employment of the worker in advance.
Prior attestation of recruitment documents” means a kind of authorization done by the Indian missions on the recruitment documents to certify the authenticity and genuine of the documents as well as the requirement for the workers by the Employer.
Currently, the Government of India has notified that for recruitment of Indian workers to the following Five Countries prior attestation of recruitment documents (Demand Letter, Power of Attorney and specimen contract of employment) for all categories is mandatory without which the employer/Indian Registered Agent will not be permitted to undertake recruitment in India by the Protectors of Emigrants. These Countries are
- Jordan and
Prior attestation of recruitment documents by all Indian missions is mandatory for the recruitment of following specific categories of Indian workers:
- Labour (all kinds of general labour)
- Cleaner/ Cleaning Worker/ Cleaning Labour etc.
- Operator ( General Machine operators)
- House maid
- House boy
- Domestic Cook / House cook
- Domestic Driver / House Driver
- Domestic Servant (Male/ Female)
- Gardener/ House Gardner.
- Domestic worker (Male /Female)
- Office Boy/ Office worker
- Agricultural workers/ Farm workers
- Others Unskilled.
Under the directions of Govt. of India, the Indian Missions notify the minimum wages from time to time that should be adopted for payment by the Foreign Employers for various categories of Indian workers. These rates are notified after taking into consideration of various factors prevailing in the local labour market in the respective countries. The rates are available in the websites of the Indian Missions as well as the Offices of Protectors of Emigrants in India. The same is also available with the Indian Registered Agents.
The employers are therefore advised to consult these rates and prefer their demand duly complying with the norms fixed by the Govt of India in this regard. The same should be mentioned category wise in the specimen contract for scrutiny by the POE in India. Demands failing to comply with the minimum wages prescribed will be rejected by the Protectors of Emigrants in India. The current rates of minimum wages for Indian workers in ECR countries are given here.
‘Emigration Clearance’ (EC) is the legal authorization for ‘emigration’ obtained in the prescribed manner and form from the Protector of Emigrants (POE). Emigration clearance is issued under provisions of Sec 22(1) of the Emigration Act 1983. This authorization is currently issued in the form of a ‘security sticker’ duly signed by the POE and gets pasted on the passport of the emigrant who requires Emigration Clearance.
All Indian citizens whose Passports have been categorized as “Emigration Check Required” (ECR) are required to obtain Emigration Clearance (EC) from the POEs before proceeding to specified “ECR Countries” for the purpose of employment. As of now the Passports of all those persons whose educational qualification is below matric or 10th Standard are categorized as ECR Passports. An endorsement (ECR seal/stamp/remark) to this effect is provided either in the second page or in the last page of the Passport by the passport authorities in India ie. Regional Passport officers (RPOs) at the time of issue of Passports.
The employers are, therefore, advised to be aware of these legal requirements before recruiting Indian workers as well ensure that the Indian workers recruited obtain necessary Emigration Clearance if they are of ECR category. Recruiting Indian Workers without adhering to these legal requirements is illegal.
Emigration Check required” (ECR) Countries are countries notified by the Government of India for which it is mandatory for every individual holding Passport(s) in the said ECR country to obtain ‘Emigration
Clearance’ (EC) from the ‘POE’ before proceeding on employment to any such countrie(s). List
of 17 ECR countries is as below:
- United Arab Emirates (UAE)
- Kingdom of Saudi Arabia (KSA)
- Sultanate of Oman