A REVIEW ON THE NEW UAE LABOUR CODES: WHAT TO EXPECT AND WHAT STILL NEEDS A CHANGE
Updated: Jan 9, 2022
Author: Srabasti Bhattacharyya, IV year of B.A.,LL.B(Hons.) from Amity University, Kolkata
Co-author: Sreeparna Sekhar Bhattacharjee, IV year of B.A.,LL.B(Hons.) from Amity University, Kolkata
On issuance of his highness, Sheikh Khalifa bin Zayed Al Nahyan, the Federal Law No.33 of 2021, the newly amended law of the United Arab Emirates will come into effect from the 22nd of February 2022 thus repealing the current labour laws which have been there since 1980.
The main area of focus shall be the private sectors in the UAE which shall encircle free zones excluding the Dubai International Financial Centre along with the Abu Dhabi Global Market, thus being able to implement their personal labour laws.
The government while declaring the labour law changes ensures that the new laws will protect the employer’s and employees’ rights to ensure more flexible working models for the post-Corona Virus workplace.
This new law has undergone significant amendments. These changes will only affect private-sector employees and companies, including free zones. The researchers have put together the most important modifications which have been enumerated as under:-
Anti-discrimination and anti-harassment protection
With the new amendments showing positive perks, UAE makes discrimination based on race, colour, sex, religion, national origin, or disability of an individual an offence. The employers, supervisors, and co-workers shall face severe repercussions if they sexually harass, bully, verbally or physically abuse an employee.
An employer shall not coerce or threaten an employee into performing work or providing services against their will. Employers should not dismiss or threaten to terminate, a female employee because she is pregnant or on maternity leave.
The employers who violate the New Labour Law may face fines ranging from AED 5,000 to AED 1,000,000 ( not payable to affected employees).
Providing employees with a flexible working model
The new changes in part-time, temporary and flexible works aim to provide the UAE labour market with more flexibility.
Under Part-time work, employees can work for many employers for a set number of hours or days, either on-site or remotely, as specified in the respective contracts.
In Temporary employment, employment is based on the assigned project or a task basis. Contracts come to an end when the assigned work on each contract is completed. Under flexible work, Employees shall work on different days and times based on the working conditions and criteria under this scheme's contracts based on job conditions and requirements.
Employees can set their working hours in consultation with the employer. Furthermore, the New Law allows employees to work remotely from anywhere in the UAE, with the approval of their employer.
The abolition of long-term contracts
The option of endless employment contracts will not be valid after February 2, 2022. Limited (fixed-term) contracts will be required for federal government institutions and private businesses, which shall need renewal once or numerous times for a certain duration as agreed by both sides.
The existing system of unlimited contracts will be phased out over time. For the private sector, the new labour law, which was announced recently, replaced limitless contracts with limited contracts of no more than three years.
Changes in leaves
I. Annual leave: Full-time federal government and private-sector employees are entitled to a 30-day annual leave each year. Employees working for six months are permitted two paid days off for each month available in the year. Employees who choose temporary, part-time, or flexible work contracts will have their annual leave calculated following the new laws.
II. Maternity leave: In the private sector, maternity leave will last 60 days, with 45 days at full pay and an additional 15 days at half pay. For the first six months after conceiving, new mothers are entitled to one hour every day for breastfeeding once they return to work. Companies cannot terminate a worker for taking maternity leave. Employees' maternity-related "sick" leave has also been reduced from 100 to 45 days in a consecutive or intermittent manner.
III. Paternity leave: Men are entitled to a five-day paternity leave that can be either consecutively or over the first six months after the birth of their child. Employees are entitled to five days off for the death of a spouse and three days off for the death of an immediate family member as compassionate leave.
IV. Sick leave: Employees are entitled to at least 90 days of sick leave each year, with 15 days paid, 30 days at half pay, and the rest unpaid.
V. Study leaves: Employees enrolled in a UAE-accredited educational institution or university, whether inside or outside the country, are entitled to ten days off each year on account of study leave.
Employee termination during the probationary period
If an employee wants to relocate to another company in the UAE, he/she can terminate his/her contract during the probationary period by giving the employer at least one month's written notice.
In this scenario, the New UAE Labour Law stipulates that the new employer must reimburse the prior employer for any costs associated with the employee's recruitment.
If an employee chooses to leave the UAE during his/her probationary period, he/she must give at least 14 days written notice to terminate his/her employment. In such cases, where the employee returns to the UAE and secures a work visa from the Minister of Human Resources and Emiratisation (MOHRE) within three months of departure, the new company must reimburse the old employer for any recruitment expenditures expended.
End of service benefit
According to the new law, an employee who has worked for the company for one year or longer is entitled to an end-of-service gratuity when they leave. Those who work for up to five years will be entitled to a gratuity calculated based on 21 days of compensation for each year of service.
If an employee has worked for more than five years, the gratuity will grow to 30 days of income for a year’s service. If the employee stays with the existing employer until the New Employment Law takes effect, the New Employment Law will apply to the respective employer.
Article 27 of the New Law will establish a minimum salary for the first time in the UAE. Following a request from the MOHRE, in conjunction with the necessary agencies, the UAE Cabinet will determine and announce the minimum salary amount.
Retention of Passports
The retention of an employee's passport is expressly forbidden by law.
Overtime will be limited to 144 hours for every three weeks and computed based on the employee's basic income.
Recommendations for more reforms that needed more spotlight
After 1980, this is the first time where the labour laws are being extensively changed. But has this vast change in the laws have been able to meet international standards? the Human Rights Watch has taken a stand on the newly proposed laws and has also recommended a few changes which could have been given importance as well.
1. Right to form a trade union and collective bargaining
The International Labour Organisation (ILO) states that one of the fundamental rights is the freedom of association and effective acknowledgment of the right to collective bargaining. The UAE, being a member must go by and protect this right.
However, the new UAE labour law does not protect the same and has no provisions in its draft which have been able to recognize any workers' right to form and join a trade union or the right to collective bargaining. In the year, 2006, the UAE Labour Ministry had made it official that the law concerning the absence of the right to trade union would be considered but even the recent amendments have failed to take up this concern.
If this right is not given to the workers, then concerns relating to the workplace, the government and their own employers remain underground. This is a violation of their fundamental rights which the ILO Declares. It violates their opportunity to communicate their injustice to the appropriate authority.
2. Discrimination on the Basis of Sex
International laws strictly denounce discrimination in terms of employment. In the exercise of the right to work, to free choice of employment, and to equitable and suitable working conditions, there shall be no discrimination based on gender. The ILO, also recognizes that there should be no discrimination in terms of ‘occupation’. Enshrined as a fundamental right of the workers, UAE has to include them in its laws and protect international standards.
The UAE has prohibited women from working at night, prevents women from working jobs that are hazardous (Article 30). Intending to protect its women, the UAE law bars women from having the freedom to choose their profession in a free manner.
The government must take steps to protect them and ensure safe working conditions for both men and women. It should instead let the person in an entirety decide whether to work in those circumstances or not.
The Human Rights Watch mentions that these prohibitions on women cannot be defended under the ambit of protection of women. The clear difference in sexes has affected the promotion of women in their areas of work.
Article 35 of the newly proposed laws scream discrimination as it demeans women under the control of their male counterparts, who can restrict women from all employment. There must be equality before the law and equal protection of the law irrespective of the gender a person identifies in. Thus, there rises a severe need to amend Articles 25-35.
3. Workers' strikes should be a right
International law protects the freedom to strike. The ICESCR supports "the right to strike," and the ILO Committee on Freedom of Association acknowledged the right to strike as an "essential aspect of trade union rights" in1952.
The UAE labour law needs an amendment to safeguard the workers right to strike particularly by creating clear processes for exercising this right, such as strike vote requirements and strike notification laws.
The proposed law violating workers' right to strike under Articles 155- 166 requires that any group labour issues that cannot be handled amicably between the parties be brought to the Group Labor Disputes Conciliation Committee for binding settlement.
Unless the Committee's judgement is appealed to a court, whose judicial ruling becomes binding on the parties, the proposed law states that the Committee's decision is "final and enforceable." Such obligatory binding arbitration, according to the ILO Committee of Experts, violates international standards.
4. A Check on Child Labour
The Human Rights Watch has commented that there are internal oppositions that can create confusion as to the minimum age for children working. The provisions in the UAE law must be in accordance with the ILO Convention.
But that is not the case. A child is termed as a person of "thirteen years of age but below eighteen years of age". This could awaken confusion related to the age group which has been mentioned because children of that age group are not supposed to work.
However, there have been certain historical changes as well like the amendment of Article 15 where the employers to provide the workers with the expenses for the migrant workers in terms of travel, medical expenditure and other costs as and so required. On the other hand, Article 85 deals with employers’ need to cover their employees’ health care on arrival.
Workers are the pillars of our society. The laws are needed to be changed when it comes to the needs of the workers and their protection. The changes made were necessary for the workers’ rights with an urge to protect their rights as well.