guaranteeing equivalent rights of workers if/when outsourcing activities to third parties

CUD recognizes and supports the human rights that employees and staff members of the University have, for this reason it has policies that protect its employees and provide the necessary resources so that they can perform optimally in the University facilities, as well as The University allows the workers' union made up of staff members who are spokespersons for the other employees to discuss labor issues with University directors. In this way, the University contributes to the human rights of workers.

General Process of Outsourcing:

Outsourcing is a practice whereby the University may hire a third-party organization to perform specific tasks, handle define operations or provide specific services. The third-party will arrange its own employees and other resources to perform the tasks or services as contracted on behalf of the University. The University may choose, for example, to outsource to third-party services such as cleaning, catering, clerical functions, legal services, book store or other operational functions.

Purpose of Outsourcing:

Acting in the interest of Canadian University Dubai, senior management, with the approval of the Vice-Chancellor may decide to outsource services to:

    • Improve the quality of the task/ service with especially skilled partners

    • Reduce cost

    • Achieve optimization of the use of resources and productivity

Equivalent Employment Rights on Outsourcing to Third-Party:

Canadian University Dubai is an equal opportunity employer and is committed to equality of opportunity, which supports and encourages all under-represented groups, promotes an inclusive culture, and values diversity. Therefore, the university recruits, hires, and promotes employees and prospective employees based on individual merit and without regard to age, sex, ancestry / caste, color, marital status, ethnic origin, parental status, race, religion, sexual orientation, culture, beliefs or social background. This policy includes CUD commitment to maintain a workplace free from sexual harassment or discrimination of any nature. The university commits to ensure the following:

  • Employment equality: CUD addresses equality or non-discrimination irrespective of age, gender, religion and ethnicity on recruitment, remuneration, hours of work and termination of employment.

  • Adolescent labor: CUD will not accept the hire of anyone below 18 (eighteen) years of age for the work that is detrimental to adolescent’s health, education, welfare or development. The maximum working hour of an adolescent would be 42 (forty-two) hours per week. If an adolescent works for overtime, the maximum working hours including overtime would be 48 (forty-eight) hours per week.

  • International employees: CUD will ensure equal treatment to all international employees irrespective of race, religion or any other personal attributes. The international employees have the right to treatment no less favorable than that applied to national employees with respect to remuneration & benefits, hours of work, leave, minimum age for employment and social safety & security, etc.

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Purpose

The policy's primary purpose is to establish a clear vision of gender equality and guide the advancement towards it at the University. The present document outlines the scope and application of the gender equality policy and its key policy areas. The policy is coherent with the University's regulations and policies. However, it highlights the goal of gender equality and equal opportunities.

Scope and application

The policy shall enter into force on May 2022. As such, a budget envelope is dedicated to its implementation as of this date. The Gender Equality Committee will analyze the policy every three years. Its review requires the approval and the validation of the Rector and the Board of Trustees.

Staff composition

Gender equality promotes the optimal use of talents allowing the Canadian University Dubai to remain innovative. We are committed to removing any discriminatory barrier in recruitment, retention, and career opportunities. Promoting gender equality involves gender-proofing recruitment, retention, and promotion procedures to improve the gender balance of our staff. Job application writing is de-biased and linguistically formulated in a gender-sensitive way; furthermore, quantifiable indicators of curricula consider parental and family-related leave periods. We address gender imbalances in decision-making processes.

Workplace Climate

CUD have a strong commitment to zero tolerance of harassment, mobbing, or any form of discrimination in any of our activities. The University fosters a professional environment defined by equal opportunity and fair treatment for all staff members. CUD provide the needed infrastructure, procedures, and network of conciliators to solve any episode of conflict. All aspects of the code of conduct apply.

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Policy Aim

Under the UAE Code, protected grounds are race, color, descent, place of origin, indigenous identity, religion, marital status, familial status, physical or mental disability, sex, sexual orientation, gender identity or expression, age, political beliefs, and unrelated criminal convictions. The Policy's function is to defend the human rights of all employees and staff members.

Policy Statement

It is the policy of Canadian University Dubai to develop, implement and distribute policies, procedures, guidelines, and work rules for staff at all levels; and monitor its application and compliance through models, communication and training by management in the following areas:

      • Workforce planning and employment

      • Training and professional development

      • Benefits and compensation administration

      • Labor and employee relations

      • Risk management

      • Effective use of information systems

      • The Department of Human Resources at CUD will establish, maintain and disseminate additional policies, procedures and/or guidelines to carry out this Policy

Workforce planning and employment

Job analysis

Is the process of gathering and analyzing information about the content and the human requirements of jobs, as well as, the context in which jobs are performed this process is used to determine placement of jobs Under CUD Values the decision-making in this area is shared by units and Human Resources specific internal approval processes will be determined by the unit's organizational leadership.

Training and Professional Development

Canadian University Dubai shall encourage employee participation in sponsored professional development activities and programs that address the unique needs of employees to achieve individual career and organizational goals.

Benefits and compensation administration

The University strives to provide base compensation for exempt and non-exempt staff that is externally competitive with the relevant market and internally aligned with market reference ranges of individuals who have similar responsibilities, demonstrated competencies and experience. The University will utilize variable compensation (incentive plans and recognition awards) as appropriate to further support the achievement of the University’s goals and core values while considering the competitive market for positions.

Labor and employee relations

Canadian University Dubai shall analyze, develop, implement, and evaluate the workplace relationships and working conditions that balance University and employee needs and rights in support of the University’s strategic goals, objectives, and values.

Canadian University Dubai shall provide employees with information pertaining to the University’s work rules, employment practices, performance and conduct expectations; benefits and compensation administration; and relevant administrative procedures.

Canadian University Dubai shall facilitate the negotiation and administration of collective bargaining agreement.

Risk Management

Canadian University Dubai shall promote a respectful, safe, secure, and healthy workplace environment by deploying risk management strategies, sponsoring wellness activities, and complying with applicable federal, state, and local laws. Additionally, the University shall minimize risk and liability by implementing a record retention policy, business continuity, disaster recovery plans and other policies and practices to support this effort.

Information Systems

Canadian University Dubai shall determine and implement the strategic application of existing and available integrated technical tools, systems, and business machines to increase the efficiency of human resources management functions, automate processes, and produce and evaluate metrics and measurements for decision support.

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The Department of Human Resources and Administration of the Canadian University Dubai. CUD trust our employees and the leadership of our university. The goals are to define an organizational structure that drives productivity, to develop effective coordination and communication within the organization, to spend time finding the right people and developing their skill bases, and to embrace broader social and ethical developments. Our goal is to promote flexibility, innovation, competitive advantage, develop a fit-for-purpose organizational culture, and improve performance on a daily basis.

The Department of Human Resources and Administration focuses on success and building high levels of loyalty to the university. Our responsibility is to establish knowledge and knowledge of the regulations, statutes and applications of human resources and administrative matters to regulate the relationship between the university and its employees. We also provide the elements that are capable of achieving the objectives of the university and promote the optimal investment in the human element to be a competition magnet in the world that seeks to join us.

Objectives:

Human resources department is keen to use the quality mechanisms in their work to meet the university employees’ interests which is one of the objectives of management to achieve job satisfaction among all employees of the university which will enable them to contribute in achieving the vision of the university.

​Tasks & Services

  • Training and staff development

  • Security and safety

  • Ensuring compliance with labor laws

  • Identifying work needs

  • Planning career tracks

  • Managing promotions process​

​​​Employment:

  • Polarization

  • Appointment

  • Evaluating staff performance

Salaries and Wages:

  • Employees' salaries

  • Rewards and incentives

  • Secondments

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The advancement and protection of the rights of workers is a national priority. The UAE is considered a major recipient of foreign labor due to the country's open policies and tolerant and cosmopolitan community. According to the World Bank, foreign workers in the UAE sent back home more than USD 29 billion in 2014 – almost all of which went to developing countries – making the UAE the third-largest source of remittances in the world. This income then benefits workers' families and home country economies.

In furtherance of its commitment to upholding labor rights, the UAE has ratified nine major International Labour Organization conventions related to the rights of workers and has adopted numerous laws to protect workers' rights, including in the areas of recruitment, pay, housing, and health. The UAE has also signed numerous Memoranda of Understanding with workers' home countries, designed to promote cooperation in protecting the rights of workers in the UAE.

Domestically, the UAE is continuously working to strengthen worker protections. In 2017, the UAE implemented broad measures in support of overseas domestic workers (Federal Law No. 10 of 2017), guaranteeing individuals the right to retain personal documents and passports, change employers with greater ease, and receive mandated paid leave, insurance, and accommodation. The reforms focus on improving the transparency of job terms and employment contracts and spell out how contracts can be terminated.

Under these policies, prospective workers are asked to sign a standard employment offer in their home country that will in turn be filed with the Ministry of Labor before a work permit is issued. That agreement is then registered as a legal contract once the worker arrives in the country, and no changes will be allowed unless they extend additional benefits to which the worker agrees. Either side can terminate the contract, after which the worker will be free to change employers.

Furthermore, charging recruitment fees to prospective employees is illegal in the UAE, and steps have been taken to protect workers from unscrupulous recruiters. The confiscation of workers' passports is prohibited, and workers do not need their employer's permission to leave the country. All workers must be provided with comprehensive health insurance at the cost of the employer, and strict rules govern the provision of proper accommodation. More than 3.2 million workers are paid through the Wage Protection System, an electronic transfer system that guarantees the timely and full payment of agreed-upon wages.

Should any worker have a conflict with their employer, the law also provides free-of-charge, formal adjudication by the Ministry of Human Resources and Emiratization. A 24-hour toll-free hotline allows workers to file complaints. The UAE has established offices in courts to provide legal support to workers in labor disputes, and labor care units have been established across the UAE to provide protection for workers and raise awareness of their rights.

Enforcement of protections for workers has intensified, and substantial penalties have been imposed for violations relating to working conditions and workers' rights.

Safeguarding domestic workers

In service of domestic workers, Federal Law No. 10 of 2017 also ensures that workers are aware of the contract terms prior to departure from their home country and includes key entitlements and provisions, such as weekly rest and 30 days of paid annual leave. In addition, the law strictly regulates the work of recruitment agencies in order to avoid any form of abuse such as payment of commission in exchange for employment. Moreover, the law sets out essential prohibitions, such as the ban of employment of minors, and includes anti-discrimination clauses.

The Ministry of Human Resources and Emiratisation has also licensed 37 centers under the name “Tawjeeh." The centers inform workers of their rights and responsibilities and provide education on the UAE's culture and customs.

The Ministry of Human Resources and Emiratisation has also established 39 service centers across the country. These centers, called “Tadbeer,” offer trainings designed to raise domestic workers’ awareness of their rights and responsibilities and provide them with copies of their employment contracts.

Section 2(d) – Freedom of association

Provision

Everyone has the following fundamental freedoms:

  • freedom of association

  • Similar provisions

Similar provisions may be found in the following Canadian laws and international instruments binding on Canada: section 1(e) of the Canadian Bill of Rights; article 22 of the International Covenant on Civil and Political Rights; Article 8 of the International Covenant on Economic Social and Cultural Rights; articles 1-11 of the International Labour Organization Convention No. 87 – Freedom of Association and Protection of the Right to Organize; article 22 of the American Declaration of the Rights and Duties of Man; and Article 45(c) of the Charter of the Organization of American States.

See also the following international, regional and comparative law instruments that are not legally binding on Canada but include similar provisions: article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; and article 16 of the American Convention on Human Rights. While freedom of association is not explicitly set out in the Constitution of the United States of America, it has long been held to be implicit in the First Amendment’s protection of freedom of speech, assembly and petition. With respect to collective bargaining, see International Labour Organization Convention No. 98 concerning the application of the principles of the right to organize and to bargain collectively.

Purpose

Freedom of association is intended to recognize the profoundly social nature of human endeavours and to protect the individual from state-enforced isolation in the pursuit of their ends (Mounted Police Association of Ontario v. Canada, 2015 SCC 1 (“MPAO”) at paragraph 54). It protects the collective action of individuals in pursuit of their common goals (Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211 at 253). It functions to protect individuals against more powerful entities, thus empowering vulnerable groups and helping them work to right imbalances in society (MPAO, supra, at paragraph 58). It allows the achievement of individual potential through interpersonal relationships and collective action (Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016 at paragraph 17).

Analysis

Scope of freedom of association

General

The Supreme Court of Canada’s approach to freedom of association has undergone significant revision, starting with Dunmore v. Ontario, [2001] 3 S.C.R. 1016 and Health Services and Support-Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R. 391 (“Health Services”). Caution should therefore be exercised in relying on case law which predates this jurisprudence.

This applies particularly to pre-2001 decisions in the labour relations context on the “freedom to associate” (as opposed to the freedom from compelled association) – most of which have been overturned (e.g., the so-called “Labour Trilogy” (Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; P.S.A.C. v. Canada, [1987] 1 S.C.R. 424; R.W.D.S.U. v. Saskatchewan, [1987] 1 S.C.R. 460) as well as Professional Institute of the Public Service of Canada v. Northwest Territories, [1990] 2 S.C.R. 367 and Delisle v. Canada, [1999] 2 S.C.R. 989). However, it also applies to decisions outside the labour relations context, such as Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157 (“C.E.M.A.”), at paragraphs 105, 111, where the Court had held that only the “associational aspect” of an activity and not the activity itself are protected under section 2(d). In MPAO, supra, at paragraph 41, the Court described C.E.M.A. as applying a “narrow” view of freedom of association.

Freedom of association protects three classes of activities: (1) the “constitutive” right to join with others and form associations; (2) the “derivative” right to join with others in the pursuit of other constitutional rights; and (3) the “purposive” right to join with others to meet on more equal terms the power and strength of other groups or entities. Under the constitutive right, the state is prohibited from interfering with individuals meeting or forming associations, but is permitted to interfere with the activities pursued by an association. The derivative right protects associations’ activities that specifically relate to other constitutional freedoms, but does not protect other activities of the association. The purposive right protects associations’ activities, including collective bargaining and striking, that enable individuals who are vulnerable and ineffective to meet on more equal terms the power and strength of those with whom their interests interact or conflict (MPAO, supra, paragraphs 52-54, 66).

Freedom of association is not merely a bundle of individual rights but collective rights which inhere in associations (MPAO, paragraph 62). Section 2(d) does not just protect activities which are capable of performance by individuals, as there are certain collective activities (e.g., singing in harmony) which are inconceivable at the individual level (Dunmore, supra at paragraphs 16-17; Health Services, supra at paragraphs 27-28).

Section 2(d) does not protect an association’s activities that are aimed at enhancing social imbalances. Associational activity that constitutes violence is also not protected by section 2(d) (MPAO, supra, at paragraph 59).

Freedom from compelled association

Section 2(d) encompasses what has been called a “negative aspect”, a “freedom not to associate” or a “freedom from compelled (or ‘forced’) association”. However, section 2(d) is not a constitutional right to isolation. It does not protect against all forms of involuntary association, and was not intended to protect against association with others that is a necessary and inevitable part of membership in a modern democratic community (Bernard v. Canada, [2014] 1 S.C.R. 227 at paragraph 38). Some forms of association are an unavoidable aspect of life (e.g., family, work, association with the government and its programs and policies). Compelled association in the form of legal obligations arising from these unavoidable types of associations does not in and of itself offend section 2(d) (Lavigne, supra at 320-21; R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209 (“Advance Cutting”), at paragraphs 19, 194, 223, 232).

The Court has thus determined that there is a threshold issue in determining whether there is an infringement of the freedom from compelled association. Courts must consider whether it is appropriate for the legislature to require persons with similar interests in a particular area to become part of a single group to foster those interests (for example, to require employees in a particular workplace to pay dues to a union). In other words, one must first be satisfied that the compelled combining of efforts towards a common end is required to further the collective social welfare.

Where such a combining of efforts is required, and where the government is acting with respect to individuals whose association is already “compelled by the facts of life”, the individual’s freedom of association will not be limited unless there is a danger to a specific liberty interest (described below). This approach only applies, however, so long as the association is acting in furtherance of the cause which justified its creation (Lavigne, supra at 328-29; Advance Cutting, supra at paragraphs 196, 285).

Forced association threatens an identified liberty interest when there is: imposition of a form of ideological conformity on the claimant; (Advance Cutting, supra at paragraphs 19, 195, 196, 220; Lavigne, supra at pages 328-29); government establishment of, or support for, particular political causes; impairment of individual freedom to join or associate with causes of his or her choosing; and personal identification of an individual with causes which he or she does not support (Lavigne, supra at pages 328-29).

Underinclusive government action / positive government obligation

As the Charter applies only to governmental actors and actions (section 32), legislatures are normally not required to legislate in respect of private interference with freedom of association. However, in exceptional circumstances, legislation designed to foster freedom of association may exclude categories of individuals — for example, as in Dunmore, the exclusion of agricultural workers from a labour relations statute. Such “underinclusive” legislation may thus affirmatively permit private actors (e.g., agricultural employers) to interfere with associational activity and thereby substantially orchestrate, encourage or sustain this private violation of freedom of association.

In considering whether under inclusion limits freedom of association, the Court in Dunmore set out three considerations:

    1. the claim of under inclusion should be grounded in fundamental Charter freedoms rather than in access to a particular statutory regime;

    2. claimants must establish, based on a proper evidentiary foundation, that exclusion from a statutory regime permits a substantial interference with the exercise of protected associational activity (the claimant must be seeking more than a particular channel for exercising his or her fundamental freedoms); and

    3. there must be a minimum degree of state action (in other words, it must be shown that the state can truly be held accountable for any inability to exercise a fundamental freedom) (Dunmore, supra at paragraphs 22-26).

This does not mean that there is a constitutional right to protective legislation per se. On their own, the above principles do not oblige the state to act where it has not already legislated in respect of a certain area. (Dunmore, supra at paragraphs 22-26, 29; Health Services, supra at paragraph 34).

It is unclear whether the three-part Dunmore test remains good law. It has not been applied by the Court since Baier v. Alberta, [2007] 2 S.C.R. 673 (a freedom of expression case). The Court explicitly declined to apply it in Ontario v. Criminal Lawyers' Association, [2010] 1 SCR 815 at paragraph 31, another freedom of expression case. Despite the apparently exceptional nature of section 2(d) being used to impose positive obligations on government, the Supreme Court in Ontario v. Fraser, [2011] 2 SCR 3, found that workers who are “incapable of exercising their right to collective bargaining” have a “right against the state” when it fails “to impose statutory obligations on employers” (paragraph 73). The Court does not even mention the Dunmore test.

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This article was written by partner Dino Wilkinson and legal consultant Salma Peacock.

Outsourcing is a practice used by organisations to reduce costs by transferring portions of work or business functions to third party providers rather than providing the service in-house.

This transfer of portions of work or internal business functions to external suppliers has significant implications for employees of the company that is undertaking the outsourcing.

In some jurisdictions around the world, there are regulations that safeguard employees’ rights in this type of scenario. If the outsourcing is deemed to be a transfer of a business unit, employees in Europemay benefit from an automatic right of transfer, protection from dismissal and a right to consultation. UAE Federal Law No.8 of 1980 as amended (the Labour Law) includes some continuity of employment provisions in the event of any change in the form or legal status of the employer, but in the case of a transfer of business there is no automatic employee transfer regime under UAE legislation.

Accordingly, when considering an outsourcing arrangement in the UAE, a slightly different approach needs to be taken to transfers of staff than international organisations may be used to and there are a number of other complexities that arise through the application of local labour laws:

    • As there is no automatic transfer provision, the contracts of employment for staff who are transferring will need to be terminated by the original employing party. The Labour Law imposes a minimum 30-day notice period unless an employment contract is terminated for cause, although the parties can agree longer. An employee may also become entitled to various categories of compensation upon termination, including payments in lieu of unused holiday, repatriation expenses and an end of service gratuity (ESG). The ESG is a variable amount based, among other things, on length of service, but it could amount to a figure of up to two years’ basic salary.

    • A further complicating factor in relation to the termination and re-hiring of an employee in the UAE is the legal requirement for expatriate workers to hold an appropriate work permit and residence visa. Each transferring individual will need to apply for a new work permit and new residence visa upon changing employment. With regard to the application for a new residence visa, if the entry requirements for that person’s country have changed since the person was issued with original entry approval, he/she may be unable to secure a new visa and would not be permitted to take up a position with the service provider in the UAE.

    • Emiratisation is an issue covered in more detail elsewhere in this blog: Emiratisation what foreign businesses in the UAE need to know: in essence, it is a government-backed scheme to encourage the employment of UAE nationals in the private sector. In some cases, this takes the form of a quota or minimum commitment in relation to the number of nationals in a company’s workforce. Some companies have explored the extent to which outsourcing can help reduce the perceived burden of Emiratisation, for example, by reducing the employed workforce and, consequently, the number of nationals that an organization is required to employ (the Emirati population is relatively small and some skills are in strong demand). To our knowledge, this approach has not been tested in the UAE courts to date and should be approached with caution.

The financial and business implications of these labour law issues must all be considered prior to entering into an outsourcing arrangement in the UAE. A company seeking to take advantage of the cost savings or other benefits that outsourcing can bring must ensure that those benefits are not eroded by unforeseen liabilities.

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The UAE has re-evaluated every aspect of working in the country from recruitment to housing, ensuring that all immigrant workers are treated respectfully and able to report instances of mistreatment easily. Charging recruitment fees to prospective employees is illegal in the UAE. The confiscation of workers' passports is prohibited, and workers do not require their employer's permission to leave the country. Other reforms for immigrant workers include:

    • implementing a new standard employment contract which is mandatory to finalise the employment procedures for workers coming from outside and those residing in the UAE.

    • ratifying nine conventions of International Labour Organization's related to the rights of workers

    • setting out new regulations that enable workers to move freely between employers

    • holding awareness campaigns to inform workers about their rights and duties

    • enforcing the wages protection system to ensure employees are paid in full and on time

    • introducing a new insurance system to protect the benefits and rights of the private sector employees and domestic helpers

    • banning the employment of children below the age of 15

    • introducing a new domestic law which establishes the principle of informed consent, ensuring that workers are aware of the terms of the contract, nature of work, the workplace, the remuneration and the period of daily and weekly rest

    • holding Abu Dhabi Dialogue (ADD) and working closely with countries where the labour originate from to tackle specific challenges that face the labour migrants in the Asia-Gulf migration corridors

    • proposing six specific commitments for adoption within the Global Compact for Migration. These include:

    • implementation of recruitment practices that are compliant with international standards

    • access for all migrant workers to information on their rights and obligations prior to departure and post arrival

    • ensuring safe and decent work conditions for all migrant workers, and specifically for domestic workers.

UAE efforts to enhance work conditions:

The UAE made enormous efforts to enhance the work conditions for all employees and create job opportunities. Some of these efforts are:

  • In 2015, the UAE government injected AED 300 billion to foster a knowledge economy, driven by innovation to prepare the UAE for a world after oil

  • It developed several strategies to diversify its national income based on a sustainable economy and to increase work opportunities

  • The UAE adopted Emiratisation programmes which mandate the inclusion of Emiratis in the job sector, particularly in the private sector.