8.2.5 Does your university as a body have a policy on guaranteeing equivalent rights of workers if/when outsourcing activities to third parties?
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 organisation 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.
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.