In the midst of the ongoing atrocities in Gaza, a resurgence of Islamism in the public space is noticeably visible. Availing of this phenomenon to address an important policy issue in the region, I try to explore the question: how can Islam guide labour practices in the region?
Practitioners in the field of migrant workers' rights often invoke the principle of justice as a foundation to improve the rights of foreign workers. Having worked with committed practitioners, and being a committed Muslim myself, I was often asked about the compatibility of Islamic jurisprudence with international migration law. I was also asked how Islamic jurisprudence can be invoked to create a more dignified working environment for migrant workers.
Islam remains a source of legislation for the majority of Arab countries. If appropriate approach and discourse were adopted, the Sultanate of Oman could position itself as a model for justice and respect of international law.
Leaving the issue of wages aside, the most problematic area in labour laws and regulations in the GCC countries is the sponsorship system, or kafala in Arabic. Receiving countries see in the kafala system an essential means for gathering statistics, regulating entry and residency, managing the labour market in view of high rates of unemployment among youth, and capping cultural influence.
Kafala is based on an employer-employee model, which provides one party (the employer) with authority over the other (the employee). Given the gap that naturally exists between obligations of responsibility and practices of protecting workers, additional safeguards are needed. On the other hand, employers complain from ‘excessive’ rights accorded to employees. This becomes more apparent in the case of domestic workers. The result is a mismatch of expectations.
Capitalising on Islamic finance, two models could be considered to address the above-mentioned mismatch. The first is Ijarah (loosely speaking usufruct) and the second is Mudarabah (profit-sharing).
Usufruct is a limited right which has historically been associated with benefitting from the use of an asset or a privilege, hence the name ‘fruits of use.’ When applied to employment of migrant workers, the asset or privilege could either be: (1) the ability to legally sponsor a migrant worker, or (2) the actual labour or expertise or knowledge of the migrant worker.
Commoditising the ability to legally sponsor a migrant worker is already a practice in Oman and the MENA region. It exists formally and informally. On the positive side, it has been providing a mutually benefiting solution for short term contracts in specialised services, such as in construction, and oil and gas industries. Regulating or incentivising the commoditisation of the actual labour or expertise or knowledge of migrant workers seems a more just route for the usufruct or ijarah approach.
Building on the above, an incentive system, in the form of profit sharing or allowing entry of expatriate labour based on a contract rather than a sponsorship, sounds fair. Oman already has a precedence, where foreign companies can establish a wholly-owned branch contingent on them having a valid government contract. A similar principle can be applied. This will be beneficial to all parties involved. Employment contracts should also include a non-competition clause, which is a valid and fair contractual right-obligation to protect employers and enable fair competition.
Both models are similar in terms of moving the relationship from an employment context to a service, lease, or investment context. It is a form of partnership where an investor puts in money and the worker invests effort. It moves the relationship from the prospect of abuse or uncertainty to more solid grounds.
The Mudarabah principle has been in practice, though with a different name, in higher education in the USA. Investors fund tuition fees for higher studies and training of promising individuals with a contractual obligation to share a proportion of their salary when employed. This arrangement allows for socially responsible investors to solve the skill gaps, while earning revenue. It also incentivised these investors to create or find job opportunities for their prodigies. This also meant speedy recovery of investments and shorter job-seeking periods for the prodigies.
Oman should explore combining these two models to create a system wherein the country can attract the right calibre of talented and skilled expatriates, according to national economic needs, in a fair and humane manner that is less prone to abuse. Such a system will mitigate the current imbalance in the labour market structure through proper and commensurate remuneration of expatriate expertise, which in turn will create competition in the market, and hopefully adjust in 2-3 years’ time.
In conclusion, as a receiving country we have a duty of acting justly and responsibly.
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