Gendered Aspects of Labour Exploitation: Women Migrant Domestic Workers in Saudi Arabia and the Role of Bilateral Labour Agreements

1. Introduction

The employment of domestic workers is a unique sector of the global migration industry. Those working in this industry provide vital services such as cleaning, cooking, and care. However, these jobs are often performed within a private household. Due to many factors, including the concentration of female workers within this industry, reliance on remittances, employment agencies, and immigration requirements, migrant women are vulnerable to exploitation. However, this does not necessarily mean they will be exploited; individual experiences differ across employer-employee relationships. We must consider whether migrant workers have access to legal protections.

This article focuses on Bangladeshi females working as domestic workers in Saudi Arabia. Given that this study evaluates the employment of domestic workers under kafala frameworks, it specifically examines employment governed by sponsorship. This does not mean that all aspects of the Saudi migration system will be identical, nor will all sponsors be abusers.

This article presents three arguments. Firstly, domestic employees are not covered by the general Saudi Labour Law; however, there is now a specific regulation. Secondly, because domestic staff operate inside private residences, monitoring, reporting, and verifying their working conditions present significant challenges. Finally, if a worker is very reliant on their employer/sponsor to work and migrate, they may be more vulnerable to the repercussions of wage theft, threats, withholding documents, and/or being unable to move freely. These factors may compound.

How does current Saudi law protect migrant domestic workers? How can domestic employment within a private household and reliance on a sponsor impact their access to protections? What improvements can be made through Saudi law and bilateral agreements with Bangladesh? Focusing primarily on Saudi Arabia, this article avoids assuming uniform legal systems across GCC states, nor does it assert a high prevalence of these issues across different countries.

2. Literature and conceptual framework

2.1 Gendered Migration and the Devaluation of Domestic Work

Domestic work in paid employment is located at the intersection of several areas of law, including employment law, social reproduction and gendered assumptions. The feminist labour law and migration literature acknowledges the productive and paid nature of domestic work whilst also addressing how, historically, it is connected to women’s unpaid caring and domestic roles, resulting in it being seen as low value.^[1] This article does not claim that domestic work is naturally exploitative; however, it argues that the gendered and transnational context of migrant domestic work, including its private nature and intersection with migration and labour regulation, can create specific barriers to the effective recognition and enforcement of workers’ rights.^[2]

In relation to migrant domestic workers, there are many legal provisions to consider when looking at their protection throughout their migration journey. Migration debt, false assurances, wage gaps, and problems creating a contract can cause problems for migrant domestic workers leaving their jobs.

2.2 Sponsorship and Dependency

Kafala is a common term used within academic and policy literature. The 2008 Human Rights Watch report found that some employers would withhold passports, prevent movement, cause pay issues, or not allow departure from the country.^[3] Whilst this report is an important piece of evidence showing real-life experiences at the time it was undertaken, it is not a current report showing how prevalent these issues are currently.

This analysis will only look at the idea that sponsorship can create a dependency which could lead to exploitation. We need to consider if specific laws, procedures or behaviour from employers have caused a lack of a genuine choice to refuse to work.

The relationship between statutory exclusion and exploitation of labour should not be seen as a direct link. Other examples from the Gulf, such as Qatar, show that whilst there are statutory protections such as minimum hours (Qatar has law No. 15 of 2017 regarding domestic workers, which sets out that a maximum of 10 hours should be worked).^[4] Despite having the Minimum Wage Law (Law No. 17 of 2020), migrant and domestic workers have faced exploitation.^[5] This shows that there are other factors behind the exploitation of labour. Even when there are laws in place to protect workers, poor enforcement of these laws, imbalance in the relationship between employers and employees, recruitment debt, control by employers, and lack of effective methods to make a complaint can all contribute to exploitation. This article does not argue that statutory exclusion is the reason for exploitation but instead looks at why the different regulations regarding domestic workers in Saudi Arabia have created exploitation due to the private nature of the role and reliance on employer sponsorship. Qatar is used here to show how statutory protection is not always adequate.

2.3 Legal Definition of Forced Labour

Article 2(1) of the ILO Convention Concerning Forced or Compulsory Labour 1930 (No. 29) states that forced or compulsory labour shall mean “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.”^[6] To satisfy this definition, there must be an element of threat, and the work must not be voluntary. Penalties can take many forms, not just criminal, but also threats, physical harm, detention, wage theft, or loss of rights/privileges. To establish forced labour under Article 2(1) of ILO Convention No. 29, evidence must demonstrate a causal connection between the threat of a penalty and the performance of work.

Whilst the first decision to migrate may be voluntary, this does not mean all work will be voluntary. Difficult working conditions, long hours, or an imbalance of power do not prove that they are in forced labour under Convention No. 29.^[7] This article utilises the framework of ILO Convention No. 29 to assess whether conditions of forced labour exist; however, these provisions must be applied with appropriate caution when evaluating documented accounts.

3. Methodology and limitations

The methodology used within this article is a combination of qualitative doctrinal research alongside the analysis of relevant documents. Key primary sources examined include: Saudi Labour Law, with particular reference to C29 article 7;^[8] Saudi Domestic Workers and Those in Similar Positions Regulation;^[9] ILO Convention No. 29;^[10] ILO Domestic Workers Convention, 2011 (No. 189);^[11] relevant international human rights treaties; and documented evidence relating to the 2015 Bangladesh-Saudi recruitment agreement.^[12] Secondary sources examined include the Human Rights Watch country-specific domestic worker reports and ILO guidelines.

Sources were chosen based on their identifiable author organisation, relevance to domestic workers in Saudi Arabia or Bangladesh-Saudi recruitment, and official publication by a reputable source. If the source refers to past interviews, then the source is classed as historical. Newspaper articles were not used to replace any textual information. Any unidentifiable sources, with incomplete referencing, or those relating to a different jurisdiction without a clear comparative purpose were excluded.

There are no charts included that compare working hours, minimum wage, migrant cohorts, and sector across GCC countries, as the data from each country had been collected at different time points, using different definitions and sources. Identifying and verifying certain sources proved challenging, preventing a rigorous comparative analysis. This is particularly the case with the 2016-2020 and 2021-2023 time periods. Because these timeframes are inconsistent, annualising the data to justify a significant reduction would be methodologically unsound. Consequently, discrepancies among sources cannot be interpreted as reflecting true variations in working conditions.

This research suffers from limitations. The sources are legal texts and second-hand information. The fieldwork undertaken by Human Rights Watch in Saudi Arabia was published in 2008, meaning the interviews were mainly undertaken in 2006-2008.^[13] Whilst this can give examples of what has been reported and provide knowledge on mechanisms in place, it cannot provide information on how prevalent this is currently. Finally, the analysis does not aim to provide a full picture of all administrative changes that have occurred in Saudi Arabia since the fieldwork was undertaken. Therefore, current legal provisions are clearly separated from historical evidence, and further empirical research would be required to assess how well they have been implemented.

4. Legal analysis: Saudi Arabia

4.1 Exemption from general Labour Law

Domestic workers and those deemed to be in a similar position are excluded from the protection of the Labour Law (Article 7(1)(c)).^[14] However, this does not mean they are completely unprotected. There is a separate regulation dealing specifically with domestic workers and those in a similar position known as the ‘Domestic Workers and Those in Similar Positions Regulation’. This will be discussed below.

The Regulation has provisions detailing rules which apply to the hours and breaks that domestic workers can be made to work. Article 10 states that a domestic worker cannot be forced to work more than ten hours in a 24-hour period. They must also have their hours arranged so that they do not have to work for more than five hours without a break of at least thirty minutes to rest, worship, or eat. The total amount of rest they must receive in a day must be for a minimum of eight hours in a row. Furthermore, under Article 11, domestic workers are entitled to one full day of paid leave each week, a minimum of twenty-four hours.^[15] This shows that there are definitely legal restrictions in place regarding the number of hours domestic workers can work in Saudi Arabia.

In conclusion, there is a legal issue here. Domestic workers are completely excluded from the Labour Law and have a separate regulation to deal with their particular circumstances. They will have a different route to pursue any claims. Not all differences can be assumed to be illegal; however, the government should consider if the separate regulation provides adequate protections that are easily accessible and provide sufficient equivalency.

In relation to international standards, ILO Convention No. 189 requires ratifying states to take specific actions to ensure decent work for domestic workers. This includes ensuring protections around working hours (Article 10) and effective complaints mechanisms (Article 17).^[16] However, Saudi Arabia has not ratified this convention; therefore, this will just be used as a standard to compare to when considering policy. The convention does not apply to Saudi Arabia, as it is not ratified.^[17] Article 10 does not mean domestic workers have a set eight-hour day but instead requires measures to be taken to ensure equality in relation to normal working hours and overtime whilst considering the unique nature of domestic work.^[18]

4.2 The Private Sphere and Practical Enforcement Issues

The very nature of the location of domestic employment creates challenges around ensuring the privacy of the family, while still enabling the state to ensure workers receive protection. Whilst it cannot be claimed that Saudi legislation does outright prevent the inspection of the private sphere, sources do not support this statement. However, it can be argued that domestic employment will mean that workers are less visible and can therefore struggle to gain independent evidence. This can also cause workers to become more reliant on having access to complaint channels.

In a report released by Human Rights Watch in 2008, they documented examples of workers being locked up, prevented from contacting family members, and having their passports withheld.^[19] It also highlighted the difficulties that workers can face when trying to gain help whilst being isolated in the employer’s home. This supports the idea that, in particular examples, workers can be vulnerable due to being isolated in a family environment. However, it does not prove that every employer will prevent contact.

It would be appropriate to create policies that would ensure that the privacy of the family remains whilst also creating independent channels for the worker to contact. This could be done by having interviews carried out in confidence, multilingual helplines that are easy to access, quick referrals to embassies, following up on any credible complaints based on risk, and having effective sanctions for any retaliatory actions. If there are any provisions to enter or inspect, there should be clear laws surrounding them, proportionate to the risk and ensuring that the family remains protected.

4.3 Dependency through Kafala and Forced Labour Test

Claiming that kafala ‘legally allows forced labour’ is overly definitive. To properly assess this, one must evaluate how empirical evidence aligns with the criteria for forced labour set forth in ILO Convention No. 29. Firstly, evidence of involuntariness can come from a lack of freedom to leave a job. This could be due to a lack of freedom of movement, employers holding control of ID cards, or the worker needing the employer for their immigration status. Secondly, there can be evidence of a threat of penalty if the worker does not do the work. This could include threats, physical restraint, violence, withholding of pay, or other negative consequences. Evidence of physical restraint and abuse has been documented by Human Rights Watch concerning migrant domestic workers in Saudi Arabia. The vulnerability of migrant domestic workers in restrictive sponsorship systems has also been highlighted by ILO supervisory bodies.^[20] However, these indicators need to be considered in context to see to what extent they are present and how relevant they are to the law.^[21]

This method allows a more accurate analysis of how individual exploitation interacts with wider factors. If a worker is restricted in changing employers or ending their employment due to sponsorship, there is an increased risk of coercive practices being used. The ILO has found that sponsorship systems may limit workers’ freedom to leave their employer.^[22] This research can identify how recruitment practices, employer control, lack of freedom of movement, and lack of access to help interact with the two elements of Convention No. 29. It can also identify how documented abuse interacts with the conclusion that forced labour has occurred due to specific arrangements.

4.3.1 Threat of Penalty

The threat of penalty element may apply if the worker faces threats of violence, being locked up, withheld pay, withheld identity documents, or negative immigration implications for attempting to leave or refusing to work. In the report by Human Rights Watch, they documented examples of employers withholding passports and residence documents, locking workers up, and refusing to allow them to leave Saudi Arabia.^[23] They also highlighted how the current process for clearance to leave could cause workers to be detained for longer. This shows that historically there have been examples of this. It is important to note that currently there are rights and responsibilities within the regulation for domestic workers. Nevertheless, the existence of formal legal protections does not guarantee their uniform application across all households. Any claims about what the current legal implications are for reporting someone as absconding (huroob), needing an exit permit, or needing to change jobs should be supported by current primary sources.

4.3.2 Absence of free choice

The second criterion to consider is whether the work was freely given. A migrant may agree to undertake work, but they cannot be forced into a situation where they cannot leave due to threats, being locked up, having their documents held, non-payment of wages, etc. There have been documented cases by Human Rights Watch of workers who could not leave or go home due to documents being held by their employer.^[24] This could be used to infer that there was no free choice in these cases. In the absence of concrete proof demonstrating the direct impact of passport retention on an individual worker, it cannot be concluded that all required elements of forced labour have been met. Likewise, sponsorship alone does not show that all performed labour was involuntary. There is evidence to suggest that, in some cases, due to the sponsorship, coupled with threats, confinement, non-payment of wages, and inability to leave, there may be indicators of forced labour. However, to give a conclusive answer legally, there needs to be evidence specific to the case.

4.4 Gender issues

There are gender issues that may cause increased risk for domestic workers. The report from Human Rights Watch includes cases of physical and sexual abuse, lack of communication, and worries regarding workers who were afraid of being accused in return or receiving punishment for sexual violence.^[25] This information, however, is based on fieldwork undertaken during 2006-2008. Consequently, this information must be understood as historical documentation detailing reported incidents and systemic obstacles.

In the original draft, general statements were made regarding Zina laws in GCC states and the burden of proof for rape charges. These statements were not well backed up by current primary legal sources and have therefore been removed. A worker who fears employer retaliation, lacks independent means of communication, is unfamiliar with reporting procedures, and depends entirely on their employer for legal documentation and compensation, faces significant barriers to submitting a formal complaint. Addressing these challenges requires accessible information, confidential reporting mechanisms, available legal counsel, and robust anti-retaliation protections. Any statement regarding current factors of a criminal offence or what evidence is used by Saudi courts would require an analysis of current primary law.

5. Bangladesh – Saudi Labour Agreement

Bangladesh and Saudi Arabia signed a bilateral agreement in February 2015 aimed at governing the recruitment of domestic workers. According to official news from the Saudi Press Agency, this agreement provides “an organised system for recruitment,” and both countries agreed that Bangladeshi domestic workers will be paid 800 Saudi riyals per month.^[26] The labour authorities in Saudi Arabia will also regulate the recruitment costs.^[27] While this constitutes a significant bilateral framework, evaluating the comprehensive enforcement of its provisions remains challenging due to the absence of exhaustive details in official documentation.

The existence of a bilateral agreement does not automatically guarantee adequate protection for workers entering domestic employment. To ensure comprehensive worker protection, a framework must feature robust grievance mechanisms, standard employment contracts, guaranteed wage delivery, rigorous recruitment oversight, direct consular support, inter-agency collaboration, and practical avenues for wage recovery. To assist in incorporating the essential elements of bilateral labour agreements, the ILO has issued official guidelines. This includes ensuring that responsibilities are clearly divided and that there are practical measures to protect migrant workers.^[28]

However, a bilateral agreement cannot change the domestic laws in Saudi Arabia regarding domestic workers or force Saudi courts to have jurisdiction in Bangladesh. It is therefore important that any suggestions to hold recruitment agencies jointly or severally liable are considered carefully. They must consider issues such as jurisdiction, governing law and enforceability.

6. Recommendations: current position and proposed change

7. Conclusion

Migrant domestic workers are not completely unregulated within Saudi Arabia’s legal framework. Although they are excluded from the main Labour Law, they have their own form of regulation which sets out specific rights for domestic workers, such as a maximum of 10 hours of work per day, and a day off each week. The issue therefore is whether the regulation protects domestic workers effectively.

This analysis has shown that there are three key risk factors faced by migrant domestic workers. These include a lack of regulation, an invisible sector, and dependency on their sponsors. Evidence shows that migrant domestic workers have been detained, had their passports withheld, not paid, and had their movement restricted (Human Rights Watch has carried out fieldwork in the past).^[29] This can indicate forced labour under ILO Convention No. 29. However, there is not enough evidence to suggest that all kafala relationships are forced labour.

There are bilateral agreements in place between Bangladesh and Saudi Arabia; however, they should be implemented to ensure they are effective. Although bilateral agreements exist between Bangladesh and Saudi Arabia, effective implementation remains crucial. Enhancing worker protection requires key improvements, including transparent contracts, ethical recruitment practices, accessible complaint and wage recovery mechanisms, confidential support services, and strengthened inter-state cooperation. It should also be noted that Saudi Arabia has not ratified ILO Convention No. 189; however, the standards within this convention can be used to create recommendations around policy. Policy recommendations must focus on rights-based legal and practical enhancements, ensuring that proposed reforms strengthen protections without creating unintended barriers to safe and legal migration.