CASE Questions on Migrant Standard Interpretation

In the case of a migrant worker who pre-terminates his/her employment contract (worker’s reason is
personal and not due to any threat to one’s safety or abuse by Employer) and the submitted termination
notice is in breach of the agreed/required full notice period:

The XXX standard says “Worker can pay at most 60% of 1 month of gross base wages, if there is no legal
penalty associated with worker leaving early”.

Case:

Assume no legal penalty; what we want to understand is just XXX’s requirement

Worker submits notice of pre-termination on April 30 2022, stating plan to leave by week of May 08,
2022 (only 1 weeks’ notice; in breach of the required 1-month notice)

Worker works for the first 1 week of May 2022.

Assume monthly gross base wage is USD1,000; therefore, worker’s due base wages for the 1 week
worked in May is USD250. All wages prior to May have already been paid to worker.

Reference: XXX Trafficked and Forced Labor – “Definition of Fees” X

Questions:

Is the 60% standard (assuming the Employer opts to impose the 60% maximum) applicable to the
USD1,000 (the worker’s 1-month base pay) or the USD250 (the worker’s remaining unpaid 1-week base
wages before actual termination)?

If the answer to above is the latter (USD250), does XXX have a written guidance on this? (if there is none,
then the USD1,000 applies, based on how the standard is written?) Note that if USD1K applies, the
worker has to pay USD600 (60%) and if he does not have the additional USD350 (he will earn only
usd250) then he may not be able to leave the Employer (FL risk?)

In this case of worker’s voluntary pre-termination that is in breach of the required notice period, is the
Employer still obligated to pay for the worker’s repatriation costs? Is there any specific written guidance
on this? Or is the standard that says repatriation costs should be paid by the Employer sufficient?

Note the standard says “If the worker has provided full notice period per their contract or local law – no
fees should be charged”. While it is not expressly written (maybe there is one somewhere?), the
implication is – if the worker did not provide full notice period, fees can be charged. And XXX’s definition
of fees includes the repatriation costs, and this could be taken to mean the Employer may not pay the
repatriation costs if the full notice period is not complied with by the worker.

Or does XXX mean to just leave this issue to what the employment contract says?

I would say the 60% should be applied to USD 1k, the normal base wage. That
means the worker needs to pay the employer USD1000X60%, as the penalty for
leaving early without full notice. This should be applied no matter how much the
worker earn for the last payment.
If the worker does not have that much money to pay the employer, that’s another
story. I don’t feel the employer has the right to physically block the worker from
leaving. But the fact that the worker has no money to pay does not change the
requirement that the worker needs to pay the 60% of base wage.

I agree 100% with most of what you said. And like what I said, based on how the standard is written, the
language is quite “clear” that the Employer can require the Worker to pay up to 60% of “1 month of
gross base wages”, where the Worker does not meet the full period notice requirement for contract pre-
termination. And given the case data I presented, I submit it is hard to argue against the position that
the Worker should pay the Employer usd600.

However, let us look at a scenario with a different case data that is also applicable to XXX considering it
has expanded itself to include other industries outside of its industry supply chain. In the apparel and
agricultural industries, it is not uncommon to find workers being paid on “piece-rate” or “productivity-
based” wages. In most “under-developed” or “developing” countries where these factories/plantations
operate, these wage practices are legal and legislated minimum wages, where they exist, are not
mandated for this type of wage arrangements. (hence XXX standard 4.xx… ) These workers’ wages vary
from month-to-month; in the agriculture sector, monthly wages can differ significantly between planting
and harvesting season. Thus, the question: for these workers, just how much is “1-month gross base
wages” where the 60% will be applied/levied against? The average of last X number of months? Or all of
the months that the resigning worker has worked for the facility? Or perhaps only the remaining unpaid
period/month because that is what the Employer can practically collect? What was crystal-clear answer
for the first case is not as straightforward for the second case.

Further, can the phrase “Worker can pay at most 60% of 1 month of gross base wages” actually mean
something else other than that the Employer can demand/require/impose a penalty of not more than
60% of 1-month gross base wages, as what most of us interpret this standard to mean? That the words
“Worker can pay” can actually mean “what the worker can afford to pay”? (because “Worker can pay”
can imply the decision to pay rests on the Worker). Perhaps this is just “word-play”, but that’s exactly
what I want us to think about – that this standard is not as clear-cut as we think it to be for all the
possible cases under the XXX.

If one agrees that the above postulates raise reasonable doubt over the correctness of the prevailing
interpretation, I propose we find the answer by looking at the higher standard or the “spirit of the law”
so to speak, since the “letter of the law” in this case raises questions owing to differing interpretations.

Let me start with the standard requiring the Employer to pay the full repatriation cost of a worker who
pre-terminates his employment contract for whatever reason for as long as he meets the required
notice period. Frankly, I find this patently unfair to the Employer. But, however biased this standard may
be, I support it because I think it is for the greater good. By my own bias, I see life has been mostly unfair
to the majority of the working people and some affirmative action to ensure they get some reprieve
from their trials and tribulations would be welcomed by a just and humane society. I believe migrant
workers, generally speaking, will pre-terminate their jobs only because there is an emergency/pressing
need for them to return to their home country. And if they don’t have the resources to pay for their own
repatriation, that creates problems for the Worker, for his family, for the Employer, and for the host
country. So I suppose the intent(spirit) of the standard is to prevent a situation wherein a worker who
needs to pre-terminate employment in order to go home cannot do so because of lack of means to pay
for the trip home. I cannot speak for the XXX, but I can’t think of any other reason why this standard was
enshrined in their Code.

But yes, in fact the standard is very clear that the Employer should pay for the worker’s repatriation; and
nowhere in the standard does it allow the Employer the right to physically stop the worker from leaving
his job if the worker cannot afford to fully pay the 60% penalty!

But does the standard say that the Employer, if the worker cannot pay the 60% penalty, cannot not buy
the plane tickets and provide for other XXX requirements: return transportation to employee’s habitual
place of residence in country of origin, including in-transit, subsistence costs and costs of medical
exams/screening if it is requirement to enable the return journey? The Employer may claim readiness to
pay the full repatriation cost but will do so only if the worker fulfills his obligation to pay the 60% - a
situation you aptly described as “if the worker did not pay USD1K x 60%, then it is hard to force the
Employer to fulfill theirs.”

But just for the sake of argument that the standard requiring the Employer to pay the full repatriation
cost is separate and distinct from the standard requiring the Worker to pay the 60% max, and therefore
the Employer must handover the return tickets (plus others) even if the worker cannot pay the full 60%,
then what’s the use of requiring the worker to pay the 60% if it cannot be effectively enforced?

In my view, the way to ensure that the standard meets its intent, is implementable/enforceable, and is
effective is to reinterpret (or reword if you will) the phrase ““Worker can pay at most 60% of 1 month of
gross base wages” to mean the Employer has the right to forfeit in his favor up to 60% (no objection if
it’s 100%) of the unpaid wages due the Worker up to the date of his termination (barring any legal
impediments, of course).

Finally, note I’ve been asking if we have any written XXX interpretations for/answers to these questions.
I think we can all agree that ultimately it is the owner of the standard who defines what it means. Our
thoughts/arguments are just what they are – interpretations. If there will be no forthcoming clarification
from XXX, I think it will still do us good if we can at least have a consensus on these issues.