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Foreign Employers

1. Who are “Employers” (in the context of Emigration Act, 1983)?

As per Indian Emigration Act, 1983 which regulates recruitment of Indian workers for Overseas, an “Employer” is defined as a person providing or offering to provide employment (in his/her own establishment) in any country or place outside India.

Thus, an employer” is one who provides employment to Indian workers in his establishment or who offers to provide employment to Indian workers in his establishment. It may be noted that Indian Emigration Act does not recognize role of any intermediaries in the process of recruitment other the employer. Hence the employer should take up the recruitment on his own (either after obtaining his own permit or through the Registered Agent) as per legal provisions in India without involving any intermediaries both in his country as well as India.

2. How a Foreign Employer can recruit Indian workers? Can a ‘Foreign Employer’ take up “direct recruitment“ in India?

A foreign employer can undertake recruitment of Indian workers by two ways as below:-

  • By direct recruitment after obtaining permit under sec 17 of the Emigration Act, 1983;

(or)

  • Recruitment through “Registered Agents” authorized by the Emigration Act, 1983.

2.1 By Direct recruitment mode:- 2.1.1. Application for permit:

The employers shall apply for issue of the permits for allowing them to undertake direct recruitment in Form VI (attached) to the authority prescribed under sec 15 of the Emigration Act 1983. ie. The Protector General of Emigrants, Ministry of Overseas Indian Affairs, New Delhi. The application above shall be accompanied by a bank demand draft of rupees two thousand payable in favour of Pay and Accounts Officer, Ministry of Overseas Indian Affairs, New Delhi towards the application fee.

2.1.2 Issue of permit by competent authority:

On receipt of the application, the competent authority may verify the facts contained in the application and may make the following inquiries to ascertain that the terms and conditions of employment are not discriminatory or exploitative:

  1. The basis on which the demand has been computed;
  2. The principle on which skills have been classified;
  3. Job contents of a post required to be filled;
  4. Scope of future prospects in various categories of jobs;
  5. Structure of supervisory control;
  6. Grievances procedure followed; and
  7. General reputation of the applicant and reports of specific misconduct, if any

      A permit issued under section 17 of the Act shall be in form VIII and shall be valid for a period of one year from the date of its issue or till the recruitment of the persons for whose recruitment such permit is issued is completed, whichever is earlier.

2.1.3 Bank Guarantee to be furnished:

The Permit shall be issued only after the applicant furnishes a bank guarantee of ten thousand rupees for every person intended to be recruited subject to a minimum of one lakh rupees and a maximum of twenty lakh rupees, valid for a period of one year over and above the duration of the employment contract.

2.1.4 Terms & conditions of the permit to Foreign Employers:

The permit shall be subject to the following conditions, namely;

  • The permit is not transferable;
  • the permit is valid for period of six months from the date of issue or the  date of completion of the recruitment, whichever is earlier;
  • Workers recruited on the strength of this permit shall not be repatriated on the ground that they do not possess the required skill;
  • The holder of the permit shall not obtain the assistance of recruiting agent in any manner;
  • The employment agreement with the worker shall be signed by the holder of the permit;
  • The holder of the permit shall be under obligation to treat the contract entered into with the worker as enforceable under the Labour Laws of the country of employment. It shall be his responsibility to file copies of the contracts with the concerned authorities in the country of employment;
  • The holder of the permit shall not supply manpower recruited on the strength of this permit to any other agency or concern;
  • The holder of the permit shall be responsible for the general welfare and redressal of specific grievances of the workers recruited on the strength of the permit during the period of contract;
  • The holder of the permit shall not extend the services of a worker after the expiry of contract without entering into a fresh contract or without extending the existing contract;
  • The holder of the permit shall notify to the Indian Mission in the country of employment each case of death or disability of a worker within 48 hours of the occurrence of the event. Similarly, information should be communicated to the next of kin in India in case of disability/death within 48 hours;
  • The holder of the permit is prohibited from supplying manpower for a work in another country to a country other than the country from which the permit has been issued.
  • The holder of the Permit shall-
    • Provide details of employment, including contract conditions, to the intending emigrants before recruitment;
    • Ensure proper reception of the emigrant in the country of employment;
    • Ensure that subsequent to the employment, the employer shall not alter the contract of employment;
    • Ensure timely action for renewal of documents authorizing stay of emigrant in the country of employment;
    • Not deprive the emigrant of the custody of his travel and employment documents;
    • Ensure advertisement for the genuineness of employer’s in respect of recruitment before it is released and shall refrain any inducement of misrepresentation in this regard;
    • File copies of all advertisements for recruitment to the Protector General of emigrants immediately after their publication or release.

2.1.5 Extension of permit

In case the employer is not able to complete the recruitment within six months, then he may make an application under section 18 of the Act for an extension of the period of validity of the permit, stating the reasons therein for not completing the recruitment within the prescribed period. The prescribed authority may extend the validity of the permit by such further period as it may think fit but not exceeding three months at a time.

2.2 Recruitment through the “Registered Agents” authorized under Emigration Act, 1983.

Alternatively the Foreign Employers can take up recruitment of Indian workers through the “registered agents” authorized under the Emigration Act, 1983 by issuing them the necessary recruitment documents duly authenticated by the employer himself or his authorized representative of the company well in advance.

2.2.1 Who are “Registered Agents”? How to identify a “Registered Agent”? How to verify the genuine of Registered Agent”?

To streamline recruitment for jobs abroad and to safeguard the interests of the emigrants, the Emigration Act, 1983 stipulates that only Recruiting Agents (RA) possessing registration certificate (RC) obtained from the ‘registering authority’ defined under the Act (i.e. from the Protector General of Emigrants (PGE)) can recruit for overseas employment.  Thus the registered agents are those persons/companies/firms who have a valid registration certificate (RC) issued by the PGE under section 10 of the Emigration Act, 1983. The certificate is granted after taking into account Recruiting Agent’s financial soundness, trustworthiness adequacy of premises, experience in the field of handling manpower export etc., and after obtaining a bank guarantee of Rs. 20 Lakhs. The security is intended to secure due performance of the terms and conditions of the Registration Certificate. Hence it is advisable to get your recruitments done through a Registered Recruiting Agent.

            To verify the genuinity of Recruiting Agents and to ensure that RA is active as on date the employers are advised as below:
            The information on the status of Registered Agent (RA) is hosted on the following website(s) of this Ministry:

  1. Visit www.poeonlin.gov.in and search for the details of the RC/RA under “RA search name wise”, “RC number wise” or by using string or phone number”.
  2. One can also visit www.poechennai.in and look for the status of RA/RC in case of RAs under POE, Chennai jurisdiction
  3. One can also get the credentials of RA verified by contacting any of the POE’s in India.
  4. POE Chennai contact numbers are: 044-24891337/24745610.

The name and RC number of the agent should be available in the website RC status should be valid (V) on the date. RA should not be under suspension(S) or Cancelled (C).

Note: All foreign employers are advised to undertake recruitment of Indian workers only through “Registered Agents” duly satisfying themselves about the genuinity of the agent as above. Entrusting the recruiting work to an unauthorized/unregistered agent is not only illegal but also entails the risk of ending with recruitment of poor quality workers. It also leads to exploitation of workers by the unscrupulous agents in terms of extraction of exorbitant service charges from them. Hence, the employers are requested not to entertain any illegal agents at any stage of the recruitment.

2.2.2 What is the mandatory recruitment documents required to be authorized by the Employers and given to the Registered Agents in India?

The following are the three major mandatory documents required to be authorized by the employer in his letter head and given to the Registered Agents in Indian to undertake recruitment of Indian workers.

  1. Demand Letter: A “demand means” the category wise, skill-wise number of workers required by the employer for being employed in his establishment. This includes description of job-specifications and salary offered. This should be in the letter head of the employer addressed to the registered agent in India.
  2. Power of Attorney: An employer shall authorize a recruiting agent in India, registered under the provisions of the Act, by a power of attorney executed in favour of the recruiting agent authorizing that recruiting agent for the purposes of the recruitment of persons on his behalf.

    The above power of attorney shall be valid for the period of the employment contract of the recruited workers even if the certificate of registration of such recruiting agent ceases to be valid before that period. Unless specified normally the power of attorney is construed to be valid for one year from the date of issue.

  3. Specimen Contract of Employment: In addition to the above, the employer is also, required to provide a “Specimen Contract of employment” in his letter head duly authorized to indicate the various terms and conditions of employment of the worker in advance.

2.2.3 What is meant by “prior attestation of recruitment documents” by Indian Mission? Whether all recruitment documents need prior attestation from all Indian missions?

“Prior attestation of recruitment documents” means a kind of authorization done by the Indian missions on the recruitment documents to certify the authenticity and genuine of the documents as well as the requirement for the workers by the Employer.

Currently, the Government of India has notified that for recruitment of Indian workers to the following Five Countries prior attestation of recruitment documents (Demand Letter, Power of Attorney and specimen contract of employment) for all categories is mandatory without which the employer/Indian Registered Agent will not be permitted to undertake recruitment in India by the Protectors of Emigrants. These Countries are

  1. Yemen
  2. Lebanon
  3. Libya
  4. Jordan and
  5. Sudan

2.2.4 What are the various categories of work for recruitment of which prior attestation of Indian missions is mandatory?

Prior attestation of recruitment documents by all Indian missions is mandatory for the recruitment of following specific categories of Indian workers:

  • Labour (all kinds of general labour)
  • Cleaner/ Cleaning Worker/ Cleaning Labour etc.
  • Operator ( General Machine operators)
  • Helper
  • House maid
  • House boy
  • Domestic Cook / House cook
  • Domestic Driver / House Driver
  • Domestic Servant (Male/ Female)
  • Gardener/ House Gardner.
  • Domestic worker (Male /Female)
  • Servant
  • Messenger
  • Office Boy/ Office worker
  • Agricultural workers/ Farm workers
  • Others Unskilled.

2.3 What are the terms and conditions that the specimen employment contract should contain as per Indian Emigration Act, 1983?

As per Rules 15 (2) of Emigration Rules, 1983 the contract of employment shall mandatorily provide for the following matters:

  • Period of employment/place of employment;
  • Wages and other conditions of service(should comply with minimum wages notified by Indian mission)
  • Free food or food allowance provision;
  • Free accommodation;
  • Provision in regard to disposal, or transportation to India, of dead body of the emigrant (at the own cost of employer himself);
  • Working hours, overtime allowance, other working conditions, leave and social security benefits as per local labour laws;
  • To-and-fro air-passage at the employer’s cost;
  • Mode of settlement of disputes.

2.4 What are the prevailing rates of ‘Minimum Wages’ notified by the Indian missions?

Under the directions of Govt. of India, the Indian Missions notify the minimum wages from time to time that should be adopted for payment by the Foreign Employers for various categories of Indian workers. These rates are notified after taking into consideration of various factors prevailing in the local labour market in the respective countries. The rates are available in the websites of the Indian Missions as well as the Offices of Protectors of Emigrants in India. The same is also available with the Indian Registered Agents. The employers are therefore advised to consult these rates and prefer their demand duly complying with the norms fixed by the Govt of India in this regard. The same should be mentioned category wise in the specimen contract for scrutiny by the POE in India. Demands failing to comply with the minimum wages prescribed will be rejected by the Protectors of Emigrants in India. The current rates of minimum wages for Indian workers in ECR countries are given here.

2.5 What is the normal time span involved in completing legal formalities for recruitment of Indian workers?

The Employers are advised to plan in advance for undertaking recruitment of Indian workers. The recruitment documents specified above shall be issued to the registered agents at least two months in advance of the actual time at which the workers are required to join the company so as to enable the Registered Agent complete the recruitment and legal formalities in India before effecting deployment of Indian workers in time. The foreign employers are therefore, advised not to rush up their requirements in the last minute and pressurize the Registered Agents to deploy the workers earliest.

2.6 What are the legal recruitment formalities done by the Registered agents in India after obtaining the recruitment documents from the employers?

Since, the registered agents are under regulation by the Emigration Act, 1983, their activities are monitored by the Protector of Emigrants (POE) under whose jurisdiction the they operate. On receiving a demand from the employer the registered agent submits the recruitment documents to the POE and proceeds to initiate the recruitment activities by placing advertisements in dailies and arranging to conduct interview/trade tests etc. after duly intimating the POE of their intention in advance from time to time. The POE also gets the recruitment documents verified from the employer as well as the Indian Missions for its authenticity and genuiness.

During the course of this, the FE representatives are advised to participate and select the workers required according to the standards the company needs.

Once the recruitment is over and the candidates are short listed, depending upon the country and category of workers the RA arranges for medical fitness test, certificate attestation, police clearance certificate, Emigration Clearance etc to the workers so as to get them ready for deployment under the employer for whom they were recruited.

2.7 What is ‘Emigration Clearance’?

Emigration Clearance’ (EC) is the legal authorization for ‘emigration’ obtained in the prescribed manner and form from the Protector of Emigrants (POE).  Emigration clearance is issued under provisions of Sec 22(1) of the Emigration Act 1983.  This authorization is currently issued in the form of a ‘security sticker’ duly signed by the POE and gets pasted on the passport of the emigrant who requires Emigration Clearance. 

2.8 Who requires Emigration Clearance?

All Indian citizens whose Passports have been categorized as “Emigration Check Required” (ECR) are required to obtain Emigration Clearance (EC) from the POEs before proceeding to specified “ECR Countries” for the purpose of employment.  As of now the Passports of all those persons whose educational qualification is below matric or 10th Standard are categorized as ECR Passports. An endorsement (ECR seal/stamp/remark) to this effect is provided either in the second page or in the last page of the Passport by the passport authorities in India ie. Regional Passport officers (RPOs) at the time of issue of Passports.

The employers are, therefore, advised to be aware of these legal requirements before recruiting Indian workers as well ensure that the Indian workers recruited obtain necessary Emigration Clearance if they are of ECR category. Recruiting Indian Workers without adhering to these legal requirements is illegal.

3. What are the responsibilities of Foreign Employers while undertaking recruitment of Indian workers in India arranged by the RA?

  1. Obtain permit of Government of India under Sec (17) for direct recruitment or recruit through Registered Agents authorized under the Emigration Act 1983.
  2. Indentify the genuine of RA and ensure that you deal with the registered agent only through the requirement.
  3. Issue the mandatory recruitment documents well in advance in your letter heads to the registered agent selected and ask him to arrange for advt/interview schedules in India in potential area.
  4. Do take part in the interview selection tests, trade tests and see for yourselves the quality of workers according to the trade. Do not leave the entire selection process un supervised by your side and end up in getting substandard workers.
  5. Do interact with the workers on the selection venues and counsel them about your company, nature of work, salary offered other conditions of service and facilities offered by your firm.
  6. Issue work visa and required flight tickets in advance so that the RA can complete the emigration formalities, if any, in time.
  7. Confirm the genuine of recruitment documents to the Protectors of Emigrants under whose jurisdiction the recruitment take place.
  8. Confirm the changes/alterations in visa obtained from your local authorities to the Protector of Emigrants concerned for problem free emigration clearance of workers selected.

4. What are the responsibilities of the FE after getting the Indian workers deployed to their company or under them?

  1. Arrange to receive the workers in the airport properly and see them accommodated comfortably as per contract agreement.
  2. Arrange to complete the medical fitness formalities within time.
  3. Arrange to obtain “residence permit” or ‘Iqama‘ and necessary “work site insurance” in time for all the workers.
  4. Arrange to pay the salaries including overtime charges to the workers in time and most preferably through online mode in the SB accounts of the workers.
  5. Arrange to take care of the workers in case of medical emergencies like injury, sickness etc.
  6. Arrange to train the workers about the safety precautions at work place duly providing them with necessary safety gears.
  7. On completion of contract period arrange to pay all pending dues, gratuity, leave, and compensation etc in time and complete their exit formalities.
  8. It is always advisable to have a proper leave plan for the workers so as to accommodate the leave requests of the workers in deserving cases, like worker getting married, death of near and dear, medical emergency of close relatives etc.
  9. Have the “termination of contract” clause explained to all workers immediately on tier arrival in the company. In you final any worker is unmanageable or rebellious it is advisable to isolate and repatriate him at the earliest duly setting all his dues of salaries etc.
  10. Last but not the least, treat the worker “humanely”

5. Where to make a complaint in case of problems/grievances with the Registered Agents/Indian workers?

  1. If it comes to the attention of the company that the registered agent has obtained exorbitant service charges beyond the prescribed maximum of Rs. 20,000/- from the workers, the matter may please be brought to the notice of the Indian Embassy, Protector of Emigrants (or) Protector General of Emigrants, Ministry of Overseas Indian Affairs, Government of India for necessary action. The contact details of the POE’s/PGE is given in the Ministry of Overseas Indian Affairs website viz. www.moia.gov.in.
  2. In case of problems/grievances of the workers, kindly arrange to keep the Indian Registered Agent and the Embassy informed of the development from time to time and resolve the issues amicably at the earliest in consultation with the Embassy of India.

6. What happens if the employer fails to attend to the grievances of the workers or reluctant to resolve the issues in time? What is “Prior approval List“ (PAC) of Foreign Employers?/ What is “Blacklist” or Blacklisted” Company?

Whenever a complaint is received from the worker or grievances of the workers brought to the notice of the employer, it is adviced that the employer attends to it carefully and resolves the same in coordination with the registered agents/ Indian Embassy. Failure of the employer to take up the same in time, will result in workers approaching the Indian missions or POE/PGE or Ministry of overseas Indian Affairs directly and the authorities above will have to intervene on the same. Even after intervention by the Indian authorities above, if an employer fails to resolve the issues or reluctant to attend to the grievances of the workers, the employer will be placed under “Prior Approval Category”(PAC) of the Ministry by the Protector General of Emigrants. The same is known as “Blacklisting” of the employer in common parlance. An employer under “PAC” /Black list” will not be permitted to recruit Indian workers with effect from the date of placing them in the PAC list thus leading to adverse consequences on the business prospects of the employer. Only after satisfactory resolving of the issues and after reconciliations and due promise and recommendation of employer by the Indian Mission the name of employer will be removed from the PAC list.

7. What is the recruitment charges payable to the registered agents?

Though the Indian Emigration Act, 1983 does not provide for any specific rate of recruitment charges to be paid to the Registered Agents, it is always advisable that the employer signs an agreement with the Recruiting Agent regarding the charges per head that will be paid by the employer to the Registered Agents as recruitment charges. This can be further specified that the RA will not collect any charges from the workers.

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