Tim Elliot: Hello and welcome to Lawgical, the U.A.E.’s first and only regular legal podcast. My name’s Tim Elliot. Lawgical comes to you from the Dubai-based legal firm, HPL Yamalova & Plewka here in JLT, Jumeirah Lakes Towers, and as always, here is the Managing Partner, Ludmila Yamalova. To see you, it is good as ever.
Ludmila Yamalova: Always happy to see you, Tim.
Tim Elliot: This time we’re looking at the new law regarding the executive regulations for the domestic workers. We have discussed this a number of times, Ludmila. The new law is dated November 30, 2022 and published in the official Gazette in December and received, I guess, by your office just in the new year a couple of weeks ago. You’re currently reviewing this new piece of legislation, Ludmila. You are comparing it to the previous law. Let’s look at some of the highlights today. I want to start with an overview of the domestic workers law. This is Federal Decree Law Number 9 of 2022 about domestic workers and it amends and replaces previous laws. The previous law was from 2017. That came into effect on December 15, 2022. We discussed it in Lawgical back in November. Just briefly the headlines of that law, if you would, to set the context.
Ludmila Yamalova: The new law, Degree Law Number 9 of 2022 regarding domestic workers, replaced the previous law from 2017. The 2017 law became ultimately of no effect in lieu of this new domestic worker law from 2022.
The law mentioned the subsequent introduction of executive regulations and degrees to further clarify or explain certain parts of the main law, so to speak. This, by the way, is quite typical, not just in the U.A.E., but in other jurisdictions that you have the main law and the main law sets out a skeleton or a main framework for a particular legal initiative, and then further decrees, decisions, or resolutions or issues to clarify, further define, or specify certain aspects of the main law. That is how legislation in the U.A.E. in particular is developed, forms, and evolves.
We have a specific podcast on the new domestic employee law, and we described the main benefits and the differences between the old law and the new law. For the most part, the new law clarified and restructured and organized a lot more in terms of rights and benefits of domestic employees versus employers. Employers could be individual employers or agencies.
The previous version of the law was a little more sparse in terms of obligations and rights between recruitment agencies and employers and domestic employees, and there was a lot more emphasis on recruitment agencies and what rights and obligations they had vis a vis employers, individual employers, and there was a little less focus, if you will, on the domestic employees themselves. It was more between the two types of employers.
The new domestic employee law becomes more clear and more defined on the rights and benefits of domestic employees and the requirements and obligations of employers, be it recruitment agencies or individual employers, vis a vis, or towards their domestic employees. It is more clear, succinct, and easier to follow in terms of understanding the rights and benefits of domestic employees. Remember, domestic employees, here we are talking about nannies, drivers, cooks, chefs, and personal trainers, and so and so forth. These are domestic employees that ultimately live or are hired to take care of the family’s individual and personal needs.
One aspect of the new law that is different from the previous 2017 version is the end of service. We have talked about the concept of end of service on this podcast in different segments. It is the U.A.E.’s version of a pension plan. It is a very commonly known right and entitlement in the U.A.E. for employees both in the private sector and in the public sector. It is called end of service or gratuity. Historically the end of service and the labor law in general did not apply to domestic employees until 2017 when a specific law was introduced for domestic employees, and as a result of that law, there was a specific provision that introduced the concept of end of service for domestic employees.
As per that 2017 law, technically speaking, all domestic employees were entitled to end of service and that end of service was two weeks of salary for every year of service, and it had to be paid out every two years and that is because most domestic employee contracts were for two years, and so every time you would renew the contract, legally speaking, the employer had to pay the domestic employee the end of service, which was about an extra month of salary since it is two weeks for every year of service, and that was irrespective of whether that employment relationship was terminated or renewed.
That is how ultimately the law was structured, and we have talked about it on this podcast, the radio, and also some other social media updates, because it was very obvious that many employers were not aware because this was a new concept. While end of service was a concept that existed for the private sector from the very beginning, for domestic employees this was brand new concept, and therefore a lot of employers were not aware or willfully not wanting to know. This is why we talked about this on so many different platforms to help educate both the domestic employees and their employers about this particular entitlement. We thought it was a very good introduction and a good benefit, although I can tell you many employers were still not following the law.
Now the new law that replaces the 2017 law mentioned that end of service will be further defined in subsequent decrees and regulations. The main law made a reference to end of service, but unlike the previous version, the 2017, in which the main law included a specific provision on end of service, and that was the two weeks for every year of service paid out every two years. The new law did away with the whole provision with a skinny provision just on end of service, stating that end of service will be further detailed in cabinet resolutions or further executive regulations that will follow shortly.
In other words, there was a mention in the new law on end of service for domestic employees, but it did not specify how it was going to be calculated, what it was going to be. We operated on the assumption that it would be the same model as in the previous version, the 2017 version, and I think I even commented in our previous podcast that I anticipate that until the new regulations are issued that the same two weeks of salary for every year of service would remain.
Now since then a cabinet resolution has been issued, and that is Cabinet Resolution Number 106 of 2022 regarding executive regulations for the main law. This new resolution or cabinet decision does not actually mention anything about end of service. In other words, it just makes no references, and this was going to be the decree or the cabinet resolution that was going to further specify how end of service was going to be calculated, how it was going to be paid, and so on and so forth.
Remember, the main law makes a reference to end of service, but states that it will be decided and spelled out in this cabinet resolution. The cabinet resolution has now been issued, but it is silent on end of service. The summary of this then, the logical conclusion, is that the new domestic employee law has done away with the payment of the end of service for domestic employee. In other words, domestic employees are no longer entitled to end-of-service benefits. That is one interpretation. That is because the previous 2017 law that mentioned domestic employee benefits and the end-of-service benefits for domestic employees is no more. That was a source of law that we relied on in arguing for the entitlement or gratuity or end of service for domestic employees. But that law wasn’t just purely amended. It was cancelled out altogether. Therefore, we can no longer refer to that law. We can only refer to the 2022 law regarding domestic workers and that law mention the words, end of service, it does not really spell out how it is going to be calculated and whether it is even an entitlement to begin with. It just states that it will be further described or addressed in subsequent regulations. The subsequent regulation, Cabinet Resolution Number 106 of 2022, does not mention anything about end of service.
The two conclusions are that (1) for the time being, if you are a domestic employee, and you want to claim end of service, there is no more legal authority for you to rely on to assert that entitlement, and therefore the authorities have done away with end of service for domestic employees, and the other potential conclusion is that (2) there will be another decree or another resolution in the future that might introduce a specific provision for domestic employee end-of-service benefits, but for the time being, as things stand right now in January 2023, if a domestic employee were to make a claim there is no more authority for them to rely on to make that claim. In other words, there is no more end of service for domestic employees unless new regulations will be issued later, and if that were the case, then we definitely will address it.
Tim Elliot: Okay. We will obviously look at that down the road if something does happen. One of the things here is that there are a number of new penalties, and there is also a new addition. I wanted to ask you about this. I guess we start with this before the penalties, Ludmila, but this is the concept of employee consent. What does that mean?
Ludmila Yamalova: Yeah. Basically, the new law provides that domestic employees may work at the employer’s family of a second degree, but even then, it has to be with the employees’ consent. In the past, and this was very typical in the bigger, traditional families, local families or Indian families that tend to have more extended family way of living, where they live in compounds and villas, and let’s say one family would hire a domestic employee and then would ask that domestic employee to go work for an aunt, uncle, grandfather, or grandmother, and so on and so forth. It was a lot easier, the fluidity of that domestic employee was more common like that, but as per this new law, (1) you can only allow your domestic employee to go work for the second degree relative, not to the uncle and aunts, but it could be your parents or your children, and that is the more limited extent of this familial fluidity, and even then (2) it has to be with the worker’s consent.
If I hired a nanny to work for my children, I cannot assume and send her to go work for my uncle or for my sister in law because that is now, first of all, by law that is not a second degree. Second, even if I wanted her to work for my mother, I would have to get her consent.
I think this is quite significant because for a lot of people, they just felt like they never really knew who their employer was because they were sponsored by one employer and then worked for a remote relative and their legal status was more complex for them to understand exactly who they had to report to and who they were employed by.
Tim Elliot: What about, then, penalties that have been introduced or added in the new regulations?
Ludmila Yamalova: This actually is a significantly positive development in the new regulation because it is sets out a whole list of penalties that the authority that governs domestic employees, the Ministry of Human Resources & Emiratisation (MOHRE), can impose on employers. These are penalties on employers. Historically, if you recall, anytime we talked about – not anytime – that is a huge generalization, but often when we talk about domestic employees there is always an emphasis on what employers can do, how they can punish domestic employees, and not an emphasis on the rights of the domestic employees vis a vis their employers. This new law turns that whole dynamic upside down and is a lot more assertive about what rights domestic employees have vis a vis their employers, and therefore the punishment or penalties that the employers are subject to in the event they don’t follow the law, they violate the law, and they are noncompliant with this law.
For example, there is a whole list of penalties and perhaps a separate podcast on this topic alone. There are a lot of specific penalties that MOHRE now has direct authority to impose on the employers. For example, not paying the domestic employees’ salaries in a timely manner, not giving them access to their documents, or not providing them with the right conditions, and (1) there is a specific penalty for each one of these violations, and (2) now MOHRE has the direct authority to impose penalties on employers through the system by which it registers employees. It will much easier to impose and enforce the penalty on the employers than perhaps was previously the case. In other words, you do not have to go to court to impose these penalties on employers. MOHRE can do it by virtue of the system through which it registers employees. I think it is a lot more effective mechanism now to ensure that employers treat their domestic employees correctly and that they pay all of their benefits in a timely manner, and in the event that they don’t, there is a much more direct system of enforceability and punishment on employers.
Tim Elliot: That’s another episode of Lawgical, the new law regarding the executive regulations for the domestic worker law in the U.A.E. There is also a full podcast on the new domestic worker law as well. Our legal expert, as ever, Ludmila Yamalova, the Managing Partner here at Yamalova & Plewka. As always, thank you.
Ludmila Yamalova: Thank you, Tim.
Tim Elliot: Find us at LYLAW on Facebook, Instagram, TikTok, LinkedIn, wherever you are on social media. We have a huge, ever-growing library of hundreds of podcasts, all free to listen to and covering all kinds of legal matters here in the U.A.E. as well. To have a legal question answered in a future Lawgical episode or to talk to a qualified U.A.E. experienced legal professional, click on Contact at LYLawyers.com.
