ISSUANCE OF NOC IS A WORKER'S RIGHT
On April 1981, Qatar enforced Law No. (5) of 1981 providing among others that "work visa shall not be granted before a two-year-period since the last departure of the foreigner who had already worked in the country". The Minister of Interior, in matters of public interest, may grant this visa without abiding by the aforementioned period.
The 2-year ban under Law No. of 1981 appears absolute and only the Minister of Interior, on matters of public interest, can relax the ban and grant visa to a returning worker.
Mindful of the baseless perception that the employment environment in Qatar has been a virtual slavery in view of the absolute prohibition under Law No. 5 of 1981, the State, on 19 May 2004, enforced Law No. (14) of 2004, otherwise known as Qatar Labor Law, where Article 43 thereof impliedly amended Law No. (5) of 1981 by delegating to Employers the absolute discretion to grant visa to a returning worker. Article 43 is hereby reproduced as follows:
Any condition in a service contract shall be void when it contains an undertaking by the worker to work for the rest of his life with the employer or to abstain from carrying out any craft or profession which may be carried out after leaving the work even if the contract is agreed before the coming into force of this law.
If the nature of the work allows the worker to know the clients of the employer or the secrets of the business of the establishment, the employer may stipulate that the worker shall not compete with him or participate in any undertaking competing with him after expiry of the contract. Such stipulation shall be valid only if it is restricted as to its duration and place and to type of the work to the extent necessary for the protection of the legitimate interests of the employer. The period of such undertaking shall not exceed two years.
The first paragraph of Article 43 expressly prohibits employers from engaging in employment slavery, and the second paragraph provides a guideline where the employer may issue NOC to the worker. Thus, if the worker knows the secrets of his employer's business the employer may stipulate that said employee shall not compete with him or participate in any undertaking in competition with the worker's employer.
Article 43 expressly proscribes employment slavery, and it went further by giving guideline to employers in the issuance of the NOC. Insofar as the law as it now stands, issuance of NOC has now become a matter of right for the workers, only that the employers are given the same right to limit the areas of possible employment of returning workers. The right of employers to impose restriction is not without further qualification, for the law states that restriction will be valid only if it is restricted in duration, place and type of work and such restriction cannot exceed two years.
In most civil and common law jurisdictions, Rules of Judicial Procedure provides for an action under which a party to a "future" dispute may seek clarification under existing law or contract before violation thereof is committed. This action is generally referred to as Petition for Declaratory Relief. While this proponent is not quite familiar with the existence or absence of such procedure in Qatar, the most proper recourse is to put to test the express mandate of Article 43 of Law No 14 via a similar petition.
Meantime, arguments in support of the express mandate of Article 43 should be elucidated so that your collective voices may heard, and workers can now demand as a matter of right the issuance of NOC by the employers, subject to the above limitations provided by law. Have time to provide your most eloquent arguments or comments behind this endeavour.