Migrant workers in malaysia & protection under domestic law


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Migrant workers in malaysia & protection under domestic law

  1. 1. Migrant Workers in Malaysia & Protection Under Domestic Law Dato’ M. Ramachelvam Available Rights Without Effective Means of Claiming Them Is a MockeryMalaysia is reputed to have the largest number of migrant workers in Asia. Thegovernment classifies these migrant workers into documented andundocumented migrants. Some say regular migrants and irregular migrants.Some use the term ‘illegal migrants’ when they refer to the undocumentedmigrants, but the term is derogatory as no person no human being should everbe called illegal. The preferred term would be documented and undocumentedmigrants, and this will be used in my paper.To the government, documented migrant worker is a worker that has thenecessary documents, i.e. work permit/pas/visa that the law requires before themigrant worker can work. All others are called ‘undocumented workers’.The term undocumented workers are used also to those did once have validdocuments, but now their work permit/pas/visa has expired. It also refers to thosewho never did have any documents from the very beginning that allows them towork. A person who has valid passports, and came into the country legally with asocial visit pass, and the persons who smuggled into the country are alsoconsidered undocumented migrant workers. Even those who have come into thecountry seeking asylum and refugee status, and even those who have beengiven the said status by the United Nations High Commission for Refugees(UNHCR), are considered by the Malaysian government to be undocumentedmigrants.Our focus today in this paper shall be the migrant worker, irrespective of whetherdocumented or undocumented, and the existing protection that is available inMalaysia’s employment laws.Equality and Equal Treatment Under The LawArticle 8 of the Federal Constitution of Malaysia provides that “All Persons areequal before the law and is entitled to equal protection of the law” and by the useof term “person” as opposed to ‘citizen’, it is most clear that this guarantee ofrights extends to all persons, including migrant workers, be they documented orundocumented. It must be pointed out that 6 of the 13 Articles under Part II of theFederal Constitution entitled ‘Fundamental Liberties’ uses the word “persons” asopposed to word ”citizens”, and as such usage of the word ‘persons’ in Article 8clearlyi is not conscious but also important. 1
  2. 2. This equality is also reflected in our Employment Act 1955 which applies to allworkers, irrespective of whether the person is a local worker or a foreign worker(migrant worker). In section 2 of the Employment Act, being the interpretationsection, the term employee is defined as: "employee" means any person or class of persons- (a) included in any category in the First Schedule to the extent specified therein; or (b) in respect of whom the Minister makes an order under subsection (3) or section 2A;In the First Schedule, item 1 which describes the first category of workers. “...1. Any person, irrespective of his occupation, who has entered into a contract of service with an employer under which such persons wages do not exceed one thousand five hundred ringgit a month....”And, item 2, describes the other category of workers covered by the Act. “2. Any person who, irrespective of the amount of wages he earns in a month, has entered into a contract of service with an employer in pursuance of which…”Section 60L of the Employment Act reinforces this concept of equality, and theprohibition of discrimination between workers. The right to complain aboutdiscrimination is accorded to all workers, local or migrant, and the duty isimposed on the Director General of Labour to inquire into these complaints. 60L. Director General may inquire into complaint. (1) The Director General may inquire into any complaint from a local employee that he is being discriminated against in relation to a foreign employee, or from a foreign employee that he is being discriminated against in relation to a local employee, by his employer in respect of the terms and conditions of his employment; and the Director General may issue to the employer such directives as may be necessary or expedient to resolve the matter. (2) An employer who fails to comply with any directive of the Director General issued under subsection (1) commits an offence. 2
  3. 3. Domestic Laws that apply to Migrant WorkersBesides the Federal Constitution, some of the domestic employment related lawsthat is applicable to workers, including the Migrant Worker, are:-  Employment Act 1955 (West Malaysia)  Sabah Labour Ordinance (Sabah)  Sarawak Labour Ordinance (Sarawak)  Workmen’s Compensation Act 1952  Worker’s Minimum Standard of Housing and Amenities Act 1990  Children and Young Persons Act 1966  Industrial Relations Act 1967  Trade Unions Act 1959  Occupational Safety and Health Act 1994  Wages Council Act 1947Sadly, I would not have the time and opportunity to deal with all these laws indepth. In my paper, I would only touch on matters that I believe are important.Briefly, the other law that relates to Migrant Workers is the Immigration Act1959/60. There are 3 kinds of passes, and visas that is mentioned in theImmigration Regulations 1963 that permits foreign nationals entering Malaysia towork. They are the Employment Pass [Regulation 9], Visit Pass (TemporaryEmployment) [Regulation 11 (1)(ii)] and the Work Pass for Sabah [Regulation16].Migrant Workers and Trade UnionsMigrant workers can join and be a part of a trade union but is prohibited fromholding an executive position in trade union, i.e. Section 28(1) of the Trade UnionAct 1959. The section is, I believe, is ultra vires the Federal Constitution, i.e.Article 8 whereby this is certainly not one of the permissible discriminations listedin Article 8. 28. Officers. (1) A person shall not be or act as a member of the executive of a trade union or any branch thereof, or of any federation of trade unions, and shall be disqualified for election as such member, if- (a) he is not a citizen of the Federation; (b) 3
  4. 4. Considering the Trade Unions Act 1959, in particular section 2(the Interpretationsection), it is clear that the act does not distinguish on the basis of nationality of‘employees’ or ‘workmen”. "employee", when used with reference to a trade union or political party means any person who is engaged for hire or reward on a full-time or part-time basis; "workmen" means any person, including an apprentice, employed by an employer under a contract of employment to work for hire or reward and for the purposes of any proceedings in relation to a trade dispute includes any such person who has been dismissed, discharged or retrenched in connection with or as a consequence of that dispute or whose dismissal, discharge or retrenchment has led to that dispute.The definition of Trade Union in the Act is also important. "trade union" or "union" means any association or combination of workmen or employers, being workmen whose place of work is in West Malaysia, Sabah or Sarawak as the case may be, or employers employing workmen in West Malaysia, Sabah or Sarawak, as the case may be- (a) within any particular establishment trade, occupation or industry or within any similar trades, occupations or industries: and (b) whether temporary or permanent; and (c) having among its objects one or more of the following objects- (i) the regulation of relations between workmen and employers, for the purposes of promoting good industrial relations between workmen and employers, improving the working conditions of workmen or enhancing their economic and social status, or increasing productivity; (ia) the regulation of relations between workmen and workmen, or between employers and employers; (ii) the representation of either workmen or employers in trade disputes; (iia) the conducting of, or dealing with, trade disputes and matters related thereto; or (iii) the promotion or organisation or financing of strikes or lock-outs is any trade or industry or the provision of pay or other benefits for its members during a strike or lock-out; 4
  5. 5. When we consider the specific provisions as to the formation of unions, we againsee that there is no deprivation of the right to migrant workers from formingunions. 9. Date of establishment of trade union. (1) For the purposes of this Act, a trade union is established on the first date on which any workmen or employers agree to become or to create an association or combination within any particular establishment, trade, occupation or industry, and whether temporary or permanent, for the furtherance of any one or more of the objects specified in the DEFINITION of a trade union in section 2….Further, Section 8 of the Employment Act 1955 also clearly recognizes the rightof migrant workers to organize trade unions. 8. Contracts of service not to restrict rights of employees to join, participate in or organize trade unions. Nothing in any contract of service shall in any manner restrict the right of any employee who is a party to such contract- (a) to join a registered trade union; (b) to participate in the activities of a registered trade union, whether as an officer of such union or otherwise; or (c) to associate with any other persons for the purpose of organising a trade union in accordance with the Trade Unions Act 1959.Today, the government has permitted certain employers, like the outsourcingcompanies and labour supply companies, to have almost all workers who aremigrant workers, and surely these workers/employees must have the same rightas accorded to all other workers in Malaysia. Surely, workers in these companiesalso should be accorded the right to form unions.Migrant Worker and Social SecurityIn Malaysia, whilst local workers are generally covered by the Social SecurityAct, migrant workers are covered by the Workmen’s Compensation Act.The Workmens Compensation (Foreign Workers Compensation Scheme)(Insurance) Order 1998, imposed a further obligation on employers to get aninsurance policy for their worker, which provides additional benefits in the eventof death of a workman from personal injury sustained in an accident which arises 5
  6. 6. out of and in the course of his employment, and also covers accidents whichoccurs outside the working hours of a workman 4. Additional benefits. The insurer, in addition to its contractual obligations to pay in accordance with the policy of insurance subscribed by the employer in favour of his workman, shall provide under the Scheme the following additional benefits without imposing any additional premium on the employer: (a) a sum of two thousand ringgit in the event of death of a workman from personal injury sustained in an accident which arises out of and in the course of his employment; (b) where the personal injury is sustained in an accident which occurs outside the working hours of a workman – (i) a sum of twenty thousand ringgit in the event of death or permanent total disablement; and (ii) a sum of money equivalent to the amount of compensation awarded under section 8 of the Act for, and in the event of, permanent partial disablement or temporary disablement; and (c) a sum of four thousand eight hundred ringgit or the actual expenses incurred in repatriating a workman to his country of origin in the event of his death or permanent total disablement, whichever is the lesser.Maybe employers should also be required to get a similar insurance for localworkers that will cover accidents which occurs outside the working hours of theworkmanMigrant Worker and Access to JusticeWhilst Migrant Worker rights are protected under Malaysian laws, the problem isin accessing justice. They have the right to make complaints to the LabourDepartment, which includes access to the Labour Court. They also have right torefer their complaints to the Industrial Relations Department, and eventually tothe Industrial Courts in cases including wrongful dismissal.The problem, however, lies in the fact that their employmentpermits/visas/passes are usually limited to one employer only, and when they doattempt to avail themselves to the procedures and avenues of justice, employerscan and tend to cancel their permits/visas/passes and their options are to leavethe country, or become undocumented migrants who may be arrested, detainedand deported. 6
  7. 7. There is a really a need for the Malaysian government to consider practices inother countries that do provide board and shelter for migrant workers as theypursue their rights in the Labour Departments, Labour Courts, Industrial Courtsand even the Civil Courts.The other option is for the variation of their permits/visas/passes so that theseworkers can work with other employers whilst they pursue their rights.The Immigration Department, however, is more inclined to provide them withSpecial Passes (Regulation 14, Immigration Regulations, 1963), but thesenormally will cost the worker RM100 per month, and without employment andsources of income it really does not help much.The Director General of Immigration does have wide powers, and this includesthe power to vary permits/visas/passes, which could include the durations andeven the name of the employer. An example of a case when the Director Generalof Immigration did use this power to change the name of the employer, andextend the duration of permits/visas/passes was in the case of RajakannuBoopathyii.I call upon the Government to implement the recommendations made in the BarCouncil Memorandum on the Special Passiii which recommends inter-alia:- (i) That a migrant worker pursuing legal remedy be allowed to remain in the country until conclusion of the legal proceedings; (ii) Whilst remaining in the country, the migrant worker be allowed to work; (iii) That the fee for the Special Pass be waived; (iv) That cases involving migrant workers be given priority and be expedited.Inadequacies In Domestic Employment ActForeign Workers First Out= (FWFO) policy when it comes to retrenchment findssupport in section 60N of the Employment Act, 1955. The section, I believe, isalso ultra vires the Federal Constitution, i.e. Article 8 whereby this is certainly notone of the permissible discriminations as provided in Article 8.It also is contrary to the right not to be discriminated as stated in section 60L ofthe Employment Act. I support the stance taken by 51 civil society groupsiv callingfor an end of this unjust, discriminatory and unconstitutional policy and practice,known as Foreign Workers First Out = (FWFO) principle. The Last In First Out(LIFO) principle should be used for all workers, irrespective of whether they arelocal workers or migrant workers. 7
  8. 8. 60N. Termination of employment by reason of redundancy. Where an employer is required to reduce his workforce by reason of redundancy necessitating the retrenchment of any number of employees, the employer shall not terminate the services of a local employee unless he has first terminated the services of all foreign employees employed by him in a capacity similar to that of the local employee.Employment (Termination And Lay-Off Benefits)When workers in Malaysia are laid off or retrenched, by virtue of section 60J ofthe Employment Act, we have Employment (Termination And Lay-Off Benefits)Regulations 1980. 60J. Termination, lay-off and retirement benefits. (1) The Minister may, by regulations made under this Act, provide for the entitlement of employees to, and for the payment by employers of- (a) termination benefits; (b) lay-off benefits; (c) retirement benefits.The changing patterns of employment in Malaysia make this Regulation nolonger appropriate or just. Today, employers tend to employ workers for a shortfixed term, which usually could range from 6 months to 3 years. This applies toboth local and migrant workers.The Employment (Termination And Lay-Off Benefits) Regulations 1980 may begood for ‘old fashioned’ long term employees, but not these new fixed short-termworkers. Firstly, the Regulations is clear that there is no benefits available if onehas been employed for less than 12 months, and the number of years ofemployment is the factor for calculating the benefits the worker gets. 3. General provisions for the entitlement of employees to termination or lay-off benefits payment. [Employment (Termination And Lay-Off Benefits) Regulations 1980] (1) Subject to these Regulations, an employer shall be liable to pay termination or lay-off benefits payment calculated in accordance with regulation 6 to an employee who has been employed under a continuous contract of service for a period of not less than twelve months ending with the relevant date if — 8
  9. 9. (a) the contract of service of the employee is terminated; or (b) the employee is laid-off within the meaning of regulation 5….These regulations will do justice for the long-termed employee but surely not forthe short-fixed-term worker, which include Migrant Workers. 6. Amount of termination or lay-off benefits payment.[ Employment (Termination And Lay-Off Benefits) Regulations 1980] (1) Subject to the provisions of these Regulations, the amount of termination or lay-off benefits payment to which an employee is entitled in any case shall not be less than — (a) ten days’ wages for every year of employment under a continuous contract of service with the employer if he has been employed by that employer for a period of less than two years; or (b) fifteen days’ wages for every year of employment under a continuous contract of service with the employer if he has been employed by that employer for two years or more but less than five years; or (c) twenty days’ wages for every year of employment under a continuous contract of service with the employer if he has been employed by that employer for five years or more, and pro-rata as respect an incomplete year, calculated to the nearest month.By reason of the continued existence of section 60J and the Employment(Termination And Lay-Off Benefits) Regulations 1980, it does great injustice tothe short-fixed-term worker. There really must be a new section in theEmployment Act, and maybe even amendment in the Employment (TerminationAnd Lay-Off Benefits) Regulations 1980 to provide for calculation of termination,lay-off and retrenchment benefits for short-fixed term workers. What would be fairand just is that these workers, who do not have the security of long-termedemployment, should maybe be paid at the very least the basic monthly wages forthe number of months remaining in their fixed-term contracts. For the migrantworker, this will definitely be just considering the amount of monies that themigrant workers had spent coming to Malaysia and the sacrifices they made,including separation from their loved ones. Many migrants also incur debts whenthey come over to Malaysia to work. 9
  10. 10. Worker’s Minimum Standard of Housing and Amenities Act 1990Whilst these laws do cover worker’s housing, accommodation and amenities inplantations, it really must be amended to cover all migrant workers, including alsothe domestic worker.ConclusionsWhilst there are good laws that protect Migrant Workers in Malaysia, the problemthat needs our attention is the question of access of justice, a matter that the BarCouncil is seriously concerned.v How can the migrant worker be able to claim hisright if he has to leave the country because the worker’s permits/visas/passeshave expired (or been revoked) and our immigration laws require that them toleave immediately. Coming back to Malaysia, not once but maybe several times,to give evidence in their trial or to attend the statutory meetings at the LabourDepartment or Industrial Relations Department is beyond the means of thesemigrant workers. Hence, all we may have in Malaysia is a beautiful proclamationof rights which really does no justice to migrant workers.i Article 5 (Liberty of the Person), Article 6(Slavery and Forced Labour Prohibited), Art.7 (Prohibitionagainst retrospective criminal laws and repeated trials), Art. 8(Equality), Art. 11(Freedom of Religion) andArticle 13 (Right to Property) are amongst the 8 Articles under Part II (Fundamental Liberties) of theFederal Constitution that applies to all persons. Art. 9(prohibition from Banishment and Freedom ofMovement), Art.10(Freedom of Speech, Assembly and Association), Art.12 (Rights in Respect ofEducation) uses the word “citizen” and not “persons”.ii Rajakanu Boopathy & 35 Ors –v- Ketua Pengarah Imigresen Malaysia & Anor (Kuala Lumpur HighCourt Usul Pemula No:: R2-25-76 TAHUN 2000]iii Bar Council Memorandum Relating to Special Passiv Media Statement B 14/3/ 2009 - Malaysia=s >Foreign Workers First Out= Policy Is Unjust,Discriminatory And Unconstitutional (Endorsed by 59 Civil Society Groups)v Developing a Comprehensive Policy Framework for Migrant Labour – Bar Council – 16th July 2008. 10