Malaysia is one of Asia's biggest employers of foreign labour. But recently, cases of deaths, abuse and forced labour have come to light. What is going on? Who is protecting these migrant workers?
Today, there are
about 1.8 million registered (or documented) migrant workers in Malaysia. 15 countries
now supply workers in various employment sectors in Malaysia with the largest
number coming from Indonesia (1.2 million ) followed by Nepal which provides 170,000
workers. Other sending countries include India, Sri Lanka, Bangladesh, Pakistan,
Burma, Thailand, Vietnam, Timor Leste and the Philippines.
<P>According to government
estimates, there is an equivalent number of unregistered (or undocumented) migrant
workers in Malaysia, and today that means at least 1.8 million undocumented workers.
The actual figure of unregistered (or undocumented) migrant workers in Malaysia
could be about 5 million. This estimate is supported by the fact that official
entry-exit records in 2004 showed that there were about 5,852,997 persons or 38%
of the total arrivals overstaying. In fact, recently our Home Affairs Minister
Datuk Seri Radzi Sheikh Ahmad was reported saying that 800 to 900 foreign workers
arrive at the KL International Airport daily(Star,14/10/06), and that did not
include entry through land and sea. Undocumented migrants can enter Malaysia so
much more easily by sea and land, avoiding immigration and customs authorities
and that is, I believe, the manner of entry employed by the majority of undocumented
migrants.</P><P>Malaysian labour force for the 3rd quarter of 2005 according to
the Malaysian Department of Statistics was 10,498,600 and that means that number
of migrant workers (both documented and undocumented) is about 30% to 50% of the
total Malaysian labour force. This fact of the growing number of migrant workers
in Malaysia also tally with the figures of persons in the Malaysian prisons, where
it was disclosed that 25% of the prison community were foreigners in 2003, and
in 2004 it was stated that the number of foreigners exceed the number of local
Malaysian in prisons. A recent AFP report in October 2006 reiterated that Malaysia’s
10.5 million strong labour force is made up of 2.6 million foreign workers.</P><P>We
cannot deny the fact that in the past 3 decades migrant workers, both documented
and undocumented, have contributed significantly to the economy of this nation.</P><P><B>Migrants
and Their Rights Under Malaysian Law </B></P><P>In Malaysia, we do not discriminate.
We guarantee all persons equality and equal protection of the law. Article 8 of
the Federal Constitution of Malaysia provides that “All Persons are equal
before the law and is entitled to equal protection of the law” and by the
use of term “person” as opposed to ‘citizen’ makes it most
clear that this guarantee of rights extends also to all persons, including migrant
workers, be they documented or undocumented, and also refugees. Under our Trade
Union Act, migrant workers have the right to unionize and also be members of existing
unions – and this is very important to enable all workers, including Malaysian
workers, the ability to ensure greater protection and advancement of worker rights,</P><P>Migrant
workers in law have access to the Labour Court and the Industrial Courts just
like any local worker.</P><P>The problem is that when Migrants come to the country,
their very presence and their ability to work legally is linked to a work permit,
which stipulates a named employer. And when a migrant worker, who has been victimized,
wants to seek justice through the Labour Court and/or the Industrial Relations
Department, the usual thing that happens is that the errant employer immediately
terminates the work permit leaving the migrant worker in a dilemma having no right
to continue to be in the country, without work and capacity to earn a living.
This makes a mockery of the protection afforded in law, and we need to do something
to remedy this state of affairs. Maybe the migrant must be the person who is allowed
to apply for a work permit (or even apply for variation of a permit) – not
the employer.</P><P><B>Need for New Procedures to Ensure Real Justice for Migrant
Workers</B></P><P>To overcome this problem, we should allow workers who do resort
to the Labour Court and/or the Industrial Court in pursuit of their rights as
workers against unscrupulous employers, to stay on in Malaysia until the courts
can mete out justice. In some countries, like Hong Kong, shelters are provided
by the government for workers during this period as they claim this ‘constitutionally
guaranteed equal protection’ and justice under the law.</P><P>Maybe we should
also be thinking of special tribunals for migrant workers – which would provide
a speedy procedure so that cases of non-payment or under-payment of wages and
wrongful dismissal, could be dealt with speedily no later than 3 months from the
date of the complaint.</P><P>Better still, workers whose rights have been violated,
and who has filed a complaint should be allowed to work with another employer.</P><P>It
is no use having good labour laws & courts with the object to ensure that
no workers will be deprived of their rights AND then have a situation like what
we have today that makes it almost impossible for the migrant worker to access
and/or get justice.</P><P>Likewise, when a migrant worker makes a police report
against his/her employer. The government encouraged migrant workers, like domestic
workers, to complain about abuses by employers and/or other members of their household.
When they do complain, they lose their job and it is sad that the government takes
the position that the migrant worker that complains will not get his /her permit
varied so that he/she can work with another employer until that criminal case
is disposed off.</P><P>Now, when a migrant worker makes a complaint about abuse,
his employer when charged ONLY has to just plead not guilty and most likely he/she
will get away with it because the complainant migrant worker by reason of not
being able to work is back in his home country not able to appear in court to
testify against his ex-employer. We cannot allow this mockery of the criminal
justice system to continue.</P><P><B>A Worker is a Worker and He/She is Entitled
to His/Her Wages</B></P><P>A worker who works for an employer is entitled to his
just wage, and it should not matter whether he is documented or undocumented.
It will be a gross injustice for an employer who benefits from the sweat and labour
of a worker and then be allowed to escape his obligation of paying wages.</P><P>True,
the undocumented worker has broken the law concerning immigration and for that
he must be penalized. However, he should not be deprived of the fruits of his
labour – and these unscrupulous employer should never be allowed to escape
his obligations to pay wages.</P><P>Let us not forget that it is because of these
bad employers who employ undocumented workers that many come over to Malaysia
to work without the necessary documentation.</P><P><B>Migrants are Human Beings
and Should not be Treated as Stray Dogs</B></P><P>We must also never forget that
the migrant worker is a human being just like you and I. Migrants are father,
mother, brother, sister, husband, wife, son, daughter and uncle to other human
persons.</P><P>We must stop this “Catch a Migrant and Get Paid for it”
policy which we have since 2005. In 2005, members of the People’s Volunteer
Corps (Rela), an organisation of uniformed part-timers who have some policing
powers, were offered and did receive cash rewards for each migrant arrested as
an economic incentive and this was most disturbing and embarassing. It is sad
that on the planned crackdown next year, Home Affairs Minister Datuk Seri Radzi
Sheikh Ahmad was reported to have said Rela members would be again roped in for
the operation(Star, 14/10/2006). Since Rela was given authority last year to nab
illegal immigrants, its members had arrested about 19,000 foreigners.</P><P>We
have the police, immigration officers and other enforcement officers that are
professionally trained and has the duty to enforce the law – and as such
the using of part-time RELA for the arrest of a certain class of persons is certainly
just not right and goes against the guaranteed equality and equal protection of
the law. Further, there has been just too many complaints about the use of excessive
force, causing serious injuries to foreigners from Indonesia, Bangladesh and Burma
in recent months.</P><P>At least three incidents since July were recently highlighted
in the media when suspected illegal immigrants from Indonesia, Bangladesh and
Burma were beaten. Most were later discovered to have valid immigration documents.
It was also said that these RELA volunteers also often force their way into homes
without warrants, destroy private property and wrongfully detain suspects. These
kind of law-breaking must end. Let us not forget that we are dealing with human
beings here, not animals</P><P><B>Discrimination</B></P><P>If a worker is paid
more because of his working experience, academic or technical qualifications and/or
skills then it is perfectly acceptable and just. But if a worker is discriminated
on the basis of his/her nationality, ethnicity and/or religious belief, this is
not at all acceptable. Today, migrant workers are being discriminated based on
their nationality despite the fact that they do the same work. Indonesians are
the lowest paid whilst the Filipinos are the highest paid. This must end,</P><P>Another
aspect of discrimination is when undocumented workers are arrested, Some are deported
immediately whilst others are charged, tried,convicted and sentenced to imprisonment
and sometimes whipping. Either all are charged in court or all are immediately
deported. This is yet another discrimination that has to be stopped.</P><P><B>Foreign
Domestic Workers and Protection of Migrants</B></P><P>Our employment laws generally
do not provide for protection of domestic workers’ rights as it does for
other workers, and given the fact that there are today more than 300,000 domestic
workers, we must enact a law for the protection of domestic workers. Today Jordan
has such a law. Hong Kong also has such laws, and in Taiwan, there is now a Bill
before their parliament.</P><P>Given the unique differences when it comes to migrant
workers, maybe we too, like Singapore and some other migrant receiving countries,
should also enact a new law to cover migrant workers or just maybe include a section
in our existing employment laws. In these laws, we must also deal with the question
of recruiting agents both in the sending and receiving countries.</P><P>Recently,
in October 2006, a media report informed us about Bangladeshi labour agents who
are illegally bringing workers from the Indian subcontinent into the country.
In the said report Enforcement Director of the Immigration Department, Ishak Mohamed
said that</P><P>“…every worker brought into the country was forced to
pay upto RM18,000 to these illegal agents, who go to the slums and villages and
lure these poor people by promising them jobs in air-conditioned buildings, The
poor villagers end up paying them a fortune, mortgage their property and everything
they own to work here and then they end up slogging in construction sites to pay
off their debts back home…”.</P><P>This happens in almost all countries.
I ask whether it is right for us in Malaysia to further penalize these “cheated”
workers.</P><P>When it comes to wages, many migrant workers do not receive any
money for months as their wages are all deducted to pay off their debts to agents,
etc – and this is not at all right. A limit must be set as to amount of their
monthly wages that can be deducted, and this should not be more than 30% of their
wages. A worker who works should receive some payment every month to use it as
he/she pleases including sending back of some monies to sustain their spouse,
children and families back home.</P><P>We need to have an education campaign,
which should be initiated by the government to ensure that migrant workers are
made aware of their rights in law, and also about where to go and what to do to
complain about rights violations and to get justice. We need special offices,
with persons who can do translations, all over the country which is easily accessible
to migrant workers,</P><P>We will soon also be having an ASEAN Charter, and we
must ensure that there are provisions therein that will deal with migrant and
migrant worker rights.</P><P>Malaysians are a caring people – and we must
remember that all migrants/refugees are human beings, and as human beings they
have human rights and worker rights and we must do all that is necessary to ensure
that these rights are not only acknowledged but also respected. We have been paying
too much attention to violation of our country’s immigration laws and way
too little to worker rights and human rights. It is time we remedy our failings.</P><P>Thank
you.
Address: Wisma MTUC,10-5, Jalan USJ 9/5T, 47620 Subang Jaya,Selangor | Tel: 03-80242953 | Fax: 03-80243225 | Email: sgmtuc@gmail.com.com