Time for domestic workers to be guaranteed basic worker rights
Contributed by Charles Hector
Monday, 01 May 2006
The time has come for Malaysia to now ensure that basic worker rights is provided for and guaranteed to the over 0.3 million domestic workers in our country.
Gone also are the days when the number of domestic workers were small and there was no real need to look at le
gislating the rights of these workers. Today, in Malaysia, there are 320,000 registered foreign housemaids in Malaysia, and out of this 96 per cent or 308,000 are Indonesian migrant workers.Gone too are the days when domestic workers were members of the extended family or someone from one’s own village. Gone too are the days of the local Malaysian part-time household helper. At the moment, although domestic workers are recognized as workers in Malaysian law, there is in effect very little or almost no protection whatsoever of the rights of this category of workers.
“Domestic servant” is acknowledged as worker in law BUT without rights
In our Employment Act 1955, “Domestic servant” is mentioned and is given the meaning “a person employed in connection with work of a private dwelling-house and not in connection with any trade, business, profession carried on by the employer in such dwelling house and includes a cook, house servant, butler, child’s nurse, valet, footman, gardener, washer man or washerwoman, watchman, groom and driver or cleaner of any vehicle licensed for private use.” In Malaysia, save for driving, migrant domestic worker normally ends up doing all of these different jobs.
With regard the domestic servant, it is clearly stated that the following sections of the Employment Act are not applicable to them, being:- Section 12 (Notice of termination of Contract), 14 (Termination of Contract for Special Reasons), 16 (Employees on Estates to be provided with minimum number of days’ work in each month), 22 (Limitation on advances to employees), 61 (Employers Duty to Keep Register), 64 ((Employers Duty to display notice boards), Part IX (Maternity Protection), Part XII (Rest Days, Hours of Work, Holidays And Other Conditions of Service) and Part XIIA (Termination, Lay-Off And Retirement Benefits.
Worker Rights Must be Legislated To Ensure Certainty and Real Protection
With regard the domestic servant, it is clearly stated that the following sections of the Employment Act are not applicable to them, being:- Section 12 (Notice of termination of Contract), 14 (Termination of Contract for Special Reasons), 16 (Employees on Estates to be provided with minimum number of days’ work in each month), 22 (Limitation on advances to employees), 61 (Employers Duty to Keep Register), 64 ((Employers Duty to display notice boards), Part IX (Maternity Protection), Part XII (Rest Days, Hours of Work, Holidays And Other Conditions of Service) and Part XIIA (Termination, Lay-Off And Retirement Benefits.
Worker Rights Must be Legislated To Ensure Certainty and Real Protection
In short, there is not even basic protection for domestic workers under the Malaysian employment laws. Jordan has legislations to provide for rights and protections to domestic workers, and in Taiwan, a Bill for Household Services is before Parliament. In Malaysia, whish has a higher number of domestic workers; it is time for some legislation to protect the rights of these domestic workers.
Although, the Malaysian Immigration Department “policy” or “guidelines of employment” do have an Employment Agreement form which stipulates that a domestic worker is entitled to one day off per week, but the same clause provides that an employer can insist the worker works on the “off-day” provided adequate remuneration is provided. Sadly, there is no stipulation of wages, let alone the calculation of this additional remuneration. What is the basis of this “Employment Agreement” – for there is no existing Act or legislation that provides for rights of domestic workers in Malaysia.
In practice, save for the Filipino domestic workers, none of the other domestic workers of other nationalities seem to be getting any day off, let alone any time off. Domestic workers are treated more like “property” or “slaves” rather than human beings.
What then is the basis of the rights of domestic workers? Is it the Memorandum of Understanding (and/or Agreements) entered into between the sending countries and the receiving countries? If yes, the difficulty to get access to these Memorandums and/or Treaties keeps everyone guessing as to its contents.
Indonesia and Malaysia would be entering into a Memorandum of Understanding within a month or two, and it is disturbing to note whilst the Indonesian government are insisting on labour rights, Malaysia is rejecting giving reasons like according labour rights as given to other workers in Malaysia would make it uneconomical for Malaysian employers to continue to employ Indonesian domestic workers.
Discrimination based on Nationality must be stopped
It is also very disturbing to note that Indonesian domestic workers are the lowest paid compared to domestic workers from other nationalities, and this discrimination based on nationality goes contrary 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. Hence, the discrimination based on nationality is wrong.
No right of claim against the Government and/or its Agents?
It is shocking that the Malaysian government requires Muslim domestic workers have also to sign a Declaration agreeing not to make any claim against the Government and its agents in any cause of action whilst they are in Malaysia. This is what the Form at the Immigration Department website entitled “Lampiran B Perakuan Pembantu Rumah Asing Islam Warganegara …” (Enclosure B Muslim Foreign Domestic Worker of … Nationality”. This is a gross violation of human rights and a great injustice. It is interesting that protection from claims seem also to be accorded to the agents.
Of course, it seems that the claims may be made after the domestic worker leaves Malaysia – but this is not only difficult but near impossible taking into consideration that domestic workers generally are from poor backgrounds and would lack the resources to pursue any claims after they have left Malaysia.
Should Not the Agent be the Employer – not the Householder?
Employers, after all, do not have a choice but have to get the domestic workers through agents, and as such a question can be raised as to whether there should even be an employment agreement between the husband/wife (the householder) and the domestic worker – for after all is not the agent the labour provider.
Maybe, then the proper employer of the domestic worker should then be the agent, and the householder should just be entering into an agreement with the agent for the provision of labour in the form of a domestic worker. The duty of the agent should therefore be to ensure that wages, rights and benefits that should be accorded to the domestic worker is so provided as per the agreement. If the worker fails to provide services as per the agreement, the householder should have a lawful remedy/claim/cause of action against the agent. If the householder is in breach, then the agent would have a remedy/claim/cause of action against the householder.
Although, the Malaysian Immigration Department “policy” or “guidelines of employment” do have an Employment Agreement form which stipulates that a domestic worker is entitled to one day off per week, but the same clause provides that an employer can insist the worker works on the “off-day” provided adequate remuneration is provided. Sadly, there is no stipulation of wages, let alone the calculation of this additional remuneration. What is the basis of this “Employment Agreement” – for there is no existing Act or legislation that provides for rights of domestic workers in Malaysia.
In practice, save for the Filipino domestic workers, none of the other domestic workers of other nationalities seem to be getting any day off, let alone any time off. Domestic workers are treated more like “property” or “slaves” rather than human beings.
What then is the basis of the rights of domestic workers? Is it the Memorandum of Understanding (and/or Agreements) entered into between the sending countries and the receiving countries? If yes, the difficulty to get access to these Memorandums and/or Treaties keeps everyone guessing as to its contents.
Indonesia and Malaysia would be entering into a Memorandum of Understanding within a month or two, and it is disturbing to note whilst the Indonesian government are insisting on labour rights, Malaysia is rejecting giving reasons like according labour rights as given to other workers in Malaysia would make it uneconomical for Malaysian employers to continue to employ Indonesian domestic workers.
Discrimination based on Nationality must be stopped
It is also very disturbing to note that Indonesian domestic workers are the lowest paid compared to domestic workers from other nationalities, and this discrimination based on nationality goes contrary 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. Hence, the discrimination based on nationality is wrong.
No right of claim against the Government and/or its Agents?
It is shocking that the Malaysian government requires Muslim domestic workers have also to sign a Declaration agreeing not to make any claim against the Government and its agents in any cause of action whilst they are in Malaysia. This is what the Form at the Immigration Department website entitled “Lampiran B Perakuan Pembantu Rumah Asing Islam Warganegara …” (Enclosure B Muslim Foreign Domestic Worker of … Nationality”. This is a gross violation of human rights and a great injustice. It is interesting that protection from claims seem also to be accorded to the agents.
Of course, it seems that the claims may be made after the domestic worker leaves Malaysia – but this is not only difficult but near impossible taking into consideration that domestic workers generally are from poor backgrounds and would lack the resources to pursue any claims after they have left Malaysia.
Should Not the Agent be the Employer – not the Householder?
Employers, after all, do not have a choice but have to get the domestic workers through agents, and as such a question can be raised as to whether there should even be an employment agreement between the husband/wife (the householder) and the domestic worker – for after all is not the agent the labour provider.
Maybe, then the proper employer of the domestic worker should then be the agent, and the householder should just be entering into an agreement with the agent for the provision of labour in the form of a domestic worker. The duty of the agent should therefore be to ensure that wages, rights and benefits that should be accorded to the domestic worker is so provided as per the agreement. If the worker fails to provide services as per the agreement, the householder should have a lawful remedy/claim/cause of action against the agent. If the householder is in breach, then the agent would have a remedy/claim/cause of action against the householder.
With regard to the domestic worker, her claim and cause of action with regard to matters involving her employment then will lie against the agent, the employer. Of course, if there is abuse, assault, battery or anything else against the person and/or property, the domestic worker should like any other person have a claim and/or cause of action against the employer.
Since, the agent is also the agent of the government; the domestic worker must definitely be entitled as of right to pursue a claim and/or a cause of action also against the government as well. Governments then would have to ensure that only good agents are approved and appointed. It may be good to also provide legislations covering the appointment and duties of the agents involving in the business of providing labour, and the Ministry responsible must be the Human Resources Ministry not the Director General of Immigration under the Ministry of Home Affairs.
The employer-employee relationship between the “agent”(labour provider) and the domestic worker is not something new. For example security companies provide security guards to its customers, and at all time these security guards are the employee of the security company and not the customers. If unsuitable, the customers will have a right to demand a change of the guard. Wages and rights are the duty and responsibility of the security company not the customer. Similarly, the householder will have to make monthly payments to the ‘agent’, who will then have to pay the wages, less lawful deductions, to the domestic worker.
Rights that need to be accorded to domestic workers
The right to an 8-hour work-day (of course given the nature of domestic work, this could be defined periods through-out the day), the right to be remunerated for overtime work, the right to have one-day off per week, the right to be able to fulfill one’s religious obligations, the right to be able to communicate with one’s family using own monies/resources, the right to sick leave, the right to compassionate leave, the right to annual leave, the right to association, the right to seek legal redress, the right to a speedy procedure for redress, the right to change of place of work, the right to association, the right to consult a lawyer, the right to communicate and/or go to her embassy, the right to open a bank account, the right to have access to banking facilities to be able to transfer money back home, the right to sue and be sued, the right to private space and leisure time, the right to adequate medical and dental care; and the right to have a original copy of her agreement are just some of the minimal rights that must be to the domestic worker.
We sometimes forget that domestic workers are human beings – with families and other human responsibilities and needs. Domestic workers are also workers, and like every other worker must be accorded worker rights and human rights, including also effective access to justice.
Malaysia is on the verge of attaining developed nation status, and being a caring nation, we must not delay to ensure that our domestic workers, like any other workers, are treated with dignity and with justice.
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