Friday, February 13, 2009

HR Minister must be concerned more for the poor worker...

Human Resource Minister...,

The concern must be for the worker - in this case the foreign worker...not the employer.

It is unconscionable for employers who entered into 2 or 3 years employment contracts to now terminate/retrench these workers after a few months or before the lapse of the full contract period. Unlike the local worker, foreign workers expend a significant sum of money with recruiting agents/other agents, etc before the come over to Malaysia for employment for a stipulated fixed term. Lands are mortgaged...debts are incurred in this process, and families of these workers suffer...they hope to suffer for a short period relying very much on the money the worker will be able to bring back after working in Malaysia. This will be the money that will be used to pay off their take back their pawned jewelry and property...and as such if the worker is prematurely retrenched/terminated and is forced to return back earlier to their home country, this worker and his family/dependents would be in a worse off situation that before the worker came to Malaysia.

It is sad that most migrant workers are already cheated by their employers/agents who promised the sun and the moon when they were recruiting and entering into employment agreements...but only gave them peanuts when the worker came over to work.

The employers/agents also cheat these workers by making 'unlawful deductions' mainly to try and recover all monies spent by the employers in recruiting and employing these workers. Sadly, there is lack of political will and government enforcement to prevent exploitation of foreign workers by local employers.

When you employ a foreign worker, it is the employer who has to bear all cost of bringing him over, sending him back, providing accommodation, medical examination...treatment, levy for employing the workers, recruiting agents fees, etc... It is very wrong to recover all these expenses by means of deducting wages from the worker.

The only deductions that one can make from wages are those that are permitted by law - eg. SOCSO, EPF. Union fees, etc could be deducted only if there is a written request by the employee.

The law states that the worker must every month receive at least half his wages. Not more that half the wages can be deducted as lawful deductions. But we hear that some migrants do not receive wages for months and months...

With regard to migrant workers, I believe that employers that have entered into agreements to provide work for a fixed period should not be permitted to breach these agreements. If the want to retrench now, then basic wages for the whole period should be provided to the foreign worker.

The foreign worker or migrant worker is very different from the local worker. Those who choosed to employ migrant workers must pay the price - and not get off scott free without fulfiling their contractual obligations.

One may say that these foreign/migrant workers can sue their employers in the civil court for damages - but really, this is very very difficult.

**Their work permits generally is with regard to 1 employer (and Immigration, who can, are very slow to agree to vary the terms of their permit which will allow them to work for another employer..while they pursue justice in the Malaysian courts)

**When they are no more working - the work permit (work visas) expire and they have to leave. To stay, even for a while Special Passes are RM100 per month, and generally have to be renewed monthly. Without a work permit, they cannot work...and thus will not be earning wages.

**Being overseas, and pursuing a legal claim here is rather difficult and can be expensive..., and what really are we talking about. Say their agreed wages are RM500, then 2 years wages also would be RM12,000 - which we will minus cost of living/food, and that may mean that the claim would be even lesser, maybe RM8,000-00. Of course, you can claim for the other expenses...and cost. But let us not forget that the worker needs to pay for the lawyer and also the various court fees, etc

Thus, I believe that the Malaysian Government will do justice to retrenched migrant workers by stipulating that employers pay them basic wages (or a reasonable percentage of basic wages, after taking into account personal expenses like food, etc) for the remaining of the contract period. Note, we are talking about contract period - which is not the same as the remaining time in the work visa, as government only issues 1-year work visas at a time.

Some will say that this is an unusual situation - economic crisis and all - and employers have no choice. This is a lame justification - as we all know that we di suffer economic crisis every now and then - once every 5...10 years, and as such employers of migrant labour who enter into fixed term contracts with workers should not be allowed to use this as an excuse to retrench these workers now - and get off without fulfiling their contractual obligations to the detriment of the worker.

Now, the Minister is talking about returning levies paid by employers if migrant workers are retrenched before the term paid for expires.

Hello - most likely, the employer may have already deducted this levy from the worker....'miscelaneous deductions'..

Let us be concerned about justice for the workers..., and in this case, it will be foreign migrant workers.

PEKAN: Employers who lay off foreign workers months after hiring them can now claim the unused levy within a month.

Prior to this, they had to wait several years before they could get back the levy.

»Employers pay a one-year advance levy for each worker« DR SUBRAMANIAM

Human Resources Minister Datuk Dr S. Subramaniam said it was this problem which caused employers to retain their foreign workers.

He said that when they hired the foreigners, employers had to pay a one-year advance levy for each worker.

“When they are retrenched later, the remaining sum of the levy is kept by the Government.

“Due to this, they prefer to retain foreign workers for the rest of the year,” Dr Subramaniam told reporters yesterday after presenting grants to successful disabled entrepreneurs here and a certificate of appreciation to German-based company Vacuumschmelze (M) Sdn Bhd, which employed 19 disabled persons at its plant.

He said the decision was made at Wednesday’s Cabinet meeting to help reduce employers’ burden during the current economic slowdown.

“An employer will have to fork out RM140 for each worker and if there is at least half of the amount left, it will be a big sum,’’ he added.

Dr Subramaniam said if employers had to lay off workers, foreigners would be the first to go as the Government’s policy on this was clear.

He said that alternatively, companies could send their workers for retraining courses under the Human Resource Development Fund (HRDF) instead of retrenching them.

On hiring disabled persons, Dr Subramaniam said other companies should emulate Vacuum-schmelze. - Star, 13/2/2009,Fast claim for unused levy

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