Malaysia's ‘Foreign Workers First Out’(FWFO) Policy is UNJUST, DISCRIMINATORY and UNCONSTITUTIONAL

Media Statement - 14th March 2009

MALAYSIA’S ‘FOREIGN WORKERS FIRST OUT’ POLICY IS UNJUST, DISCRIMINATORY AND UNCONSTITUTIONAL

We, the undersigned organizations, groups and networks, concerned about migrant and worker rights, are appalled at Malaysia’s unjust, discriminatory and unconstitutional anti-worker policy, known as ‘Foreign Workers First Out’ (FWFO) policy when it comes to retrenchment.

A recent Malaysian newspaper report read,“…Employers must retrench their foreign workers ahead of their Malaysian staff as they seek to weather the current economic slowdown, said Deputy Human Resource Minister Datuk Noraini Ahmad. She reiterated that employers should adopt the Government’s foreign worker first out (FWFO) principle…”(Star, 28/2/2009 - Retrench foreign workers first, employers told)

Whilst appreciating Malaysia’s concern for its own citizens’ employment, this should never excuse employers from fulfilling their contractual obligations to workers.

It is very wrong for the Malaysian government to compel/encourage employers in Malaysia to retrench their foreign workers first, before the expiration of the agreed duration of employment. Employers should have been fully aware of risks of economic crisis and other business risks, and as such there is no justification whatsoever of their breaching their employment agreements now.

It must also be appreciated that foreign workers do expend lots of monies, incur debts and make great sacrifices when they do decide to come over to Malaysia to work. These workers rely heavily on the representations of the employers and/or their agents especially with regards to wages and the length of period that they will be employed, before deciding to enter into employment agreements and coming over to Malaysia to work.

Employment agreements with migrant workers are usually for a period of 3 to 5 years, and it would be a great injustice if Malaysian employers are now encouraged and permitted to prematurely terminate this employment agreement, and send these foreign workers back to their home country.

Early termination of employment agreements for many a migrant worker means ending up in a far worse condition than when they first entered into employment agreements to come and work in Malaysia. This is a great injustice, and it is inhumane.

If there is going to be early termination of employment agreements which are for a minimum fixed period of employment, then the worker must be paid adequate compensation, at the very least basic wages for the remaining duration of their employment agreement. Usual termination and lay-off benefits paid to local workers will definitely not be just for a foreign migrant worker who is sent back to her country.

We also wish to state that this ‘Foreign Workers First Out’ (FWFO) policy and practice is unconstitutional, as it goes against Article 8 of the Malaysian Federal Constitution, whereby Article 8(1) clearly provides that 'All persons are equal before the law and entitled to the equal protection of the law...', and there is nothing in the Constitution that permits discrimination against non-citizens, in favour of citizens, with regard to employment. Therefore, section 60N of the Employment Act 1955, which some use as the basis of FWFO practice is ultra vires the Federal Constitution, and as such is invalid.

We believe that it is better that migrant workers who are now in Malaysia who are or will be prematurely terminated be first used to fill up existing manpower needs, rather that bringing in new migrants.

We call on the Malaysian government to immediately stop this unjust, discriminatory and unconstitutional policy and practice, known as ‘Foreign Workers First Out’ (FWFO) principle.

We call on Malaysia to demand that all employers fulfill their contractual agreements with regard to all workers, including foreign workers. We hope that mechanisms are put in place to ensure that employers pay workers adequate and just compensation for any early termination of employment agreement.

Charles Hector

Pranom Somwong

for and on behalf of the following 47 organisations

ALIRAN, Malaysia

All Nepal Women's Association (ANWA) (Nepal)

Asian Forum for Human Rights and Development (FORUM-ASIA)

Asia Pacific Mission for Migrants (APMM)

Asia Pacific Forum on Women Law and Development (APWLD)

Bahrain Center for Human Rights

Building and Wood Workers International, Asia Pacific Region (BWI)

CARAM Cambodia

Civil Rights Committee - Kuala Lumpur and Selangor Chinese Assembly Hall

(CRC-KLSCAH), Malaysia

Committee for Asian Women (CAW)

Community Development Services (CDS), Colombo, Sri Lanka

Coordination Of Action Research on Aids &Mobility (CARAM-ASIA)

Federation of Trade Unions – Burma (FTUB )

Global Alliance against Traffic in Women (GAATW)

Hope Workers’ Center, Taiwan

IMA Research Foundation Bangladesh

Institute for Migrant Workers (IWORK), Indonesia

International NGO Forum on Indonesian Development (INFID)

Lawyers for Human Rights and Legal Aid (LHRLA) Pakistan

Legal Support for Children and Women (LSCW), Cambodia

MADPET (Malaysians against Death Penalty and Torture)

MAP Foundation for the Health and Knowledge Of Ethnics Labour, Thailand

Messrs Charles Hector, Malaysia

Mindanao Migrants Center for Empowering Actions, Inc. (MMCEAI), Philippines

Migrant CARE (Perhimpunan Indonesia untuk Buruh Migran Berdaulat)

Migrant Services Centre – NWC, Sri Lanka

Multi National Women's Organization of Burma ( MNWOB)

Myanmar Refugee Volunteer Group (MRVG)

National Alliance of Women Human Rights Defenders (NAWHRD), Nepal

Nepal Institute of Development Studies (NIDS)

Network of Action for Migrants in Malaysia (NAMM)

Nijera Kori, Bangaladesh

Ovibashi Karmi Unnayan Program( OKUP), Bangaladesh

Parti Rakyat Malaysia (PRM)

Persatuan Masyarakat Selangor & Wilayah Persekutuan (PERMAS), Malaysia

Raks Thai Foundation, Thailand

Solidaritas Perempuan, Indonesia

Suara Rakyat Malaysia (SUARAM)

The Action Network for Migrant Workers (ACTFORM), Sri Lanka

The Development Action for Women Network (DAWN), Philippines

The Prevention of HIV/AIDS among Migrant Workers in Thailand

Project (PHAMIT)

Transient Workers Count Too, Singapore

United for Foreign Domestic Workers Rights (UFDWRs)

WARBE Development Foundation, Bangladesh

Writer Alliance for Media Independence (WAMI), Malaysia

Women's Rehabilitation Centre (WOREC), Nepal

Workers Hub 4 Change (WH4C)