Thursday, June 18, 2009

Malaysian Bar: Amend Employment Act to protect all domestic workers

The Malaysian Bar commends the Human Resources Ministry's announcement that it will amend the Employment Act to require employers to accord domestic workers one compulsory day off per week. This is a small step forward in upholding the rights of hundreds of thousands of domestic workers who are prone to severe abuse and labour exploitation because they receive scant protection under the Employment Act.

It is crucial that this proposal be implemented by amending the Employment Act because the imposition of a statutory obligation will have far greater weight, and will allow the Ministry to enforce the provision and prosecute those who breach it. Currently, numerous terms of the Employment Act are specifically inapplicable to domestic workers. Consequently, they are not entitled to a day of rest per week, paid public holidays, annual leave, sick leave, maternity nor termination benefits. They are also excluded from provisions that limit the number of hours that they can be compelled to work.

Codification of the Minister's proposal will also make it applicable to all domestic workers, both local and foreign.

While the "compulsory day off" requirement should also be incorporated into individual employment contracts, this should be a secondary, and supplementary, step. As such contracts are private in nature, the contractual provisions do not impose enforceable statutory duties upon employers that can be implemented by the Government. Aggrieved workers would have to pursue legal remedies under private contract law, which accords them less protection. Furthermore, local domestic workers generally do not have such contracts.

Domestic workers are human beings and should benefit from the same rights as other workers, without discrimination. It is unjust and unacceptable that they can be required to work 20-hour days, seven days a week, all year round. Such labour practices, which are a form of bonded labour, are abhorrent and inhumane, and we call on those who oppose the Government's proposal to examine their consciences. It is utterly hypocritical of us to be aghast when domestic workers are abused if we continue to oppose this progressive move by the Government.

By granting domestic workers a compulsory day of rest, we uphold their rights as workers while simultaneously help to reduce instances of abuse. Abuses are most rampant where domestic workers work in isolated and secluded situations and are vulnerable because they have no access to those who can assist them when needed.

While the Government's move is a step in the right direction, the Malaysian Bar also calls for the following additional measures to be taken without delay:

(a) Limit the number of hours that domestic workers can be compelled to work per day;

(b) Limit the types/amount of work that they can be required to do, such as working at an employer's home and also place of business, or for an employer's friends/relatives, or work that is disrespectful of the worker's religious or cultural beliefs and practices;

(c) Codify strong sanctions against breaches of Employment Act provisions and other exploitative labour practices;

(d) Enforce the law that stipulates domestic workers be allowed to retain their passports in their possession; and

(e) Develop a simple procedure whereby a domestic worker who is abused can change her employer rather than face repatriation to her home country, because many domestic workers tolerate severe abuse to
avoid repatriation.

We call on the Government to take greater care to protect domestic workers, who make up a vulnerable and often-exploited group of workers. The manner in which we treat such groups is the litmus test of how civilised we are as a nation.


Ragunath Kesavan
President
Malaysian Bar

18 June 2009

1 comment:

Philippa said...

Dear Charles
I am currently researching on the right of migrant domestic workers in Malaysia and I was wondering if you have any updates as to the proposed amendments to the Employment Act which you discuss.
Kind Regards
Philippa (APWLD)