Saturday, July 11, 2009

Bar Press Release: State Intervention Needed for Domestic Workers (8/7/2009)

The Bar Council commends the Ministry of Human Resources for proposing that domestic workers be given a rest day and for suggesting that all domestic workers have a standard employment contract.

Despite adverse reaction from some individuals, we must proceed to do what is right and uphold human dignity regardless of nationality or class of work.

As a matter of policy we should adopt a standard employment contract to cover all domestic workers irrespective of their country of origin.

The Employment Act should be amended to include as much of this standard contract as possible to ensure uniformity and statutory protection for domestic workers.

Although domestic workers are not accorded full protection under the Employment Act, there are still many provisions of the Employment Act, which apply:

* Section 24 – Lawful Deductions (Deductions shall not exceed 50% of the wages earned – 24(8))
* Section 69 – Director General’s power to inquire into complaints (Dispute relating to wages or any other payment in cash due to the employee under the terms of the contract of service or the Employment Act)
* Section 65 – Powers of inspection and inquiry (Director General shall have power to enter without previous notice any place of employment and to make an inquiry)
* Section 79 – Powers of Director General to investigate possible offences under the Act
* Part XVII – Offences and Penalties (Fines not exceeding RM10,000)

We call on the Ministry of Human Resources to carry out more inspections to ensure that employers do not breach the provisions of the Employment Act. Situations in which domestic workers are not paid wages for 3 or 6 months are a violation of the Employment Act.

We would also suggest than an effective mechanism be set up to deal effectively with claims for non–payment of salary and monetary benefits.

It is perhaps important and timely to consider seriously the rights of domestic workers to form their own associations so that they can highlight their rights and concerns.

We propose that the Government incorporate and implement the following terms and conditions in formulating a just and equitable standard employment contract for all domestic workers.

Ragunath Kesavan
Malaysian Bar

8 July 2009

Appendix 1

Items That Should Be Part of a Standard Contact

Given below is a list of 24 important items that should be part of the standard contract for domestic workers

1. Place of employment (To ensure that the domestic worker is not taken from one place of employment to another)

2. Duration of the contract and the date of commencement

3. Basic Monthly salary

4. Work Hours – The domestic worker is to be provided rest of at least 12 hours a day; Inclusive of continuous period of rest of at least 7 hours

5. Rest Day – At least one (1) rest day per week should be provided; The contract should also specify the rate of payment if work is done on this rest day

6. Paid annual leave – The domestic worker is to receive 8 days of paid annual leave per year when employed for less than 2 years and 12 days per year when she is employed between 2 to 5 years. The domestic worker will only become eligible to take this paid annual leave after her 1st year of employment (This is consistent with the provisions of the Employment Act)

7. Medical treatment and paid sick leave – The Employer is to pay for medical treatment and not require the domestic worker to work when she is sick.

8. Bank Account – The Employer should assist the domestic worker to set up a bank account. The bank account should be in the name of the domestic worker.

9. Wages - Wages should be paid directly into the bank account set up in the name of the Domestic Worker; Wages should be paid not later than the 7th day after the end of the previous wage period

10. Fees and Expense – The contract should provide a list of all fees and expenses that have been incurred in the recruitment and employment of the domestic worker. The contract should clearly stipulate which items have to be paid by the employer and which expenses have to be borne by the domestic worker

11. Advances – The total advance that was paid by the employer should be stipulated in the contract together with an explanation of how much the employer intends to deducted each month to recover these advances (The total deductions in any one month cannot exceed 50% in accordance with Section 24 of the Employment Act).

12. Accommodation – The contact should specify the type of arrangements that have been made. Is the Domestic Workers going to be provided a separate room or is she required to share the room with others? What is the size of this room? Arrangements for accommodation must have regard to adequate space, ventilation, privacy and security for the domestic worker

13. Food – The Domestic Worker should be provided 3 reasonable meals a day

14. Size of household – The number of persons that the domestic worker would be required to serve on a regular basis must be specified. The Contract must specify – The number of adults (above the age of 18), The number of children (between 5 and 18) and the number of children (below the age of 5)

15. List of duties of Domestic Worker – The contract should specify the general range of duties that the Domestic Worker is expected to take on i.e. Household chores, cooking, looking after aged persons, baby-sitting and child minding. Other duties that reasonably come under the job scope of a Domestic Worker can be included but these should be specified in the contract

Contract must stipulate that the Domestic Worker will only work for the Employer and his/her immediate household and not be required to work in another residence or be assigned to any commercial, industrial or agricultural enterprise. The domestic worker is to comply with reasonable instructions of the employer

16. List of duties of employer – The contract should specify the general obligations of the employer towards the domestic worker. These obligations should include treating the domestic worker in a just and humane manner and under no condition resorting to physical violence. The employer must also respect the religious beliefs of the domestic worker and not put the domestic worker in a situation where such beliefs can be compromised

17. Termination of contract – The contract should list out the various conditions under which the contract can be terminated by either the Employer or the Domestic Worker

18. Passage – The transportation cost to bring the domestic worker to Malaysia is to be born by the employer. If the fixed term contract comes to its natural end the employer will also be responsible for paying for the cost of repatriation.

If the contract of the domestic worker is terminated because of misconduct or if the domestic worker unreasonably terminates the contract, the cost of repatriation should be born by the domestic worker. Whether the contract was wrongfully terminated by the employer or unreasonably by the domestic worker will be determined by the Labour Department.

19. Wrongful termination – In the event of wrongful dismissal by the employer, the employer will pay the dismissed domestic worker adequate compensation.

20. Foreign workers compensation scheme – The Employer must take out insurance for the domestic worker. The standard contract should specify the minimum quantum payable in the event of death or permanent disability

21. Passport - The Passport should remain in the possession of the domestic worker.

22. Bank Guarantee – Employer should provide a bank guarantee to the Embassy/High Commission of the sending country

23. Amendments – It should be clearly stated that no provision of the contract can be altered, amended or substituted without the written approval of the Ministry of Human Resources and the Embassy/High Commission of the sending country

24. Copy to Domestic Worker – The domestic worker should be given one copy of the contract in her native language

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