New unjust ways for employers to get rid of migrant workers to be legalized unless.. we oppose the Employment (Amendment) Bill 2011 - to view the Bill go to - Employment(Amendment) Bill 2011 - the Bill and why must oppose?
New ways to 'terminate' your migrant workers - They are also allowing employers of foreign workers (and foreign domestic workers) to get rid of migrant workers by NEW ways
57b. (1) If the service of a foreign domestic servant is terminated—(a) by the employer;(b) by the foreign domestic servant;(c) upon the expiry of the employment pass issued by the Immigration Department of Malaysia to the foreign domestic servant; or(d) by the repatriation or deportation of the foreign domestic servant,
the employer shall, within thirty days of the termination of service, inform the Director General of the termination in a manner as may be determined by the Director General.
A similar provision is made for Migrant Workers - the new subsection (3) for section 60k
60k(3) If the service of a foreign employee is terminated—(a) by the employer;(b) by the foreign employee;(c) upon the expiry of the employment pass issued by the Immigration Department of Malaysia to the foreign employee; or(d) by the repatriation or deportation of the foreign employee,the employer shall, within thirty days of the termination of service, inform the Director General of the termination in a manner as may be determined by the Director General.(4)For the purpose of paragraph (3)(b), the termination of service by a foreign employee includes the act of the foreign employee absconding from his place of employment.
(a) is OK provided that it is not wrongful dismissal - and before termination there was due process, i.e. domestic inquiry, etc
(b) is OK for any worker can resign at any time - giving the appropriate notice
but (c) and (d) is NOT OK
(c) upon the expiry of the employment pass issued by the Immigration Department of Malaysia
- Just allow their employment pass to lapse and not re-new it (what about the contract, is there no need for the employer who entered into an agreement with the worker for employment for 3 years be bound by that agreement. Note they are not talking about when the contracts end. Employment passes, unfortunately are issued for the whole duration of the employment contract/agreement - but for a year at a time, and every year the employer need to go renew it. So, now this will allow BAD employers to get rid of a migrant worker prematurely by just allowing passes to lapse and not go renew the pass ----
(d) by the repatriation or deportation of the foreign domestic servant/foreign employee
Let us not forget that these are documented migrant workers - legal migrant workers - so how can they end up getting deported? Simple really - many employers/agents hold on to the original passports/visas, etc of migrant workers - so they do get arrested and detained, and then the employer need to go get the workers. So BAD Employer may just not go get them out of detention - and hence the worker may just get deported...send back to their country of origin. Maybe, the employer/agent may even have arranged with the police or RELA to arrest and detain their migrant worker....
The other thing that employer can do is just send them back to their home country - All they need to do, is 'force' them to the airport, put them on a flight and send them back home - and this is what some employers of migrant workers are already doing whenever the worker claims their rights...or complain to the labour department - and now we want to have laws that say that all this is OK, and in law it will be accepted as termination.
The services of the foreign worker can and only should be terminated by (a) the employer (strict observance of due process needed), by the employee (this will be through resignation), and (c) at the end of term of the real agreement/contract between employer and worker which is usually is 3-5 years.
Wonder whether this is the "Employment Act' or some kind of 'Immigration Act' that is being amended...
# One of the biggest problems faced by migrant workers is that they are being made 'illegal'(undocumented) by the cancellation/non-renewal of employment passes before the expiry of the mutually agreed employment period, they are being forcefully sent to the airport and sent back to the country of origin, they are being allowed to languish in detention and ultimately deported...and, all this being done by employers who
(1) want to escape their original contractual obligation with the migrant worker,
(2) who want to deprive migrant workers access to avenues of justice - Labour Department, Labour Court, Industrial Court,police, criminal courts, ...
(3) for the simple reason of 'cheating' their migrant workers and not paying them their salaries and other 'outstanding payments' that they should receive from their employer/migrant.
What we need in the Employment Act to protect migrant workers is:-
a) a clear provision requiring a Certificate from the Labour Department confirming they are no outstanding payments/claims due to the migrant worker, including pending cases/complaints before the employer can 'terminate', cause the cancellation of employment pass, repatriate or cause a migrant worker to be deported. Only after receipt of this certificate, should the migrant worker be allowed to be send away from Malaysia back to country of origin;
b) that employers of migrant workers furnish the employment contract/agreement with migrant workers that stipulate the actual period of employment agreed by both parties, which usually is 3 - 5 years. Now, the Immigration Department for the issuance of the 1-year employment pass is only interested in the '1 year agreement' and employers provide this. Now, no migrant will agree to come to Malaysia and just work for 1 year only - financially it is not feasible. Labour Department should insist that they want to know the real/exact agreed duration of the agreement (which should also be in the language of the migrant - not just English/Bahasa Melayu - and there must be confirmation that the migrant knew what they signed. If need be Labour Department should speak to the migrant worker.
c) In terms of early termination of the employment contract/agreement, which is a fixed-term contract, there must be clear provisions as to how to calculate the termination/lay off benefits when workers are employed through fixed-term contracts. Rightly, the employer must pay the basic wages for the remaining months of the fixed-term contract. [The current provisions for termination/lay-off/retrenchment benefits in the Employment Act was created when workers enjoyed security of tenure until retirement - and not in a situation where there is a 'fixed-term contract' - should we not have provisions in law to deal with this earlier termination benefits. Now, the only available option is to sue for compensation in a civil court for earlier termination of 'fixed-term contracts', and this is something that most migrant or local workers will not be able to do by reason of cost and difficulties...better to have clear provisions in the Employment Act.]
d) Our Human Resource Minister agreed that domestic workers will have one rest day per week since 2009, but where is that amendment to make it legally binding.... (It was not there in the amendment to the Employment Act tabled in 2010, and still not there in the new proposed amendment tabled in June 2011...)
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