Art 6 Federal Constitution - Slavery and forced labour prohibited
(1) No person shall be held in slavery.
(2) All forms of forced labour are prohibited, but Parliament may by law provide for compulsory service for national purposes.
One flaw in Malaysian Law - where is the definition of forced labour? The law could stipulate that forced labour is as currently defined by the ILO...and that will be good enough..
What is forced labour?
Forced labour can be understood as work that is performed involuntarily and under the menace of any penalty. It refers to situations in which persons are coerced to work through the use of violence or intimidation, or by more subtle means such as manipulated debt, retention of identity papers or threats of denunciation to immigration authorities.
The Definition of forced labour
According to the ILO Forced Labour Convention, 1930 (No. 29) , forced or compulsory labour is:"all work or service which is exacted from any person under the threat of a penalty and for which the person has not offered himself or herself voluntarily."
The Forced Labour Protocol (Article 1(3)) explicitly reaffirms this definition.
This definition consists of three elements:
- Work or service refers to all types of work occurring in any activity, industry or sector including in the informal economy.
- Menace of any penalty refers to a wide range of penalties used to compel someone to work.
- Involuntariness: The terms “offered voluntarily” refer to the free and informed consent of a worker to take a job and his or her freedom to leave at any time. This is not the case for example when an employer or recruiter makes false promises so that a worker take a job he or she would not otherwise have accepted. -https://www.ilo.org/global/topics/forced-labour/definition/lang--en/index.htm[
C029 - Forced Labour Convention, 1930 (No. 29) ratified by Malaysia - 11 Nov 1957 In Force
But, till today, Malaysia has failed to include even the definition into Malaysian laws. Ratification/signing of UN or ILO Conmventions does not confer legal rights/duties on persons/entitities in Malaysia until what is contained in these Conventions becomes part of Malaysian laws - not happened yet even for this C029 Forced Labour Convention, 1930.
There is really LITTLE USE for Malaysia to ratify/sign ILO Conmventions and Protocols if he does not enact the needed laws/regulations in Malaysia that confers legal obligations and rights.
So many allegations of FORCED LABOUR against Malaysian companies, that has even led to sanctions....and in some cases after the Malaysian company did the needful to remove elements of 'forced labour' and ensure just remedies for past victims of forced labour = did foreign countries lift the sanctions/restrictions...BUT, how many of these Malaysian Companies have been charged for FORCED LABOUR offences in Malaysia - and WHY NOT?
Does Human Resource Minister even know the details of the forced labour allegations? Should we have a NEW Minister or maybe a ROYAL COMMISSION OF INQUIRY to study and make needed recommendation for law reform, policy/practice reforms, etc...
Press Statement by Labour Law Reform Coalition on 2 December 2021 in Shah Alam
Ratification of Forced Labour Protocol is commendable, but more comprehensive reforms are needed
Labour Law Reform Coalition (LLRC) commends the Minister of Human Resources for his announcement that the government had agreed to ratify the ILO Forced Labour protocol, which is of paramount importance in protecting workers, particularly migrant workers.
However, it is crucial for the government to implement a more comprehensive reform in accordance with the recommendations of the ILO report titled situation and gap analysis on Malaysian legislation, policies and programmes, and the ILO Forced Labour Convention and Protocol.
Other than the ratification of ILO Forced Labour Protocol, the report recommends Malaysian government to :
1) Re-ratification of the ILO Convention on the Abolition of Forced Labour (C105)
2) Initiate a national campaign on forced labour in consultation with trade unions and employers to create awareness among workers
3) Provide a victim-centred legal mechanism to enable termination and mobility of employment in the event of workers' rights violation
4) Protect migrant workers' freedom of association and right to collective bargaining
5) Reduce recruitment cost and prohibit employers to pass on their costs to workers or illegal deduction of salaries
6) A clear definition of forced labour in line with the ILO Convention 29
7) Amend and accord all benefits under the Employment Act to domestic workers as workers and domestic work as work
8) Develop and implement regulation of Passport Act to address the gap in enforcement on confiscation of travel documents
9) Strengthen the weak provision of prohibition of forced labour in the penal code, which reads "“unlawfully compel any person to labour against the will of that person"
In addition, while victims are granted access to justice and remedy according to the protocol, the government should allow victims of forced labour to work legally for another employer to ensure their decent living during the period.
We call on the government to fully implement the report’s recommendations in consultation with trade unions, migrant worker organizations and employer associations.
N. Gopal Kishnam & Irene Xavier
Co-Chairpersons
Labour Law Reform Coalition
http://www.fb.com/llrcmalaysia
Media enquiry please contact N. Gopalkishnam at 019-3174717
Note : Labour Law Reform Coalition is endorsed by 58 Trade Unions from various sectors and worker organisations. The group started in June 2018 to initiate discussion on labour law reform based on ILO’s decent work framework. The coalition had submitted proposals of reforming Employment Act 1955, Trade Union Act 1959 and Industrial Relations Act 1967 in January and May 2019 respectively.
Gopalkishnam Nadesan is the General Secretary of National Union of Transport, Equipment and Allied Industry Workers (NUTEAIW), he is the former Secretary-General of Malaysian Trade Union Congress. Irene Xavier is a veteran social activist who founded Persatuan Sahabat Wanita Selangor, she has been fighting for the rights of women workers for decades.
Malaysia says forced labour allegations hurting investor confidence
2 minute read
A Dyson employee shows a Dyson 360 Eye robot vacuum cleaner without its cover during the IFA Electronics show in Berlin September 4, 2014. REUTERS/Hannibal Hanschke/File Photo
Malaysia to charge ATA after receiving complaints - minister
Employers, industries urged to improve due diligence
Malaysia under closer scrutiny over migrant abuse
KUALA LUMPUR, Dec 1 (Reuters) - Forced labour allegations against Malaysian firms are affecting foreign investors' confidence in the Southeast Asian nation, a minister said on Wednesday, days after Dyson cut ties with Malaysian supplier ATA IMS (ATAI.KL) over labour abuse claims.
Dyson told Reuters last week it would sever ties with ATA, which makes parts for its vacuum cleaners and air purifiers, in six months following an audit of the Malaysian company's labour practices and allegations by a whistleblower.
ATA, which gets 80% of its revenue from the home appliance maker, reiterated this week it took the accusations seriously and that findings from a labour audit were inconclusive. It has previously denied the forced labour allegations.
Human Resources Minister M. Saravanan, in a statement, urged employers and industries to conduct due diligence on workers' rights and welfare to ensure Malaysia is no longer tied to forced labour practices.
Saravanan told parliament on Tuesday that authorities will charge ATA following complaints received by the labour department. read more
"Forced labour issues linked to local companies in the electronic and rubber gloves manufacturing sector, and palm oil plantations have projected a negative image to the country and this has affected foreign investors' confidence towards Malaysia's supply of products," Saravanan said.
Malaysia, a key manufacturing hub, has faced scrutiny this year over claims migrant workers are being subjected to abusive working and living conditions. Foreigners are a significant part of its workforce.
The U.S. Customs and Border Protection has banned six Malaysian firms, including rubber glove makers and palm oil producers, in the last two years from selling their products to the United States after finding evidence of forced labour.
In July, the U.S. State Department put Malaysia on a list with China and North Korea, saying it had not made progress in eliminating trafficking of workers.
Shares of ATA have dropped nearly two-thirds since the Dyson announcement. The company has warned of sharp revenue declines and cost cuts.
Saravanan on Tuesday did not say what complaints the labour department had received or specify the charges. He said last week Malaysia was investigating Dyson's decision to terminate the ATA contract.
Reporting by Rozanna Latiff and Mei Mei Chu; Writing by A. Ananthalakshmi; Editing by Martin Petty - Reuters, 1/12/2021
After Signing ILO Protocol, Malaysia Will be Obligated to End Forced Labor
A worker loads bunches of palm oil fruit at a plantation in Slim River, Malaysia, Aug. 12, 2021.
Reuters
Updated at 8:10 a.m. ET on 2021-12-2
Malaysia will be legally obligated to prevent all forms of forced labor and sanction violators once it signs a supplementary requirement to the Forced Labor Convention that the country agreed to ratify, a United Nations official said this week.
The Southeast Asian nation’s businesses – especially rubber manufacturers and palm plantations – have been targeted by accusations that they use forced labor, with the United States barring products from five companies for allegedly coercing their workers, officials and analysts said.
Introduced in 2014, the supplementary protocol to the 1930 convention stipulates that signatory member-states must develop a national policy and plan of action to suppress forced or compulsory labor, according to Jodelen Mitra of the International Labor Organization (ILO), a U.N. agency.
“By ratifying, Malaysia accepts it as a legally binding instrument, makes a formal commitment to implement the obligations in that instrument, and accepts the ILO supervisory system, in which ILO social partners, including trade unions, may intervene,” Mitra told BenarNews.
On Nov. 26, Human Resources Minister M. Saravanan announced that Malaysia was ready to ratify the protocol as he launched a five-year National Action Plan on Forced Labor (NAPFL). The plan calls for providing victims of forced labor with improved access to remedy, support and protective services, he said.
Saravanan’s announcement follows allegations that Malaysian manufacturers have been involved in forced labor practices. The allegations led to the U.S. Customs and Border Protection agency hitting several companies with import sanctions.
US sanctions
Earlier this month, rubber-glove manufacturer Smart Glove became the fifth Malaysian company in the past 15 months to be slapped with such a ban.
Glove maker Supermax saw its exports to the United States banned in October while Top Glove saw the July 2020 ban against exports lifted a month earlier after U.S. officials determined that the company had improved labor and living conditions for its workers.
Last year, the U.S. also banned two palm oil companies, Sime Darby and FGV Holdings Berhad, from exporting their products.
Malaysian company ATA IMS was the latest to be hit by allegations of forced labor when American appliance manufacturer Dyson last week terminated its contracts with the company following an audit of its labor practices and allegations from a whistleblower.
Saravanan told MPs that the labor department had opened an investigation into the company after receiving complaints, according to the Reuters news service. He did not list details of the investigation or the complaint, and the company did not respond to the news service’s request for comment.
In his statement on Wednesday, Saravanan said the allegations were affecting foreign investment in the country.
“Overall, the forced labor issues linked to local companies in electronic manufacturing, rubber glove sectors and palm plantations is giving the country a bad image and influence the foreign investors’ confidence toward Malaysia’s supply of products,” he said.
In June, the U.S. State Department downgraded Malaysia from the Tier 2 Watch List to Tier 3 in its annual Trafficking in Persons (TIP) report.
The Center for Strategic and International Studies, a Washington think-tank, described Malaysia as “a perennial offender.”
Mitra, meanwhile, said the ILO had been working with the Malaysian government on forced labor concerns since 2017 through their project “From Protocol to Practice: A Bridge to Global Action on Forced Labor.”
“Malaysia has already ratified the Forced Labor Convention of 1930 and the protocol is supplementary so it makes sense for them to ratify it,” she said.
Skepticism
Labor and migrant rights activist Adrian Pereira said he did not expect to see changes to Malaysia’s treatment of migrant workers.
“I have given up on following their promises or ratifying this and that. They have launched NAPTIP and NAPFL … so many NAPs but basic labor cases have yet to be resolved,” Pereira told BenarNews.
The Ministry of Home Affairs launched the National Action Plan on Anti-Trafficking in Persons (NAPTIP) in July, before the Ministry of Human Resources launched the NAPFL.
Officials have said the plans aim to eradicate forced labor and human trafficking in five years.
Despite that commitment, Pereira expressed skepticism.
“Forced labor is a very complex issue and from the basic to advanced cases we submitted to the Human Resources Ministry over the years, they have not been resolved,” Pereira said.
He added that Malaysia has not given formal rights to work for refugees and asylum seekers.
“This means thousands of them are working in forced labor conditions because of our poor national policies,” he said.
Echoing Pereira, Tashny Sukumaran, a domestic politics and labor migration analyst at Malaysia’s Institute of Strategic and International Studies, said the government could reform policies to eradicate the conditions.
“While it is important to ratify treaties that safeguard not just migrants but all workers, the fact is there is a lot more we can do on the ground,” Tashny told BenarNews.
This includes thorough inspections at factories and proper penalties to employers who abuse their domestic workers. Tashny said the government should enforce the passport act to prevent employers from the practice of withholding workers’ passports.
“It would also be valuable if the government could ensure that the migrant workers have access to grievance mechanism and procedures so they can then decide what they want to do, for example whether they want to be repatriated,” she said.
In dropping Malaysia to the lowest rank, Tier 3, the TIP report noted that migrant workers are often exploited by employers, employment agents and illegal sub-agents by being imposed additional fees after their arrival, leading to forced labor through debt-based coercion.
She said Malaysia’s lackadaisical attitude toward protecting workers rights goes beyond the question of morality and is severely affecting the nation’s economy.
“Without foreign workers, Malaysia’s post-COVID economic recovery will be stunted, forcing us to again play catch up with our neighbors who are not mired by this problem,” Tashny said.
In October, the Ministry of Finance said the coronavirus pandemic highlighted a sharp decline in the country’s gross domestic product because of the country’s dependence on foreign labor.
“Malaysians are generally reluctant to take up the 3D (dirty, dangerous, difficult) jobs, resulting in the monopolization by foreign workers of specific sectors,” the ministry said at the time.
“Many foreign workers work in labor-intensive sectors such as the manufacturing, construction, plantation, agriculture and domestic helper sectors.”
Correction: This version changes information about ILO working
with the government on forced labor concerns based on ILO's revised
date. = Benar News, 2/12/2021
U.S. bans imports from fifth Malaysian firm in 15 months over alleged forced labour
KUALA LUMPUR, Nov 5 (Reuters) - U.S. customs authorities have banned imports from Malaysian rubber glove maker Smart Glove over alleged forced labour practices, making it the fifth Malaysian firm to face such a ban in the past 15 months.
The U.S. Customs and Border Protection (CBP) issued a "Withhold Release Order" that prohibits imports from Smart Glove and its group of companies, the CBP said in a statement on Thursday, a decision it said was based on reasonable evidence that indicates "Smart Glove production facilities utilise forced labour".
Smart Glove, which makes gloves used in the medical and food industries, did not immediately respond to a request for comment.
Malaysian factories - which make everything from palm oil to medical gloves and Apple (AAPL.O) iPhone components - have come under increasing scrutiny over allegations from rights groups and workers of abuse of foreign employees, who form a significant part of the manufacturing workforce.
In its statement, the CBP said its investigation identified seven of the 11 forced labour indicators set out by the International Labour Organisation (ILO) at Smart Glove, but did not say which ones were found.
The ILO indicators include excessive hours, debt bondage, physical and sexual violence, abusive working and living conditions.
The United States banned another glove maker, Supermax Corp (SUPM.KL), over similar allegations last month. Supermax has said it will speed up a process it had begun in 2019 to meet ILO standards.
Supermax's bigger Malaysian rival Top Glove (TPGC.KL) - the world's largest latex glove maker - was barred by the CBP over similar allegations last July. The ban was lifted last month after the company resolved the labour issues.
Palm oil producers Sime Darby Plantation (SIPL.KL) and FGV Holdings (FGVH.KL) have also been banned by the CBP in the last year.
Sime
Darby and FGV have both appointed auditors to evaluate their practices
and said they would engage with the CBP to address the concerns raised. Reuters, 5/11/2021
U.S. lifts import ban on Malaysia's Top Glove over forced labour concerns
A worker leaves a Top Glove factory after his shift in Klang, Malaysia Dec. 7, 2020. REUTERS/Lim Huey TengKUALA LUMPUR, Sept 10 (Reuters) - The United States on Friday allowed imports from Malaysia's Top Glove Corp (TPGC.KL), after customs authorities lifted a year-long ban imposed for alleged forced labour found at the world's largest medical glove maker.
The U.S. Customs and Border Protection (CBP) had banned gloves made by Top Glove in July 2020, saying it had found abuses of migrant workers. read more
In a statement, the CBP said it will now allow imports after a thorough review of evidence that showed Top Glove has addressed all indicators of forced labour.
Top Glove had said earlier its disposable gloves would be admissible at all U.S. ports as of Sept. 10.
Its shares, which have plunged about 40% since the ban, jumped as much as 10% on Friday.
Top Glove has taken a hit to reputation and business from the ban, which came at a time when it was making record profits as the COVID-19 pandemic boosted demand for its gloves.
Its glove production in Malaysia has dropped and a plan for a $1 billion Hong Kong listing has been delayed since the ban. read more
The North American market accounts for 22% of Top Glove's total sales volume, according to most recent data.
IMPROVEMENTS AT TOP GLOVE
The CBP had prohibited imports of Top Glove products citing evidence of forced labour practices at the company, including debt bondage, excessive overtime, abusive working and living conditions, and retention of identity documents.
While Top Glove said in April it had resolved all forced labour indicators, U.S. Customs had two of the company's shipments seized in May.
Rights activist Andy Hall, who had urged the CBP to investigate Top Glove, said he welcomed the decision to lift the ban "in light of the considerable improvements in foreign workers living and working conditions" at Top Glove.
Top Glove has upgraded hostel facilities for its migrant workers, who account for a majority of its factory workforce, and promised to compensate them for the fee they paid to employment agents in their home countries.
The fees result in debt bondage, labour activists say.
Rivals Hartalega Holdings (HTHB.KL) and Kossan Rubber (KRIB.KL) have also since said they would pay back the fees.
Two other Malaysian firms have also been hit with U.S. bans in the last year - Sime Darby Plantation (SIPL.KL) and FGV Holdings (FGVH.KL).
The palm oil producers have both appointed auditors to evaluate their
practices and said they would engage with CBP to address the concerns
raised. Reuters, 10/9/2021
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