Sunday, December 19, 2021

Migrant Workers - Still no more than 30% migrants at a workplace? Unclear policy, and corruption/abuses...facilitates rights violations

What is the Malaysian government on Migrant Workers?

Is there still a policy that there shall be less that 30% migrant workers at a workplace? (An apparent government policy before to ensure that local workers still have a right to employment - 70% of jobs in a workplace. Or is there no such policy anymore?) Without local workers at a workplace, the workers there are deprived of the right to form an in-house trade union - so the workers there are denied the ability to fight for better rights through a Trade Union ...through a collective bargaining agreement.

Some employers circumvent this restriction on usage of migrant workers, simply by keeping their employee numbers low(where they comply with the policy of no more that 30% employees - by simply using supplied workers provided by labour suppliers(the contractor for labour) who supplies the rest of the workers - hence, the number of migrant workers surpass the 30% limit - for the supplied workers are still taken as employees of the contractor for labour - not the workplaces)

There are rumors that in some workplaces, especially operated by foreign companies, are allowed by the Malaysian government to use 100% migrant labour - sometimes coming from the same country as the said 'foreign investor'..Is this true?

The entry and availability to cheap foreign workers to employers in Malaysia did impact seriously on the Malaysian workers to demand higher wages/income and better rights - as would have been a natural consequence of market forces... when cheap migrant labour was easily available - local workers, who wanted better wages and conditions were put off... Malaysian construction workers, who previously were paid according to skills are today no longer found in construction...

FORCED LABOUR - workers are supposed to have free choice of employers or workplaces. With the contractor for labour system, the workers are FORCED to work whereever based on what the contractor of labour orders. This makes it 'forced labour'. The contractor for labour system must be abolished - and recruitment of migrant workers SHOULD be allowed only by the workplace/factory owner that needs migrant workers after efforts to get local workers failed.

If Malaysia needs migrant workers, should not priority be given to workers from ASEAN member states first...

Recruitment and use of migrant workers also need to be reformed. Migrant workers must be recruited based on fixed term contracts of 3 to 5 years. The current annual contracts practice simply do not work and is unjust to migrant workers - the cost involved in recruitment, travel, compliance of medical and other conditions, etc simply does not justify short term contractual employment with all its cost and conditions - Justly, a guaranteed 3 to 5 year employment contract is more just.

Access to justice - another problem for migrant workers to claim rights against employer, but SADLY a plus factor why employ migrant workers - so easy to 'exploit' and 'violate rights' with them poor victims have almost no way to claim their rights. If they try to stay to fight for their rights, they break immigration law, and can be arrested, whipped, deported...

The inability to change employer - makes it also 'FORCED LABOUR'...

Will our dependence on migrant workers - erase/reduce the availability of Malaysians with the needed skills to do certain types of work?

Press Release

Commemorating International Migrants Day 2021

The Malaysian Bar commemorates International Migrants Day, observed on 18 December annually.  It is a day for us to acknowledge the hard work of migrant workers who contribute significantly to the economic development of Malaysia as well as their home countries.

Migrant workers comprise a sizeable proportion of the Malaysian workforce, yet their importance is hardly publicly recognised.  Migrant workers form the backbone of our country’s economy, primarily in critical industries such as plantations, manufacturing, agriculture, and construction.  Undoubtedly, Malaysia would be a vastly different country in the absence of migrant workers.

However, despite their ubiquity in the labour market, migrant workers have been portrayed as a potential threat to the country’s long-term social and economic development.1  Many migrant workers face barriers that prevent access to justice — including their fear of termination from their jobs and discrimination from the authorities.  Their lack of information about their rights to redress significantly hampers their chances of getting justice.

There is much that needs to be improved when it comes to protecting the rights of the migrant community.  During the height of the COVID-19 pandemic, the Government had conducted several raids that led to the detention of more than 18,000 undocumented migrant workers2 — an unnecessary step under the circumstances.

Equality before the law is a right enshrined under Article 8 of the Federal Constitution and applies to all persons in Malaysia, irrespective of nationality or citizenship.  However, migrant workers face barriers that make it incredibly difficult to access the legal system.  They usually arrive in Malaysia under dire financial circumstances.  The ability of these individuals to work in a safe environment, where their rights are protected, could mean the difference between financial security and financial ruin.

The Malaysian Bar is a firm advocate of equal access to justice for all individuals, irrespective of their immigration status.  Although migrant workers contribute their skills to build a stronger and more prosperous economy for our country, they still lack the fundamental awareness of the laws that protect them.  Most return home without any redress for the losses they may have suffered.

They are also vulnerable to the arbitrary seizure of passports, deportations, physical and mental torture, forced labour with little or no pay, discrimination, and sexual harassment.3  These are especially true for undocumented migrants.  However, we must bear in mind that some of these workers became “undocumented” for a variety of reasons — they may have lost their legal status during their stay here or might not have been able to renew their documents due to the COVID-19 pandemic — and not necessarily due to entering the country illegally.  Some may even have been trafficked into our country by unscrupulous individuals.  What we need to do is to treat all migrants, whether documented or not, with respect and with dignity.

On this International Migrants Day, the Malaysian Bar calls on the Government to:

(1)    Implement the recommendations put forward by the Bar Council in its report titled “Developing a Comprehensive Policy Framework for Migrant Labour”4 , including:

(a)    working closely with country-of-origin governments to fine-tune the recruitment system — to ensure that migrant workers are recruited fairly and equipped with the necessary skills in tandem with their employment, as well as knowledge of their labour rights and obligations; and

(b)    extending the Malaysian Government’s legal aid programmes, including the Legal Aid Department (Jabatan Bantuan Guaman) and National Legal Aid Foundation (Yayasan Bantuan Guaman Kebangsaan, “YBGK”), to cater for migrants and refugees in Malaysia;

(2)    Make public the report by the Independent Committee on the Management of Foreign Workers to implement the recommendations therein;

(3)    Grant undocumented workers the right to file cases in the Labour Court;

(4)    Ensure full respect for the human rights and humane treatment of migrants, regardless of their migration status, in line with the 2030 Agenda for Sustainable Development, adopted by the United Nations General Assembly on 25 September 2015;

(5)    Accede to the various international conventions which Malaysia has yet to do so, including:

(a)    the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, adopted by the United Nations General Assembly on 18 December 1990.  This Convention recognises and guarantees respect for the dignity and rights of all migrants, regardless of their national origin or immigration status; and

(b)    the C189 - Domestic Workers Convention, 2011 (No. 189), adopted by the International Labour Organization on 16 June 2011.  This Convention recognises the need to ensure the effective promotion and protection of the human rights of domestic workers; and

(6)    Adhere to the principles in the Global Compact for Safe, Orderly and Regular Migration agreement, wherein Malaysia is a signatory.

We need to continuously look at the ways to remedy the problems and barriers faced by migrant workers on our shores.  The Malaysian Bar is ready to work closely with all stakeholders and the Government to provide any assistance towards realising this objective.

Malaysian Bar

17 December 2021

1Stop painting migrants, refugees as security threats, says Suhakam”, Free Malaysia Today, 14 June 2021.
218,355 PATI ditahan sejak Januari”, Sinar Harian, 6 August 2020.
3Exploitation of Migrant Workers in Malaysia and Protection under Domestic Laws”, Science and Technology Publications, Lda, 2020. 
4Recommendations from the Conference: Developing a Comprehensive Policy Framework for Migrant Labour”, Bar Council, 2008. 


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