Media Statement – 22/9/2023
FORCED LABOUR POLICIES AND LAWS, WITHOUT ENFORCEMENT AND ENSURING VICTIMS JUSTICE IS USELESS
Laws that allow excessive overtime makes Malaysia party to propagating forced labour
We, the undersigned 20 groups, organizations and Trade Unions applaud Malaysia’s stated commitment to eradicating forced labour. However, fining and/or even imprisoning employers only is simply not enough, as it must ensure workers victims, including migrant workers, are justly compensated by the perpetrators of forced labour. Offering Compounds rather than prosecuting in Court allows perpetrators of forced labour to escape conviction.
Forced Labour includes work or service which is exacted from any person under the threat of a penalty and for which the person has not offered themselves voluntarily. The International Labour Organisation (ILO) Indicators of Forced Labour are Abuse of vulnerability, Deception, Restriction of movement, Isolation, Physical and sexual violence, Intimidation and threats, Retention of identity documents, Withholding of wages, Debt bondage, Abusive working and living conditions and Excessive overtime.
Sadly, Malaysia’s Employment (Limitation of Overtime Work) Regulations 1980 states that the overtime limit shall be a total of one hundred and four hours in any one month, and this does not include work on rest days, or paid holidays.
Until, this draconian law is amended, Malaysian law continues to promotes forced labour -being excessive overtime.
1921 ILO Convention stated that workers will have to work not more than 8 hours per day OR not more than 48 hours a week, and this limit may ‘be exceeded in those processes which are required by reason of the nature of the process to be carried on continuously by a succession of shifts, subject to the condition that the working hours shall not exceed fifty-six in the week on the average.’ (Article 4, ILO Convention 1). In Malaysia, overtime is not limited to exceptional situations in practice – but sometimes becomes the norm. Even though Malaysia have reduced weekly working hours from 48 to 45 beginning January 2023, it is useless if the legal overtime limit remains 104 hours a month.
Malaysia’s Poor Track Record on Forced Labour
Over the years, there have been several allegations of forced labour in Malaysia, whereby countries like the United States of America and even the United Kingdom did not stop with allegation but also took actions. Sadly, the Malaysian government generally claim allegations are baseless and seldom do anyone get prosecuted for forced labour.
As an example, the United States lifted a 17-month import ban on products from Malaysian rubber glove maker Smart Glove, saying the company has addressed exploitative labour practices. including repaying recruitment fees borne by migrant workers and improving workers' living condition. (Reuters, 28/4/2023)
London High Court is set to hear claims by migrant workers of forced labour and dangerous working conditions at a factory in Johor which manufactures components for Dyson electrical goods next week.(FMT, 11/7/2023)
Survey by International Labour Organization (ILO) indicate that 29 per cent of surveyed migrant domestic workers in Malaysia were in conditions meeting the ILO’s statistical definition of forced labour (1LO, 15/6/2023).
Victims of Forced Labour – Local and Migrant Workers
Local workers and migrant workers are both victims of forced labour. When they do muster the courage to demand their rights, outstanding payments due and other entitlements provided by law, some employers respond with threats of termination(penalty), and in the case of migrant workers, cancelation of work permits and even detention and repatriation back to country of origin.
Noting that avenues of justice for workers are in Malaysia, and many require the physical attendance of the affected worker, which is almost impossible for poor migrant workers who already have been sent back to countries of origin. For local poor workers, the problem is resources (money and time) and capacity deters them from pursuing justice.
RM242,000 in fines and RM2,17 million in Compound, But Victims left out
‘Since January 1…for various labour offences including illegal wage deductions, 272 employers were issued compounds totalling RM2.17 million, while 128 employers were fined by the court, amounting to RM242,000, he (Human Resources Minister V. Sivakumar) said…’(Malay Mail, 14/9/2023). However, the Minister failed to state how many workers were victims of forced labour practices, and whether these worker victims have been justly compensated.
Fines and compound payments go to the government, and not to the affected worker victims of forced labour. Justice for forced labour victims must be a government’s priority that could be even be dealt by the court that convicts employer, Directors and other officers for forced labour crimes.
Compensation for Worker Victims can be dealt with in the same proceedings
In Malaysia’s Criminal Procedure Code (CPC), after the perpetrator has been convicted, Section 426(1A) provides that the Court can order the convicted to pay ‘…compensation to a person who is the victim of the offence committed by the convicted accused in respect of the injury to his person or character, or loss of his income or property, as a result of the offence committed…’
A similar provision could easily be inserted in the Employment Act 1955 and other labour laws, so that adequate just compensation can also be awarded to victims of forced labour and other worker rights violation in the same proceeding, without requiring victims themselves to go after the convicted perpetrators alone to get justice.
The CPC further states that the such orders for payment shall not prejudice any right to a civil remedy for the recovery of any property or for the recovery of damages beyond the amount of compensation paid under the order.
At least, then, victims of forced labour will get some compensation after the Court convicts forced labour offenders, and still retain the right to get further compensation, if they so desire, through other civil remedies.
Now, Section 87A states that, ‘(1) Where an employer has been convicted of an offence relating to the payment of wages or any other payments payable to an employee under this Act, the court before which he is convicted may order the employer to pay any payment due to the employee in relation to that offence.’ However, this do not extend to other forced labour or worker rights violation. Further, this can only happen, if the perpetrator is charged and convicted in Court, not to those who were offered compounds and not charged in court.
Most victimized workers are poor and lack capacity, and simply choose not to pursue justice, hence allowing perpetrators of forced labour to get away with it. Fines and compounds alone do not justice to worker victims of forced labour.
Were the human Directors, Managers, etc OR just body corporate prosecuted?
Since 2012, Employment Act 1955 was amended to include Section 101B, which states, ‘Where an offence under this Act has been committed by a body corporate, partnership, society or trade union-(a) in the case of a body corporate, any person who is a director, manager, or other similar officer of the body corporate at the time of the commission of the offence;(b) in the case of a partnership, every partner in the partnership at the time of the commission of the offence; and..’.
Thus, it is important for the Malaysian Human Resource Minister to disclose how many Directors and officers of these corporation or entities were also prosecuted for forced labour offences. It is a grave injustice if actions is not taken against the human persons responsible for actions/omissions of a company. A company is a mindless shell, and thus merely fining or receiving compounds from companies, but not directors, managers, or other similar officers enables the real criminals to escape.
The Minister must disclose how many human persons in the companies or body corporates were fined or paid compounds – for to not do so is basically protection of the human perpetrators of forced labour. Failure to prosecute will not deter these human perpetrators from repeating crimes of forced labour.
End Compounds -Discriminatory to charge 128 employers in court, but not the other 272?
Was there discrimination or selective prosecution? All employers, Directors and officers that committed forced labour or other labour offences must be charged in Court, where it will be clear from the charges what offences is committed?
Were those who were offered compounds government linked entities/persons? Why were they not charged, and allowed to escape with no record of guilt for the offences of forced labour?
The compound process is an administrative action, not a judicial process. How much is the compound offered is decided by the administration. In Court, the Judge will consider all factors including the injustices suffered by the many victims before pronouncing a just sentences.
Although the offence of forced labour provides for a sentence of ‘…fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding two years or to both…’, it is shocking the Human Resources Minister disclosure implies that no one was sentenced to imprisonment, and this may be indicative of Malaysia’s commitment to eradicating forced labour and ensuring justice.
Amongst the many employers that were fines or paid compounds, how many of these employers did justice to the worker victims? Were they compensated? Were they reinstated or paid in lieu of reinstatement? Have Malaysia forgotten to ensure justice to worker victims? Will the information of employers that paid compounds even be disclosed to the public or worker victims, as those charged in court and fined are available to the public?
A National Action Plan on Forced Labour (NAPFL) 2021-2025 or having Guidelines on Preventing and Eradicating Forced Labour Practices in the Workplace is just not enough without indiscriminatory prosecution of all guilty of forced labour offences, and ensuring justice for all worker victims.
There, we call:-
For Malaysia to be intolerant of forced labour and worker rights violations, and ensure all worker victims are justly compensated;
For the repeal/amendment of all draconian laws or provisions of law, that facilitate or fail to deter forced labour and workers violation. Employment (Limitation of Overtime Work) Regulations 1980 must be amended to reduce the legal limit of monthly overtime from 104 hours per month to one that will ensure that working hours with overtime, work on rest days/public holidays shall not exceed fifty-six in the week on the average.
For the Malaysian government to abolish compound for forced labour and all worker rights violations, and ensure all perpetrators including human decision makers be charged, tried and convicted in court.
For a transparent disclosure of all perpetrators of forced labour, with a practice where repeat offenders will receive higher sentence.
For a deterrent punishment that employers pay at least 5 times the amount of monies they withheld from workers wrongly. Now, all that the law requires is that ‘…the employer to pay any payment due to the employee in relation to that offence…’, not even with interest or double.
For Malaysia to defend and promote worker rights, and to eradicate forced labour.
Charles Hector
Apolinar Z Tolentino, Jr.
For and on behalf of the 20 organisations listed below
ALIRAN
WH4C (Worker Hub For Change)
MADPET (Malaysians Against Death Penalty and Torture)
Building and Wood Workers International (BWI) Asia Pacific Region
Black Women for Wages for Housework
Clean Clothes Campaign International Office
Clean Clothes Campaign (CCC) SEA Coalition
David Foust, México
GoodElectronics Network
Japan Innocence and Death Penalty Information Center
North South Initiative (NSI), Malaysia
Payday Men’s Network (UK/US)
Persatuan Komuniti Prihatin Selangor and Kuala Lumpur
Persatuan Sahabat Wanita Selangor
Sabah Timber Industry Employees Union (STIEU)
Sarawak Dayak Iban Association (SADIA)
Serve the People Association, Taiwan
SETEM Catalunya, Spain
Women For Equality Association, Malaysia
Women of Color/Global Women’s Strike, US
>
HR minister: Malaysia’s forced labour practices under control
PUTRAJAYA, Sept 14 — The government views the practice of forced labour in Malaysia seriously, even though it is still under control, and has set a target of zero forced labour by 2030, said Human Resources Minister V. Sivakumar.
He said the government’s commitment to addressing forced labour can be seen through the amendment of the Employment Act 1955 (Amendment) 2022, which has created new provisions through Section 90B regarding forced labour, in addition to launching the National Action Plan on Forced Labour (NAPFL) 2021-2025.
The Department of Labour Peninsular Malaysia (JTKSM) has taken action, with 1,321 investigation papers opened against 645 employers since January 1, for various labour offences including illegal wage deductions.
In the same period, 272 employers were issued compounds totalling RM2.17 million, while 128 employers were fined by the court, amounting to RM242,000, he said.
“The JTKSM’s action is not intended to punish employers involved, but rather to serve as a lesson so that the issue of forced labour is not taken lightly in the country,” he said at a press conference, after launching the Guidelines on Preventing and Eradicating Forced Labour Practices in the Workplace, today.
The 50-page guideline is a joint effort of JTKSM and the Home Ministry’s Council for Anti-Trafficking in Persons and Anti-Smuggling of Migrants (MAPO), to serve as a guide for employers and employees and to raise awareness among stakeholders on the issue of forced labour practices.
The book explains the indicators of forced labour, including persecution of vulnerable groups, excessive overtime and physical and sexual violence.
Based on the provisions under Article 2(1) of the Forced Labour Convention 1930, any work or service performed by a person under threat of any form and without consent, is defined as forced labour.
The book will
be distributed to government premises as well as private employers and
can be obtained through the JTKSM website. — Bernama- Malay Mail, 14/9/2023
US lifts import ban on Malaysia's Smart Glove
ReutersApril 28, 202311:20 AM GMT+8Updated 5 months ago
The logo of Smart Glove, a rubber glove manufacturer, is displayed at its facility in Klang, Malaysia April 27, 2023. REUTERS/Hasnoor Hussain Acquire Licensing Rights
KUALA LUMPUR, April 27 (Reuters) - The United States lifted a 17-month import ban on products from Malaysian rubber glove maker Smart Glove, saying the company has addressed exploitative labour practices.
U.S. Customs and Border Protection (CBP) in November 2021 sanctioned imports from Smart Glove and its group of companies over the alleged use of forced labour at its production facilities.
Smart Glove, which makes gloves used in the medical and food industries, had then said it was opposed to forced labour and committed to the well-being of its workers.
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In a statement on Wednesday, the CBP said Smart Glove has taken various remediation measures, including repaying recruitment fees borne by migrant workers. Activists say the onerous fees result in debt bondage.
Smart Glove also improved workers' living conditions, and implemented new worker-centered policies and procedures, the CBP said.
Smart Glove in a statement said the lifting of the import ban "allows us to again fully meet the needs of our valued customers in the United States".
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The company added it has implemented a "zero cost" recruitment policy, upgraded worker housing and created an anonymous reporting channel for workers to engage with management on any issues.
Malaysian companies, including some of the world's major suppliers of palm oil and medical gloves, have come under increased scrutiny over suspected abuse of foreign workers, a significant part of the country's manufacturing workforce.
Reporting by A. Ananthalakshmi; Editing by Kanupriya Kapoor - Reuters, 28/4/2023
Dyson faces London lawsuit over ‘forced labour’ claims at Malaysian factory
Twenty-three foreign workers say the electrical gadget manufacturer was unjustly enriched by the factory’s ‘unlawful, exploitative and dangerous conditions’.
FMT Reporters - 11 Jul 2023, 1:05pm
The London High Court will hear the migrant workers’ claim of assault, battery, cruel and degrading treatment, exposure to extremely hazardous working conditions, and abusive living conditions. (judiciary.uk pic)
PETALING JAYA: The London High Court is set to hear claims by migrant workers of forced labour and dangerous working conditions at a factory in Johor which manufactures components for Dyson electrical goods next week.
Leigh Day, a law firm representing 23 Nepali and Bangladeshi workers, said the claims against the British appliance maker also include allegations of false imprisonment at its contractor’s factory in Johor.
Scheduled to run from July 17 to 19, the case will also hear claims by the workers of assault, battery, cruel and degrading treatment, exposure to extremely hazardous working conditions, and abusive living conditions.
Dyson terminated various contracts with the factory since 2021, citing alleged forced labour and worker mistreatment.
The factory produces components for Dyson vacuum cleaners, lighting, haircare equipment, heaters and fans.
The individuals are said to have worked at the factory for between three and nine years.
The civil negligence claim is being brought against three companies within the Dyson Group – Dyson Technology Limited and Dyson Limited, both based in Malmesbury, England, and Dyson Malaysia, located in Johor Bahru.
The workers said they paid the equivalent of several months’ wages to recruitment agents working for the factory.
In exchange, they were provided with visas and flown into Malaysia to work, allegedly finding themselves in debt bondage and paid below minimum wage, sometimes earning less than US$10 (RM46) a day.
Many say they were forced to resort to borrowing money from loan sharks, exacerbating their debts and vulnerability.
They allege that their passports were retained for the duration of their employment, making it impossible to find other work, and so were trapped into working at the factory.
The minimum daily shift for the claimants was 12 hours long, but they allege that they were forced to work overtime, with daily shifts lasting up to 18 hours without a break. They also allege that they were refused annual leave.
The workers say their work visas were allowed to lapse, resulting in them being in the country illegally. As a result, they claim to have been living in constant fear of arrest.
The claimants say they were charged rent to live in a mass dormitory with up to 80 people sleeping in stacked beds in one room. They describe poor sanitation, overcrowding, no air conditioning, unclean and broken toilet facilities.
They also allege that Dyson had known about the unlawful conditions at least since November 2019 when they were notified by whistleblower Andy Hall.
They contend that the exploitation and dangerous working conditions faced by migrant workers in Malaysian factories had been widely reported over the last 10 years, and therefore, was something that Dyson should have been aware of.
In their legal claim, the workers said Dyson was unjustly enriched as a result of the unlawful, exploitative and dangerous conditions at the factory.
They say Dyson is liable for violating their legal rights, having known of the alleged unlawful practices at the factory, and because of their assumption of responsibility through numerous public statements regarding their policies and procedures for detecting and preventing forced labour and exploitation in their supply chains.
A preliminary issue which the judge must decide is whether the claims can proceed in the courts of England and Wales.
Dyson contends that the claims should be heard in Malaysia. The claimants say these claims relate to the Dyson UK companies and should be heard in the English courts.
“Post-Brexit, overseas victims of alleged corporate abuses by UK headquartered companies no longer have the automatic right to sue that company in the UK,” said Leigh Day partner Oliver Holland.
“Access to justice will be a significant factor in deciding whether the English High Court should continue to hear these kinds of claims against companies which are based in the UK but employ labour in other countries.”. - FMT, 11/7/2023
Nearly 30pct of domestic workers in M'sia face forced labour: UN agency
The International Labour Organisation (ILO) identified conditions such as excessive working hours, unpaid overtime, low wages, restricted movement, and being unable to quit among its indicators of forced labour.
The survey, based on interviews with 1,201 domestic workers in Southeast Asia, found 29 percent of those in Malaysia faced such conditions, compared to 7 percent and 4 percent in its neighbours Singapore and Thailand, respectively.
Malaysia and Singapore did not immediately respond to requests for comment on the survey findings.
Wannarat Srisuksai, a spokesperson for Thailand’s labour ministry, told Reuters the treatment of domestic workers in the country has improved following laws introduced in 2012 to protect the group.
In all three countries, the domestic workers surveyed on average worked hours “well in excess” of those legislated for other workers, and none earned the minimum wage, the ILO said.
“Domestic work is one of the most important tasks in our society, and yet provided with the least protection. This can no longer be accepted,” said Anna Engblom, chief technical adviser at the ILO programme, which conducted the study.
The ILO urged Malaysia, Singapore, and Thailand to ratify UN conventions on domestic workers and forced labour, to recognise the skilled nature of domestic work, and ensure migration pathways that did not tie the workers to their employers.
Households in Asia often employ domestic workers - usually women from developing nations such as Indonesia, Myanmar, and the Philippines - to carry out housekeeping tasks including cooking, cleaning, childcare, and gardening.
Malaysia has faced criticism in recent years following multiple incidents of Indonesian domestic workers being abused in Malaysian households, while several of its companies have been accused of exploiting migrant labourers.
Indonesians make up about 80 percent of domestic workers in Malaysia, according to the ILO. Last year, Malaysia and Indonesia signed an agreement to improve protections for domestic workers.
- Reuters - Malaysiakini, 15/6/2023
Domestic workers
Study highlights forced labour amongst migrant domestic workers in Southeast Asia
Survey by International Labour Organization (ILO) of migrant domestic workers in Singapore, Malaysia and Thailand points to poor working conditions, yet also highlights the skilled nature of domestic work.
BANGKOK, Thailand (ILO News) - Denial of labour and social protection rights to migrant domestic workers is leading to exploitation and forced labour in key Southeast Asian employment markets according to a new report issued by the International Labour Organization (ILO). Findings also highlight the skills required for work carried out by domestic workers and calls for this to be recognized in pay and regulated hours, like any other job.The study is based on interviews with 1,201 domestic workers between July and September 2022 in Malaysia, Singapore and Thailand. Findings indicate that 29 per cent of surveyed migrant domestic workers in Malaysia were in conditions meeting the ILO’s statistical definition of forced labour; as were 7 per cent of surveyed workers in Singapore and 4 per cent in Thailand. Indicators of involuntariness include not being able to quit your job, having to stay in the job longer than agreed, and being made to work without overtime pay, among others.
“Domestic work is one of the most important tasks in our society, and yet provided with the least protection. This can no longer be accepted,” said Anna Engblom, Chief Technical Adviser of ILO’s TRIANGLE in ASEAN programme which produced the study.
The study challenges the narrative that domestic work is unskilled or low skilled. Domestic workers were found to be regularly doing medium-skilled tasks, especially when providing care work. These were classified as International Standard Classification of Occupations (ISCO) Skills Level 2 which require more technical skills and good transversal skills including communication and the ability to speak the local language. However, these skill levels are neither recognized in domestic workers’ pay nor other working conditions.
Additional findings highlight the relatively low enrollment rates
amongst migrant domestic workers in social security schemes, a situation
which can amplify the isolation of workers and their vulnerability to
forced labour practices. Various states also restrict domestic workers’
ability to organize or collectively bargain, with legal and social
obstacles still preventing domestic workers from forming, and sometimes
joining, trade unions in the study countries.
“Domestic workers
need to be recognized as the skilled employees that they are in terms
of pay and employment conditions. The skilled nature of their work
should also be reflected in migration pathways. All too often migrant
domestic workers are locked into restrictive employment patterns. By
allowing them the opportunities to change employers or negotiate better
working conditions, as other skilled migrants can, they would be far
less likely to suffer exploitation,” Ms Engblom added.
Recommendations made by the study include the ratification and
implementation of ILO’s Domestic Workers Convention, 2011 (No. 189),
Forced Labour Convention, 1929 (No. 29), and the Protocol of 2014 to the
Forced Labour Convention, 1930 to ensure that domestic workers enjoy
rights at least equal to those of other workers, in law and in practice.
Instances of forced labour should result in criminal charges and
policies changed to prevent its occurrence. Skills recognition
opportunities for domestic workers should also be explored and migration
pathways should be appropriately flexible, accessible and rights-based.
Skilled
to care; forced to work? Recognizing the skills profiles of migrant
domestic workers in ASEAN amid forced labour and exploitation was
produced by the ILO as part of the TRIANGLE in ASEAN programme, which
is funded by the Australian Government Department of Foreign Affairs and
Trade (DFAT) and Global Affairs Canada (GAC). - ILO, 15/6/2023
Employers must comply with law, reduce working hours to 45 hours a week: HR Ministry [NSTTV]
IPOH: The government has urged all employers to comply with the Employment Act 1955, especially with regard to the reduction of working hours from 48 hours to 45 hours a week.
Human Resources Minister V. Sivakumar said this was because the amendment had been approved in Parliament last year and employers were given until Jan 1 this year to implement it.
"So I don't want any excuse from employers who say that they don't know about the law that has been passed," he said when met by reporters during a press conference at the Perak Human Capital Development Centre today.
On Feb 23, Malaysian Trade Union Congress (MTUC) secretary-general
Kamarul Baharin Mansor was quoted in a media report urging the Human
Resources Ministry to take strict action against employers who flouted regulations under the Act. - NST,26/2/2023
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