Media Statement – 30/12/2018
Wrong to retain/delay worker wages or use other mechanisms to deter worker’s
right to leave employer and other freedoms
Respect right to "Eight hours' labour, Eight hours'
recreation, Eight hours' rest"
We, the 49 undersigned organisations, trade unions and groups are perturbed
by the Malaysian government, being the
Ministry of Human Resources, proposal
for the employers to deduct 20 percent of their foreign workers’ basic salaries
as a means to bond workers to the employer. ‘Minister M. Kula Segaran said the proposal, among others, aimed at
preventing foreign workers from fleeing and to avoid employers from incurring
losses on investments to bring the workers in.’(The Sun Daily, 15/12/2018). Prioritizing corporation’s
need over worker rights and human rights is wrong.
Forced and/or Bonded Labour
Forced and/or bonded labour must
be abolished. Mechanisms like the keeping of part of the worker’s wage to
prevent an employee from leaving his employer is wrong, and could be considered
forced labour.
According to the International
Labour Organization(ILO), forced labour refers to situations in which persons
are coerced to work through the use of violence or intimidation, or by more
subtle means such as accumulated debt, retention of identity papers or threats
of denunciation to immigration authorities.
According to the ILO Forced Labour
Convention, 1930 (No. 29), which has been ratified by Malaysia, 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."
Of particular interest here, is voluntariness.
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.
In Malaysia, migrant workers are
allowed to work if they are in possession of a work pass, being either the
Social Visit(Temporary Employment) Pass or the Employment Pass. The problem now
is that the pass allows the worker to work for just one named employer. This
means that even if there is a breach of promise/agreement by the employer like
the amount of wages, working conditions and/or type of work, or if there is
harassment or violation of worker rights, the migrant worker, unlike local
workers, have no freedom or choice to leave the employer and seek employment with
another more just employer.
If the migrant worker leaves the
named employer, he/she will also lose the ability to continue to live and work
in Malaysia. Malaysian Immigration Department, on being informed by the
employer usually cancels the work pass/permit without according the affected
worker the right to be heard.
Retention of Worker’s Passport by Employers Violates the Law and Human
Rights
The most common way that many an
employer have ensured continued loyalty is by the wrongful retention of the migrant
worker’s passport and visa/pass, where in Malaysia, the inability to produce
these identification papers is an offence, which can lead to arrest, detention
and even prosecution. The fear of moving around with proper identification
papers also restricts one’s freedom of movement.
Withholding payment of overtime, etc until the next wage period
In 2012, Malaysia amended the
Employment Act 1955, which now allows the employer the ability to retain part
of the wages, being possibility a means of preventing workers leaving their
jobs. Section 19(2) of the Employment Act 1955 now reads, ‘(2)
Wages for work done on a rest day, gazetted public holiday referred to in
paragraphs 60D(1)(a) and (b) and overtime referred to in section
60A shall be paid not later than the last day of the next wage period.’ This
allows the employer to retain wages payable for overtime work and work done on
a rest day, gazetted public holiday for another month.
Workers can leave their
employment, but the usual requirement is that they give usually one month’s
notice, and if they want to leave immediately, then they will need to pay one
month’s wages in lieu of notice. The reality of most poor or middle income
worker, is that the simply will not be able to raise the money to pay the one
month’s wages in lieu of notice more so when their new, better or higher paying
job requires them to immediately report for work. As such many a worker will
just leave, and their employer has the choice to pursue them for that payment
in lieu of notice, which many an employer elects not to do in cases of low or
middle-income workers. After all, since wages are paid after work is done,
there is really no loss safe the inconvenience, since no work has yet to been
done that requires payment.
But, with the new amendment
brought after the previous Barisan Nasional government, the worker is not paid for
overtime and work done on rest days and/or public holidays at the end of the
month, as was the case before the amendment. They have to wait for the
following month.
It is even more unjust because
they receive no any added interest for this part wages that have been delayed.
Money paid today, used wisely, can easily generate additional income even after
a day or two.
So, not only are workers in
Malaysia suffering injustice in the delayed payment of part of their wages,
which is most important in an era where the cost of living is so high and most
workers have month loan repayment obligations, but the delay also prevents
workers from additional income which could even be obtained through placement
in an interest paying savings account or unit trust.
The object of this amendment
seems to be to assist employers, and possibly also another mechanism to deter
workers from leaving their employer.
Working Hours and Excessive Overtime
Malaysian government, especially
the Human Resource Ministry, need to prioritize the protection and promotion of
worker rights which is a human right. In Malaysia, the right to work only 8 hours a day (or 48 hours per
week) and thus having 8 hours for rest and another 8 for leisure and social
life, is also not sufficiently protected. There are simply too many ways in
Malaysian law whereby an employer can compel a worker into working longer
hours.
Worse still, is
the fact that Malaysia at present has a draconian overtime limit, as contained
in Employment (Limitation Of Overtime Work)
Regulations 1980, which stipulates
that the limit of overtime work shall be a total
of one hundred and four (104) hours in any one month.
Note that working on rest days and/or public holidays are not considered
overtime. Hence, in Malaysia a worker can end up working 12 hours every working
day.
Theoretically,
worker’s consent is required if a worker is to work overtime, on rest days
and/or on public holidays but the reality is that most workers just do not have
the choice to refuse the employer’s request. The risk of being discriminated
when it comes to wage increase, promotions or even termination is feared by
most workers. Short-term contract workers, who hope for a future extension of
their contract, or even a new contract of employment, are even more fearful of
refusing to do what an employer wants.
The past
government’s solution to low wages was simply suggesting that workers work more
overtime or just take on a 2nd job. That suggestion itself was a
suggestion to disrespect a worker’s right to have to just work an 8 hour day. Some
employers, even now have the audacity, to suggest that it is the workers who
want to work overtime and on rest days/public holidays, so they are being
compassionate in acceding to worker’s request.
When a human right
is acknowledged by the State, which usually also affirms it in law, the
employer and/or the employee no longer has the right to break the law or
violate that right. After slavery was abolished, slavery cannot continue even
if the slave wants it.
Hours of Work is the first International Labour Organisation Convention,
but alas Malaysia has not ratified it. That 1921 Convention stated that workers
will have to work not more than 8 hours per day OR not more than 48 hours a
week.
The 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). Even in exceptional cases, where there is agreement between
worker and employer, where limit placed on hours of work could be exceeded, it
is clearly stated that ‘The average number of hours worked per week, over the
number of weeks covered by any such agreement, shall not exceed forty-eight.’
(Article 5, ILO Convention 1)
Since then, International Standards are moving
towards even shorter number of hours of work. As an example, there is the 1957 C047 - Forty-Hour Week Convention, 1935 (No. 47).
Malaysia’s limit of overtime work being 104 hours in any one month is
draconian. As pointed out, the ILO maximum is not than 18 hours a week,
but in average a worker should not be made to work more than 48 hours per week.
Overtime is only permitted in exceptional situations, and such situations are
also stipulated in Malaysian law.
As a comparison, Indonesia has an
overtime limit of 14 hours a week. China has a monthly limit of 36 hours. In
France, they can work 10-12 hours a day, but workers should not be made to work
more than 48 hours a week.
No retaliation against HR Defenders – Investigate alleged violations
highlighted
On 9/12/2018, the Guardian, the UK Daily, highlighted violation of worker
rights including excessive overtime in a Malaysian company. (Guardian,
9/12/2018). The report stated, amongst others,
that ‘…The Top Glove workers – eight from Nepal and eight from
Bangladesh – alleged that their factory was “mental torture” where they had to
work seven days a week, at least 12 hours a day, with only one day off a
month...Payslips seen by the Guardian seemed to indicate workers often worked
between 120 and 160 hours’ overtime a month, exceeding the 104 hours allowed by
Malaysian law.’
The Human Resources Minister M. Kula Segaran, was reported the
following day stating that the ‘allegations of worker mistreatment at the
company are mostly false.’(Malaysian Insight, 10/12/2018). He even suggested
that the allegations ‘…could be the work of industry rivals out to beat the
country’s rubber gloves manufacturer…’.
It was also disappointing to see
that one media conference was held together with the representatives of the
company concerned.
It must be stressed that when
workers and/or human rights defenders highlight alleged human and worker rights
violations, the State must speedily conduct an independent investigation, and
certainly not come in defence of the alleged perpetrator, or make allegations
against worker complainants and human rights defenders, which includes the
media.
With regard to overtime, it not
simply the question of exceeding the overtime limits, but also whether it was
for the exceptional situations which allowed workers to be asked to do
overtime. If it happens week after week, every month, then it may no longer be
legally permitted overtime.
The Employment Act in section
60A(2) states that ‘…the Director General shall have the power to enquire into and
decide whether or not the employer is justified in calling upon the employee to
work’ overtime and on rest days.
To ensure the livelihood of the
worker and their families, workers should earn sufficient income working no
more than 8 hours per day or 48 hours a week. This is an obligation of the
State. Employers too should never prioritize profits over wellbeing of workers
and their families.
THEREFORE, we
Call on the Malaysian government
to abandon the idea of retaining part of the wages of workers ‘…as a means to
bond workers to the employer..’;
Call on the Malaysian government
to repeal the provision in law that delays the payment for overtime, work on rest
day and public holidays by a month. Workers should be paid promptly at the end
of the month for overtime and work on rest days/public holidays;
Call on the Malaysian government to
take action against employers that retain passports and/or visas/work passes of
their workers, something used, amongst others, to prevent workers the freedom
to leave employers,
Call on Malaysia to reduce the
overtime limit of 104 hours in compliance with international standards, which
should not be more than 48 hours a week generally;
Call on Malaysia to investigate
independently allegations of human rights violations, and not make allegations
or take retaliatory actions against human rights defenders, including media,
that highlights such allegations;
Call on Malaysia to take prompt
action against employers that violate worker rights, irrespective whether the
violation is ongoing or happened in the past. Penalties in law for violation of
worker rights need to be increased to deter the violation of worker rights.
Call on Malaysia to ratify/sign Hours
of Work (Industry) Convention, 1919 (No.1), and preferably also C047 - Forty-Hour Week Convention, 1935 (No. 47).
Call on
Malaysia, who has ratified Forced Labour Convention, 1930 (No. 29) to also ratify C105 - Abolition of Forced Labour
Convention, 1957 (No. 105). Malaysia, who ratified C105 in 1958 denounced it in
1990;
Call on Malaysia to ratify the International
Convention on the Protection of the Rights of All Migrant Workers and Members
of Their Families;
Call on Malaysia to ratify all
fundamental ILO and UN Conventions;
Call on Malaysia promote and
protect human rights defenders, and enact legislations to prevent retaliatory
actions against human rights defenders that highlight alleged human rights
violations; and
Call on Malaysia and employers to
respect and promote worker and trade union rights in Malaysia.
Charles Hector
Mohd Roszeli bin Majid
For and on behalf of the 49 organisations listed below:
ALIRAN
Asociación de Trabajadoras del Hogar a Domicilio y de
Maquila–ATRAHDOM,Guatemala C.A.
Association of Maybank Executives
Bangladesh Group, The Netherlands
Banglar
Manabadhikar Suraksha Mancha (MASUM), India
Burmese Worker"s Circle, Fort Wayne Indiana, U.S.A
Center for Alliance of Labor and Human Rights (CENTRAL),
Cambodia
Centre for Independent Journalism
Center for Migrant Advocacy, Philippines
Christian
Development Alternative( CDA), Bangladesh
Clean Clothes Campaign
Electrical Industry Workers' Union(EIWU)
Electronics Industry Employees Union Southern Region Peninsular
Malaysia(EIEUSR)
Globalization Monitor, Hong Kong
Global Women’s Strike, United Kingdom
Global Women’s Strike, US
Institute for Development of Alternative Living
(IDEAL), Sarawak
International Labor Rights Forum, USA
International Labor Rights Forum, USA
Kesatuan Eksekutif AIROD
Kesatuan Pekerja-Pekerja Perusahaan Otomobil Nasional Sdn
Bhd (KPP Proton)
Legal Action for Women, United Kingdom
MADPET(Malaysians Against Death Penalty and Torture)
Malaysian Physicians for Social Responsibility (MPSR)
MAP (Migrant Assistance Program) Foundation, Thailand
National Garments Workers Federation, Bangladesh
National Union of Flight Attendants Malaysia (NUFAM),
Malaysia
National Union of Journalist(NUJ) Utusan
National Union of Transport Equipment & Allied
Industries Workers (NUTEAIW)
North South Initiative(NSI)
ODHIKAR, Bangladesh
Parti Sosialis Malaysia(PSM)
Payday Men’s Network, United Kingdom
Persatuan Komuniti Prihatin Selangor, KL & Perak
(PRIHATIN)
Persatuan Sahabat Wanita, Sgor (PSWS)
PETPOSITIVE
Philippine Knowledge and Activity Centre in the
Netherlands
Plantation Resource Centre (PRC)
Programme
Against Custodial Torture & Impunity (PACTI), India
Radanar Ayar Association
Sarawak Dayak Iban Association
Sahabat Rakyat 人民之友
SUARAM Malaysia
Tenaga Nasional Junior Officers Union (TNBJOU)
The Trade Union
Solidarity Centre of Finland SASK
York
Psychotherapy Centre, UK
Women of Colour
in the Global Women's Strike, United Kingdom
Women on Color/GWS,US
Workers Assistance Center, Inc (WAC)
, Philippines
WH4C(Workers Hub
For Change)
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