The Human Resources Ministry will summon an agency involved in recruiting 171 migrant workers from Bangladesh but failed to find them employment after three months here.
Name the AGENT? Agent of which EMPLOYER? Or was the agent also the recognized employer of these workers?
Steven Sim, HR Minister
Why is the Minister talking about summoning the AGENT - rightfully he should be summoning the EMPLOYER - not the Employer appointed agent?
After all, no permission to bring in any MIGRANT WORKER unless the employer applies on the ground that he cannot find local workers, and thus have to bring in migrant workers... And the moment the migrant worker arrives in Malaysia, his/her employer must pay agreed wages, ensure proper board and lodgings... 'failed to find them employment' is no excuse for an EMPLOYER(the Contractor For Labour) - the worker must still be paid and receive all benefits of employment even if the employer cannot find him work to do...
Since about 2006, the then Barisan Nasional regime introduced the 'Contractor For Labour', who were no longer agents of employers - but became the EMPLOYER itself.
Being EMPLOYER, they are duty bound to take care of all their employees - pay wages(as agreed in Employment Agreement, and if not stated, the minimum wage), provide adequate housing, etc...
Problem with these 'Contractor For Labour' is that they themself do not have any work requiring workers - so, what they do is 'outsource' or send their own employees to work in other workplaces. This workplace pays the 'Contractor For Labour', who then pays his/her own employees [Question: Will that arise a situation where workers doing the same work are paid differently? To avoid that, the workplace employer says that he pays equally his own employees, and for the contractor for labour's employees, it is not his business as he just pays the contractor what is due - how much the contractor for labour pays his own employee is none of the workplace employers business.
So, 'The Human Resources Ministry will summon an agency involved in recruiting 171 migrant workers from Bangladesh but failed to find them employment after three months here.' IS NOT THE ISSUE at all.
No migrant worker can enter Malaysia without an EMPLOYER - so he real question must be Why has the EMPLOYER failed to protect their employees, failed to pay WAGES(as agreed) since arrival in Malaysia, failed to provide adequate housing, food and board.
For the Contractor for Labour, now legally recognized as the EMPLOYER, 'failure to find them employment/work' is no excuse for not paying WAGES and providing employees all the benefits due to them...
Now, if the EMPLOYER is some other >> where employer of the workplace engage 'agents' to identify, and bring in foreign employees, then the liability is on the Workplace employer and also the agent..
It is without a doubt that these 171 migrant workers in detention are also victims of trafficking - and rightly these victims have to be placed in 'safe houses' rather that detention centers...
TO REFORM
1- Abolish the Contractor for Labour, Only employers with workplaces which have real work that needs workers, who have proven effort to find local workers have failed, must be given permission to recruit and bring in migrant workers. These employers, can use 'agents' for the recruiting purpose, but ultimately, they are responsible for actions/omissions of any of their agents.
2- The use of workers(not employees of 'the principal or owner of that agricultural or industrial undertaking, constructional work, trade, business or place of work..') at the workplace also causes many other serious worker issues:-
a) UNIONS or worker solidarity is weaken - not being employees of the workplace means they cannot join the Union or benefit from Collective Bargaining Agreements, as these are about rights of EMPLOYEE - not non-employee workers.
b) A Workplace EMPLOYER generally may not even have employer obligation to these 'non-employee workers'. And a 'non-employee worker' have no right to demand better working conditions and rights from the workplace employer... Note that the Contractor For Labour really have no ability to even improve worker rights and working conditions at the workplace.
c) Workplace employers are also held 'hostage' by these Contractor For Labours...as the workplace employer cannot even retain 'good workers' and make them their own employees..
d) If an employee of the Contractor For Labour, is wrongfully dismissed - can the wrongfully dismissed employee even go for a reinstatement ...Ooops, where is the job?
This current injustice, noting the the Contractor for Labour issue no longer concerns migrant workers but also local workers - the MINISTER has the power under the Employment ACT to simply issue an ORDER that will make all workers at any workplace EMPLOYEES of the a) the principal or owner of that agricultural or industrial undertaking, constructional work, trade, business or place of work; or (b) that statutory body or that authority.
2A Minister may prohibit employment other than under contract of service
(1) The Minister may by order prohibit the employment, engagement or contracting of any person or class of persons to carry out work in any occupation in any agricultural or industrial undertaking, constructional work, statutory body, local government authority, trade, business or place of work other than under a contract of service entered into with-
(a) the principal or owner of that agricultural or industrial undertaking, constructional work, trade, business or place of work; or
(b) that statutory body or that authority.
(2) Upon the coming into force of any such order, the person or class of persons employed, engaged or contracted with to carry out the work shall be deemed to be an employee or employees and-
(a) the principal or owner of the agricultural or industrial undertaking, constructional work, trade, business or place of work; or
(b) the statutory body or local government authority,
shall be deemed to be the employer for the purposes of such provisions of this Act and any other written law as may be specified in the order.
### Another issue is the EMPLOYMENT AGREEMENT of migrant workers - they must all be deposited in the Ministry. Mind you, most migrants reasonably will sign a 3 year or 5 year contract of employment >>> but somehow, migrant workers 'get cheated' by later being compelled to enter into lesser contracts -- maybe Malaysian HR Minister must insist the deposit of the employment agreement of migrant worker and Malaysian employer...think also a standard contract that ensures all worker rights are covered.
The other issue with migrant workers is the lack of access to mechanisms of justice, for all that the Home Ministry(Immigration) wants is to get them out of Malaysia once they are no longer employed(irrespective if whether it is a wrongful dismissal or not). Now if a worker has a claim against his/her EX-employer over unpaid wages, unpaid OT, etc... the worker CAN ONLY GET JUSTICE using the existing mechanisms in Malaysia...be it the HR Department(Labour Court), Industrial Court or the Civil Courts... but Malaysia, by speedy deportation, even of these victims of labour exploitation inadvertently support TRAFFICKING... how many migrant workers are exploited and cannot get justice simply because they cannot commence actions for justice in Malaysia because they are no longer in Malaysia. It has been suggested, that once a migrant worker has been terminated, the HR Ministry determine that there are no potential or outstanding claim against employer/agent/others in MALAYSIA related to the employment before the migrant worker is forced to leave Malaysia, and if there is, the sending back of the migrant worker is delayed until all claims are resolved.
Its minister Steven Sim said further investigations will be conducted this week on the agency responsible. Currently, the migrant workers are being held under immigration custody since Dec 20.
“We will not hesitate to take stern action against those found guilty,” Sim (above) told Malaysiakini yesterday, several hours after Kota Tinggi district police chief Hussin Zamora reportedly confirmed the arrests of the workers.
Yesterday, Hussin said the workers were legally brought into Malaysia but their agent has yet to provide them with work after three months.
“So, the Bangladeshi nationals decided to walk to the Bayu Damai police station, about 10km away from their accommodation, to lodge a police report on Dec 20,” he was quoted as saying by The Star.
However, a police report was lodged against the workers based on a video of them walking together.
Hussin also said the workers did not manage to lodge a police report after it was discovered that their agent had yet to find suitable employment for them.
Citing the Johor case, Sim said he had instructed his ministry to assist the workers to find jobs here.
“This action is done on humanitarian grounds given that this matter is beyond the purview of the Human Resources Ministry,” he added.
At the same time, Sim said he will be meeting Home Minister Saifuddin Nasution Ismail to improve policies related to migrant workers.
“I would like to stress that hiring migrant workers is to support businesses and should not be a business in itself,” Sim added.
Exploitation
Meanwhile, Pengerang MP Azalina Othman Said has called for immediate investigations against those who duped the migrant workers.
Azalina, who is minister in the Prime Minister’s Department (Law and Institutional Reform), said violation of human rights should not be tolerated, including in the business sector.
“This is only the tip of the iceberg. The culprits behind this syndicate must be held accountable and immediate investigations must be carried out on who issued these permits with no jobs available.
“The responsibility and role of all companies involved should also be investigated to determine how legitimate migrant workers could be exploited and enticed with promises of work in Malaysia,”
“These are crimes against humanity. We must not tolerate violations against human rights including in the business sector. It is time to take firm action against irresponsible businesses,” she said in a statement posted on her X account.
The Umno leader also commended Sim for extending assistance to the migrant workers.
Ex-MPs call for action
The incident also caught the attention of two former Pakatan Harapan MPs who urged immigration authorities not to criminalise the workers.
Former Klang MP Charles Santiago, in a posting on X, urged authorities against going after the workers whom he described as victims.
“They need justice. They borrowed money to come here. No jobs, no salaries, no food," he said, alluding to reported incidents of fraud and debt bondage faced by migrant workers.
Additionally, Charles said police should investigate whether there are elements of collusion between agents and the local authorities.
Meanwhile, former Sungai Buloh MP R Sivarasa said MACC should immediately investigate how the agent obtained the Immigration Department’s approval to bring in workers when there were no jobs available.
“Immigration should stop treating the Bangladeshi workers as criminals who have broken immigration laws,” he said. - Malaysiakini, 26/12/2023
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