How easy is it to EXPLOIT migrant workers, and then by law/policy/practice make it most difficult for them and other foreign nationals to access justice? Employers non-payment or delay in payment of wages/Overtime and other monies due to be paid to workers - and then these foreign workers are made to LEAVE Malaysia - and as such these foreign workers cannot pursue their claims at the Labour Department(or Labour Court), at the Industrial Relations Department(or Industrial Court) or other Courts in Malaysia.
To pursue a claim that arose due to a violation of the Malaysian Law requires the claimant to file and pursue their claim or legal case in Malaysia - and Malaysia ONLY. So, when foreigners are by law/policy/practice 'forced' to leave Malaysia when their work permits[Social Visit Temporary Employment Permits or Employment Passes,..] expire - means that these human trafficking victims are denied access to justice against the PERPETRATOR employers or agents - such laws/practices/policies of Malaysia may ENCOURAGE exploitation of foreigners....migrant workers - hence Malaysia may be guilty of facilitating and not deterring Human Trafficking
According to the ANTI-TRAFFICKING IN PERSONS AND ANTI-SMUGGLING OF MIGRANTS ACT 2007,
"trafficking in persons" means all actions of recruiting, conveying, transferring, acquiring, maintaining, harbouring, providing or receiving, a person, for the purpose of exploitation, by the following means:
(a) threat or use of force or other forms of coercion;
(b) abduction;
(c) fraud;
(d) deception;
(e) abuse of power;
(f) abuse of the position of vulnerability of a person to an act of trafficking in persons; or
(g) the giving or receiving of payments or benefits to obtain the consent of a person having control over the trafficked person;
"exploitation" includes all forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, any illegal activity or the removal of human organs;
HENCE, the violation of worker rights - including deception, non payment of monies due, etc are all EXPLOITATION - and so until MALAYSIA changes its laws/practices/policy to no more allow the violator of worker rights get off scot free SIMPLY because justice can only be achieved in Malaysia through the various venues of justice in Malaysia be it labour departments and courts - and Malaysia simply 'forces' them to leave Malaysia.
WHAT NEEDS TO CHANGE?
# No migrant worker or foreigner is 'forced' to leave Malaysia until it is ascertained that there is NO outstanding claim or possible claim by the said worker against the 'Perpetrator' employer or agent. [A suggestion made previously is that the MINISTRY OF HUMAN RESOURCES, being the Ministry responsible for employment matters and workers, should investigate and issue a CERTIFICATE that there is no existing claim/possible claim in connection with employment or related matters] Currently, the Immigration Department is concerned only whether the worker has a valid work permit or other permit/passe,s that allows the worker to remain in Malaysia - no concern about outstanding claims, etc.
# If there is an outstanding or unsettled claim, then the said worker shall be allowed to stay and work legally until the dispute about the claim is resolved by courts or otherwise. [Why 'work legally'? Because just staying with no monies for board, food is simply not feasible.] In Hong Kong previously, the workers are housed by the government until the cases are resolved speedily... yes, such disputes must be EXPEDITED - and should be resolved speedily - by the Labour Courts/Industrial Courts or Civil Courts > for justice delayed is justice denied, and delay in the case of migrant workers is another INJUSTICE - as they are are in Malaysia just to get justice usually monies due.
EMPLOYMENT AGREEMENT - Employer's Liabilities
No migrant worker would reasonably agree to come to work in Malaysia for a very short period - usually they are guaranteed employment for 3 to 5 years, with possibility of extension. In the past, since the Immigration Department only grants annual permits, employers were asked to furnish 1 year employment agreements. Using this 'excuse', employers get their workers to enter into a new 1 year employment agreement....BUT when this happens, 'automatically' the previous employment agreement may be 'cancelled' to be replaced with this NEW agreement that the Immigration Department wanted - and the NEW agreement may also not contain all the terms in the previous agreements that guaranteed worker rights.
In some sending countries, to protect migrant worker rights, these government had STANDARD agreements that protected worker rights. One example was the Indian Protector of Emigrants(POE) Agreements.
WHAT NEEDS TO CHANGE?
The Immigration Department must stop asking for 1-year agreements, and Malaysia must insist that all EMPLOYMENT AGREEMENTS entered into with migrant workers for 3-5 years, with option for extension, that contains provisions containing all terms that protect worker rights and clearly state employer obligations be FORTHWITH deposited with the Ministry of Human Resources before the Migrant Worker comes to Malaysia. This is important because many a time migrant workers are not given an ORIGINAL copy of the agreement, let alone a copy of the agreement. The workers, all trusting, are CHEATED. This agreements must contain all RIGHTS of workers. The obligation of the employer to pay all RECRUITING FEES, medical tests, including cost of travel plus accommodation must be clearly stated in the agreement. The date of commencement of employment shall be the day they arrive in Malaysia, or before - not the date they actually start working at the workplace. A STANDARD FORM EMPLOYMENT AGREEMENT FOR MIGRANT WORKERS IN MALAYSIA must be considered. This will ensure that the agreements are not exploitative and in compliance with international labour standards and Malaysian laws.
EMPLOYERS with work requiring workers only should be recognized as EMPLOYERS, not some third party recruitment agency or 'contractor for labour'. Employers can appoint agents, but employers are ultimately responsible for action/omission of agents be they recruitment agents, agents that provide accommodation and transport, etc. The problem of migrant workers arriving at Malaysia only to find no work only happens when the EMPLOYERS are not the one that require workers to work at their workplaces.
UNDOCUMENTED MIGRANTS - identify how they became undocumented
Are they victims of human trafficking - brought into Malaysia by '
(a) threat or use of force or other forms of coercion;(b) abduction;(c) fraud;(d) deception;, etc?
Were they previously documented workers - who were 'cheated' and chose to stay and try to ear some monies to go back home - noting that many took loans before they came to Malaysia to work, and ....going back home with debts unpaid may be difficult for the poor and their family at home? Hence, no CHOICE but to try to earn some monies first?Are they REFUGEES? When will Malaysia enact a Refugee and Asylum Seeker Law - that will have a process of determining whether one is a refugee or not, and what should be done thereafter?
CHANGES IN LAW TO ENSURE JUSTICE FOR VICTIMS OF HUMAN TRAFFICKING, Not just criminal penalty for perpetrators
PART V CARE AND PROTECTION OF TRAFFICKED PERSONS of the ANTI-TRAFFICKING IN PERSONS AND ANTI-SMUGGLING OF MIGRANTS ACT 2007 need to re-looked. It seems to be interested only in evidence gathering against alleged perpetrators > but there is nothing about getting JUSTICE or compensation for the victims, especially foreign nationals. Should not the government consider helping the victims get COMPENSATION for the victims - noting again that if this is to be done, ONLY the Malaysian Courts have jurisdiction - so the court cases must be filed and ended in the Malaysian courts.
To only jail or fine perpetrators does not help the VICTIM - he/she must also get justice, and this will be in the form of MONIES - damages and compensations.
Now, after temporary protection for primarily evidence gathering, the foreign victims are sent to Immigration - probably held at Immigration Detention Centers until sent back to country of origin... Maybe the Malaysian Government should use the Legal Aid to help these victims commence legal action against the 'human traffickers' or persons related to get damages and compensation...
54 Release of trafficked person (ANTI-TRAFFICKING IN PERSONS AND ANTI-SMUGGLING OF MIGRANTS ACT 2007)
(1) Upon revocation of a Protection Order or expiry of the period specified in a Protection Order, the Protection Officer shall-
(a) in the case of a trafficked person who is a citizen or permanent resident of Malaysia, release that person; or
(b) in the case of a trafficked person who is a foreign national who has valid documents and is employed, release that person, or in any other case as may be prescribed, release that person to an immigration officer to be returned to his country of origin in accordance with any laws relating to immigration.
It must be noted that victims of HUMAN TRAFFICKING also include Malaysians - including workers that have been exploited by their employers....
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