Malaysian Human Resource Minister Datuk Dr S. Subramaniam said about implementing the doubling of levy for foreign workers. Example for restaurant the proposed levy increase to RM3,600 from RM1,800 .Even today they said will be delayed the implementation but again Levy issue is link to exploitation because as we know and have the evidence from workers themselves mostly of employers deducted the levy from workers and it will lead workers to be in servitude conditions ( debt bondage )with very low wages and long working hours .
If Malaysian government sincerely to abolish the forced labour/ debt bondage .They must abolish Foreign worker levy as it failed policy to intended the effect of deterring employers to employ migrant workers in the other way around employer likes to employ migrant workers because they could deducted all the fees, levy and other expenses from migrant workers and they could not do that to local workers because local workers could unionise and complaint about that unlawful deduction..
Levy, Air Fare,...cannot be deducted from Migrant Worker's wages..it is LAW.
LEVY, Air Fare, Medical Expenses, Recruitment Cost, etc... these are things that employers of foreign migrant workers should be paying themselves, and they should not be permitted to recover all their expenses by deducting worker's wages...The continued practice of many employers deducting almost everything they expended in employing a migrant worker from the migrant worker's wages is one of the main reason why many employers prefer to employ foreign migrant workers compared to local workers...because this really makes it cheaper and easier to get and maintain foreign migrant workers compared to local workers.UMNO-led BN government, that is seen to be pro-employer, seems to be turning a 'blind-eye' towards this. Cheap easily controlled labour is what our government wants. Worker rights and welfare is really not a priority.Some employers just do it because others are doing it. And, really some public officers in the Human Resource Ministry are also rather blur about this.The tactic is simple - Keep it vagur. Just do not enact any Laws, Regulations, etc that will make it most clear as to what an employer can deduct from the wages of a foreign migrant worker and what he cannot.Go try finding this information in the websites of the Ministry of Human Resources, Immigration Department, etc...and you find that even these basic information is not there.This lack of information allows for employers to continue breaking the laws, and paying migrants minimum wages. After all, they can deduct almost all that they spent on getting and employing these migrant workers.But wait - there is a law that talks about wages and deductions from wages that is permitted, and the total amount of deductions permissible per month...Let us look at the Malaysian Law, which applies to both the Local Worker and the Foreign Migrant Worker..in particular the Employment Act 1955.The law is clear that wages are to be paid at least once a month - and that from the wages, the employer can only make lawful deductions.., and this is clearly stated in section 24 of the Employment Act 1955 which applies with regard to all workers - local or foreign.
Section 24, EMPLOYMENT ACT 1955 (REVISED 1981)24. Lawful deductions.
(1) No deductions shall be made by an employer from the wages of an employee otherwise than in accordance with this Act.
(2) It shall be lawful for an employer to make the following deductions:
(a) deductions to the extent of any overpayment of wages made during the immediately preceding three months from the month in which deductions are to be made, by the employer to the employee by the employer's mistake;
(b) deductions for the indemnity due to the employer by the employee under section 13(1);
(c) deductions for the recovery of advances of wages made under section 22 provided no interest is charged on the advances; and
(d) deductions authorized by any other written law.
And, when it comes to deductions authorized by any other written law, it is very clearly stated. This is only with regard to SOCSO/PERKESO and EPF/KWSP. I found no other written law that permitted employers to deduct from employee's wages.SOCSO/PERKESO
Section 7, EMPLOYEES SOCIAL SECURITY ACT 1969
7. Principal employer to pay contributions in the first instance.
(1) The principal employer shall pay in respect of every employee, whether directly employed by him or through an immediate employer, both the employer's contribution and the employee's contribution.
(2) Notwithstanding anything contained in any other written law but subject to the provisions of this Act and the regulations, if any, the principal employer shall, in the case of an employee directly employed by him, be entitled to recover from the employee the employee's contribution by deduction from his wages and not otherwise:
EPF/KWSP
Section 48, EMPLOYEES PROVIDENT FUND ACT 1991
48. Recovery by employer of employee's contribution.
(1) Subject to the provisions of this section, the employer shall be entitled to recover from the employee, in accordance with this section, the amount of any contribution payable on behalf of the employee.
[Subs. Act A914]
(2) The amount of any contribution payable by the employer on behalf of the employee shall, notwithstanding the provisions of any written law or any contract to the contrary, be so recoverable by means of deductions from the wages of the employee due from the employer to the employee and not otherwise.
There are certain other permissible specific deductions like union fees, etc which can be done '...at the request in writing of the employee...'Thus, it is wrong for employers of foreign migrant labour to deduct from the wages of migrant workers levy, airfare, medical charges, etc..Note, that the law is also clear that workers shall every month receive at least 50% of his/her wages. Maximum deductions is only 50%. Thus, employers who do not pay migrant workers for months...or just pay them some 'pocket money' are breaking the law - but alas, so little enforcement is done here. WHY?
(8) The total of any amounts deducted under this section from the wages of an employee in respect of any one month shall not exceed fifty per centum of the wages earned by that employee in that month. - Section 24, EMPLOYMENT ACT 1955
at 7:11 PM
Labels: Migrant Rights, Worker Rights
From http://charleshector.blogspot.com/2009/02/levy-air-farecannot-be-deducted-from.html
Published: Wednesday March 25, 2009 MYT 11:32:00 AMUpdated: Wednesday March 25, 2009 MYT 4:09:58 PM
HR Minister wants doubling of foreign worker levy delayed
By LISA GOH
KUALA LUMPUR: Human Resource Minister Datuk Dr S. Subramaniam said Wednesday that he would ask the Deputy Prime Minister to give employers a grace period before implementing the doubling of levy for foreign workers.
Minister Datuk Dr S. Subramaniam said he would make the request to Najib, who heads the Cabinet Committee on Foreign Labour, as he had gathered feedback on the matter from several restaurant operator association members.
“Many of them have been caught unawares, and they feel they should be given a grace period.
“I have been in discussions with my colleagues in the Cabinet, and I’ll bring those suggestions forward so that we can take those views into consideration,” he told the press after launching the Masterskill Rehabilitation and Physiotherapy Research Centre in Cheras here Wednesday.
In the mini-budget earlier this month, Najib had announced that levy for foreign workers, except for those in the plantation, construction and domestic sectors, would have their levy doubled.
He added that on average, about 20,000 foreign workers, whose contracts had ended, have been sent back every month this year.
The majority of foreign workers in Malaysia are Indonesians.
On Tuesday, he has said that he would raise the matter in Cabinet, especially the impact on employers.
However, he had said, the proposal to increase the levy did not come from his ministry, adding that the government had no intention of disrupting or forcing the closure of employers' operations by hiking the levy.
"Instead, the move is to create more employment opportunities for locals. This is a serious effort by the government to reduce the country's dependence on foreign labour," he had said after opening a conference on the Malaysian Labour Law, here, Tuesday.
He said many employers had met him to voice their woes following the government's decision to raise the levy on foreign workers.
"When the government introduces a new measure or ruling, it is not meant to cause difficulties to any quarters but was done with good intentions.
"However, I will bring up the employers' grouse to the Cabinet for discussion," he said.
Recently, four national associations of restaurant owners urged the government to scrap the proposed levy increase to RM3,600 from RM1,800.
The four are the Indian Restaurant Owners Association, Malaysia Muslim Restaurant Owners Association, Chinese Restaurant Owners Association and Bumiputera Restaurant Owners Association.
Last Wednesday, many restaurant operators threatened to raise prices of their food, including roti canai and teh tarik, due to increased labour cost if the government decides to go ahead with the plan to raise the levy.
http://thestar.com.my/news/story.asp?file=/2009/3/25/nation/20090325113158&sec=nation
Wednesday, March 25, 2009
Tuesday, March 24, 2009
LABOUR-MALAYSIA: Hit Foreign Workers First Govt Tells Employers
LABOUR-MALAYSIA: Hit Foreign Workers First Govt Tells Employers
By Anil NettoPENANG, Mar 23 (IPS)
An official guideline for employers to retrench their foreign workers ahead of local employees has alarmed civil society society groups who fear that indebted migrant workers could be sent home with inadequate compensation. Worries about retrenchment and unemployment have been mounting as Malaysia sinks into a recession, its export-oriented economy taking a hit from a slump in global consumer demand. In the last quarter of 2008, the economy grew by just 0.1 per cent and many fear the economy will shrink this year despite a huge 60 billion ringgit (16 billion US dollars) government stimulus package. In January, exports dropped by 28 percent and the number of workers employed by the manufacturing sector fell by nine per cent against the previous year. Thousands have been retrenched in the last few months. Labour Department statistics for the month of January alone show 4,325 workers retrenched of which 2,153 were local and 2,172 foreign. These of course are only reported figures. The steady rate of retrenchments has worried the government, which has announced a principle of foreign workers first out (FWFO), meaning that employers should lay off foreign workers before they retrench locals. Even the country's trade union movement is worried about the influx of migrant workers at a time when retrenchments are rising. The issue came under the spotlight when the Bangladeshi labour counsellor said that 70,000 workers from that South Asian country with approved visas would be arriving soon to take up jobs in the plantation, construction and services sectors. A senior official of the Malaysian Trades Union Congress pointed out that thousands of Bangladeshi workers were experiencing employment uncertainty. He said it would be better to revoke their visas while they were still in their country, instead of landing here and becoming unemployed or under-employed. But activists point out that many of the foreign workers in Malaysia have paid small fortunes to agents in their home countries to work in Malaysia. Most of the foreign workers in the country are from Indonesia, Bangladesh, India, Myanmar, Vietnam, Nepal and the Philippines. They are lured here by foreign recruitment agents or representative of the more than 250 registered outsourcing countries operating in Malaysia. If visas are cancelled, foreign workers are unlikely to obtain refunds from the agents. Bangladeshi and Indian workers, for instance, have to raise or borrow around 8,000 to 10,000 ringgit (2192 – 2740 dollars) to pay for agents fees and other charges. Employment agreements are usually for a period of three years while work permits have to be renewed annually. But the government has reportedly slashed its work permit approvals by over 70 percent this year. It has also approved a proposal to double the foreign workers' levy imposed on employers to discourage the hiring of foreign workers. Activists worry that employers could pass down these higher charges for their foreign workers to absorb. In the case of restaurant owners, this could reportedly amount to 3,600 ringgit (988 dollars) per worker. Employers could also be tempted to hire undocumented workers due to the higher levies. Foreign workers usually have to work one or two years before they can recover what they incurred - or repay the loans they took - in their home countries. If they are sent back earlier, they could well find themselves in debt upon their return home. Indonesia has expressed fears that some 100,000 of the two million Indonesian workers in Malaysia could be retrenched as companies here shed workers. "This has not yet happened, so don’t exaggerate it," outgoing Malaysian Prime Minister Abdullah Badawi was quoted as saying in the Indonesian media during a two-day visit to Indonesia this week. "And if it ever happens, it will not only happen to migrant workers but also to Malaysians." In a joint statement, fifty civil society groups from South and South-east Asia endorsed a statement, pointing out it would be a great injustice if Malaysian employers were allowed to prematurely terminate their foreign workers' employment agreements and send them back home. Early termination of their employment agreements means they would usually end up in a worse condition than when they first entered into the agreement. ''This is a great injustice, and it is inhumane,'' said the statement. ''If there is going to be early termination of employment agreements which are for a minimum fixed period of employment, then the worker must be paid adequate compensation, at the very least basic wages for the remaining duration of their employment agreement.'' Paying migrant workers the usual termination benefits that Malaysian workers are entitled to - calculated based on the number of years in service - would not be fair either in view of the huge costs the foreign workers incurred in arriving in Malaysia. Before they send back anybody, the employers should pay what they owe the workers, says Ruth Paul, the coordinator of the Foreign Workers Service Centre on mainland Penang. ''These workers don't have (statutory) retrenchment benefits; so if, say, they have a year remaining on their contract, the employers could pay their outstanding wages (for the remaining period) plus the cost of flight tickets,'' Paul said. She mentioned a couple of cases in the city of Ipoh recently, where migrant workers were sent back home without their wages because the company was shutting down. Paul also fears that some employers might just shut down their factories without adequately compensating their migrant workers, leaving them in a lurch. In the past, she had encountered cases where the employers, who had held on to their workers' passports, suddenly disappeared and could not be contacted. ''The only thing I tell them is to make a police report and contact their embassy.'' Human rights lawyer and blogger Charles Hector suggests that a new policy could be adopted: if a migrant worker has been retrenched, and if he or she has worked less than three years in Malaysia, a new amended work permit could be given to allow the worker to be employed in another sector that needs workers. ''They may be non-citizens, but they are workers and human beings, and they need to be treated as such,'' he wrote in his blog. ''The government needs to develop just policies and principles.'' (END/2009)
http://www.ipsnews.net/news.asp?idnews=46228
By Anil NettoPENANG, Mar 23 (IPS)
An official guideline for employers to retrench their foreign workers ahead of local employees has alarmed civil society society groups who fear that indebted migrant workers could be sent home with inadequate compensation. Worries about retrenchment and unemployment have been mounting as Malaysia sinks into a recession, its export-oriented economy taking a hit from a slump in global consumer demand. In the last quarter of 2008, the economy grew by just 0.1 per cent and many fear the economy will shrink this year despite a huge 60 billion ringgit (16 billion US dollars) government stimulus package. In January, exports dropped by 28 percent and the number of workers employed by the manufacturing sector fell by nine per cent against the previous year. Thousands have been retrenched in the last few months. Labour Department statistics for the month of January alone show 4,325 workers retrenched of which 2,153 were local and 2,172 foreign. These of course are only reported figures. The steady rate of retrenchments has worried the government, which has announced a principle of foreign workers first out (FWFO), meaning that employers should lay off foreign workers before they retrench locals. Even the country's trade union movement is worried about the influx of migrant workers at a time when retrenchments are rising. The issue came under the spotlight when the Bangladeshi labour counsellor said that 70,000 workers from that South Asian country with approved visas would be arriving soon to take up jobs in the plantation, construction and services sectors. A senior official of the Malaysian Trades Union Congress pointed out that thousands of Bangladeshi workers were experiencing employment uncertainty. He said it would be better to revoke their visas while they were still in their country, instead of landing here and becoming unemployed or under-employed. But activists point out that many of the foreign workers in Malaysia have paid small fortunes to agents in their home countries to work in Malaysia. Most of the foreign workers in the country are from Indonesia, Bangladesh, India, Myanmar, Vietnam, Nepal and the Philippines. They are lured here by foreign recruitment agents or representative of the more than 250 registered outsourcing countries operating in Malaysia. If visas are cancelled, foreign workers are unlikely to obtain refunds from the agents. Bangladeshi and Indian workers, for instance, have to raise or borrow around 8,000 to 10,000 ringgit (2192 – 2740 dollars) to pay for agents fees and other charges. Employment agreements are usually for a period of three years while work permits have to be renewed annually. But the government has reportedly slashed its work permit approvals by over 70 percent this year. It has also approved a proposal to double the foreign workers' levy imposed on employers to discourage the hiring of foreign workers. Activists worry that employers could pass down these higher charges for their foreign workers to absorb. In the case of restaurant owners, this could reportedly amount to 3,600 ringgit (988 dollars) per worker. Employers could also be tempted to hire undocumented workers due to the higher levies. Foreign workers usually have to work one or two years before they can recover what they incurred - or repay the loans they took - in their home countries. If they are sent back earlier, they could well find themselves in debt upon their return home. Indonesia has expressed fears that some 100,000 of the two million Indonesian workers in Malaysia could be retrenched as companies here shed workers. "This has not yet happened, so don’t exaggerate it," outgoing Malaysian Prime Minister Abdullah Badawi was quoted as saying in the Indonesian media during a two-day visit to Indonesia this week. "And if it ever happens, it will not only happen to migrant workers but also to Malaysians." In a joint statement, fifty civil society groups from South and South-east Asia endorsed a statement, pointing out it would be a great injustice if Malaysian employers were allowed to prematurely terminate their foreign workers' employment agreements and send them back home. Early termination of their employment agreements means they would usually end up in a worse condition than when they first entered into the agreement. ''This is a great injustice, and it is inhumane,'' said the statement. ''If there is going to be early termination of employment agreements which are for a minimum fixed period of employment, then the worker must be paid adequate compensation, at the very least basic wages for the remaining duration of their employment agreement.'' Paying migrant workers the usual termination benefits that Malaysian workers are entitled to - calculated based on the number of years in service - would not be fair either in view of the huge costs the foreign workers incurred in arriving in Malaysia. Before they send back anybody, the employers should pay what they owe the workers, says Ruth Paul, the coordinator of the Foreign Workers Service Centre on mainland Penang. ''These workers don't have (statutory) retrenchment benefits; so if, say, they have a year remaining on their contract, the employers could pay their outstanding wages (for the remaining period) plus the cost of flight tickets,'' Paul said. She mentioned a couple of cases in the city of Ipoh recently, where migrant workers were sent back home without their wages because the company was shutting down. Paul also fears that some employers might just shut down their factories without adequately compensating their migrant workers, leaving them in a lurch. In the past, she had encountered cases where the employers, who had held on to their workers' passports, suddenly disappeared and could not be contacted. ''The only thing I tell them is to make a police report and contact their embassy.'' Human rights lawyer and blogger Charles Hector suggests that a new policy could be adopted: if a migrant worker has been retrenched, and if he or she has worked less than three years in Malaysia, a new amended work permit could be given to allow the worker to be employed in another sector that needs workers. ''They may be non-citizens, but they are workers and human beings, and they need to be treated as such,'' he wrote in his blog. ''The government needs to develop just policies and principles.'' (END/2009)
http://www.ipsnews.net/news.asp?idnews=46228
Sunday, March 15, 2009
50 Organisations from 15 countries condemn Malaysia's 'Foreign Workers First Our'(FWFO) policy
Media Statement – 14/3/ 2009 (16/3/2009 - updated)
MALAYSIA’S ‘FOREIGN WORKERS FIRST OUT’ POLICY IS UNJUST, DISCRIMINATORY AND UNCONSTITUTIONAL
We, the undersigned organizations, groups and networks, concerned about migrant and worker rights, are appalled at Malaysia ’s unjust, discriminatory and unconstitutional anti-worker policy, known as ‘Foreign Workers First Out’ (FWFO) policy when it comes to retrenchment.
A recent Malaysian newspaper report read,“…Employers must retrench their foreign workers ahead of their Malaysian staff as they seek to weather the current economic slowdown, said Deputy Human Resource Minister Datuk Noraini Ahmad. She reiterated that employers should adopt the Government’s foreign worker first out (FWFO) principle…”(Star, 28/2/2009 - Retrench foreign workers first, employers told)
Whilst appreciating Malaysia ’s concern for its own citizens’ employment, this should never excuse employers from fulfilling their contractual obligations to workers.
It is very wrong for the Malaysian government to compel/encourage employers in Malaysia to retrench their foreign workers first, before the expiration of the agreed duration of employment. Employers should have been fully aware of risks of economic crisis and other business risks, and as such there is no justification whatsoever of their breaching their employment agreements now.
It must also be appreciated that foreign workers do expend lots of monies, incur debts and make great sacrifices when they do decide to come over to Malaysia to work. These workers rely heavily on the representations of the employers and/or their agents especially with regards to wages and the length of period that they will be employed, before deciding to enter into employment agreements and coming over to Malaysia to work.
Employment agreements with migrant workers are usually for a period of 3 to 5 years, and it would be a great injustice if Malaysian employers are now encouraged and permitted to prematurely terminate this employment agreement, and send these foreign workers back to their home country.
Early termination of employment agreements for many a migrant worker means ending up in a far worse condition than when they first entered into employment agreements to come and work in Malaysia . This is a great injustice, and it is inhumane.
If there is going to be early termination of employment agreements which are for a minimum fixed period of employment, then the worker must be paid adequate compensation, at the very least basic wages for the remaining duration of their employment agreement. Usual termination and lay-off benefits paid to local workers will definitely not be just for a foreign migrant worker who is sent back to her country.
We also wish to state that this ‘Foreign Workers First Out’ (FWFO) policy and practice is unconstitutional, as it goes against Article 8 of the Malaysian Federal Constitution, whereby Article 8(1) clearly provides that 'All persons are equal before the law and entitled to the equal protection of the law...', and there is nothing in the Constitution that permits discrimination against non-citizens, in favour of citizens, with regard to employment. Therefore, section 60N of the Employment Act 1955, which some use as the basis of FWFO practice is ultra vires the Federal Constitution, and as such is invalid.
We believe that it is better that migrant workers who are now in Malaysia who are or will be prematurely terminated be first used to fill up existing manpower needs, rather that bringing in new migrants.
We call on the Malaysian government to immediately stop this unjust, discriminatory and unconstitutional policy and practice, known as ‘Foreign Workers First Out’ (FWFO) principle.
We call on Malaysia to demand that all employers fulfill their contractual agreements with regard to all workers, including foreign workers. We hope that mechanisms are put in place to ensure that employers pay workers adequate and just compensation for any early termination of employment agreement.
Charles Hector
Pranom Somwong
for and on behalf of the following 50 organisations
ALIRAN, Malaysia
All Nepal Women's Association (ANWA) ( Nepal )
Asian Forum for Human Rights and Development (FORUM-ASIA)
Asia Pacific Mission for Migrants (APMM)
Asia Pacific Forum on Women Law and Development (APWLD)
Bahrain Center for Human Rights
Building and Wood Workers International, Asia Pacific Region (BWI)
CARAM Cambodia
Citizens' Watch Network Sri Lanka
Civil Rights Committee - Kuala Lumpur and Selangor Chinese Assembly Hall
(CRC-KLSCAH), Malaysia
Committee for Asian Women (CAW)
Community Development Services (CDS), Colombo , Sri Lanka
Coordination Of Action Research on Aids &Mobility (CARAM-ASIA)
COVA (Confederation of Voluntary Associations), India
Federation of Trade Unions – Burma (FTUB )
Global Alliance against Traffic in Women (GAATW)
Hope Workers’ Center , Taiwan
IMA Research Foundation Bangladesh
Institute for Migrant Workers (IWORK), Indonesia
International NGO Forum on Indonesian Development (INFID)
Kav LaOved (Worker's Hotline), Israel
Lawyers for Human Rights and Legal Aid (LHRLA) Pakistan
Legal Support for Children and Women (LSCW), Cambodia
MADPET (Malaysians against Death Penalty and Torture)
MAP Foundation for the Health and Knowledge Of Ethnics Labour , Thailand
Messrs Charles Hector, Malaysia
Mindanao Migrants Center for Empowering Actions, Inc. (MMCEAI), Philippines
Migrant CARE (Perhimpunan Indonesia untuk Buruh Migran Berdaulat)
Migrant Services Centre – NWC, Sri Lanka
Multi National Women's Organization of Burma ( MNWOB)
Myanmar Refugee Volunteer Group (MRVG)
National Alliance of Women Human Rights Defenders (NAWHRD), Nepal
Nepal Institute of Development Studies (NIDS)
Network of Action for Migrants in Malaysia (NAMM)
Nijera Kori, Bangaladesh
Ovibashi Karmi Unnayan Program( OKUP), Bangaladesh
Parti Rakyat Malaysia (PRM)
Persatuan Masyarakat Selangor & Wilayah Persekutuan (PERMAS), Malaysia
Raks Thai Foundation , Thailand
Solidaritas Perempuan, Indonesia
Suara Rakyat Malaysia (SUARAM)
The Action Network for Migrant Workers (ACTFORM), Sri Lanka
The Development Action for Women Network (DAWN), Philippines
The Prevention of HIV/AIDS among Migrant Workers in Thailand
Project (PHAMIT)
Transient Workers Count Too, Singapore
United for Foreign Domestic Workers Rights (UFDWRs)
WARBE Development Foundation , Bangladesh
Writer Alliance for Media Independence (WAMI), Malaysia
Women's Rehabilitation Centre (WOREC), Nepal
Workers Hub 4 Change (WH4C)
MALAYSIA’S ‘FOREIGN WORKERS FIRST OUT’ POLICY IS UNJUST, DISCRIMINATORY AND UNCONSTITUTIONAL
We, the undersigned organizations, groups and networks, concerned about migrant and worker rights, are appalled at Malaysia ’s unjust, discriminatory and unconstitutional anti-worker policy, known as ‘Foreign Workers First Out’ (FWFO) policy when it comes to retrenchment.
A recent Malaysian newspaper report read,“…Employers must retrench their foreign workers ahead of their Malaysian staff as they seek to weather the current economic slowdown, said Deputy Human Resource Minister Datuk Noraini Ahmad. She reiterated that employers should adopt the Government’s foreign worker first out (FWFO) principle…”(Star, 28/2/2009 - Retrench foreign workers first, employers told)
Whilst appreciating Malaysia ’s concern for its own citizens’ employment, this should never excuse employers from fulfilling their contractual obligations to workers.
It is very wrong for the Malaysian government to compel/encourage employers in Malaysia to retrench their foreign workers first, before the expiration of the agreed duration of employment. Employers should have been fully aware of risks of economic crisis and other business risks, and as such there is no justification whatsoever of their breaching their employment agreements now.
It must also be appreciated that foreign workers do expend lots of monies, incur debts and make great sacrifices when they do decide to come over to Malaysia to work. These workers rely heavily on the representations of the employers and/or their agents especially with regards to wages and the length of period that they will be employed, before deciding to enter into employment agreements and coming over to Malaysia to work.
Employment agreements with migrant workers are usually for a period of 3 to 5 years, and it would be a great injustice if Malaysian employers are now encouraged and permitted to prematurely terminate this employment agreement, and send these foreign workers back to their home country.
Early termination of employment agreements for many a migrant worker means ending up in a far worse condition than when they first entered into employment agreements to come and work in Malaysia . This is a great injustice, and it is inhumane.
If there is going to be early termination of employment agreements which are for a minimum fixed period of employment, then the worker must be paid adequate compensation, at the very least basic wages for the remaining duration of their employment agreement. Usual termination and lay-off benefits paid to local workers will definitely not be just for a foreign migrant worker who is sent back to her country.
We also wish to state that this ‘Foreign Workers First Out’ (FWFO) policy and practice is unconstitutional, as it goes against Article 8 of the Malaysian Federal Constitution, whereby Article 8(1) clearly provides that 'All persons are equal before the law and entitled to the equal protection of the law...', and there is nothing in the Constitution that permits discrimination against non-citizens, in favour of citizens, with regard to employment. Therefore, section 60N of the Employment Act 1955, which some use as the basis of FWFO practice is ultra vires the Federal Constitution, and as such is invalid.
We believe that it is better that migrant workers who are now in Malaysia who are or will be prematurely terminated be first used to fill up existing manpower needs, rather that bringing in new migrants.
We call on the Malaysian government to immediately stop this unjust, discriminatory and unconstitutional policy and practice, known as ‘Foreign Workers First Out’ (FWFO) principle.
We call on Malaysia to demand that all employers fulfill their contractual agreements with regard to all workers, including foreign workers. We hope that mechanisms are put in place to ensure that employers pay workers adequate and just compensation for any early termination of employment agreement.
Charles Hector
Pranom Somwong
for and on behalf of the following 50 organisations
ALIRAN, Malaysia
All Nepal Women's Association (ANWA) ( Nepal )
Asian Forum for Human Rights and Development (FORUM-ASIA)
Asia Pacific Mission for Migrants (APMM)
Asia Pacific Forum on Women Law and Development (APWLD)
Bahrain Center for Human Rights
Building and Wood Workers International, Asia Pacific Region (BWI)
CARAM Cambodia
Citizens' Watch Network Sri Lanka
Civil Rights Committee - Kuala Lumpur and Selangor Chinese Assembly Hall
(CRC-KLSCAH), Malaysia
Committee for Asian Women (CAW)
Community Development Services (CDS), Colombo , Sri Lanka
Coordination Of Action Research on Aids &Mobility (CARAM-ASIA)
COVA (Confederation of Voluntary Associations), India
Federation of Trade Unions – Burma (FTUB )
Global Alliance against Traffic in Women (GAATW)
Hope Workers’ Center , Taiwan
IMA Research Foundation Bangladesh
Institute for Migrant Workers (IWORK), Indonesia
International NGO Forum on Indonesian Development (INFID)
Kav LaOved (Worker's Hotline), Israel
Lawyers for Human Rights and Legal Aid (LHRLA) Pakistan
Legal Support for Children and Women (LSCW), Cambodia
MADPET (Malaysians against Death Penalty and Torture)
MAP Foundation for the Health and Knowledge Of Ethnics Labour , Thailand
Messrs Charles Hector, Malaysia
Mindanao Migrants Center for Empowering Actions, Inc. (MMCEAI), Philippines
Migrant CARE (Perhimpunan Indonesia untuk Buruh Migran Berdaulat)
Migrant Services Centre – NWC, Sri Lanka
Multi National Women's Organization of Burma ( MNWOB)
Myanmar Refugee Volunteer Group (MRVG)
National Alliance of Women Human Rights Defenders (NAWHRD), Nepal
Nepal Institute of Development Studies (NIDS)
Network of Action for Migrants in Malaysia (NAMM)
Nijera Kori, Bangaladesh
Ovibashi Karmi Unnayan Program( OKUP), Bangaladesh
Parti Rakyat Malaysia (PRM)
Persatuan Masyarakat Selangor & Wilayah Persekutuan (PERMAS), Malaysia
Raks Thai Foundation , Thailand
Solidaritas Perempuan, Indonesia
Suara Rakyat Malaysia (SUARAM)
The Action Network for Migrant Workers (ACTFORM), Sri Lanka
The Development Action for Women Network (DAWN), Philippines
The Prevention of HIV/AIDS among Migrant Workers in Thailand
Project (PHAMIT)
Transient Workers Count Too, Singapore
United for Foreign Domestic Workers Rights (UFDWRs)
WARBE Development Foundation , Bangladesh
Writer Alliance for Media Independence (WAMI), Malaysia
Women's Rehabilitation Centre (WOREC), Nepal
Workers Hub 4 Change (WH4C)
47 groups say Malaysia's 'Foreign Workers First Out' Policy is Unjust, Discriminatory and Unconstitutional
Media Statement – 14/3/ 2009
MALAYSIA’S ‘FOREIGN WORKERS FIRST OUT’ POLICY IS UNJUST, DISCRIMINATORY AND UNCONSTITUTIONAL
We, the undersigned organizations, groups and networks, concerned about migrant and worker rights, are appalled at Malaysia ’s unjust, discriminatory and unconstitutional anti-worker policy, known as ‘Foreign Workers First Out’ (FWFO) policy when it comes to retrenchment.
A recent Malaysian newspaper report read,“…Employers must retrench their foreign workers ahead of their Malaysian staff as they seek to weather the current economic slowdown, said Deputy Human Resource Minister Datuk Noraini Ahmad. She reiterated that employers should adopt the Government’s foreign worker first out (FWFO) principle…”(Star, 28/2/2009 - Retrench foreign workers first, employers told)
Whilst appreciating Malaysia ’s concern for its own citizens’ employment, this should never excuse employers from fulfilling their contractual obligations to workers.
It is very wrong for the Malaysian government to compel/encourage employers in Malaysia to retrench their foreign workers first, before the expiration of the agreed duration of employment. Employers should have been fully aware of risks of economic crisis and other business risks, and as such there is no justification whatsoever of their breaching their employment agreements now.
It must also be appreciated that foreign workers do expend lots of monies, incur debts and make great sacrifices when they do decide to come over to Malaysia to work. These workers rely heavily on the representations of the employers and/or their agents especially with regards to wages and the length of period that they will be employed, before deciding to enter into employment agreements and coming over to Malaysia to work.
Employment agreements with migrant workers are usually for a period of 3 to 5 years, and it would be a great injustice if Malaysian employers are now encouraged and permitted to prematurely terminate this employment agreement, and send these foreign workers back to their home country.
Early termination of employment agreements for many a migrant worker means ending up in a far worse condition than when they first entered into employment agreements to come and work in Malaysia . This is a great injustice, and it is inhumane.
If there is going to be early termination of employment agreements which are for a minimum fixed period of employment, then the worker must be paid adequate compensation, at the very least basic wages for the remaining duration of their employment agreement. Usual termination and lay-off benefits paid to local workers will definitely not be just for a foreign migrant worker who is sent back to her country.
We also wish to state that this ‘Foreign Workers First Out’ (FWFO) policy and practice is unconstitutional, as it goes against Article 8 of the Malaysian Federal Constitution, whereby Article 8(1) clearly provides that 'All persons are equal before the law and entitled to the equal protection of the law...', and there is nothing in the Constitution that permits discrimination against non-citizens, in favour of citizens, with regard to employment. Therefore, section 60N of the Employment Act 1955, which some use as the basis of FWFO practice is ultra vires the Federal Constitution, and as such is invalid.
We believe that it is better that migrant workers who are now in Malaysia who are or will be prematurely terminated be first used to fill up existing manpower needs, rather that bringing in new migrants.
We call on the Malaysian government to immediately stop this unjust, discriminatory and unconstitutional policy and practice, known as ‘Foreign Workers First Out’ (FWFO) principle.
We call on Malaysia to demand that all employers fulfill their contractual agreements with regard to all workers, including foreign workers. We hope that mechanisms are put in place to ensure that employers pay workers adequate and just compensation for any early termination of employment agreement.
Charles Hector
Pranom Somwong
for and on behalf of the following 47 organisations
ALIRAN, Malaysia
All Nepal Women's Association (ANWA) ( Nepal )
Asian Forum for Human Rights and Development (FORUM-ASIA)
Asia Pacific Mission for Migrants (APMM)
Asia Pacific Forum on Women Law and Development (APWLD)
Bahrain Center for Human Rights
Building and Wood Workers International, Asia Pacific Region (BWI)
CARAM Cambodia
Civil Rights Committee - Kuala Lumpur and Selangor Chinese Assembly Hall
(CRC-KLSCAH), Malaysia
Committee for Asian Women (CAW)
Community Development Services (CDS), Colombo , Sri Lanka
Coordination Of Action Research on Aids &Mobility (CARAM-ASIA)
Federation of Trade Unions – Burma (FTUB )
Global Alliance against Traffic in Women (GAATW)
Hope Workers’ Center , Taiwan
IMA Research Foundation Bangladesh
Institute for Migrant Workers (IWORK), Indonesia
International NGO Forum on Indonesian Development (INFID)
Lawyers for Human Rights and Legal Aid (LHRLA) Pakistan
Legal Support for Children and Women (LSCW), Cambodia
MADPET (Malaysians against Death Penalty and Torture)
MAP Foundation for the Health and Knowledge Of Ethnics Labour , Thailand
Messrs Charles Hector, Malaysia
Mindanao Migrants Center for Empowering Actions, Inc. (MMCEAI), Philippines
Migrant CARE (Perhimpunan Indonesia untuk Buruh Migran Berdaulat)
Migrant Services Centre – NWC, Sri Lanka
Multi National Women's Organization of Burma ( MNWOB)
Myanmar Refugee Volunteer Group (MRVG)
National Alliance of Women Human Rights Defenders (NAWHRD), Nepal
Nepal Institute of Development Studies (NIDS)
Network of Action for Migrants in Malaysia (NAMM)
Nijera Kori, Bangaladesh
Ovibashi Karmi Unnayan Program( OKUP), Bangaladesh
Parti Rakyat Malaysia (PRM)
Persatuan Masyarakat Selangor & Wilayah Persekutuan (PERMAS), Malaysia
Raks Thai Foundation , Thailand
Solidaritas Perempuan, Indonesia
Suara Rakyat Malaysia (SUARAM)
The Action Network for Migrant Workers (ACTFORM), Sri Lanka
The Development Action for Women Network (DAWN), Philippines
The Prevention of HIV/AIDS among Migrant Workers in Thailand
Project (PHAMIT)
Transient Workers Count Too, Singapore
United for Foreign Domestic Workers Rights (UFDWRs)
WARBE Development Foundation , Bangladesh
Writer Alliance for Media Independence (WAMI), Malaysia
Women's Rehabilitation Centre (WOREC), Nepal
Workers Hub 4 Change (WH4C)
MALAYSIA’S ‘FOREIGN WORKERS FIRST OUT’ POLICY IS UNJUST, DISCRIMINATORY AND UNCONSTITUTIONAL
We, the undersigned organizations, groups and networks, concerned about migrant and worker rights, are appalled at Malaysia ’s unjust, discriminatory and unconstitutional anti-worker policy, known as ‘Foreign Workers First Out’ (FWFO) policy when it comes to retrenchment.
A recent Malaysian newspaper report read,“…Employers must retrench their foreign workers ahead of their Malaysian staff as they seek to weather the current economic slowdown, said Deputy Human Resource Minister Datuk Noraini Ahmad. She reiterated that employers should adopt the Government’s foreign worker first out (FWFO) principle…”(Star, 28/2/2009 - Retrench foreign workers first, employers told)
Whilst appreciating Malaysia ’s concern for its own citizens’ employment, this should never excuse employers from fulfilling their contractual obligations to workers.
It is very wrong for the Malaysian government to compel/encourage employers in Malaysia to retrench their foreign workers first, before the expiration of the agreed duration of employment. Employers should have been fully aware of risks of economic crisis and other business risks, and as such there is no justification whatsoever of their breaching their employment agreements now.
It must also be appreciated that foreign workers do expend lots of monies, incur debts and make great sacrifices when they do decide to come over to Malaysia to work. These workers rely heavily on the representations of the employers and/or their agents especially with regards to wages and the length of period that they will be employed, before deciding to enter into employment agreements and coming over to Malaysia to work.
Employment agreements with migrant workers are usually for a period of 3 to 5 years, and it would be a great injustice if Malaysian employers are now encouraged and permitted to prematurely terminate this employment agreement, and send these foreign workers back to their home country.
Early termination of employment agreements for many a migrant worker means ending up in a far worse condition than when they first entered into employment agreements to come and work in Malaysia . This is a great injustice, and it is inhumane.
If there is going to be early termination of employment agreements which are for a minimum fixed period of employment, then the worker must be paid adequate compensation, at the very least basic wages for the remaining duration of their employment agreement. Usual termination and lay-off benefits paid to local workers will definitely not be just for a foreign migrant worker who is sent back to her country.
We also wish to state that this ‘Foreign Workers First Out’ (FWFO) policy and practice is unconstitutional, as it goes against Article 8 of the Malaysian Federal Constitution, whereby Article 8(1) clearly provides that 'All persons are equal before the law and entitled to the equal protection of the law...', and there is nothing in the Constitution that permits discrimination against non-citizens, in favour of citizens, with regard to employment. Therefore, section 60N of the Employment Act 1955, which some use as the basis of FWFO practice is ultra vires the Federal Constitution, and as such is invalid.
We believe that it is better that migrant workers who are now in Malaysia who are or will be prematurely terminated be first used to fill up existing manpower needs, rather that bringing in new migrants.
We call on the Malaysian government to immediately stop this unjust, discriminatory and unconstitutional policy and practice, known as ‘Foreign Workers First Out’ (FWFO) principle.
We call on Malaysia to demand that all employers fulfill their contractual agreements with regard to all workers, including foreign workers. We hope that mechanisms are put in place to ensure that employers pay workers adequate and just compensation for any early termination of employment agreement.
Charles Hector
Pranom Somwong
for and on behalf of the following 47 organisations
ALIRAN, Malaysia
All Nepal Women's Association (ANWA) ( Nepal )
Asian Forum for Human Rights and Development (FORUM-ASIA)
Asia Pacific Mission for Migrants (APMM)
Asia Pacific Forum on Women Law and Development (APWLD)
Bahrain Center for Human Rights
Building and Wood Workers International, Asia Pacific Region (BWI)
CARAM Cambodia
Civil Rights Committee - Kuala Lumpur and Selangor Chinese Assembly Hall
(CRC-KLSCAH), Malaysia
Committee for Asian Women (CAW)
Community Development Services (CDS), Colombo , Sri Lanka
Coordination Of Action Research on Aids &Mobility (CARAM-ASIA)
Federation of Trade Unions – Burma (FTUB )
Global Alliance against Traffic in Women (GAATW)
Hope Workers’ Center , Taiwan
IMA Research Foundation Bangladesh
Institute for Migrant Workers (IWORK), Indonesia
International NGO Forum on Indonesian Development (INFID)
Lawyers for Human Rights and Legal Aid (LHRLA) Pakistan
Legal Support for Children and Women (LSCW), Cambodia
MADPET (Malaysians against Death Penalty and Torture)
MAP Foundation for the Health and Knowledge Of Ethnics Labour , Thailand
Messrs Charles Hector, Malaysia
Mindanao Migrants Center for Empowering Actions, Inc. (MMCEAI), Philippines
Migrant CARE (Perhimpunan Indonesia untuk Buruh Migran Berdaulat)
Migrant Services Centre – NWC, Sri Lanka
Multi National Women's Organization of Burma ( MNWOB)
Myanmar Refugee Volunteer Group (MRVG)
National Alliance of Women Human Rights Defenders (NAWHRD), Nepal
Nepal Institute of Development Studies (NIDS)
Network of Action for Migrants in Malaysia (NAMM)
Nijera Kori, Bangaladesh
Ovibashi Karmi Unnayan Program( OKUP), Bangaladesh
Parti Rakyat Malaysia (PRM)
Persatuan Masyarakat Selangor & Wilayah Persekutuan (PERMAS), Malaysia
Raks Thai Foundation , Thailand
Solidaritas Perempuan, Indonesia
Suara Rakyat Malaysia (SUARAM)
The Action Network for Migrant Workers (ACTFORM), Sri Lanka
The Development Action for Women Network (DAWN), Philippines
The Prevention of HIV/AIDS among Migrant Workers in Thailand
Project (PHAMIT)
Transient Workers Count Too, Singapore
United for Foreign Domestic Workers Rights (UFDWRs)
WARBE Development Foundation , Bangladesh
Writer Alliance for Media Independence (WAMI), Malaysia
Women's Rehabilitation Centre (WOREC), Nepal
Workers Hub 4 Change (WH4C)
Monday, March 9, 2009
Malaysia's 'Retrench foreign workers first' policy is discriminatory and is against the Federal Constitution.
When it comes to retrenchment, the general principle followed was 'Last In First Out' (LIFO) but today in Malaysia a new principle is emerging 'Foreign Workers First Out'(FWFO) - and the question is whether this is right.
Remember the highest law of the land is the Federal Constitution - and Article 8 (1) provides that 'All persons are equal before the law and entitled to the equal protection of the law...'. The word used is 'person' - and that clearly means it applies to both citizen and non-citizen.
Again Article 8(3), which uses the term 'person' states as follows: 'There shall be no discrimination in favour of any person on the ground that he is a subject of the Ruler of any State.' Does this refer to only the States in Malaysia - or does it refer to 'any State' as in any nation...any country? The word used is 'person', and not 'citizen' and as such it leans towards the interpretation that this applies also to foreigners.
There are stated exceptions in Article 8, where discrimination is permissible - but alas there is nothing that allows discrimination based on the fact that a worker is not a Malaysian national.
Again Article 8(3), which uses the term 'person' states as follows: 'There shall be no discrimination in favour of any person on the ground that he is a subject of the Ruler of any State.' Does this refer to only the States in Malaysia - or does it refer to 'any State' as in any nation...any country? The word used is 'person', and not 'citizen' and as such it leans towards the interpretation that this applies also to foreigners.
There are stated exceptions in Article 8, where discrimination is permissible - but alas there is nothing that allows discrimination based on the fact that a worker is not a Malaysian national.
In the Employment Act 1955, Section 60N, it states:-
60N. Termination of employment by reason of redundancy.
Where an employer is required to reduce his workforce by reason of redundancy necessitating the retrenchment of any number of employees, the employer shall not terminate the services of a local employee unless he has first terminated the services of all foreign employees employed by him in a capacity similar to that of the local employee.
[Ins. Act A1026]
Thus, it seems that the FWFO principle seems to be coming from the Employment Act - but is not section 60N going against the Federal Constitution?
Section 60N is ultravires the Federal Constitution - and that FWFO principle goes against our Federal Constitution, and must be stopped.
Employers must retrench their foreign workers ahead of their Malaysian staff as they seek to weather the current economic slowdown, said Deputy Human Resource Minister Datuk Noraini Ahmad.She reiterated that employers should adopt the Government’s foreign worker first out (FWFO) principle. - Star, 28/2/2009 - Retrench foreign workers first, employers told
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