Sunday, August 15, 2010

Migrant Worker Unnecessarily Dies Because of Employer's Delay ? 5,000 fellow workers protest

Nepali worker unncessarily dies because employer slow to act? This should stop
When it comes to migrant workers, access to healthcare is always a problem - and many a time, there is delay on the part of the employer in sending the workers to the hospital/clinic.

Why can't the workers go on their own to the clinics/hospital? One reason is that they do not have the required proper documentation to move around. let alone get treatment from the clinics/hospitals as most employers hold on to the worker's passports. Without proper documentation, government hospitals/clinics would not treat the foreigner - and this is a problem as we do have at least about 3-5 million undocumented migrants.

Even with proper documentation, they have to pay a lot before they do get treatment..get warded,etc. For the documented migrant, registration itself is RM50 (compared to RM1 for the Malaysian). Next, many government healthcare providers, require payment first before they do the needed tests, X-Rays, surgery, etc, and this is a problem for the migrant worker.

There are also some employers who do not follow Malaysian labour laws that clearly entitles workers to PAID sick leave and PAID Hospitalization leave. Some companhies just do not pay workers when they do not work because they are sick/hospitalized. In this case, there is an allegation that the Nepali worker that died concealed the fact that he was sick from the employer - and, the only reason for this would be that he wanted to work and earn. [Or maybe, he did tell the employer that he was sick, but the employer ignored this and decided that he was not sick and could still work]. There really must be an investigation - a thorough investigation into this.

The fact that the fellow workers protested, risking possible arrest, detention and other negative consequences, indicates that something is amiss. Did the employer delay sending the worker to the hospital, and did that delay contribute to the death of this worker? If yes, then the employer should be penalized? But alas, a perusal of the Employment Act shows that there seems to be no such offence listed in this Act that governs woirker rights....and there should be. If the employer did so, then also there must stipulated a penalty - which should be a compensation that the employer should give to the family of the deceased, i.e. maybe RM25,000-00 plus monthly wages for the remaining duration of that particular worker's contracts. The employer should not be protected by the Social Security Act/Workmen's Compensation Act who is obliged to pay for injuries/death of migrant workers. In fact, if the employer was reackless...or did(or did not do) something that contributed to the early unnecessary death of this worker, then maybe he should be charged with murder or causing death under the Penal Code. The one who died is a human being, and it should not matter whether he was Malaysian or a foreigner, whether he was documented or undocumented.

About 5,000 foreign workers of an electronics factory in Tebrau Industrial Park staged a protest against their employer in Johor Bharu today due to a misunderstanding caused by the death of a fellow employee.

During the seven-hour stand off which started at 7am near the workers quarters, the foreign workers from Myanmar, Bangladesh, Nepal and India turned violent, throwing chairs and rubbish in protest, claiming that the death of their fellow employee was caused by their employer's delay in sending him to hospital.

Johor CID Chief Amer Awal when met at the scene said the commotion and protest by the foreign workers was due to a misunderstanding caused by the death of a fellow employee.

"The employee from Nepal, aged 20, had kept his sickness (high fever) a secret and did not inform the company until it became serious.

"When the employer finally came to know and decided to send him to hospital it was a little too late. Due to the delay in treatment, he died at the Sultan Ismail Hospital at 7am," he said.
However, the other employees who thought the company was to be blamed for the delay in sending him to the hospital, gathered at the quarters and started shouting at their employer, angrily.

Amer said by 2pm, police and the Federal Reserve Unit (FRU) were able to disperse the workers without any untoward incident.

He added that nobody was detained while police had also informed the Nepal Embassy in Kuala Lumpur of the death.

- Bernama - Malaysiakini, 15/8/2010, 5,000 turn violent over worker's death in JB


Let us also make sure that the workers that protested are not discriminated against by their employer, or by our own authorities. What happened to the worker's union - most probably there was none there in the this electronics factory, since our Malaysian government is not very much in favour of allowing worker unions, more so in electronic factories. Migrant workers are also denied the right of association - and that makes them even more vulnerable to oppression and mal-treatment by employers. If there is no union, then they cannot even strike...or even collectively claim for an improvement of working/living conditions of workers.

Maybe, the Malaysian government must change its policy and make it mandatory for unions in every factory/businesses that have more than 10 workers working there. A union would be able to champion worker rights, and also act on behalf of workers when needed. Individual workers, on their own is so easily 'targetted', dismissed, discriminated against when they claim their rights and/or complain about anything...

Media Statement – 11/6/2010(Updated)

STOP PENALIZING WORKERS WHO WANT TO GET JUSTICE
- MAXTER GLOVE SHOULD REINSTATE BURMESE MIGRANT
WORKER WHO COMPLAINED TO LABOUR DEPARTMENT

We, the undersigned 69 organizations, groups and networks, concerned about migrant and worker rights, are appalled at the treatment of workers at Maxter Glove Manufacturing Sdn Bhd (229862-H), at its factory at Lot 6070, Jalan Haji Abdul Manan, 6th Miles off Jalan Meru, Klang, Selangor, Malaysia.

We are appalled at the dismissal of Thu Maung, a Burmese migrant worker, who courageously lodged a complaint at the Labour Department to claim his rights as a worker. Claiming worker rights by lodging complaints against errant employers at the Labour Department is the proper and legally recognized procedure in Malaysia. It is very wrong for employers to discriminate against and/or terminate workers who are exercising their legal rights. It is also wrong for employers to discourage and/or threaten workers from seeking justice, when worker rights are being violated.

Maxter Glove Manufacturing Sdn Bhd is a subsidiary of Supermax Corporation Berhad. Maxter Glove Manufacturing Sdn Bhd is a gloves manufacturer that makes Latex Powdered Examination gloves, Clorinated & Polymer Coated Latex Powder Free gloves, Nitrile Gloves and Sterile surgical gloves which is also exported overseas. Supermax Corporation Berhad is an established company, that according to their 2009 Annual Report made an after-tax profit of about RM126 million.

On 23rd March 2010, Thu Maung and another Burmese migrant worker from Maxter Glove Manufacturing Sdn Bhd lodged a complaint at the Subang Jaya Labour Department. Their complaints, amongst others, was that the employer:-

a. had wrongfully deducted levy, that employers have to pay when they employ migrant workers, from the worker’s wages,
b. had unlawfully deducted the medical check-up fees of RM1000 from the worker’s wages,
c. had wrongfully withheld 2 months wages,
d. had failed to provide the migrant worker with accommodation,
e. had not been giving the workers one rest day per week,
f. had made the workers work overtime(sometimes up to 13 hours per day), and also on public holidays and rest days, and had thereafter failed to pay overtime wages and wages for working on rest days and/or public holidays at the statutorily stipulated rates.

On 23rd March, Thu Maung and another had also lodged a complaint at the Malaysian Human Rights Commission (SUHAKAM).

On 12 April 2010, Thu Maung went again to the Labour Department in Rawang and gave a detailed complaint, whereby the Rawang Labour Department did record the complaint and forward the same to the Labour Department office in Port Klang, because they said that the Port Klang Labour Office, has the requisite jurisdiction since the employer, Maxter Glove Manufacturing Sdn Bhd, is in Klang.

According to Thu Maung, after about 1 month since the lodging of the complaint at the Subang Jaya Labour office, company’s representatives started intimidating workers individually by asking them who had complained to the Labour Department, and whether they were also going to complain to the Labour Department. This form of intimidation of workers is deplorable. This kind of actions by employers has the tendency of instilling fear and preventing workers from claiming their legally recognized labour rights.

On 28 April 2010, Thu Maung’s supervisor at the company, for no reason, suddenly asked him to return the worker’s pass and not to come back to work. Thu Maung was wrongfully terminated, and he verily believes that this was done just because he had complained to the Labour Department, and was perceived as the leader of the workers who wanted to claim their rights.

It is even worse when the worker is a migrant worker, for a termination will usually mean a cancellation of the work visa, and deportation back to their home country. This also would mean that they would not be able to even pursue their claims at the Labour Department, Labour Courts, Industrial Relations Department, Industrial Courts and/or Civil Courts as the physical presence of the complainant and/or litigant is necessary for the continuation of process of claiming rights.

The practice of terminating, cancellation of work visa and immediate deportation is a blatant disregard of the laws in Malaysia that exist to protect worker rights.

Work passes in Malaysia allow workers to work only for a specific employer – and hence a termination would leave the worker with no ability to work and earn a living legally in Malaysia, while he awaits the determination of the process that may give the worker justice. Cancellation of the work pass also makes his stay in Malaysia illegal, and he risk being arrested, detained and deported.

It is sad that the current laws and practices of Malaysia, which used to employ more than 2 million migrant workers have not been amended yet to ensure that workers who claim their rights are not wrongfully terminated and sent back.

Whilst there is a clear provision in the Industrial Relations Act 1967, that is section 5, which explicitly prohibits employers (or persons acting on behalf of employers) from discriminating, threatening, dismissing or acting negatively against workers who are interested in forming, joining, and/or encouraging other workers to join trade unions, there is no similar clear provision in law protecting workers who want to claim their worker rights through the Labour Departments and other available avenues. As an example, section 5(1)(c) and (d) of the Industrial Relations Act 1967is as follows:-

(1) No employer or trade union of employers, and no person action on behalf of an employer or such trade union shall -
…. (c) discriminate against any person in regard to employment, promotion, any condition of employment or working conditions on the ground that he is or is not a member or officer of a trade union;
(d) dismiss or threaten to dismiss a workman, injure or threaten to injure him in his employment or alter or threaten to alter his position to his prejudice by reason that the workman -
(i) is or proposes to become, or seeks to persuade any other person to become, a member or officer of a trade union; or
(ii) participates in the promotion, formation or activities of a trade union; or…
There should be a similar clear provision in law that will prevent employers from harassing, threatening, discriminating and/or dismissing workers that claim their worker rights using existing avenues of complaints and remedies. The act of employers impeding, dismissing (or threathening to dismiss) workers who claim their worker rights should also be made an offence with a hefty fine. Workers should also receive a significant sum in exemplary damages, over and above their claim. Deterrence is needed to stop this unhealthy practice of employers violating worker rights, and preventing them access to justice.

In the case of Thu Maung, we call for the immediate reinstatement of Thu Maung without any loss of benefits.

We call on Dato' Seri Stanley Thai, Executive Chairman cum Group Managing Director of Supermax Corporation Berhad, to ensure that the wrong done by their subsidiary, Maxter Glove Manufacturing Sdn Bhd, to Thu Maung and other workers in the said company is ended, and that all workers are paid forthwith what has been wrongly deducted from their wages, monies that have wrongly been withheld returned, outstanding overtime payments, and that all legitimate claims are settled.

We call on the government of Malaysia to do the needful, including enacting laws that will deter employers in Malaysia from exploiting workers, and also protect workers that claim their worker rights from the negative acts of repercussion and/or ‘revenge’ by some bad employers.

We also call on the government of Malaysia to ensure that all migrant workers can continue to stay and work legally in Malaysia until their cases in the Labour Department, Labour Courts, Industrial Relations Department, Industrial Courts and/or Civil Courts, and appeals thereafter are completed.


Charles Hector
Pranom Somwong

For and on behalf of the following 69 organizations

ALIRAN, Malaysia
Alliance of Health Workers Philippines
Arakan League for Democracy (ALD-LA-MALAYSIA)
Asia Pacific Forum on Women, Law and Development (APWLD)
Asian Migrant Centre (AMC)
Asian Migrants Coordinating Body-Hong Kong (AMCB)
Association of Indonesian Migrant Workers in HK (ATKI-HK)
BAYAN USA.
BOMSA, Dhaka, Bangladesh
BUGKOS
Burma Campaign, Malaysia
Burma Partnership
Canada-Philippines Solidarity for Human Rights (Vancouver, BC Canada)
Center for Japanese-Filipino Families
Clean Clothes Campaign -International Secretariat
Committee for Asian Women (CAW)
Communication Union of Australia (Vic Branch)
Empower, Chiang Mai
Filipino Migrant Center
Frank-Hubner-Scholl Resistance Movement of the White Rose
Free Burma Campaign Singapore (FBCSG)
Friends of Burma, Malaysia
Gabriela-Taiwan
IMA Research Foundation, Bangladesh
Institute for National and Democratic Studies of Indonesia (INDIES)
Interfaith Cooperation Forum
Kabalikat, A Domestic Workers Support Network,US
KAFIN-Migrante (Saitama)
Kafin Migrant Center, Japan
Labour Behind the Label, United Kingdom
MADPET - Malaysians against Death Penalty and Torture
Malaysian Trades Union Congress (MTUC)
MAP Foundation,Thailand
May 1st Coalition for Worker & Immigrant Rights, USA
Mekong Migration Network (MMN)
Migrante Aotearoa New Zealand
Migrante B.C. (Canada)
Migrante Denmark
Migrante Europe
Migrante International
Migrante-Middle East
Migrante Nagoya
Migrante Taiwan
Migrante UK.
Migranteng Ilonggo sa Taiwan
Mission For Migrant Workers (MFMW), Hong Kong
National League for Democracy [NLD (LA)], Malaysia
National Network for Immigrant and Refugee Rights (NNIRR), U.S.
Network of Action for Migrants in Malaysia (NAMM)
PAN Asia and the Pacific
Parti Rakyat Malaysia (PRM)
Persatuan Kesedaran Komuniti Selangor (EMPOWER)
Persatuan Masyarakat Malaysia & Wilayah Persekutuan (PERMAS)
Philippines Australia Union
Philippine Society in Japan
PINAY (Filipino Women's Organization in Quebec)
Pusat Komas
Rights Jessore, India
Shan Refugee Organization, Malaysia
Suara Rakyat Malaysia (SUARAM), Malaysia
The Asia Pacific Mission for Migrants (APMM)
The Best Friend Library - Chiang Mai, Thailand
The Hong Kong Coalition for Free Burma Campaign
Think Centre Singapore
United Indonesians against Overcharging (PILAR)
United Filipinos in Hong Kong
Workers Hub for Change (WH4C)
YASANTI, Indonesia
ZOMI National Congress- Malaysia