Labour Flows and Economic Fault Lines Within the ASEAN region:
Livelihood in the Age of Neo-Liberalism
- Charles Hector
[ * This
paper was presented at the Princess Maha Chakri Sirindhorn Anthropology
Centre (SAC) Anthropology Conference entitled Envisioning the ASEAN
Socio-Cultural Community: Culture, Conflict and Hope held at the SAC
from 28th - 30th March 2012.Bangkok, Thailand]
The
topic today is interesting and it can be also confusing. For example,
what is the meaning of ‘economic fault lines’? It means very different
things to different people, governments and entities. For some it is the
growing inequality that is arising amongst persons, families and the
communities of people, and for others it is the ‘threats’ to the well
being of free market and profit making, including also the threats by
reason of an ‘over-reliance’ on a very fragile global-market, which
today is very much governed by speculations rather than actual reality,
by nation states, including ASEAN member nations.
Neo-Liberalism
Then,
we have the term ‘neo-liberalism’ – new liberalism which somehow is
different from the traditional notion of liberalism or capitalism.
‘…Neo-liberalism was an ideology and a political philosophy with its own
values of public responsibility. It had a very precise view of what
economic systems should be and what kind of supporting financial system
should underpin it. The
distinguishing feature was the privatization of utilities essential for
public good general welfare, such as water, power, public transport,
health and other services, irrespective of whether they were efficient
or not whilst under the control of the State...’
Neo-liberalism
encouraged low taxation, mobility of labour to keep wages low,
unrestrained mobility of finance, and the rise of the
stock/commodity/share/currency markets as a means of financialization
which also became an indicator of the economic welfare of the State.
Remember that the value of stocks/commodities/shares/currency can so
easily rise or drop, irrespective of the fact there really is no changes
in actual production, supply and demand or the fundamentals. Today,
speculation rules.
With
the advent of neo-liberalization, traditional indicators like the
general well being of persons and their families took a second place to
the general wellbeing of the state, or is it not really businesses?
Matters like equitable distribution of wealth and opportunities amongst
individual persons and their families, or access to basic amenities and
rights took second place.
Labour Flow
Labour
Flow – this also is a phrase that would be used by proponents of
‘neo-liberalism’ or capitalism, for the phrase itself describes human
labour as a commodity, necessary for production, and we say ‘Labour
Flow’ not even ‘Human Labour Flows’. For, no more is the human person
of importance but just productions, profits and labour. The human being
including the human worker, or even human rights or worker rights,
really is of little importance, save just to paint a better picture
meant for the consumption of the masses or to possibly placate the
oppressor and their collaborator’s conscience – a ‘mere puff’.
Livelihood
and the welfare of Workers and their families are generally no more
important to governments, as priority shifted to heath and wellbeing of
business and profits, and as such steps have been taken to remove
‘obstacles’ that human labour could cause to businesses and their
profits. I would look at these disturbing trends and demonstrate how
individual workers and their families, and their trade unions have been
suffered by reason of this ‘neo-liberalization’ later on in this paper,
and for now we will look at labour flow.
MIGRATION AND LABOUR FLOWS ALWAYS EXISTED – NOT A NEW PHENOMENON AT ALL
Throughout
history, people have been moving from rural to urban centres, within
countries and across borders in search of a better life, be it for
better employment - better employment with higher wages and/or better
working/living conditions, for better income earning activities
including small businesses or trade – all for the purpose of betterment
of their own life and livelihood and that of their families and
dependents.
USA,
Australia and New Zealand are examples of countries today, whose people
are migrants originally who now rule. Likewise, the ASEAN member
nations are nations where many of its people are descendants of
migrants. In Peninsular Malaysia, the indigenous population is only a
couple of hundred thousand today, and even the Malays, being the first
of the migrants is about 55% of the population, whilst the rest are
later migrants coming originally from China, India and other lands.
Then, just a few decades ago in most countries, migration got controlled
and subsequent migrants were treated as ‘temporary guests’ allowed in
only for particular purpose, expected to return at a later date back to
their country of origin.
To
be complete, employment, better wages and/or income or better
livelihood was not be the only reason for migration, for it also was to
escape from oppressive conditions existing in their own home
environment, an example of this would be those from Burma. Some are
escaping economic, social cultural or even environmental conditions in
their home country in a quest for a better life elsewhere. There are
other reasons too.
This
movement of people could be temporary or even permanent in nature,
sometimes even starting off as something anticipated as temporary that
changes to become a permanent home after that. Sometimes, this movement
of people are self-initiated, sometimes ‘forced’ or at other times even
encouraged by others including their own governments and other
governments, and others seeking human labour for their business
enterprises in other countries.
In
Malaysia, for example in the pre-independence period, we see the
bringing of large numbers of people from India, China, Sri Lanka and
other countries, which was facilitated and encouraged by the British
colonial government and associated companies who needed human labour for
their tin mines, rubber plantations and other sectors, whereby at the
end of the day many of these migrant workers and their families settled
down and later also were given citizenship. These workers were promised
free land and homes for themselves and their families, over and above
good wages and work benefits.
Even
today, many countries including ASEAN countries continue to woo and
encourage migrant workers from their countries to other countries with
the promises of good paying jobs, but there are significant differences
which we shall be looking at today. One difference is that all that they
want is only the worker – not their families, not even if they are
willing to fork out their own cost of travel.
UNJUST CONDITIONS ON HUMAN MIGRATION UNDERMINES HUMAN RIGHTS
Human
migration as a phenomena, is nothing new, but today nation States seems
to be adopting a different attitude towards migration of people,
wanting not just to control this movement but to also profit from this
movement. Values has changed for today labour is more and more treated
as a commodity – forgetting importantly their humanity, and the general
entitlement to universally recognized basic human rights worker rights,
all essential for the well being of people, including workers, and their
families.
Today,
labour flow of migrant workers, are actively encouraged by both
countries of origin and also host countries that ‘need’ workers, and
nation states have stepped in wanting to control it and profit from it,
and the underlying primary object is no longer the protection of its
people by the host countries, or the assistance of employers in host
countries that need workers.
The
control today seems to be motivated by reasons of income generation or
profit making by both countries of origin and host countries – and this
is done by the imposition of various kinds of fees, levies and other
mandatory conditions like compulsory medical/health testing on entry and
every year thereafter, the compulsory buying of insurances – including
medical insurances, some of which the worker themselves have to
personally pay for. This monitoring or documentation also helps earn
monies through passport renewals, and also for taxation purposes.
Restrictions as to opening banking accounts, and the taking of cash
monies back with them when they return home - also generates large
income for banks and other entities involved in the business of
remittances .
Migrant
workers, and labour flow today has become a source of income for
governments and third parties. You may ask why this has happened. Well,
with the advent of free trade and open market, most countries,
including ASEAN member states, by reason of World Trade
Organization(WTO) Agreements and various other Free Trade
Agreements(FTAs) lost previous sources of income generated through
taxes, import-export duties, etc which came primarily from foreign
multinational corporations(MNCs). All these were removed to create ideal
free market conditions – where there can be no more protection,
differential treatment, trade barriers, taxes, duties, etc. Coupled
with this is the fact that to woo foreign companies, many governments do
in fact give other incentives like tax-holidays and other preferential
rates and treatment. ASEAN, contrary to the best interest of ASEAN, have
allowed themselves to be divided and are in competition with each other
when it comes to many of these bilateral FTAs. At the end of the day,
it is ASEAN member states and locally owned companies that are losing
out.
Note
that today, countries cannot anymore impose obligations on foreign
companies with regard to ‘transfer of knowledge and/or technology, local
quotas with regard management/supervisory staff, necessary requirement
to use a certain percentage of locally produced products in production,
etc – hence for ASEAN member states, who are developing countries, there
is further loss in terms of not just sources of income but also losses
in terms of transfer of technology and know-how which certainly would
have benefited its people and made it more competitive in today’s global
market.
Despite
this, ASEAN member states, still need to bring in foreign companies to
ensure financial security, and also general ‘security’ to survive in
current global environment, dominated by super powers and their friends
who have the capacity to threaten or act against nation states that they
consider antagonistic to neo-liberalism or their interests. But this
will not excuse our governments, for they too have chosen to follow the
trend and reap benefits for those who have political and economic power
to the detriment of the ordinary person.
End
result is that today, no more is the primary reason of inviting MNCs
into their countries is for the purposes of generating employment and
income for the local workforce, or for the acquisition of greater
knowledge and skills of the local citizenry, or income generating
opportunities of related local companies. New income sources
unfortunately are workers – including migrant workers.
Migrant
workers, though brought in based on agreements to work for 3 to 5
years, are only issued work-passes/visas to work usually for 1 year, and
the host countries authorities do not require these actual agreements,
but only the agreement for work for 1 year. Migrant workers are also
given the work passes/visas on condition that they pass their annual
medical/health tests, and must forego their freedom of association. They
are prevented from bringing their families with them, and are not
permitted to fall in love or get married during their period of
employment in the host country. They cannot also get pregnant – for if
they do, they will be sent back. In Malaysia, migrant worker’s work
pass/visa are also restricted to a particular employer – hence the
option to change employers in the host countries is generally nil.
Claiming rights and the access to justice is also effectively denied to
migrant workers. Why whenever they claim their rights, or even use the
mechanisms of access to justice, the repercussion by employers and host
nations is the termination – hence cancellation of work pass/visa –
hence the right to remain legally in the host country legally – hence
‘deportation’ or arrest, detention, whipping and then deportation.
Both
the countries of origin and destination countries are both guilty of
not doing enough for the protection of migrant workers rights, more so
when they do play such an integral part in controlling human migration.
India, for example, did insist on both the Indian worker and the
employer from the destination country sign a standard employment
agreement which included worker rights. How many ASEAN countries do
this? How many ASEAN countries even come to the assistance of their
migrant workers from their countries to ensure that they are able to
successfully claim their rights in destination countries? Experiences
have shown that both countries of origin and destination countries real
concern is income generation aspects of human labour migration – not so
much the issue of human rights or worker rights.
It
is easy to blame neo-liberalism and powerful nation states, but really
blame also equally lies on persons who hold political power in our ASEAN
region, who have chosen to abandon ASEAN values and principles, and
have become more driven by economic gains for themselves and their
cronies. Today many enter politics, not so much by reason of ideologies
but by reason of reaping financial benefits for themselves and their
associated businesses.
Sadly
most of the leaders in our governments today are from a corporate
background, having also direct or indirect interest in businesses – and
as such, it is not shocking that the policies and their actions are
pro-business and human workers are important only for the provision of
labour.
Rights, Welfare, Livelihood and Security of Workers and their families are an obstacle
Workers
and their families generally are no more important to governments, as
priority shifted to business and profits, and as such steps were taken
to remove ‘obstacles’ that labour could cause to businesses and their
profits. Cheap problem-free workers, that could easily be utilized when
needed and disposed off when not needed was now the objective of nation
state to woo and keep businesses within their boundaries.
From Permanent Employment Until Retirement to Short-Term Contract Employment
First
to be dismantled was the right to a secure employment relationship
between workers and their employers until retirement. This was replaced
with short-term or fixed duration contracts of employment, which lasted
one year or less, with no guarantee or safeguard of a renewal of
employment contract even if the employer still needs workers at the end
of the contract period. For those, who already were permanent employees,
employers used various means to destroy this relationship and to
replace it with short-term contracts. One methods used was the
outsourcing of work to 3rd parties, hence forcing employees to leave and
enter new short-term contracts with these new employers or face
retrenchment. Another method that was employed was, like in Malaysia was
the Volunteer Separation Schemes(VSS), which the government also
encouraged, and many workers lost their permanent employment only to be
back working with the same employer but this time under short-term
contracts. Public sector employees also lost permanent employment with
pension rights, when privatization happened.
Usage of ‘bonded’ controllable easily abused Migrant Workers
Secondly,
was the active highly controlled bringing in and allowing of migrant
workers who were willing to work for lower wages to be employed in the
country. One reason for this was to avoid demands for better wages and
benefits from local workers and their unions, which would have succeeded
if left to market forces. In Malaysia, for example, when migrant
workers were brought in they were bound to work for just one particular
employer for a defined period of time, totally deprived of the right to
be able change employers even when the employer cheats them by not
giving them agreed wages and benefits, and if the migrant worker
complaints or fights for their rights, very easily are they terminated
and their work passes/visas cancelled, and they have little choice but
to leave the country back to their country of origin and if they have
not work for the entire contractual period, then even the cost of going
home will be theirs to bear. Access to justice is available to them just
like any other worker, but even if they have complained or started
using these mechanisms, it matters not for the work passes/visas will
still be cancelled, and they can no longer remain legally in the
country. To stay on in the country, even to pursue their claims in the
Labour Courts, is near impossible, and their presence after work
passes/visas are cancelled is a crime – where they can be arrested,
detained, charged in court, convicted, and today the sentence includes
whipping, and thereafter deported. The fact that they have lodged
complaints in the relevant avenues for justice is irrelevant. The fact
that they have outstanding claims is irrelevant. Even, in the unlikely
event, they are allowed to stay, they have no right to work and earn an
income to sustain themselves.
Hence,
migrant workers became a preferred source of labour for many employers –
bonded and forced to work for the one employer, so very easily forced
to work overtime, rest days and even public holidays, so very easily
cheated of their rights and benefits who really have no real option or
avenue of complaint of remedy in the home country, and so easily gotten
rid off.
It
is not uncommon for many employers to not even pay wages of many months
close to the end of their employment contract, or even retrenchment
benefits. Having also been deprived of their original passports and the
relevant work visas/passes, it is so easy to get them arrested, detained
and even deported by the police and immigration authorities. All that
needs to be done is just not turn up at the police station or the
immigration detention depots and claim their workers. It is so easy to
just allege that the said workers have run away.
Using Just Labour Without Employment Relationship or obligation to protect worker rights
But
then short-term contract workers and migrant workers were still
employees of the factory and workplaces they worked at, and the
employers still had duties and obligations as employer to ensure that
the rights of these worker-employees as provided for by existing
national laws, and also collective agreements entered with trade unions
of workers. In Malaysia, where one of the condition imposed by the
Immigration Department when work passes/visas are issued is the
deprivation of the right/freedom of association, but Malaysian workers
and trade unions in reliance of the existing Trade Union Act have always
taken the position that migrant workers like local workers are entitled
to form and/or join trade unions, and as such migrant workers working
in factories and workplaces that do have unions can become members, and
automatically is entitled to all the better rights and benefits as
contained in Collective Agreements.
What
if we can just use their labour without entering into an employment
relationship with these workers? That way we can totally avoid all
obligations placed on employers to recognize and protect rights of
employees as provided for in law and other international standards that
the particular country is bound to. So, on about 2005, the Malaysian
government made a policy and allowed factories and workplaces to use
workers, without having to enter into any employment relationship with
these workers. The factories and workplaces were allowed to just use
workers supplied by third parties, i.e. the labour/manpower suppliers,
who were called outsourcing agents/companies, and the said workers
supplied by them at factories and workplaces were simply referred to as
‘outsourced workers’. For the work done by these workers, the factory
and/or workplaces just pay the outsourcing agent/company, who then pay
directly the workers that they supplied. This arrangement was most
profitable for these labour suppliers, who will continue to parasite on
the sweat and toil of workers working for another who have work and
need workers. If they are not employees, then they cannot form/join
trade unions at the factory and/or workplaces, and will have no right to
demand better wages, working conditions or work benefits from the
factory and/or workplaces.
Well
in Malaysia, all this started on or about 2005, first with migrant
workers but today is also includes local workers. In some factories in
Malaysia today, about 50% of their workers are these ‘outsourced
workers’ – and this new phenomena certainly also affect directly
employed workers and their unions, for definitely their bargaining
powers with their employers have shrunk and will continue to shrink –
until finally workers will lose this most important right and avenue for
claiming better wages, better working conditions and better benefits
from their employers.
In
2010, the Malaysian government tried to give statutory recognition to
this adulterated unjust employment relationship by extending the
definition of employer to include labour/manpower suppliers, and the
fact that these ‘outsourced workers’ are in fact and will continue to
remain employees of these manpower/labour suppliers, and in end 2011,
despite worker, union and civil society protests, it was passed in
Parliament. Now, the labour supplier called ‘contractor for labour’ in
the now amended Employment Act, has been legally recognized also as the
employer of workers even after they are supplied to factories and
workplaces and start working under the control and supervision of the
principal or owners of the workplaces. The discrimination of workers at
the workplace doing the same work, the deprivation of the right to join
trade unions at the workplace, or benefit from Collective Agreements,
despite being contrary to International Labour Organisation(ILO) and UN
standards and principles have just gotten legal recognition in Malaysia.
MNCs and factories finally get their wishes of having just labour
without having any employer’s obligations and duties, and human worker
suffers.
The Way Forward
ASEAN
peoples, by reason of culture and religion, traditionally have positive
values and principles that place the welfare and rights of human
persons, including human workers, as being of primary importance.
Unfortunately, our governments have strayed away from these principles
and values, and today places greater importance on the well-being of
business and profits rather than the human persons, and the people,
being the ultimate holders of real power, usually exercised by the
ballot box in democracies need to do the needful so that we can get back
to prioritizing the protection of the livelihood, welfare and rights of
human persons and workers and their families.
Countries
that have advocated capitalism, liberalism and even now neo-liberalism
are failing, for even in the US, the biggest champion of neo-liberalism,
we see this failure not only by emergence of the fourth world (the
growing number of homeless, etc), but also a shocking failure in terms
of healthcare and general social welfare of its people – something that
finally they are taking cognizance of and trying to address. As such,
there is a serious need to maybe develop a new way of doing things, an
alternative to neo-liberalism.
ASEAN
has more than half a billion in population, and it is rich with natural
resources, and as such needs to assert itself and act collectively,
avoiding itself to be divided and taken advantage of by the richer more
powerful nations in the world, and really the MNCs and business
communities.
For
workers and their families, permanent employment and direct employment
relationship with principals and owners of workplaces is essential, for
this is a fundamental right flowing from which is also a determination
of all other factors affecting livelihood including housing, education
of children, healthcare, and financial security during old age, and a
worker on a short-term contract is denied this right and is further
visited with stress, including of not knowing where income for his
livelihood after his short-term contract ends.
For
migrant workers, this bondage to one employer without any real access
to avenues of justice must end, for power also lies in countries of
origin who can insist that no migrant worker is send back or made
‘undocumented’ (or illegal) when he has outstanding claims against his
employer, and that during the pendency of such claims, migrant workers
must be allowed to stay and work legally in that destination country.
Sending countries can insist on employment contracts that ensure direct
employment with the workplace. In fact, even for the protection of
workers, maybe it is time for not just a recognition of the right to
unionize but also an active encouragement by governments for workers to
be able to form unions, not just at the workplace, but also nationally
and even at the ASEAN level so that workers will have that necessary and
available means to fight for better wages, better working conditions
and related benefits at a more equal footing with MNCs and businesses.
As
with easing of the flow of trade and businesses across borders, so too
should human persons especially human workers be given that freedom of
movement especially across the borders of ASEAN member states, with the
assurance of equal treatment and access to healthcare and social
protections as local workers.
There
are many UN, ILO, Regional and Multi-National bodies that have
standards, declarations and conventions that address the question of
human rights and worker rights, but sadly Member States, even when they
breach them or do not meet their obligation are only visited with
observations and recommendations – not with any punitive sanctions or
actions. Likewise, the case with businesses owned by citizens of these
states, or in the said states. Without the ability to be able to compel
compliance, or even damages/compensation in the event of non-compliance
by States and/or businesses, not just by member states, but also the
said human persons or workers affected by reason of this non-compliance,
it is very ineffective. Sadly, this is also the case with existing Code
of Conducts and other Corporate Social Responsibility Instruments that
bind some businesses and their supply chains, which are merely
declarations of intent with no mechanisms for enforcement open to
workers victimized.
It
is time that workers are also protected, not just businesses, and are
also given the required access and avenues to be able to pursue their
rights and claims against not just businesses, but also governments that
collaborated with business, to violate fundamental worker rights.
ASEAN
governments need not follow blindly the flows of the river of
neo-liberalism – it has the power and the capacity to change in favour
of better protection of the rights, welfare and livelihood of each and
every individual and their families. And, if the people in government
are unwilling to move in this direction to ensure better equity,
justice, rights and livelihood, then the responsibility falls on the
people of ASEAN to bring about the necessary changes.
***
1-
Malaysia’s political economy and the international economic crisis –
Tengku Razaleigh Hamzah, ALIRAN Monthly 2012:Vol.32No. 2
2- Malaysian government make about RM2 billion per year from levy.
Employers of migrant workers are required to pay an annual levy for each
worker whereby the rates depend on the sector employed in –
manufacturing(RM1,200), construction(RM1,200), plantation (RM540),
agriculture (RM360), domestic help (RM360), services – welfare homes
(RM600), services – island resorts (RM1,200), services –others
(RM1,800). – Migrants in Malaysia – An Overview by Charles Hector,
published in Praxis, the Chronicle of the Malaysian Bar, Jan-March
2012,.
3
- In Malaysia, employers need to buy insurance from certain companies
under The Workmen's Compensation (Foreign Workers' Compensation Scheme)
(Insurance) Order 1998, and now we have that new Foreign Workers
Hospitalization and Surgical Insurance Scheme (RM120 per year), and in
some sectors, it is the workers that have to pay for this new Insurance –
not the employers. – Migrants in Malaysia – An Overview by Charles
Hector, published first in Praxis, the Chronicle of the Malaysian Bar,
Jan-March 2012
4 - “…Remittance flows are the second largest source of external funding
for developing countries, and in Malaysian more and more companies are
getting into this business, and now there are 62 and all over the
country there are about 1,800 places where one can transfer money. The
estimated total remittance was RM36.5bil in 2009 and recorded a further
12% increase in the first three quarters of 2010” – Migrants in Malaysia
– An Overview by Charles Hector, published first in Praxis, the
Chronicle of the Malaysian Bar, Jan-March 2012[Ref also to Remittance
business picks up steam(Star, 19/2/2011)]
4 - Outsourcing agents/companies – workers work for the factory, factory
pays about RM50 to the ‘outsourcing agent’ for normal hours of work,
and agent pays worker RM20, making about RM30 per day just for normal
work. If there is overtime and work on rest days, even more. If they
have 1,000 such workers, they make RM30,000 per day, and in a 26 day
month that is about RM780,000-00, and in a year that is about RM9.35
million. So, with about 2 million migrant workers, that is at least
RM1.9 billion for just parasiting on workers sweat ant toil– Migrants in
Malaysia – An Overview by Charles Hector, published first in Praxis,
the Chronicle of the Malaysian Bar, Jan-March 2012
* This
paper was presented at the Princess Maha Chakri Sirindhorn Anthropology
Centre (SAC) Anthropology Conference entitled Envisioning the ASEAN
Socio-Cultural Community: Culture, Conflict and Hope held at the SAC
from 28th - 30th March 2012.Bangkok, Thailand
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