MALAYSIA submission on Migrant Workers for the 17th Session of the
Universal Periodic Review
Submitting
organisations:
Name
of Organization:
Clean
Clothes Campaign (CCC)
Postbox
11584
1001
GN Amsterdam
the
Netherlands
tel:
+31 20 4122785
email:
info@cleanclothes.org
https://www.cleanclothes.org/
Contact
person:
Tessel
Pauli
Urgent
Appeals Coordinator
+31
20 4122785
tessel@cleanclothes.org
The Clean Clothes Campaign (CCC) is
dedicated to improving working conditions and supporting the empowerment of
workers in the global garment and sportswear industries. Established in 1989,
the CCC has worked to help ensure that the fundamental rights of workers are
respected. We educate and mobilise consumers, lobby companies and governments,
and offer direct solidarity support to workers as they fight for their rights
and demand better working conditions.
The CCC is an international
alliance that works to improve conditions and support the empowerment of
workers in the global garment industry. The CCC has national campaigns in 15
European countries with a network of 250 organisations worldwide, and
international secretariat based in Amsterdam. Members and partners include
trade unions and non-governmental organisations (NGOs) covering a broad
spectrum of perspectives and interests, such as women’s rights, consumer
advocacy and poverty reduction.
Name of Organization:
Workers
Hub for Change (WH4C)
Lot
3585A, Kampung Lubuk Layang,
Batu
3, Jalan Mentakab,
28000
Temerloh,
Pahang,
MALAYSIA
Phone
numbers: 609 2777 267/ 6019 2371 300
Fax
number: 6092777261
E-mail:
Coordinators:
Pranom Somwong and Charles Hector
chef@tm..net.my
p_somwong@yahoo.com
Blog:
http://workershub4change.blogspot.com/
WH4C was started in 2007 by a group
of concerned persons, working for human rights and worker rights, especially
migrant worker rights. Our work has been primarily with Burmese, Nepali and
Vietnamese migrants in Malaysia. We also do have a history of working with
migrants from Indonesia, India, Bangladesh, Pakistan and Thailand .WH4C is a
member of Asia Pacific Forum on Women, Law and Development (APWLD), the
region’s leading network of feminist organisations and women. APWLD has
consultative status with the Economic and Social Council of the United
Nations.WH4C is an active partner of the global labour rights networks of the
Clean Clothes Campaign (CCC) and GoodElectronics Network.
Executive
summary
This submission focuses on the
rights of migrant workers to equal treatment at work (including equal
remuneration and freedom of association), and non-discrimination with regard to
hiring procedures, access to healthcare
and access to remedy.
The Migrant Worker Rights coalition
welcomes the support given by Malaysia to the recommendation 50 listed by the Working Group A/HRC/11/30, in
which Bangladesh recommended Malaysia to continue its effort to protect the
rights and interests of foreign workers. However, the submission calls the
attention to the fact that Malaysia has introduced legislation that in its
implementation discriminates against migrant workers. In particular reference
is made to: legislation that transfers the burden of
paying the costs of levy from employers to migrant workers (paragraph 4-6),
requires migrant workers to pay for high healthcare insurance (paragraph 7-8),
and other deductions (paragraph 9-10), which results in lower take-home wages
than local workers for equal work legislation and practices that deny migrant
workers from equal access to redress, in particular when visa and
permits are revoked by the employer and migrant workers lose their rights to
stay in the country and remain party in any form of conflict resolution, or
court procedure (paragraph 11) legislation and practices that discriminate
against migrant workers with regard to their access to healthcare (paragraph
12), the prices they have to pay for healthcare (paragraph 13) and the
compensation they are entitled to in case of occupational diseases and
accidents (paragraph 14) legislation and practices that discriminate
against migrant workers with regard to hiring practices, in particular
mandatory health tests (paragraph 15-16) legislation whose negative implications
affect migrant workers more than local workers, and restrains their rights
to freedom of association and collective bargaining (paragraph 17-20)
MALAYSIA
submission on Migrant Workers for the 17th Session of the Universal Periodic
Review
A. BACKGROUND AND FRAMEWORK
1. Scope of international obligations
RECOMMENDATIONS
a. Malaysia should immediately
ratify the United Nations Convention on the
Protection of the Rights of All Migrant Workers and Members of Their
Families.
b. Malaysia should immediately
ratify the ILO Conventions, including the Freedom of Association and Protection
of the Right to Organise Convention, 1948 (No. 87), Right to Organise and
Collective Bargaining Convention, 1949 (No. 98), Workers' Representatives
Convention, 1971 (No. 135)
C.
IMPLEMENTATION OF INTERNAITONAL HUMAN RIGHTS OBLIGATIONS, TAKING INTO ACCOUNT APPLICABLE INTERNATIONAL HUMANITARIAN
LAW
Migrants, refugees and
asylum-seekers
* This submissions raises in
particular recent developments that undermines human rights and justice of
migrant workers, workers generally and trade unions in Malaysia, which have
been a concern of civil society including trade unions, reflected also in Joint
Statements and other protest actions
INTRODUCTION
1.
There is today about 2.3
million documented migrant workers in
Malaysia, who has a labour force of about 12 million.
2.
Article 8 of the Federal Constitution of Malaysia provides that “All
Persons are equal before the law and is entitled to equal protection of the
law” and by the use of term “person” as opposed to ‘citizen’ makes it most clear that this guarantee of rights
extends also to all persons, including migrant workers, be they documented or
undocumented. Section 60L of the Employment
Act 1955 also prohibits discrimination in respect of the terms and conditions of his
employment on the basis that one is a migrant worker (foreign worker).
3.
Despite these laws and the support by Malaysia given to recommendation
50 listed by the Working Group
A/HRC/11/30, in which Bangladesh recommended Malaysia to continue its effort to
protect the rights and interests of foreign workers, Malaysia has introduced
legislation that in its implementation discriminates against migrant workers.
I RIGHT TO WORK AND TO JUST AND FAVOURABLE CONDITIONS OF WORK
All are equal before the law and
are entitled without any discrimination to equal protection of the law (Art. 7
UDHR)
Everyone, without any
discrimination, has the right to equal pay for equal work. (Art. 23(2) UDHR)
Everyone is entitled in full
equality to a fair and public hearing by an independent and impartial tribunal,
in the determination of his rights and obligations and of any criminal charge
against him. (Art. 10 UDHR)
4.
Undersigned welcomes that Malaysia has introduced national legislation
[Minimum Wages Order 2012 ] to ensure
the right to Minimum Wages for Malaysian workers, including migrant workers, as
of January 2013. However, undersigned express their strong concerns that vide a Cabinet decision
dated 30 January 2013, the Malaysian
government allowed employers to recover levy from any migrant worker
employed. The levy is paid by employers for every migrant worker they employ,
to discourage the employment of migrant workers over local workers. Malaysian
Labour Director-General Datuk Ismail Abdul Rahim was reported saying that,
“…The rationale behind getting employers to bear the levy was to discourage
them from employing foreigners…”1.
However, as a consequence of the
Cabinet decision, the burden of the levy
has been transferred to migrant workers,
and in effect migrant workers risk to receive lower renumeration for equal work
Khalid Atan, the President of the Malaysian Trade Union Congress(MTUC) said,
“…if workers were asked to pay the levy, the minimum wages policy would not
benefit them at all, as whatever little increase in salary they enjoyed, would
be wiped out with the levy payment…”2.
The undersigned seek to ask if this
discriminative practice will be canceled and the obligation to pay levy will
return with the employers, in order to ensure that minimum wages are paid to
all workers.
5.
A Joint Statement entitled ‘Minimum Wages For All Workers, Including
Migrant Workers - No to Wage Deduction
to recover Levy Payable By Employers
–‘ which was endorsed by 83 civil
society groups and trade unions was issued on 5/2/2013 (see appendix)
6.
This discrimination against migrant workers in Malaysia is compounded by
the fact that they are now suddenly imposed with an additional unjust burden,
not before they decide to enter an agreement with their employers and come to
Malaysia to work, but in the midst of their employment in Malaysia. The actions
of Malaysia relieve employers the burden of breaching employment contracts, an
act which would have allowed the migrant worker a legal remedy which would
naturally be to the benefit of the workers preventing employers to suddenly
vary contractual obligations to the detriment of their employees. The undersigned seek to ask if Malaysia can
guarantee that migrant workers' right to continuation of their employment
contract is respected, as well as effective access to legal remedy.
7.
Despite the existing legislation under the Employees Social Security
Scheme, which stipulates that employers should bear the costs of providing for
their workers' healthcare, the Ministry
of Health (MOH) has implemented the Foreign Workers Health Insurance Protection
Scheme (FWHIPS) with effect from 1 January 2011. Under FWHIPS, every foreign
worker is required to take an insurance policy under the Foreign Workers
Hospitalisation and Surgery Scheme (FWHSS) with a health insurance protection
of RM10,000 per year. The premium of RM120 per year for the insurance policy
has to be borne by the foreign workers themselves3
.
For example, in the electronics
industry, this amount has to be covered from the 450-700 RM that migrant
workers bring home from a six days a week of twelve hours a day (this includes
a one-hour break) job4
.
The undersigned seek to ask how this new requirement relates to
Malaysia's support to recommendation 50 to protect the rights and interests of
foreign workers in the last UPR of Malaysia.
9.
Discrimination also occurs to migrant workers when Malaysia fails to
prevent (or facilitates) the wrongful deduction from wages of migrant workers
matters that are by law not permitted for workers like the deduction of
recruitment agency fees/payments and accommodation, all of which requires not
just consent of the workers but also the permission from the Malaysian
government. Malaysia’s failure is the omission to act against this practice, or
the giving of permission irrespective of the fact that the worker disagrees.
10.
Undersigned note that the above mentioned discrimination on terms of
remuneration is in clear breach with the recognition that employers should bear
the additional costs of employment of migrant workers in a situation where it
is employers that seek out migrant workers in their country of origin to come
to work for them in Malaysia – not a case that migrant workers come on their
own to Malaysia to find work.
RECOMMENDATIONS
c.
Malaysia must evaluate the legislation and regulations that have a
negative impact on the wages of migrant workers, and abolish any measures that
are discriminatory with respect to the right to equal pay for equal work.
d.
Malaysia should guarantee that migrant workers' remuneration will be
compliant with the Minimum Wages Act and is not withered away by any deduction
of wages to recover levy, recruitment fees or accommodation fees which should
reasonably be borne by employers.
e.
Malaysia must ensure that migrant workers rights as workers are not
eroded by new laws and policies in favour of employers, going against general
principals and protection accorded to workers. Obligation for healthcare of
migrant workers, especially when it is occupation related or as a result of an
industrial accident must be borne by employers or existing social security law
and practice.
f.
Malaysia must revoke the practice of granting special permissions to
employers of migrant workers to make what is generally unlawful deductions from
wages, unlawful advances and changes to work conditions and rights, including
the ability to require migrant workers beyond the maximum limit of 48 hours a
week (or 8 hours per day), on rest days and even public holidays.
II ACCESS TO LEGAL REDRESS
Everyone is entitled in full
equality to a fair and public hearing by an independent and impartial tribunal,
in the determination of his rights and obligations (…) (art. 10 UDHR)
11. Undersigned have noted numerous occasions
when migrant workers have been terminated by their employers, after they had
lodged complaints against their employers' discriminative practices at avenues
of redress provided by law. Termination of employment subsequently caused the
termination of their visas/permits, thereby allowing for their legal presence
in Malaysia to be terminated. Since legal presence is required to use further
legal mechanisms to claim their rights, the access to redress and justice has
been denied for migrant workers in these cases. In addition, undersigned have
noted that many workers whose work permits/passes are terminated, have been
arrested, detained, imprisoned, whiped and deported if they had chosen to
remain in Malaysia to pursue their case.
RECOMMENDATIONS
g.
Malaysia should give effect to ‘equal protection of law’, by not
canceling work permits/passes in case migrant workers have submitted a
complaint to any court , institution, or mediation body, thus denying migrants
the right to legally remain in
Malaysia and proceed with their rightful claims through the legally
provided avenues of justice. No migrant should be made ‘illegal’ (undocumented)
and/or deported when there is a pending unsettled claim or case involving the
said migrant.
h.
Malaysia should ensure that migrant workers who lodge the complaint on
abuse and exploitation are provided with the necessary support and assistance
to seek remedies, such as legal aid, interpretation assistance temporary
shelters and the right of migrants to stay and work during legal process.
III RIGHT TO SOCIAL SECURITY AND HEALTH
Everyone, as a member of society,
has the right to social security and is entitled to realization, through
national effort and international co-operation and in accordance with the
organization and resources of each State, of the economic, social and cultural
rights indispensable for his dignity and the free development of his
personality. (art 22 UDHR)
Everyone has the right to a
standard of living adequate for the health and well-being of himself and of his
family, (…) medical care and necessary social services, and the right to
security in the event of unemployment, sickness, disability, widowhood, old age
or other lack of livelihood in circumstances beyond his control. (art 25 (1)
UDHR)
12. Migrant workers lack access to medical
facilities and health care. For example, a study in the electronics sector
shows that all factories under investigation lacked a medical facility on the
factory grounds. If workers are injured or ill they go to a panel clinic near the
factory. Workers have a medical card (provided by the factory) with which
medical costs up to MYR 25 can be covered. However, additional costs should be
paid for by the worker. Migrant workers are not entitled to any paid sick
leaves.5
13. However, discrimination is practiced against
migrant workers when they seek healthcare at public hospitals and clinics. For
example, the payment required by Malaysians when they visit an hospital seeking
treatment, is RM1 (for seeing a doctor) or RM5 (for seeing a specialist). For
migrant workers, it starts with RM50 (for seeing a doctor). the deposit payable
by Malaysians who require to be warded, vary between 15 and 1.100 RM. However,
for migrant workers the same treatment costs between 800 and 2.200 RM6 The rates are fixed by the government: the governing
Act is Akta Fee 1951 (Fee Act 1951), and the rates now is as per Perintah Fee
(Perubatan) 1982 [Fee(Medical) Order 1982].
14. Whilst the social security of local workers
are covered by the Social Security Act, migrant workers are covered by the
lesser Workmen’s Compensation Act 1952, which results in discrimination between
migrant and local workers regarding their health care costs.
The Workmen's Compensation Act, unlike the Social Security Act does not
provide for continuous regular support and assistance until death for a worker
who is a victim of an industrial accident or occupational disease. The
Workmen’s Compensa tion Act only provides for a one-off payment to the victim
and/or their dependents where death has resulted from the injury/disease, that
is a lump sum equal to sixty months' earnings or RM18,000, whichever is the
less. In addition, the maximum amount of fees and cost that is payable by an
employer under the Workmen’s Compensation Act, for ward charges (including
surgical ward) is limited to RM300, for operation fees it is limited to RM250,
for X-Ray Fees it is limited to RM100 and for other electric therapeutic charges it is limited to RM100.
The rates stipulated are outrageously low given the fact that government
hospitals and clinics charge migrant workers first class rates, and the lowest
deposit for a migrant worker who needs to be warded is RM400, and if it was a
surgical case, it is RM800-00. Operation charges can range from RM50 to RM3,000
depending on the type of operation. Ultrasound cost RM100. Radiology charges
range from RM50-RM600. Lab charges range from RM5 to RM100 depending on
the type of tests, and usually there
will be quite a lot of tests needed.
IV EQUALITY AND NON-DISCRIMINATION
Everyone is entitled to all the
rights and freedoms set forth in this Declaration, without distinction of any
kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status...” (Article
2 UDHR)
Each State Party to the present
Covenant undertakes to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in the present
Covenant, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status.” ( Article 2(1)
ICCPR )
15.
Before migrant workers can obtain
a work permit to Malaysia, they are
subjected to medical screenings. This entails a discriminatory practice, as
local workers are not required to obtain these screenings. There is no specific legislation
relating to HIV/AIDS or laws that make screening
of blood products mandatory. Neither are there specific laws for the protection
of the rights of infected persons, although the constitution and other laws may
be invoked in cases where such persons have suffered rights violations.
For example, HIV and selected other
tests (TB, STDs, Hepatitis A, Hepatitis
B, Leprosy, Urine Cannabis, Urine Opiates, Cancer, Epilepsy, Psychiatric
Illness, Pregnancy ,Hepatitis B, VDRL/TPHA and Malaria) are
part of medical screenings, mandatory
for incoming prospective foreign workers and for the annual renewal of
work permits. The purpose is to detect unfit or pregnant migrant workers whom
will be disqualified and deported back to their countries of origin. These
mandatory testing violates the principle
of confidentiality: the Foreign Worker's Medical Examination
Monitoring Agency (FOMEMA) is in charge of medical screenings and notifies the
Immigration Department of the HIV test results; the Immigration Department then
informs the employer. This has led
to discrimination, loss of livelihood and even violence against the
workers concerned. In most of cases the migrant worker is not the first person
to learn about the results, but it is the outsourced agent or their
employer who receives the notification
of the result of medical checkup.
16.
Mandatory HIV testing of migrants
is in clear contradiction of the ILO Code of Practice on HIV/AIDS and the World
of Work In consonance with the Code of Practice, and on the specific topic of migrant workers, the ILO Committee of
Experts has stated that “the refusal of entry or repatriation on the grounds
that the worker concerned is suffering from an infection or illness of any kind
which has no effect on the task for which the worker has been recruited,
constitutes an unacceptable form of discrimination” . The study shows that
migrant workers or potential migrant workers who test positive for HIV
frequently disappear from the system, whether they were tested prior to their
departure or after they had entered the receiving country and were deported
following detection of their HIV status.
RECOMMENDATIONS:
i.
Lift requirements of compulsory or mandatory health and HIV testing of
migrant workers at all points of the migratory process as a condition for
employment;
j.
End policies and practices of
deportation of migrants on the basis of their HIV status or for other health conditions, such
as pregnancy
FREEDOM OF ASSOCIATION
Right to form and to join trade
unions for the protection of his interests (Art. 23(4) UDHR)
17.
Malaysia denies migrant workers the right to form trade unions, as this
right is only accorded to citizens. Similarly migrant workers are denied the
right to hold office in any trade unions. Migrant workers, however did have the
right to join trade unions, and enjoy the rights and benefits contained in any
Collective Bargaining Agreement between the union and the employer.
18.
In 2005, Malaysia, vide the Cabinet Committee on Foreign Workers in its
meeting on 5 -July 2005 agreed to the
recruitment of foreign workers through labour outsourcing companies (now known
as ‘Contractor for Labour’ in the amended Employment Act that came into force
on 1 April 2012, which also gave statutory recognition to this practice).
Although there is no longer an
employment relationship between the principal (owner of the production facility
and manager of the production processes) and the worker, the worker remains
working under the direct supervision and control of the principal. These
workers thereby become a sub-class of workers that do the same work as other
employees but do not enjoy the same remuneration or benefits as other
employees. The trend started with migrant workers but today has been extended
to local workers. However, migrant workers remain the most affected.
19.
As trade unions in Malaysia are sectoral or industry specific, migrant workers
whose ‘employer’ now is a contractor for labour, who supplies workers to many
different sectors and industries, do not longer have the right to join as
member to a sectoral union, or enjoy the benefits from any collective
bargaining agreement that covers their workplace.
The undersigned seek answers as to
how Malaysia will guarantee the right to form and join trade unions and profit
from collective bargaining agreements for migrant workers under the “contractor
for labour” act, as the formation of trade unions in such situations of
employment is almost impossible.
20. A primary reason for the creation of the
‘contractor for labour’ and the
introduction of labour outsourcing is to stifle workers and trade unions
capacity to demand and negotiate for
better rights and benefits. The MTUC Memorandum to the HR Minister dated October 7, 2008 refers to an interview
with Datuk Ishak Mohamed, the
Enforcement Director of the Immigration Department that was published in
New Straits Time, July 20, 2008, where
he, amongst others, said, ‘…outsourcing is good as it will attract foreign direct investment. Investors
do not want unions to be formed in their
establishments. Through outsourcing, it would be difficult for unions to
be formed as outsourcing company, and
not the factory, would be the employer…’ is indicative of the intention of the Malaysian government
RECOMMENDATIONS
k.
Malaysia must immediately abolish the ‘contractor for labour’ and the
practice of outsourcing labour, hence restoring direct employment relationship
between principals, bring owners and operators of workplace and their workers,
which effect restore the right of workers, including migrant workers to be
members of trade unions, and enjoy the full benefits of Collective Bargaining
Agreements.
l.
Malaysia, by restoring direct employment relationship, assures that all
are employees of the principal, will also result in discrimination between
workers doing the same work.
m.
Malaysia must amend the laws governing the formation of and existence of
trade unions, so that all workers, including migrant workers have the right to
form trade unions and also hold office(and be elected into the committee) of
Trade Unions
End Notes
1
Source: Star, 16/4/2009, Employers can deduct levy from wages, again
2 Star,
10/1/2013, MTUC: Don't give in to employers' demand on foreign workers levy.
4 Worker Hub for Change conducted field research
for SOMO(2013): Outsourcing Labour. Migrant labour rights in Malaysia’s
electronics industry, http://somo.nl/publications-en/Publication_3922
5 Worker
Hub for Change conducted field research for SOMO(2013): Outsourcing Labour.
Migrant labour rights in Malaysia’s
electronics industry, http://somo.nl/publications-en/Publication_3922
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