Trafficking
– Not Just about Prostitution but also worker exploitation
Many of us wrongly believe that trafficking in persons is
only about prostitution – but this is not true as it includes also the
exploitation of workers.
Trafficking in persons is defined
internationally as constituting three elements: (a) an “action”, being
recruitment, transportation, transfer, harbouring or receipt of persons; (b) a
“means” by which that action is achieved, for example threat or use of force,
or other forms of coercion, abduction, fraud, deception, abuse of power or a
position of vulnerability and the giving or receiving of payments or benefits
to achieve the consent of a person having control over another person; and (c) a
“purpose” of the intended action or means, namely exploitation. Note, the consent
of the victim to the intended exploitation is irrelevant.
Likewise in Malaysia, the
Anti-Trafficking in Persons Act 2007 defines "trafficking
in persons" or
"traffics in persons" means the recruiting, transporting,
transferring, harbouring, providing or receiving of a person for the purpose of
exploitation;, and "exploitation" means all forms of sexual
exploitation, forced labour or services, slavery or practices similar to
slavery, servitude, any illegal activity or the removal of human organs;
We will be looking at
specifically at worker exploitation in Malaysia, including forced labour or
services. Forced or compulsory labour is defined as "all work or service which is exacted from any person under
the menace of any penalty and for which the said person has not offered himself
voluntarily." Forced labour refers to situations in which persons
are coerced to work through the use of violence or intimidation, or by more
subtle means such as accumulated debt, retention of identity papers or threats
of denunciation to immigration authorities.
The Local
Worker – A Victim of Trafficking?
The local
worker in Malaysia can comes under the threat of dismissal, or a delay in
promotion or wage increase. They are discouraged from claiming their legal
rights or standing up for rights. Even trade union leaders are not saved from such
‘intimidation’ – and some find that they are overlooked for promotion and wage
increase exercises when their fellow workers, not union leaders or active union
members, get promoted or wage increases. Unionist are also targeted for
disciplinary action and dismissal for the carrying out of legitimate activities
like the issuance of media statements, picketing, involvement in campaigns for
the promotion and protection of worker rights and such matters, which
reasonably should be considered as legitimate union activities.
If union
members are so intimidated and under the menace of such penalties, what more
with the ordinary worker who is not unionized? The lodging of a complaint to
the relevant authorities about non-payment of wages, overtime and violation of
other rights results in not just intimidation but even disciplinary action and even
termination.
Overtime work,
which as a matter of principle requires the consent of the worker, is no more in
many workplaces. Workers feel that they have no choice but to do as the
employer ‘orders’ – and in Malaysia, the current legal limit for overtime work
is about 4 hours a day, which means that workers may end up working for about
12 hours daily.
Some workers,
who are not feeling well, and wanting to go see a doctor are simply told that
they can go see a doctor if and only they can find a replacement for themselves
in their shift.
With the
increased usage of short-term contracts, usually less than a year in duration,
the possibility of being exploited increases and the ability or desire to stand
up for rights diminishes. In Malaysia, the law does not set the limit of time a
worker should be on probation, and so one may be on probation for years and
when on probation, it is easier for employers to immediately terminate and further
the rights of a probationer is far less than the rights of a confirmed worker.
Workers in precarious forms of employment relationship are more easily
exploited.
Debts today may
not be moneys owed to the employer, but to third parties as most workers in
Malaysia are indebted to banks in connection with home or car loans, and this
indebtedness that require monthly payments makes them even more exploitable by
employers. Malaysian Trade Union Congress (MTUC) recently called a temporary
unemployment assistance scheme to be set up, which is a good proposal and will
reduce vulnerability of Malaysian workers.
Migrant Workers – More Vulnerable to
Exploitation
If a Malaysian
goes out, and discovers suddenly he has forgotten his National Registration
Identity Card(NRIC) or maybe his driving licence, he is stressed out worrying
about being stopped by the police or an enforcement officer. He is worried
about arrest and possible fines. A local worker, familiar with the local
language, can quite easily call a friend/family member and be able to escape
arrest or further detention – maybe not the fine.
Now, in the
case of the migrant worker, it is worse. It is common practice that many
employers or their agents hold on to the passport and work permits of their
migrant worker. They justify holding these documents as a means of preventing
their migrant workers from running away, and this is unacceptable and is
against the law. When the police or enforcement officer stops a migrant, he
wants to see the original passport and work permit (and not some photocopy or a
worker identification card), and so the migrant worker may get arrested and
detained – and the one who has the ‘power’ to secure the release is the
employer or agent holding these documents. The migrant worker ends up
languishing in detention for days, maybe even weeks. Some allege that it may
have been their own employer or agent who called the enforcement officers to get
them into trouble.
In Malaysia,
where there are about 2.9 million documented migrant workers, and where the
government admits that there are an equivalent number or more of undocumented
migrants in the country, the threat of being arrested and detained is very
real.
Bound to work for one employer only
If the employer
is an exploitative employer or a cheat, or the working conditions are bad and
intolerable, the local worker have the choice of escaping this reality and
finding employment elsewhere but this is not so for the migrant worker who is
bound by the work permit that allows him to work for one employer. Most
migrants, when they come to Malaysia are already are in debt having expended
about RM5,000 – so really the option of just going back to the country of
origin when one finds oneself in a situation of exploitation is not an option.
There is the
possibility of varying the work permit and allowing such exploited workers to
work with another better employer but alas this does not happen in most cases,
and further the process of doing this is too onerous for the poor migrant.
Thus, the migrant worker have no choice but continue to work in the
exploitative situation, or alternatively some just choose to run away and
continue to work as an undocumented migrant in Malaysia until he is caught and
deported, or manages to leave Malaysia illegally.
It would be
interesting if the Malaysian government provides us with the numbers of
‘illegal migrants’ arrested, who previously were really documented migrant workers.
It would be good to also know why these chose to become undocumented.
Access to Justice – Flawed and Ineffective
The law
provides several avenues for access to justice to workers but alas the
efficiency and/or speed in which it works are disappointing. Justice delayed is
justice denied. As mentioned earlier, many employers just terminate employees
that lodge complaints, and for the migrant worker, this would also mean that
the employer will take steps to terminate the work permit – hence depriving the
migrant worker the right to continue to remain and/or work legally in Malaysia.
All access to justice mechanisms and labour tribunals insist on the physical
presence of the worker-complainant, and in the case of migrant workers, to
remain would mean arrest, detention, imprisonment, whipping and deportation,
all complaints, cases and even proceedings in court will come to an end because
of the absence of the complainant. Even those who remain, they would be now
‘illegal’ and they will not come out of fear for turning up may lead to
immediate arrest.
Malaysia should
really provide us with statistics of how many migrant workers have lodged
complaints, and what has happened to these. In fact, maybe statistics should
also be provided as to how many local workers have lodged complaints, and what
has happened to this. How many of these workers were terminated after they
lodged complaints and how many just gave up and never turned up after that? Analysis
of such data would help us improve and make Malaysia less exploitative for
workers.
Remedies in Law not a Deterrent to
Exploitation
If one were to
look at remedies provided in law, it is pathetic and certainly cannot be
considered a deterrent to exploitation. For example, a worker who has been
denied 3 months wages, at the end of the day after going through the process
and winning will only get the equivalent of that 3 months wages he was denied.
Is this justice?
Going through
the process for justice would have cost the worker monies in terms of
transport, lost work-days wages, monies for legal representation, etc and thus
many workers will just elect not to waste time and monies claiming rights.
Maybe, the law need be amended to ensure that employers would have to pay
workers three times the value of monies wrongfully denied, plus maybe a further
order of damages.
In the labour
tribunals, both parties are not required to pay cost of the winning party, but
now there is that possibility of applying for a Judicial Review to the High
Court if one is dissatisfied with the decision of the tribunal, and here it will
become unaffordable to workers and unions and there is always the risk of being
ordered to pay high costs, and of course there is the additional cost of
lawyers and court fees.
Malaysia – A Facilitator to Trafficking?
The government
need to seriously consider the state of affairs and do the needful, for we
certainly do not want Malaysia to be found responsible for creating an
environment that enables the easy exploitation of workers, both local and
foreign.
The US State Department
Trafficking in Persons Report 2014, downgraded Malaysia to Tier 3 from the
previous standing of Tier 2 Watch List. Amongst others, the report had this to say:- ‘Many Malaysian
recruitment companies, known as “outsourcing companies,” recruit workers from
foreign countries. Contractor-based labor arrangements of this type—in which
the worker may technically be employed by the recruiting company—create
vulnerabilities for workers whose day-to-day employers generally are without
legal responsibility for exploitative practices.’. Well, these
‘outsourcing companies’ were recruiting both local and migrant workers, and
such ‘outsourced workers’ find themselves in a precarious position as they
could not even benefit from the rights accorded to union members in the
workplaces. Usage of such workers do directly weaken existing trade unions and
their members making them more susceptible to exploitation, and reducing their
bargaining powers for better rights and working conditions.
Malaysia needs to be more diligent in promoting and protecting worker
rights, and stopping all forms of worker exploitation and ‘trafficking of human
persons’. Access to justice systems and relevant laws need to be amended to
ensure speedy remedies for workers, protection for workers against discrimination
or termination just for trying to claim rights or exercising their rights. Migrant
workers will not be made ‘illegal’ or deported, but be allowed to work and stay
legally, until all their valid claims against employers and others are properly
heard and settled.
Active enforcement to ensure rights are respected and exploitation ends must
be made a priority. It was shocking to hear from the Deputy Human
Resources Minister Datuk Seri Ismail Abd Muttalib in September 2014 that only 3 employers out
that 10,000 employers in the private sector have yet to implement the Minimum
Wage Scheme since it was enforced on 1st January have been taken to court. (Malay Mail, 20/9/2014, Malaysia Nearly 10,000
employers yet to implement Minimum Wage Scheme)
We look forward
when there is no more exploitation of workers, and Malaysia can no longer be
considered a place where there is trafficking in human persons.
Charles Hector
Note: The above article (now edited) was earlier published in Malaysian Insider on 19/2/2015
“The parents have taken the child back home,” the NGOs said in a joint statement issued yesterday.
The NGOs also wanted to know if Health Minister Dr S Subramaniam (right), as well as the cabinet, were aware of this new fee schedule that was sullying the country’s image internationally.
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