Friday, February 20, 2015

Trafficking – Not Just about Prostitution but also worker exploitation



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

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