ILO Convention No. 189 - Convention Concerning Decent Work For Domestic Workers

100th ILO annual Conference decides to bring an estimated 53 to 100 million domestic workers worldwide under the realm of labour standards

The government, worker and employer delegates at the 100th annual Conference of the International Labour Organization (ILO) on Thursday, 16 June adopted a historic set of international standards aimed at improving the working conditions of tens of millions of domestic workers worldwide.

Press release | June 16, 2011

GENEVA, (ILO News) – The government, worker and employer delegates at the 100^th annual Conference of the International Labour Organization (ILO) on Thursday, 16 June adopted a historic set of international standards aimed at improving the working conditions of tens of millions of domestic workers worldwide...

...Conference delegates adopted the Convention on Domestic Workers (2011) by a vote of 396 to 16, with 63 abstentions and the accompanying Recommendation by a vote of 434 to 8, with 42 abstentions. The ILO is the only tripartite organization of the UN, and each of its 183 Member States is represented by two government delegates, and one employer and one worker delegate, with an independent vote.

The two standards will be the 189th Convention and the supplementing 201^st Recommendation adopted by the Labour Organization since its creation in 1919...(full text of press release below)

CONVENTION CONCERNING DECENT WORK FOR DOMESTIC WORKERS

The General Conference of the International Labour Organization,

Having been convened at Geneva by the Governing Body of the International Labour Office, and having met in its 100th Session on 1 June 2011, and

Mindful of the commitment of the International Labour Organization to promote decent work for all through the achievement of the goals of the ILO Declaration on Fundamental Principles and Rights at Work and the ILO Declaration on Social Justice for a Fair Globalization, and

Recognizing the significant contribution of domestic workers to the global economy, which includes increasing paid job opportunities for women and men workers with family responsibilities, greater scope for caring for ageing populations, children and persons with a disability, and substantial income transfers within and between countries, and

Considering that domestic work continues to be undervalued and invisible and is mainly carried out by women and girls, many of whom are migrants or members of disadvantaged communities and who are particularly vulnerable to discrimination in respect of conditions of employment and of work, and to other abuses of human rights, and

Considering also that in developing countries with historically scarce opportunities for formal employment, domestic workers constitute a significant proportion of the national workforce and remain among the most marginalized, and

Recalling that international labour Conventions and Recommendations apply to all workers, including domestic workers, unless otherwise provided, and

Noting the particular relevance for domestic workers of the Migration for Employment Convention (Revised), 1949 (No. 97), the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), the Workers with Family Responsibilities Convention, 1981 (No. 156), the Private Employment Agencies Convention, 1997 (No. 181), and the Employment Relationship Recommendation, 2006 (No. 198), as well as of the ILO Multilateral Framework on Labour Migration: Non-binding principles and guidelines for a rights-based approach to labour migration (2006), and

Recognizing the special conditions under which domestic work is carried out that make it desirable to supplement the general standards with standards specific to domestic workers so as to enable them to enjoy their rights fully, and

Recalling other relevant international instruments such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the United Nations Convention against Transnational Organized Crime, and in particular its Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children and its Protocol against the Smuggling of Migrants by Land, Sea and Air, the Convention on the Rights of the Child and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and

Having decided upon the adoption of certain proposals concerning decent work for domestic workers, which is the fourth item on the agenda of the session, and

Having determined that these proposals shall take the form of an international Convention;

adopts this sixteenth day of June of the year two thousand and eleven the following Convention, which may be cited as the Domestic Workers Convention, 2011.

Article 1

For the purpose of this Convention:

(a) the term “domestic work” means work performed in or for a household or households;

(b) the term “domestic worker” means any person engaged in domestic work within an employment relationship;

(c) a person who performs domestic work only occasionally or sporadically and not on an occupational basis is not a domestic worker.

Article 2

1. The Convention applies to all domestic workers.

2. A Member which ratifies this Convention may, after consulting with the most representative organizations of employers and workers and, where they exist, with organizations representative of domestic workers and those representative of employers of domestic workers, exclude wholly or partly from its scope:

(a) categories of workers who are otherwise provided with at least equivalent protection;

(b) limited categories of workers in respect of which special problems of a substantial nature arise.

3. Each Member which avails itself of the possibility afforded in the preceding paragraph shall, in its first report on the application of the Convention under article 22 of the Constitution of the International Labour Organisation, indicate any particular category of workers thus excluded and the reasons for such exclusion and, in subsequent reports, specify any measures that may have been taken with a view to extending the application of the Convention to the workers concerned.

Article 3

1. Each Member shall take measures to ensure the effective promotion and protection of the human rights of all domestic workers, as set out in this Convention.

2. Each Member shall, in relation to domestic workers, take the measures set out in this Convention to respect, promote and realize the fundamental principles and rights at work, namely:

(a) freedom of association and the effective recognition of the right to collective bargaining;

(b) the elimination of all forms of forced or compulsory labour;

(c) the effective abolition of child labour; and

(d) the elimination of discrimination in respect of employment and occupation.

3. In taking measures to ensure that domestic workers and employers of domestic workers enjoy freedom of association and the effective recognition of the right to collective bargaining, Members shall protect the right of domestic workers and employers of domestic workers to establish and, subject to the rules of the organization concerned, to join organizations, federations and confederations of their own choosing.

Article 4

1. Each Member shall set a minimum age for domestic workers consistent with the provisions of the Minimum Age Convention, 1973 (No. 138), and the Worst Forms of Child Labour Convention, 1999 (No. 182), and not lower than that established by national laws and regulations for workers generally.

2. Each Member shall take measures to ensure that work performed by domestic workers who are under the age of 18 and above the minimum age of employment does not deprive them of compulsory education, or interfere with opportunities to participate in further education or vocational training.

Article 5

Each Member shall take measures to ensure that domestic workers enjoy effective protection against all forms of abuse, harassment and violence.

Article 6

Each Member shall take measures to ensure that domestic workers, like workers generally, enjoy fair terms of employment as well as decent working conditions and, if they reside in the household, decent living conditions that respect their privacy.

Article 7

Each Member shall take measures to ensure that domestic workers are informed of their terms and conditions of employment in an appropriate, verifiable and easily understandable manner and preferably, where possible, through written contracts in accordance with national laws, regulations or collective agreements, in particular:

(a) the name and address of the employer and of the worker;

(b) the address of the usual workplace or workplaces;

(c) the starting date and, where the contract is for a specified period of time, its duration;

(d) the type of work to be performed;

(e) the remuneration, method of calculation and periodicity of payments;

(f) the normal hours of work;

(g) paid annual leave, and daily and weekly rest periods;

(h) the provision of food and accommodation, if applicable;

(i) the period of probation or trial period, if applicable;

(j) the terms of repatriation, if applicable; and

(k) terms and conditions relating to the termination of employment, including any period of notice by either the domestic worker or the employer.

Article 8

1. National laws and regulations shall require that migrant domestic workers who are recruited in one country for domestic work in another receive a written job offer, or contract of employment that is enforceable in the country in which the work is to be performed, addressing the terms and conditions of employment referred to in Article 7, prior to crossing national borders for the purpose of taking up the domestic work to which the offer or contract applies.

2. The preceding paragraph shall not apply to workers who enjoy freedom of movement for the purpose of employment under bilateral, regional or multilateral agreements, or within the framework of regional economic integration areas.

3. Members shall take measures to cooperate with each other to ensure the effective application of the provisions of this Convention to migrant domestic workers.

4. Each Member shall specify, by means of laws, regulations or other measures, the conditions under which migrant domestic workers are entitled to repatriation on the expiry or termination of the employment contract for which they were recruited.

Article 9

Each Member shall take measures to ensure that domestic workers:

(a) are free to reach agreement with their employer or potential employer on whether to reside in the household;

(b) who reside in the household are not obliged to remain in the household or with household members during periods of daily and weekly rest or annual leave; and

(c) are entitled to keep in their possession their travel and identity documents.

Article 10

1. Each Member shall take measures towards ensuring equal treatment between domestic workers and workers generally in relation to normal hours of work, overtime compensation, periods of daily and weekly rest and paid annual leave in accordance with national laws, regulations or collective agreements, taking into account the special characteristics of domestic work.

2. Weekly rest shall be at least 24 consecutive hours.

3. Periods during which domestic workers are not free to dispose of their time as they please and remain at the disposal of the household in order to respond to possible calls shall be regarded as hours of work to the extent determined by national laws, regulations or collective agreements, or any other means consistent with national practice.

Article 11

Each Member shall take measures to ensure that domestic workers enjoy minimum wage coverage, where such coverage exists, and that remuneration is established without discrimination based on sex.

Article 12

1. Domestic workers shall be paid directly in cash at regular intervals at least once a month. Unless provided for by national laws, regulations or collective agreements, payment may be made by bank transfer, bank cheque, postal cheque, money order or other lawful means of monetary payment, with the consent of the worker concerned.

2. National laws, regulations, collective agreements or arbitration awards may provide for the payment of a limited proportion of the remuneration of domestic workers in the form of payments in kind that are not less favourable than those generally applicable to other categories of workers, provided that measures are taken to ensure that such payments in kind are agreed to by the worker, are for the personal use and benefit of the worker, and that the monetary value attributed to them is fair and reasonable.

Article 13

1. Every domestic worker has the right to a safe and healthy working environment. Each Member shall take, in accordance with national laws, regulations and practice, effective measures, with due regard for the specific characteristics of domestic work, to ensure the occupational safety and health of domestic workers.

2. The measures referred to in the preceding paragraph may be applied progressively, in consultation with the most representative organizations of employers and workers and, where they exist, with organizations representative of domestic workers and those representative of employers of domestic workers.

Article 14

1. Each Member shall take appropriate measures, in accordance with national laws and regulations and with due regard for the specific characteristics of domestic work, to ensure that domestic workers enjoy conditions that are not less favourable than those applicable to workers generally in respect of social security protection, including with respect to maternity.

2. The measures referred to in the preceding paragraph may be applied progressively, in consultation with the most representative organizations of employers and workers and, where they exist, with organizations representative of domestic workers and those representative of employers of domestic workers.

Article 15

1. To effectively protect domestic workers, including migrant domestic workers, recruited or placed by private employment agencies, against abusive practices, each Member shall:

(a) determine the conditions governing the operation of private employment agencies recruiting or placing domestic workers, in accordance with national laws, regulations and practice;

(b) ensure that adequate machinery and procedures exist for the investigation of complaints, alleged abuses and fraudulent practices concerning the activities of private employment agencies in relation to domestic workers;

(c) adopt all necessary and appropriate measures, within its jurisdiction and, where appropriate, in collaboration with other Members, to provide adequate protection for and prevent abuses of domestic workers recruited or placed in its territory by private employment agencies. These shall include laws or regulations that specify the respective obligations of the private employment agency and the household towards the domestic worker and provide for penalties, including prohibition of those private employment agencies that engage in fraudulent practices and abuses;

(d) consider, where domestic workers are recruited in one country for work in another, concluding bilateral, regional or multilateral agreements to prevent abuses and fraudulent practices in recruitment, placement and employment; and

(e) take measures to ensure that fees charged by private employment agencies are not deducted from the remuneration of domestic workers.

2. In giving effect to each of the provisions of this Article, each Member shall consult with the most representative organizations of employers and workers and, where they exist, with organizations representative of domestic workers and those representative of employers of domestic workers.

Article 16

Each Member shall take measures to ensure, in accordance with national laws, regulations and practice, that all domestic workers, either by themselves or through a representative, have effective access to courts, tribunals or other dispute resolution mechanisms under conditions that are not less favourable than those available to workers generally.

Article 17

1. Each Member shall establish effective and accessible complaint mechanisms and means of ensuring compliance with national laws and regulations for the protection of domestic workers.

2. Each Member shall develop and implement measures for labour inspection, enforcement and penalties with due regard for the special characteristics of domestic work, in accordance with national laws and regulations.

3. In so far as compatible with national laws and regulations, such measures shall specify the conditions under which access to household premises may be granted, having due respect for privacy.

Article 18

Each Member shall implement the provisions of this Convention, in consultation with the most representative employers’ and workers’ organizations, through laws and regulations, as well as through collective agreements or additional measures consistent with national practice, by extending or adapting existing measures to cover domestic workers or by developing specific measures for them, as appropriate.

Article 19

This Convention does not affect more favourable provisions applicable to domestic workers under other international labour Conventions.

Article 20

The formal ratifications of this Convention shall be communicated to the Director-General of the International Labour Office for registration.

Article 21

1. This Convention shall be binding only upon those Members of the International Labour Organization whose ratifications have been registered with the Director-General of the International Labour Office.

2. It shall come into force twelve months after the date on which the ratifications of two Members have been registered with the Director-General.

3. Thereafter, this Convention shall come into force for any Member twelve months after the date on which its ratification is registered.

Article 22

1. A Member which has ratified this Convention may denounce it after the expiration of ten years from the date on which the Convention first comes into force, by an act communicated to the Director-General of the International Labour Office for registration. Such denunciation shall not take effect until one year after the date on which it is registered.

2. Each Member which has ratified this Convention and which does not, within the year following the expiration of the period of ten years mentioned in the preceding paragraph, exercise the right of denunciation provided for in this Article, will be bound for another period of ten years and, thereafter, may denounce this Convention within the first year of each new period of ten years under the terms provided for in this Article.

Article 23

1. The Director-General of the International Labour Office shall notify all Members of the International Labour Organization of the registration of all ratifications and denunciations that have been communicated by the Members of the Organization.

2. When notifying the Members of the Organization of the registration of the second ratification that has been communicated, the Director-General shall draw the attention of the Members of the Organization to the date upon which the Convention will come into force.

Article 24

The Director-General of the International Labour Office shall communicate to the Secretary-General of the United Nations for registration in accordance with Article 102 of the Charter of the United Nations full particulars of all ratifications and denunciations that have been registered.

Article 25

At such times as it may consider necessary, the Governing Body of the International Labour Office shall present to the General Conference a report on the working of this Convention and shall examine the desirability of placing on the agenda of the Conference the question of its revision in whole or in part.

Article 26

1. Should the Conference adopt a new Convention revising this Convention, then, unless the new Convention otherwise provides:

(a) the ratification by a Member of the new revising Convention shall ipso jure involve the immediate denunciation of this Convention,notwithstanding the provisions of Article 22, if and when the new revising Convention shall have come into force;

(b) as from the date when the new revising Convention comes into force, this Convention shall cease to be open to ratification by the Members.

2. This Convention shall in any case remain in force in its actual form and content for those Members which have ratified it but have not ratified the revising Convention.

Article 27

The English and French versions of the text of this Convention are equally authoritative.

Source: ILO Website

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Press release | June 16, 2011

GENEVA, (ILO News) – The government, worker and employer delegates at the 100^th annual Conference of the International Labour Organization (ILO) on Thursday, 16 June adopted a historic set of international standards aimed at improving the working conditions of tens of millions of domestic workers worldwide.

“We are moving the standards system of the ILO into the informal economy for the first time, and this is a breakthrough of great significance,” said Juan Somavia, ILO Director-General. “History is being made.”

Conference delegates adopted the Convention on Domestic Workers (2011) by a vote of 396 to 16, with 63 abstentions and the accompanying Recommendation by a vote of 434 to 8, with 42 abstentions. The ILO is the only tripartite organization of the UN, and each of its 183 Member States is represented by two government delegates, and one employer and one worker delegate, with an independent vote.

The two standards will be the 189th Convention and the supplementing 201^st Recommendation adopted by the Labour Organization since its creation in 1919. The Convention is an international treaty that is binding on Member States that ratify it, while the Recommendation provides more detailed guidance on how to apply the Convention.

The new ILO standards set out that domestic workers around the world who care for families and households, must have the same basic labour rights as those available to other workers: reasonable hours of work, weekly rest of at least 24 consecutive hours, a limit on in-kind payment, clear information on terms and conditions of employment, as well as respect for fundamental principles and rights at work including freedom of association and the right to collective bargaining.

Recent ILO estimates based on national surveys and/or censuses of 117 countries, place the number of domestic workers at around 53 million. However, experts say that due to the fact that this kind of work is often hidden and unregistered, the total number of domestic workers could be as high as 100 million. In developing countries, they make up at least 4 to 12 per cent of wage employment. Around 83 per cent of these workers are women or girls and many are migrant workers.

The Convention defines domestic work as work performed in or for a household or households. While the new instruments cover all domestic workers, they provide for special measures to protect those workers who, because of their young age or nationality or live-in status, may be exposed to additional risks relative to their peers, among others.

According to ILO proceedings, the new Convention will come into force after two countries have ratified it.

“Bringing the domestic workers into the fold of our values is a strong move, for them and for all workers who aspire to decent work, but it also has strong implications for migration and of course for gender equality,” Mr. Somavia said.

In its introductory text, the new Convention says that “domestic work continues to be undervalued and invisible and is mainly carried out by women and girls, many of whom are migrants or members of disadvantaged communities and who are particularly vulnerable to discrimination in respect of conditions of employment and work, and to other abuses of human rights.”

Michelle Bachelet, Executive Director of UN Women, in her address to the Conference Committee, said that the deficit of decent work among domestic workers “can no longer be tolerated,” adding that UN Women would support the process of ratification and application of the new ILO instruments.

“We need effective and binding standards to provide decent work to our domestic workers, a clear framework to guide governments, employers and workers,” said Halimah Yacob, the Workers Vice-Chair from Singapore. She noted that the collective responsibility was to provide domestic workers with what they lacked most: recognition as workers; and respect and dignity as human beings.

Paul MacKay from New Zealand, the Employers Vice-Chair declared: “We all agree on the importance of bringing domestic work into the mainstream and responding to serious human rights concerns. All employers agree there are opportunities to do better by domestic workers and the households and families for whom they work”.

“Social dialogue has found its reflection in the results achieved here,” concluded the Chair of the Committee, Mr. H.L. Cacdac, Government delegate from the Philippines, when he closed the discussion.

“This is a truly major achievement,” said Manuela Tomei, Director of the ILO’s Conditions of Work and Employment Programme, calling the new standards “robust, yet flexible.” Ms. Tomei added that the new standards make clear that “domestic workers are neither servants nor ‘members of the family’, but workers. And after today they can no longer be considered second-class workers.”

The adoption of the new standards is the result of a decision taken in March 2008 by the ILO Governing Body to place the elaboration of an instrument on the agenda of the Conference. In 2010, the Conference held its first discussion and decided to proceed with the drafting of a Convention supplemented by a Recommendation adopted today. -ILO Press Release, 16/6/2011, 100th ILO annual Conference decides to bring an estimated 53 to 100 million domestic workers worldwide under the realm of labour standards

Western Digital workers speak out....

'Model employer' in breach of work rules?

Aidila Razak
May 31, 11
11:42am

EXCLUSIVE Tired of living in fear of extortion and detention because they have no work permits in Malaysia, Indonesian migrant workers hired by electronics giant Western Digital are now speaking out.

A group that claims to represent those affected had hung up a banner near the factory last Saturday, showing their friends in handcuffs, and demanding action.

But Western Digital was having none of this and had the banner taken down within hours. Asked why, the men dressed in company-issued jackets refused to comment.

A winner of the 'Best Employer in Asia 2009' award, Western Digital is today accused of not providing work permits to at least 1,000 workers who have been employed for about two years in Malaysia.

Indonesian publication Tempo Interaktif reported in March that company officials had met with Indonesian embassy representatives in Kuala Lumpur to explain the situation involving some 6,000 workers in all.

It quoted embassy officials as saying that the company had claimed to be dealing with the problem in batches, and that it had only realised the problem when informed by the diplomatic mission.

But employee Ully Suryana (all names have been changed to protect identities) begged to differ. She said the workers were recruited through an agency in Indonesia that had a direct agreement with Western Digital in relation to work permits.

“Under the agreement, Western Digital said it will hang on to our passports but give us work permits so that we can move freely,” she said when met.

This could not be further from the truth.

Ully, a fresh-faced youth in her early 20s, claimed that the Immigration Department had raided one hostel some time ago and detained everyone in it because they did not have work permits.

Only last week, five workers were detained, still in pyjamas, for the same reason. They spent three nights in a lock-up cell before being released without being given a reason.

'RM200 bribe to authorities'

Widia, also in her 20s, believes that the company had something to do with the release.

“The human resources officer told us that the company cannot do anything if we are caught by the police, but can help if we run into trouble with immigration,” said Widia, who approached Malaysiakini to air her grouses.

Angrily, she said that this 'solution' means little to her as she had to pay RM200 to the authorities, to elude spending the night behind bars.

She said RM200 is more than the 'usual' RM50 demanded by the authorities, which could include police and immigration officers and Rela personnel. The workers make RM450 a month in basic salary.

“We complain to human resources (department) but they (just) get angry with us.

"They say, 'Why did you leave Selangor?' or 'Who told you to be rude to police?'… as if it's our fault, when they are the ones in the wrong,” said the diminutive Ully.

She claimed that Western Digital has advised them to wear their work-place identity tag at all times, but the authorities have rejected these as proof of having entered the country legally.

“So we are now like captives. We can only move from our hostels and the factory, and have to wear our tags even to take the trash out,” she said.

But the women who were recently detained were arrested at a farmer's market just five to 10 minutes' walk from their hostels, proving that even the limited distance they are 'allowed' to roam is unsafe.

“I came because I wanted work experience and to save some money, but I don't care about the money now. I've even offered to buy back the remainder of my three-year contract so I can go home, but they've refused,” added Ully.

When contacted, Western Digital reserved comment pending the likely issuance of a statement.

Parasites of workers’ sweat and toil (ALIRAN Monthly)

Parasites of workers’ sweat and toil

By admin, on 18 May 2011

[Translate]

More employers are now turning to labour outsourcing agents for workers, prompting Charles Hector to call for a restoration of a proper employer-employee relationship.

sulekha.com

Workers’ rights in Malaysia are slowly being eroded by a government that places more importance on the well being of companies and corporations, rather than workers, be it local or foreign. One such phenomenon is the rise in the practice of workers being supplied to employers by outsourcing agents and companies, whereby the supplied workers do not enter into an employment relationship with employers that own and control the workplace.

One wonders whether the usage of the term ‘outsourced’ was intentional as it is so easily taken to be all right as the practice of outsourcing work is now a common occurrence accepted generally. In Malaysia, for instance, most of the banks have already outsourced internet banking, phone banking and even cheque processing and clearance to other companies.

The material difference between outsourced work and outsourcing agents/companies is that the latter are dealing with human workers – not specific types of work. On the request of companies and owners that have factories, plantations, agricultural undertakings and other workplaces, outsourcing agents supply human workers, who then work at these workplaces without allegedly entering into any working relationship with the employers that own the place where they work. For the work done by these outsourced workers, the workplace owners would pay these outsourcing agents who in turn will pay the outsourced workers after of course keeping a portion for themselves. The more hours the workers toil, the more these outsourcing companies earn.

Private employment agencies and ‘outsourcing’ of labour companies

Private employment agencies and/or ‘head hunters’, who also do get workers and supply them to companies and owners of workplaces, are very different in that once the workers are accepted at the workplace, an employment relationship is entered into with the employers. The employment agencies get paid by the workers and/or the employers a certain fee, known as a placement fee. Private employment agencies are governed by the Private Employment Agencies Act 1981, and the fee that can be charged is also fixed. For a local placement, the fee is 20 per cent of the initial month’s pay, and for an overseas placement it is 25 per cent.

In contrast, ‘outsourcing’ agents and companies parasite on the fruits of the sweat and toil of these workers indefinitely. These workers at the workplace, doing usually the same work as all other workers in the factory, would also be naturally discriminated not only with regard to wages and other employment benefits guaranteed by Malaysian law, but also be deprived of the right to be members of unions that exist at these workplace. The negotiating power of the other workers and the local unions will thus be weakened when it comes to collective agreements.

Malaysian workers are also now victims of ‘outsourcing’ agents

For a long time, many Malaysians, apart from unions such as the MTUC, have not paid much attention to this development, which seeks to avoid employment relationship. It is an affront to justice, as it involves only foreign migrant workers. Today, many local workers, including those from Sabah and Sarawak, are also falling into this sub-class of workers,

Some companies have stopped direct employment preferring to get even local workers through outsourcing agents and companies in an attempt to avoid employment relationships.

Employment Act 1955 – historical victory for workers in Malaysia

In 1955, the then British administration saw fit to do away with all these kinds of bad employment practices and other forms of precarious employment, including indentured labour, bonded labour, the kanggani system, forced labour, ‘slavery’, the middle man (or ‘contractor for labour’) and this was a good thing for workers. The Employment Act 1955 also clearly established four very important principles in employment relationships in Malaysia:

• Job security, including security of tenure until retirement age;
• Legally guaranteed minimum worker rights, which included working hours, fully paid rest days, annual leave, public holidays, sick and hospitalisation leave, maternity leave, overtime rates, termination and lay-off benefits, and wages.
• Due process to deal with worker misconduct and/or termination. Termination can only be by reason of just cause or excuse, and there has to be a domestic inquiry, where the worker has a right to be heard.
• Access to justice, including the right to lodge complaints with the Labour Department (Labour Courts), and the Industrial Relations Department (Industrial Courts).

Return of bad employment practices to the detriment of workers

Over the past few years, slowly a new employment practice crept in: outsourcing agents and companies, who supply workers to different employers – individuals, businesses or companies – to work at the workplaces of these employers. Unlike the private employment agencies, these outsourcing agents and companies do not stop at just supplying the workers, collecting their placement fees and leaving, but continue to take significant portions of wages paid to these workers by the employers.

As an example, an employer may pay a remuneration of RM36 for the work done by a particular worker for nine hours. The outsourcing agents take RM16 and gives the workers only about RM20. The same happens with regard to overtime and Sunday or public holiday work payments. Just taking this RM16 per worker per normal day’s work, an outsourcing agent and company can make almost RM500,000 per month for 100 workers supplied. Some of these outsourcing agents and companies bring in thousands of workers and earn millions of ringgit living off the sweat and toil of workers. The employer, who does not consider these workers their own workers, would happily end up discriminating against these workers in terms of wages, work benefits and other worker rights.

Termination is also easily done, without the need for any due process. All that employers need to do is tell the outsourcing agent and company that they do not want worker A, and worker A will be taken away and another may be sent in their place. Generally, these workers only get paid for the days or hours that they work. They will not get the legally guaranteed workers’ rights, including paid rest days, paid annual leave, 10 paid public holidays per year, paid maternity leave and other benefits, and paid sick and hospitalisation leave.

Outsourcing agents’ practices are illegal

What is most disturbing is the fact that what is practised by these outsourcing agents and companies and their employers may be illegal under present laws in Malaysia, especially the laws with regard to employment.

These outsourcing agents and companies are really, what one would call ‘contractors for labour”. Our current Employment Act does not allow such ‘contractors for labour’. The current law, however, does allow for ‘sub-contractors for labour’, which is defined as “any person who contracts with a contractor or sub-contractor to supply the labour required for the execution of the whole or any part of any work which a contractor or sub-contractor has contracted to carry out for a principal or contractor, as the case may be.

The definition clearly does not include ‘contractor for labour’, and cannot legalise outsourcing agents (and/or the practices employed by them) and some employers today.

Government’s attempts to legalise outsourcing of labour companies thwarted

The Malaysian government finally came to a realisation and tried to legalise the ‘middle man’ in an employment relationship through D.R.25/2010 Employment (Amendment) Bill 2010, which was tabled in parliament in July 2010. The proposed amendments included a definition for ‘contractor for labour’ to mean a person who contracts with a principal, contractor or sub-contractor to supply the labour required for the execution of the whole or any part of any work which a contractor or sub-contractor has contracted to carry out for a principal or contractor, as the case may be.

But this time the Malaysian trade union movement and members of the public strongly protested the move and finally the government withdrew the bill in October 2010 (The Star,13 October 2010, ‘Employment Bill withdrawn’). This meant that what was acknowledged as being illegal is still illegal today.

In my opinion, the only Act that may assist matters is the Private Employment Agencies Act 1981. This means that once workers are supplied to employers, an employment relationship is created, and the employer is now responsible for all these workers, and will have to ensure that all rights and benefits recognised in law are provided to all these workers. One may want to consider this given the fact that we may now have over 200 ‘illegal’ outsourcing of labour companies in Malaysia.

Guarantee of equality in Malaysia extends also to workers

Article 8 of the Federal Constitution, which applies to all persons not just citizens, guarantees equality. This means that workers who do the same work are certainly entitled to the same wages and other work benefits as all other workers at the workplace. Note also that the Employment Act 1955 provides specifically that there should not be any discrimination based on whether one is a citizen or a foreign worker.

The past and better practice of employing foreign workers

Previously, when employers faced a shortage of workers, they needed to first seek the approval of the relevant body governing the particular sector. In the construction sector it was the Construction Industry Development Board(CIDB). The employer would have to satisfy the board that efforts have been made to get local workers and indicate the number of foreign workers that it would require to employ. Upon getting approval, the employer would start identifying and getting these foreign workers. For this purpose, they may use the services of agents in the country of origin and sometimes also agents in Malaysia. Some companies, would even go to the country of origin to conduct interviews and tests to ensure that the workers that they bring in have the necessary skills and aptitude for the work.

The contracts of employment will then usually be signed with the workers in the country of origin and then the process begins to obtain the required work pass/visa from the Malaysian immigration authorities, and then the workers are brought into Malaysia. Malaysia also imposes a levy that employers need to pay for every worker brought in, and the workers are also required to have a clean bill of health before they are allowed into country. In some countries, such as India, the government of India also gets involved through the Protector of Emigrants (POE), and a standard employment agreement is signed by the workers before an agent of the POE, while the employer signs the agreement in front of the staff of the Indian High Commission in Malaysia.

In short, under this system there was no ‘third party’ and when the workers arrived, they came as workers of the employer, and were entitled to all the protections accorded under Malaysian law for workers.

The legality of ‘fixed term contracts’ of employment is also questionable

With the advent of migrant workers into Malaysia, what also happened was the creation of a new employment relationship. This took the form of fixed-term contracts usually for a period of at least three years only – something that was really not permissible under the existing Employment Act 1955, which generally provided for employment until retirement. Earlier termination of the employment contract was only possible by resignation of the worker, lay-off/retrenchment and termination due to closure of the employer’s business or change in the manner of operations that made some workers redundant or due to termination after due inquiry into serious misconduct committed by the worker.

The employment laws have not yet been amended to provide for ‘fixed term contracts’, including clear remedies for earlier terminations of these fixed-term contracts. Even now, the lay-off and termination benefits provided for in our Employment Act looks at length of service as a factor in the calculation of benefits, a clear indication of the intention of the Act that the employment relationship should be until retirement. As such, for effective remedies, workers under fixed-term contract may have to look at laws outside existing employment laws, like the Contract Act for effective remedies, and their access to justice may have to be the civil courts.

Domestic workers and the emergence of recruitment agents

When the demand and need for domestic workers arose, it became impractical for employers to personally do all that was required for the employment of one or two domestic workers and they had to rely on licensed recruitment agents here in Malaysia. The same was the case when there was an increase in the number of smaller employers requiring just a few workers, usually in small shops and restaurants.

July 2005 – Government allows employment through ‘outsourcing’ concept

Then, suddenly in July 2005, the government decided to allow for the employment of workers through the outsourcing concept. But it must be pointed out that the government intended for these outsourcing companies to merely supply workers to employers, and not to become the employers of these workers.

Government never wanted the ‘outsourcing companies’ to be the employers

Deputy Prime Minister Muhyiddin Yassin clearly stated that “employers are the people who should be responsible for their foreign workers. Outsourcing companies are only responsible for bringing them in. After that, employers must assume full responsibility” (New Straits Times, 21 May 2010, ‘Higher levies for foreign workers’).

Clearly, what has been practised by outsourcing agents and companies, and employers is not only illegal, but also something that clearly goes against the intention of the Malaysian government. No employer can today escape an employment relationship with its workers by simply stating that these are not my workers but are those that are supplied by some ‘outsourcing’ agent or company. As employers, they are not only obligated to ensure that all workers’ rights are recognised and respected, but they also have to fulfil all obligations that the law places on the employers.

With regard to migrant workers, employers have the additional obligations of not only providing accommodation but also providing social security protection. Such protection will not just cover the workplace but the workers’ entire stay in the country. The Workmen’s Compensation (Foreign Workers’ Compensation Scheme) (Insurance) Order 1998 provided for additional benefits for not only death and personal injury sustained in an accident which arises out of and in the course of employment but also accidents that occur outside working hours. This is also clear indication that when it comes to migrant workers, the employer’s obligation to these workers’ welfare extends well beyond the workplace and working hours.

Poor enforcement and inadequate laws allowed injustice to continue

Poor enforcement and inadequacies in the present government’s administration are much to blame for this. All matters concerning workers and employment matters should rightly come under the Ministry of Human Resources. Today, when migrant workers claim their rights, employers can very easily just terminate them and immediately send them back to their home country. All that they need to do is go and tell the Immigration Department that they want to cancel the workers’ pass/visa, and the Immigration will do that without even talking to the migrant worker to find out whether they really want to leave before the end of their fixed-term contract or determining whether there are any outstanding labour issues, such as non-payment of wages and other claims/matters outstanding. They do not even check to determine whether there are any complaints lodged with the Labour Department, the police and/or the Human Rights Commission.

Sometimes, employers may just rush workers off to the airport and put them on board a plane back to their home country. The employers and/or their agents then go to the Immigration Department and say that the workers had gone back, and the Immigration Department happily cancels the visa/pass. A better practice would be that if workers are to be sent back especially before the expiry of their contract period, they should be personally interviewed by the Labour Department, using an interpreter. Such an interview should not be in the presence of their employer or agent and should establish that there are no outstanding unsettled claims and/or pending action, and if the Labour Officer is satisfied, he or she should issue and sign a certificate to that effect. .

Sadly, the Employment Act 1955 has no provision that makes it an offence for employers to discriminate against and/or terminate workers who have lodged complaints with the Labour Department, Industrial Relations Department, the police and/or the Malaysian Human Rights Commission. It is useless to have mechanisms for access to justice without the right laws to prevent employers from lodging complaints against workers for complaining.

Maybe the new Whistle Blowers Protection Act 2010 can be relied on, but it is best that the Employment laws are also amended to clearly prevent employers from acting against the interest of justice and making a mockery of existing laws.

Attempting to avoid the employment relationship a global phenomenon

The practice of trying to avoid the employment relationships and the duties and obligations that come with it are not just a phenomenon in Malaysia, but is happening worldwide. The international community frowns against such bad practices which affects worker rights, and even the International Labour Organisation (ILO) came up with a Resolution Concerning the Employment Relationship, and thereafter The Employment Relationship Recommendation No. 198. In 2007, ILO came out with a 75 page document entitled, “The Employment Relationship: An annotated guide to ILO Recommendation No. 198”

For a long time, it was only foreign migrant workers that were affected by the unjust practices of outsourcing agents and companies, and employers but today it also involves local Malaysian workers, many of whom are from Sabah and Sarawak. To be fair, some employers prefer to directly employ their migrant workers, which is still possible in Malaysia, but is becoming more difficult as some immigration officers are pushing them to go to the outsourcing agents/companies to get their workers.

Too many workers have been denied justice in Malaysia

This matter has never been brought to court because most affected workers then were mainly migrant workers, who were terminated and sent back would not be able to commence or even maintain action. Even if they had made complaints or commenced action, the complainants and/or the plaintiffs under the law are required to be in court for cases to proceed.

So many workers in Malaysia have been denied justice while violators of human rights and workers’ rights continue to prosper.

The government of the day and Malaysians should strive even harder to ensure justice for all in Malaysia, irrespective of whether they are citizens or foreigners, poor or rich. One thing that must be done immediately is to end the unjust practices of outsourcing agents and some bad employers.

Charles Hector, an Aliran member, is a human rights lawyer based in Pahang.

DR 25/2010 - A bill that would have been detrimental to workers have been defeated..

Thankfully, the Malaysian governments attempt to legalize 'outsourcing' agents/companies, and to also make them employers of these workers - not the company where this workers will be working for did not succeed. This Bill to amend the Employment Act 1955, that was tabled in July 2010 was withdrawn in October 2010.

As usual, when the Bill was tabled a lot of attention was focused on Part XVA Sexual Harassment, but thankfully Malaysians also saw the things that would have brought in 'silently' to the detriment of all workers.

Note, that whilst the victims of 'outsourcing' agents/companies initially when it started around 2005, but today local workers are also being victimized. When one gets supplied by these outsourcing agents, the companies claim that you are not their workers....and workers will lose many of rights and benefits now existing under the employment Act. These workers will not be allowed to be part of the union in the company, or even benefit from the collective agreement unions make with employers. Why? Because you are not an employee of the company - but an employee of an outsourcing agent.

Our unions are organized according to sectors - but many of these outsourcing agents supply workers to so many different sectors.

DR 25/2010

A BILL

intituled

An Act to amend the Employment Act 1955.

ENACTED by the Parliament of Malaysia as follows:

1. Short title and commencement

(1) This Act may be cited as the Employment (Amendment) Act 2010.

(2) This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette, and the Minister may appoint different dates for the coming into operation of different provisions of this Act.

2. Amendment of section 2

The Employment Act 1955 [Act 265], which is referred to as the "principal Act" in this Act, is amended in subsection 2(1):-

(a) in the definition of "confinement", by substituting for the word "twenty-eight" the word "twenty-two";

(b) in the definition of "constructional contractor", by substituting for the word "assigns" the word "assignees";

(c) by inserting after the definition of "contractor" the following definition:

' "contractor for labour" means a person who contracts with a principal, contractor or sub-contractor to supply the labour required for the execution of the whole or any part of any work which a contractor or sub-contractor has contracted to carry out for a principal or contractor, as the case may be;’;

(d) in the definition of "employer", by inserting after the words "first mentioned person" the words "or any person who supplies or undertakes to supply any employee engaged by him to any employer, principal, contractor or sub-contractor";

(e) by inserting after the definition of "medical officer" the following definition:

' "Minister" means the Minister charged with the responsibility for human resources;’;

(f) by inserting after the definition of "registered medical practitioner" the following definition:

' "sexual harassment" means any unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is offensive or humiliating or is a threat to his well-being, arising out of and in the course of his employment;’; and

(g) by deleting the definition of "sub-contractor for labour".

3. Amendment of section 4

Section 4 of the principal Act is amended by substituting for the words "under section 69 or section 73" the words "or decision under section 69, 69B, 69C or 73".

4. Amendment of Part V

Part V of the principal Act is amended by substituting for the heading "RELATING TO THE TRUCK SYSTEM" the heading "SYSTEM OF PAYMENT OF WAGES".

5. Amendment of section 25A

Paragraph 25A(1)(a) of the principal Act is amended by inserting after the words "the Banking and Financial Institutions Act 1989 [Act 372]" the words "or any licensed financial institution or other institutions approved by Bank Negara Malaysia".

6. New section 25B

The principal Act is amended by inserting after section 25A the following section:-

"Payment of wages of domestic servant

25B. Notwithstanding sections 25 and 25A, the wages of a domestic servant shall be paid into an account in the name of the domestic servant at a bank or finance company licensed under the Banking and Financial Institutions Act 1989 or any licensed financial institution or other institutions approved by Bank Negara Malaysia:

Provided that the Director General may, on an application made to him by an employer of the domestic servant, exempt the employer in writing from the application of this section.".

7. Amendment of section 31

Section 31 of the principal Act is amended by substituting for the words "sub-contractor for labour", wherever they appear, the words "contractor for labour".

8. Amendment of Part VII

Part VII of the principal Act is amended by substituting for the heading "CONTRACTORS AND PRINCIPALS" the heading "CONTRACTORS, PRINCIPALS AND CONTRACTORS FOR LABOUR".

9. New section 33A

The principal Act is amended by inserting after section 33 the following section: "Information relating to supply of employees 33A. (1) A contractor for labour who intends to supply or undertakes to supply any employee shall register with the Director General in the prescribed form.

(2) If a contractor for labour referred to in subsection (1) supplies any employee, he shall keep or maintain one or more registers containing information regarding each employee supplied by him and shall make such registers available for inspection.

(3) A contractor for labour who:-

(a) fails to register with the Director General as required under subsection (1); or

(b) fails to keep or maintain any register, or make available any register for inspection as required under subsection (2),

commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit.".

10. Amendment of section 37

Section 37 of the principal Act is amended by inserting after subsection (3) the following subsection:

"(4) Any employer who terminates the service of a female employee during the period in which she is entitled to maternity leave commits an offence:

Provided that for the purposes of this section, such termination shall not include termination on the ground of retirement, resignation tendered by such employee or on the ground of closure of the employer’s business.".

11. Amendment of section 40

Section 40 of the principal Act is amended by substituting for subsection (3) the following subsection:

"(3) Notwithstanding subsections (1) and (2), any employer who terminates the service of a female employee who fails to give such notice of her maternity leave during the period in which she is entitled to maternity leave commits an offence.".

12. Amendment of section 42

Subsection 42(2) of the principal Act is amended by substituting for the words "a female employee is dismissed from her employment" the words "the service of a female employee is terminated".

13. Amendment of section 60

Paragraph 60(3)(b) of the principal Act is amended by inserting after the word "monthly" the words "or weekly".

14. Amendment of section 60D

Section 60D of the principal Act is amended:-

(a) in subsection (1):-

(i) by substituting for the words "a this" the words "at his"; and

(ii) in paragraph (a):-

(A) by substituting for the word "ten" the word "eleven";

(B) by substituting for the word "four" the word "five";

(C) in subparagraph (iii), by deleting the word "and" appearing at the end of the subparagraph; and

(D) by inserting after subparagraph (iv) the following subparagraph:

"(v) Malaysia Day; and"; and

(b) in paragraph (3)(aaa), by deleting the word "in" appearing after the word "referred".

15. Amendment of section 60I

Section 60I of the principal Act is amended:-

(a) in subsection (1C), by inserting after the words "on a daily" the words "or an hourly"; and

(b) in subsection (1D), by inserting after the words "on a daily" the words "or an hourly".

16. Substitution of section 60K

The principal Act is amended by substituting for section 60K the following section:

"Notice to employ foreign employees and submission of returns

60K. (1) An employer who intends to employ a foreign employee shall give notice of his intention to do so in the prescribed form to the Director General.

(2) The Director General may, at any time after receipt of a notice under subsection (1), request the employer to furnish him within the period specified in the request or within any extended period of time, further information or particulars on the notice.

(3) Upon receipt of the notice or further information or particulars under subsection (2), the Director General may impose conditions on the employer relating to the employment of the foreign employee as he thinks fit.

(4) An employer who:-

(a) employs a foreign employee without giving a notice as required under subsection (1);

(b) fails to furnish any further information or particulars as may be required by the Director General under subsection (2);

(c) gives notice under subsection (1) containing any false or misleading particulars; or

(d) gives any false or misleading further information or particulars under subsection (2),

commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit.

(5) An employer who employs a foreign employee shall, within fourteen days of the employment, furnish the Director General with the particulars of the foreign employee by forwarding the particulars to the nearest office of the Director General in such manner as may be determined by the Director General.

(6) An employer or any specified class of employers, whenever required to do so by the Director General, shall furnish returns of particulars relating to the employment of a foreign employee in such manner and at such intervals as the Director General may direct.

(7) An employer who contravenes subsections (5) or (6) commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit.".

17. Amendment of section 60O

Section 60O of the principal Act is amended:-

(a) in the shoulder note, by inserting after the words "Permanent resident" the words "or domestic servant"; and

(b) by inserting after the word "Malaysia" the words "or a domestic servant".

18. Amendment of section 69

Subsection 69(2) of the principal Act is amended by substituting for the words "sub-contractor for labour" the words "contractor for labour".

19. Amendment of section 73

Subsection 73(1) of the principal Act is amended by substituting for the words "sub-contractor for labour" and "subcontractor for labour" the words "contractor for labour".

20. Amendment of section 79

Subsection 79(1) of the principal Act is amended by substituting for the words "Electricity Act 1949 [Act 116]" the words "Electricity Supply Act 1990 [Act 447]".

21. New Part XVA

The principal Act is amended by inserting after Part XV the following Part:

"PART XVA

SEXUAL HARASSMENT

Interpretation

81A. For the purposes of this Part, "complaint of sexual harassment" means any complaint relating to sexual harassment made:-

(i) by an employee against another employee;

(ii) by an employee against any employer;

(iii) by an employer against another employer; or

(iv) by an employer against an employee.

Establishment of procedure for dealing with complaints of sexual harassment and inquiry into such complaints

81B. (1) An employer shall establish procedure for dealing with complaints of sexual harassment.

(2) Any person may make a complaint of sexual harassment in accordance with the procedure established under subsection (1).

(3) Upon receipt of a complaint of sexual harassment under subsection (2), an employer or any class of employers shall inquire into the complaint in a manner prescribed by the Minister.

(4) Subject to subsection (5), where an employer refuses to inquire into the complaint of sexual harassment as required under subsection (3), he shall, as soon as practicable but in any case not later than thirty days after the date of the receipt of the complaint, inform the complainant of the refusal and the reasons for the refusal in writing.

(5) Notwithstanding subsection (4), an employer may refuse to inquire into any complaint of sexual harassment as required under subsection (3), if:-

(a) the complaint has previously been inquired into andno sexual harassment has been proven; or

(b) the employer is of the opinion that the complaint of sexual harassment is frivolous, vexatious or is not made in good faith.

(6) Any person who is dissatisfied with the refusal of the employer to inquire into his complaint of sexual harassment, may refer the matter to the Director General.

(7) The Director General after reviewing the matter referred to him under subsection (6):-

(a) if he thinks that the matter should be inquired into, direct the employer to conduct an inquiry; or

(b) if he agrees with the decision of the employer not to conduct the inquiry, inform the person who referred the matter to him that no further action will be taken.

Findings of the inquiry by employer

81C. Where the employer conducts an inquiry into a complaint of sexual harassment received under subsection 81B(3) and the employer is satisfied that sexual harassment is proven, the employer shall:-

(a) in the case where the person against whom the complaint of sexual harassment is made is an employee, take disciplinary action which may include the following:

(i) dismissing the employee without notice;

(ii) downgrading the employee; or

(iii) imposing any other lesser punishment as he deems just and fit, and where the punishment of suspension without wages is imposed, it shall not exceed a period of two weeks; and

(b) in the case where the person against whom the complaint of sexual harassment is made is a person other than an employee, recommend that the person be brought before an appropriate disciplinary authority to which the person is subject to.

Complaints of sexual harassment made to the Director General

81D. (1) If a complaint of sexual harassment is made to the Director General, the Director General shall asses the complaint and may direct an employer to inquire into such complaint.

(2) The employer shall inquire into the complaint of sexual harassment when directed to do so under subsection (1) and submit a report of the inquiry to the Director General within thirty days from the date of such direction.

(3) If a complaint of sexual harassment received by the Director General is made against an employer who is a sole proprietor, the Director General shall inquire into such complaint himself in a manner prescribed by the Minister.

Findings of the inquiry by the Director General

81E. (1) Where the inquiry is conducted by the Director General himself under subsection 81D(3) and the Director General is satisfied that sexual harassment is proven, the contract of service between the employer and the complainant may be deemed to be broken.

(2) If a contract of service is deemed to be broken under subsection (1), the complainant is entitled to termination benefits and indemnity provided for under the Act or contract of service, as the case may be.

Offence

81F. Any employer who fails:-

(a) to establish procedure for dealing with complaints of sexual harassment under subsection 81B(1);

(b) to inquire into complaints of sexual harassment under subsection 81B(3);

(c) to inform the complainant of the refusal and the reasons for the refusal as required under subsection 81B(4);

(d) to inquire into complaints of sexual harassment when directed to do so by the Director General under paragraph 81B(7)(a) or subsection 81D(2); or

(e) to submit a report of inquiry into sexual harassment to the Director General under subsection 81D(2),

commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit.

Application of this Part irrespective of wages of employee

81G. Notwithstanding the provisions of this Act, the provisions of this Part extend to every employee employed under a contract of service irrespective of the wages of the employee.".

22. Amendment of section 82

Subsection 82(1) of the principal Act is amended in paragraph (b) of the proviso by deleting the word "male".

23. Amendment of section 86

Section 86 of the principal Act is amended by substituting for the words "section 69" the words "section 69, 69B or 69C".

24. New section 90A

The principal Act is amended by inserting after section 90 the following section:

"Protection of officers

90A. No action shall lie or be brought, instituted or maintained in any court against:-

(a) the Director General, Deputy Director General or any other officer duly appointed under this Act for or on account of or in respect of any act ordered or done for the purpose of carrying this Act into effect; and

(b) any other person for or on account of or in respect of any act done or purported to be done by him under the order, direction or instruction of the Director General, Deputy Director General or any other officer duly appointed under this Act,

if the act was done in good faith and in a reasonable belief that it was necessary for the purpose intended to be served by it.".

25. Amendment of section 92

Paragraph 92(a) of the principal Act is amended by inserting after the words "section 25, 25A," the words "25B,".

26. Amendment of section 101A

Section 101A of the principal Act is amended:-

(a) in subsection (1), by substituting for the words "or a Deputy Director General appointed under paragraph 3(2)(a)" the words ", Deputy Director General or any officer authorized in writing by the Director General";

(b) in subsection (2), by substituting for the words "or the Deputy Director General", wherever they may appear, the words ", Deputy Director General or any officer authorized in writing by the Director General";

(c) in subsection (3), by substituting for the words "or the Deputy Director General" the words ", Deputy Director General or any officer authorized in writing by the Director General"; and

(d) in subsection (5), by substituting for the words "or a Deputy Director General" the words ", Deputy Director General or any officer authorized in writing by the Director General".

27. New section 101B

The principal Act is amended by inserting after section 101A the following section:

"Offence by body corporate, etc.

101B. Where an offence under this Act has been committed by a body corporate, partnership, society or trade union:-

(a) in the case of a body corporate, any person who is a director, manager, or other similar officer of the body corporate at the time of the commission of the offence;

(b) in the case of a partnership, every partner in the partnership at the time of the commission of the offence; and

(c) in the case of a society or trade union, every office bearer of the society or trade union at the time of the commission of the offence,

shall be deemed to have committed the offence and may be charged jointly or severally in the same proceedings as the body corporate, partnership, society or trade union.".

28.Amendment of section 102

Subsection 102(2) of the principal Act is amended:-

(a) in paragraph (i), by substituting for the words "section 69" the words "section 69, 69B or 69C";

(b) in paragraph (j), by substituting for the full stop a semicolon; and

(c) by inserting after paragraph (j) the following paragraphs:

"(k) prescribing the forms of notice and returns of particulars used under section 60K;

(l) prescribing the procedure for dealing with complaints of sexual harassment and the procedure to inquire into such complaints under Part XVA;

(m) prescribing the terms and conditions of service of a domestic servant.".

EXPLANATORY STATEMENT

This Bill seeks to amend the Employment Act 1955 ["Act 265"]. The primary purpose of this Bill is to require the payment of wages of domestic servants to be made into bank accounts of the domestic servants, to provide for the registration of information relating to the supply of employees by a contractor for labour, to require a notice and return of particulars relating to the employment of foreign employees to be submitted and to provide for the establishment of procedure for dealing with complaints of sexual harassment and inquiry into such complaints.

2. Clause 1 contains the short title and the power of the Minister to appoint the commencement date of the proposed Act. Employment (Amendment) 15

3. Clause 2 seeks to amend section 2 of Act 265 to introduce new definitions and to amend certain existing definitions used in Act 265. The definition of "confinement" is amended to enable a pregnant female employee to enjoy maternity protections under Act 265 as early as at twenty-two weeks of pregnancy should the eventualities such as premature births or miscarriages occur. Amongst the new definitions inserted are the definitions of contractor for labour as the person responsible for supply of employees and the definition of sexual harassment for the purpose of the establishment of procedure for dealing with complaints of sexual harassment in the new Part XVA of Act 265.

4. Clause 3 seeks to amend section 4 of Act 265 to include the decisions or orders made under sections 69B and 69C as decisions or orders which cannot be appealed to the Director General by any person affected by such decisions and orders.

5. Clause 5 seeks to amend section 25A of Act 265 to extend the application of the section. With the amendment, the wages of employees can be paid into their bank accounts in any licensed financial institution or institutions approved by Bank Negara Malaysia other than a bank or finance company licensed under the Banking and Financial Institutions Act 1989 [Act 372].

6. Clause 6 seeks to introduce a new section 25B into Act 265 to require the employers of domestic servants to pay the wages directly into the bank accounts of their domestic servants unless exempted by the Director General in writing.

7. Clause 9 seeks to introduce a new section 33A into Act 265 to impose a duty on the contractor for labour to register with the Director General in the prescribed form if he intends to supply or undertakes to supply any employee. It also requires a contractor for labour who supplies any employee to keep or maintain information on the employees he supplies in a register and the register shall be made available for inspection. Violations of these requirements are offences under Act 265. The purpose of the introduction of this new section is to monitor the supply of employees by the contractor for labour.

8. Clause 10 seeks to amend section 37 to penalize employers who terminate the service of a female employee during the period in which she is entitled tomaternity leave provided that the termination is not due to retirement, resignation tendered by such employee or the closure of the employer’s business.

9. Clause 11 seeks to amend subsection 40(3) of Act 265 to clarify that no service of a female employee shall be terminated during the period in which she is entitled to maternity leave even though she fails to give notice of her maternity leave as required under subsections 40(1) and (2).

10. Clause 12 seeks to amend section 42 of Act 265 for purpose of clarification.

11. Clause 13 seeks to amend paragraph 60(3)(b) of Act 265 to provide for payment of wages to employees who are paid on a weekly basis for working on a rest day.

12. Clause 14 seeks to amend section 60D of Act 265 to include Malaysia Day which falls on 16 September every year as a mandatory gazetted public holiday on which an employee shall be entitled to a paid holiday at his ordinary rate of pay.

13. Clause 15 seeks to amend section 60I of Act 265 to extend the calculation of the ordinary rate of pay to employees employed on an hourly rate of pay.

14. Clause 16 seeks to amend section 60K of Act 265 to impose a duty on an employer to give notice of his intention to employ foreign employees in the prescribed form to the Director General before employing the foreign employees, and also to furnish further information and particulars regarding the notice to the Director General. The Director General may require an employer to furnish returns of particulars relating to the employment of a foreign employee in such manner as the Director General may direct. Such notice and returns of particulars would assist the Government in monitoring the employment of foreign employees. The proposed amendment would also enable the Labour Department to address the concern over the employment of local job seekers.

15. Clause 17 seeks to amend section 60O of Act 265 to redefine the term of "foreign employee" to exclude domestic servants from the provisions of Part XIIB. This would mean that the requirement for the submission of notice of intention to employ foreign employees to the Director General under section 60K shall not apply in employing domestic servants.

16. Clause 21 seeks to introduce a new Part XVA into Act 265 which deals with complaints of sexual harassment. Section 81A clarifies the meaning of the term "complaint of sexual harassment". Section 81B imposes upon an employer to establish procedure for dealing with complaints of sexual harassment and to inquire into complaints of sexual harassment in a manner prescribed by the Minister. Section 81C deals with findings of the inquiry into complaints of sexual harassment by the employer. Section 81D deals with complaints of sexual harassment which are made directly to the Director General and his findings of the complaints. By virtue of section 81E, if a complaint of sexual harassment is made against an employer who is a sole proprietor, the Director General shall inquire into the complaint himself in a manner prescribed by the Minister. Section 81F deals with offences under this Part whilst section 81G provides that this Part shall apply to all employees irrespective of their wages.

17. Clause 22 seeks to amend section 82 of Act 265 to be in line with the provisions under the Criminal Procedure Code with regards to the service of summons.

18. Clause 23 seeks to amend section 86 of Act 265 consequential upon the proposed amendment made to section 4.

19. Clause 24 seeks to introduce a new section 90A into Act 265 to provide for the protection of officers appointed under this Act from any legal action while carrying out their duties. Employment

20. Clause 25 seeks to amend section 92 of Act 265 to make it an offence if an employer fails to pay the wages of his domestic servant into the domestic servant’s bank account without an exemption in writing from the Director General.

21. Clause 26 seeks to amend section 101A of Act 265 to empower officers other than the Director General and the Deputy Director General to compound any offence committed under this Act, provided that they are authorized in writing by the Director General to do so.

22. Clause 27 seeks to introduce a new section 101B into Act 265 to make directors, managers, partners and trade union office-bearers to be jointly or severally liable for any offences committed by their establishment.

23. Clause 28 seeks to amend section 102 of Act 265 to empower the Minister to make regulations prescribing for matters relating to the employment of foreign employees specifically under section 60K, matters relating to the establishment of procedure for dealing with complaints of sexual harassment and the procedure to inquire into such complaints, and terms and conditions of service of a domestic servant.

24. Other amendments not specifically dealt with in this Statement are minor or consequential in nature.

FINANCIAL IMPLICATIONS

This Bill will not involve the Government in any extra financial expenditure.

Report of the United Nations Working Group on Arbitrary Detention (Malaysia) - 8/2/2011

Below are selected extracts only concerning migrants in Malaysia, for the full report go here

Report of the United Nations Working Group on Arbitrary Detention on its Mission to Malaysia (7–17 June 2010) - 8 February 2011

“…Detention under immigration powers does not seem to be in line with international human rights law. The Working Group considers that the detention of migrants should be decided upon by a court of law, on a case-by-case basis, and pursuant to clear and exhaustively defined criteria in legislation under which detention may be used. The Working Group received complaints of detainee abuse, inadequate food, water, medical care and poor sanitation in most immigration detention centres. The situation at the overcrowded Lenggeng detention centre is especially highlighted. The Working Group expresses its concern at the caning of immigrants in an irregular situation and the powers extended to the Ikatan Relawan Rakyat Malaysia (RELA) volunteer force to be present in immigration detention centres and to track down foreigners living in Malaysia without valid documents.

The Working Group also recommends that the Government change its laws and policies related to the detention of asylum-seekers, refugees and migrants in an irregular situation, so that detention is decided upon by a court of law, on a case-by-case basis and pursuant to clearly and exhaustively defined criteria; rule out systematic immigration detention of vulnerable groups of migrants; and provide in all cases for automatic periodic review by a court of law on the necessity and legality of detention, as well as an effective remedy for detainees. Lastly, the Working Group recommends that the Government of Malaysia strengthen the status, powers and functions of the national human rights institution SUHAKAM, in accordance with the Paris Principles.”

G. Detention pursuant to immigration powers

65. With regard to detention outside the context of criminal law, during its visit, the Working Group was seriously concerned by the administrative detention regime applied to asylum-seekers, refugees and migrants in an irregular situation. In a population of around 28 million, between 3 to 4 million are foreign immigrants. It is estimated that at least half of them are in an irregular situation or without the necessary documentation. Malaysia is a transit point for asylum-seekers, particularly those from Afghanistan and Myanmar. Some 90,000 foreigners have refugee status as determined by the Office of the United Nations High Commissioner for Refugees (UNHCR) and mainly live in Kuala Lumpur. A significant number of migrants from, inter alia, Bangladesh, Indonesia and Nepal also live in the country without authorization.

66. There is no special legislation relating to refugees and asylum-seekers in Malaysia, since they are not recognized as such under domestic law; indeed, current legislative framework does not even recognize the terms “refugees” and “asylum-seekers”. It is understood that any non-citizens of Malaysia entering the country without the necessary documents and permits are categorized as illegal migrants, dealt with according to the relevant laws and punished accordingly.

67. Illegal migrants are detained under the Immigration Act for the purposes of making inquiries or investigations into an offence under the law, and also for removing from Malaysia any foreigners who violate the provisions under the Act.

68. While immigrants in an irregular situation are subjected to mandatory detention under the Immigration Act, they do have some recourse to a court law. Article 5 of the Federal Constitution provides that detained persons should not be detained for more than 24 hours without authorization by a magistrate, although in the case of immigrants, this period is extended to 14 days. Migrants are detained by order of the Director General of Immigration and, under the criminal Procedure Code, by a magistrate. Detention of migrants in a prison is governed by the Prisons Regulations (2000), which contain safeguards on fundamental liberties, inter alia the rights to food, clothing, medical examination and treatment, education and recreation, the right to visits and communication.

69. The Government has not ratified the Convention relating to the Status of Refugees or the Protocol thereto. The Government has yet to put in place a national legal and administrative framework for dealing with asylum-seekers and refugees. While the Government does not restrict the access of undetained asylum-seekers to the Office of UNCHR, it does nothing to facilitate access and, as part of its immigration enforcement efforts, often arrests and detains asylum-seekers and refugees.

70. Although Malaysia is not a party to the Convention relating to the Status of Refugees and the Protocol thereto, Malaysia has fulfilled its international obligations to persons who have entered Malaysia claiming to be refugees and asylum-seekers through special arrangements on humanitarian grounds with UNHCR.

71. Persons committing offences under the immigration laws (either travelling without travel documents or committing criminal offences) are detained by the relevant authorities. However, section 8 (3) of the Immigration Act 1959/63 also sets out to determine persons categorized and prohibited from entering Malaysia. In the event, however, that such offenders are from vulnerable groups, including minors, families with minor children, pregnant women, elderly persons, persons with disabilities and other such persons, the authorities are required, on the basis of humanitarian grounds, to take all reasonable measures to treat such persons with appropriate care and attention.

72. The Working Group believes that detention of migrants should be decided upon by a court of law, on a case-by-case basis, and pursuant to clearly and exhaustively defined criteria in legislation under which detention may be used. The Government should not use immigration detention for asylum-seekers, refugees and vulnerable groups of migrants, including unaccompanied minors, families with minor children, pregnant women, breastfeeding mothers, elderly persons, persons with disabilities, or people with serious and/or chronic physical or mental health problems.

73. In all cases, immigrants should be provided with automatic periodic review by a court of law of the necessity and legality of their detention at any time.

74. Refugees and asylum-seekers are prosecuted for immigration-related offences and may be indefinitely detained at immigration detention centres or deported. Malaysia has no laws or regulations relating to the status of refugees and asylum-seekers in line with international standards. The 24 hours allowed for the police to bring a detainee before a magistrate becomes 2 weeks in the case of a foreigner detained under immigration laws.

75. In the absence of national refugee legislation, UNHCR performs core protection functions, including registration of asylum-seekers, determination of refugee status, issuance of identification documentation and promotion of solutions, including voluntary return, local integration or resettlement in a third country. UNHCR performs these functions, however, as a result of the Government’s unwillingness to perform what are clearly State functions of asylum management. UNHCR does so in the absence of a comprehensive legal and administrative framework for managing asylum-seekers.

76. The Government believes that the issue of refugees and asylum-seekers requires commitments from all States to cooperate in addressing the problems of the mass influx of refugees and asylum-seekers faced by many countries, including Malaysia. Such commitments would need to take into account the resources available of each State and their relevant domestic laws and migration policies. States should take measures jointly to eliminate the problems that give rise to persons having to migrate from their country of origin. Apart from addressing the issue of refugees, efforts need to be made to assist the countries of origin to alleviate the root causes of why their people migrate to other countries; only then would the international community to be able address the problem of refugees and migration as a whole.

77. The capacity of the 13 immigration detention centres in the country is around 6,000 places. All centres are under the control of the Immigration Department. Approximately 10,000 people were deported in 2009.

78. The Government is working to address the issue of overcrowding, the number of detainees has been reduced to an average of 4,500 to 4,800 from the total capacity of 6,640 of all detention centres. Cooperation with non-governmental organizations and international bodies is vital to improve management of immigration detention centres. The Government is therefore working closely with the International Committee of the Red Cross (ICRC) and organizations such as Buddhist and Shelter.

79. The Government recognized that there is a need to improve conditions in immigration detention centres. It is taking steps such as by establishing a new set-up comprising personnel from various departments. The Government is also currently looking at emulating best practices in detention centre management of other countries such as Australia and the Netherlands. An additional allocation of RM100 million was recently approved by the Government to upgrade physical conditions and renovations of the centres concerned.

80. The Working Group was informed that at least six asylum-seekers and migrants had died of leptospirosis, an infectious disease, in immigration detention camps. In 2009, 14 detainees died in immigration detention centres.

81. Capacity at Lenggeng detention centre is 1,250, including a block for 250 women. As a transit place, detainees should stay for a maximum of 14 days for investigation. The Working Group found evidence of overcrowding, insufficient access to potable water, poor sanitation and inadequate medical care. Allegations were received of inadequate food and lack of ventilation. The unsanitary and overcrowded conditions facilitated the transmission of communicable diseases, particularly skin diseases. Three detainees died during the first five months of 2010. Some detainees also stated that the overcrowding often led to confrontations and fighting between the detainees, with very limited or no intervention at all from the security guards.

82. The Working Group found a 14-year-old boy who had been in the centre since June 2008. He stated that he was born in Malaysia, although his documents indicated that he was Indonesian, as both his parents are Indonesian. He was adopted by a Malaysian family after his parents returned to Indonesia in 2006. His adoptive family had not visited him since 2009. He has no bed in his cell and was uncertain about his future.

83. According to the Government, all immigrants are subject to the same criminal justice system in Malaysia; detainees may therefore challenge the necessity and legality of their detention at any time. This is a common principle of the criminal justice system in Malaysia. Migrants who are found in an irregular situation (without valid travel documents) or commit an offence are charged in court. After the sentence period has been served, migrants are kept in immigration detention centres until deportation. The Working Group reminds the Government that it is an obligation of the State to guarantee the right to safety of all foreigners when it decides to place them in detention.

84. In Sabah, concern was also expressed at the detention of foreign children whose parents had been deported.

85. Migrants found to have violated immigration laws are liable to imprisonment, substantial fines and, in some cases, caning. Since 2002, caning has been used to punish immigration offences, such as illegally entering the country. The Working Group was informed that most of the 10,000 people caned each year are immigrants in an irregular situation.

86. Upon the conclusion of its visit, the Working Group was informed that no migrant in detention was denied the necessary medical treatment.

V. Conclusions

92. Most prisons visited were found to meet international standards and regulations on conditions. This finding does not, however, apply to immigration detention centres.

100. The regime applied to migrants in an irregular situation, refugees and asylum seekers is not seen to be in line with international human rights law. Immigrants in an irregular situation arriving in the country are subjected to mandatory detention without genuine recourse to a court of law. The conditions of detention at most of the immigration detention centres visited adversely affect the ability of detainees to challenge the lawfulness of their detention. The Working Group received complaints of detainee abuse, inadequate food, water and medical care, and poor sanitation in the immigration detention centres.

101. The Working Group expresses its concern about the excessive powers granted to the non-official organization RELA, particularly its activities concerning asylum seekers, refugees and migrants in an irregular situation. The Working Group received allegations of ill-treatment and beatings by RELA militants.

103. The Working Group further expresses its concerns about the situation of overcrowding in prisons, but mainly in immigration detention centres.

A. General recommendations

105. The Government should increase its efforts to develop a human rights culture in Malaysia. The judiciary should train magistrates, judges and prosecutors in international human rights law in order to increase the capacity of applying international human rights principles and standards in the resolution of judicial cases.

106. The Government should become a party to the main international instruments on human rights, particularly the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention relating to the Status of Refugees and the Protocol thereto, the Convention relating to the Status of Stateless Persons, the Convention on the Reduction of Statelessness and the Rome Statute of the International Criminal Court.

107. The Government should also study the possibility of becoming a party to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and the Optional Protocol thereto, as well as of revising the reservations and declarations it made to those conventions to which it is a State party.

C. Concerning detention under immigration powers

117. Regardless of immigration status, nobody should be subjected to arbitrary detention or appalling detention conditions. The Government is reminded that it is its responsibility to guarantee the right to physical and psychological integrity and the right to security in immigration detention centres.

118. The Government should ratify the Convention relating to the Status of Refugees and the Protocol thereto, and put in place a national legal and administrative framework for dealing with asylum-seekers and refugees that meets international standards.

119. The Government should also rule out detention of asylum-seekers and refugees

as well as vulnerable groups of migrants, including unaccompanied minors, families with minor children, pregnant women, breastfeeding mothers, elderly persons, persons with disabilities, people with serious and/or chronic physical or mental health problems.

120. The Government should, in all cases, provide for automatic periodic review by a court of law on the necessity and legality of detention.

121. The Government should also provide for an effective remedy for detainees to challenge the necessity and legality of detention at any time of the detention period and ex post facto, and define the circumstances.

122. As long as there is a regime of mandatory administrative detention for migrants in an irregular situation, the Government should legally define its maximum period rather than basing it on Government regulations or policy.

123. The Government should also provide for a system of legal aid for immigration detainees.

124. The Government should assume the responsibility of improving the conditions in immigration detention centres as a matter of urgency.

125. RELA, as a volunteer force, should not be used for law enforcement nor for guarding immigration detention centres.