1. Migrant Workers in Malaysia & Protection Under Domestic Law
Dato’ M. Ramachelvam
Available Rights Without Effective Means of Claiming Them Is a Mockery
Malaysia is reputed to have the largest number of migrant workers in Asia. The
government classifies these migrant workers into documented and
undocumented migrants. Some say regular migrants and irregular migrants.
Some use the term ‘illegal migrants’ when they refer to the undocumented
migrants, but the term is derogatory as no person no human being should ever
be called illegal. The preferred term would be documented and undocumented
migrants, and this will be used in my paper.
To the government, documented migrant worker is a worker that has the
necessary documents, i.e. work permit/pas/visa that the law requires before the
migrant worker can work. All others are called ‘undocumented workers’.
The term undocumented workers are used also to those did once have valid
documents, but now their work permit/pas/visa has expired. It also refers to those
who never did have any documents from the very beginning that allows them to
work. A person who has valid passports, and came into the country legally with a
social visit pass, and the persons who smuggled into the country are also
considered undocumented migrant workers. Even those who have come into the
country seeking asylum and refugee status, and even those who have been
given the said status by the United Nations High Commission for Refugees
(UNHCR), are considered by the Malaysian government to be undocumented
migrants.
Our focus today in this paper shall be the migrant worker, irrespective of whether
documented or undocumented, and the existing protection that is available in
Malaysia’s employment laws.
Equality and Equal Treatment Under The Law
Article 8 of the Federal Constitution of Malaysia provides that “All Persons are
equal before the law and is entitled to equal protection of the law” and by the use
of term “person” as opposed to ‘citizen’, it is most clear that this guarantee of
rights extends to all persons, including migrant workers, be they documented or
undocumented. It must be pointed out that 6 of the 13 Articles under Part II of the
Federal Constitution entitled ‘Fundamental Liberties’ uses the word “persons” as
opposed to word ”citizens”, and as such usage of the word ‘persons’ in Article 8
clearlyi is not conscious but also important.
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2. This equality is also reflected in our Employment Act 1955 which applies to all
workers, irrespective of whether the person is a local worker or a foreign worker
(migrant worker). In section 2 of the Employment Act, being the interpretation
section, the term employee is defined as:
"employee" means any person or class of persons-
(a) included in any category in the First Schedule to the extent specified therein;
or
(b) in respect of whom the Minister makes an order under subsection (3) or
section 2A;
In the First Schedule, item 1 which describes the first category of workers.
“...1. Any person, irrespective of his occupation, who has entered into a contract
of service with an employer under which such person's wages do not exceed one
thousand five hundred ringgit a month....”
And, item 2, describes the other category of workers covered by the Act.
“2. Any person who, irrespective of the amount of wages he earns in a month, has
entered into a contract of service with an employer in pursuance of which…”
Section 60L of the Employment Act reinforces this concept of equality, and the
prohibition of discrimination between workers. The right to complain about
discrimination is accorded to all workers, local or migrant, and the duty is
imposed on the Director General of Labour to inquire into these complaints.
60L. Director General may inquire into complaint.
(1) The Director General may inquire into any complaint from a local employee
that he is being discriminated against in relation to a foreign employee, or from a
foreign employee that he is being discriminated against in relation to a local
employee, by his employer in respect of the terms and conditions of his
employment; and the Director General may issue to the employer such directives
as may be necessary or expedient to resolve the matter.
(2) An employer who fails to comply with any directive of the Director General
issued under subsection (1) commits an offence.
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3. Domestic Laws that apply to Migrant Workers
Besides the Federal Constitution, some of the domestic employment related laws
that is applicable to workers, including the Migrant Worker, are:-
 Employment Act 1955 (West Malaysia)
 Sabah Labour Ordinance (Sabah)
 Sarawak Labour Ordinance (Sarawak)
 Workmen’s Compensation Act 1952
 Worker’s Minimum Standard of Housing and Amenities Act 1990
 Children and Young Persons Act 1966
 Industrial Relations Act 1967
 Trade Unions Act 1959
 Occupational Safety and Health Act 1994
 Wages Council Act 1947
Sadly, I would not have the time and opportunity to deal with all these laws in
depth. In my paper, I would only touch on matters that I believe are important.
Briefly, the other law that relates to Migrant Workers is the Immigration Act
1959/60. There are 3 kinds of passes, and visas that is mentioned in the
Immigration Regulations 1963 that permits foreign nationals entering Malaysia to
work. They are the Employment Pass [Regulation 9], Visit Pass (Temporary
Employment) [Regulation 11 (1)(ii)] and the Work Pass for Sabah [Regulation
16].
Migrant Workers and Trade Unions
Migrant workers can join and be a part of a trade union but is prohibited from
holding an executive position in trade union, i.e. Section 28(1) of the Trade Union
Act 1959. The section is, I believe, is ultra vires the Federal Constitution, i.e.
Article 8 whereby this is certainly not one of the permissible discriminations listed
in Article 8.
28. Officers.
(1) A person shall not be or act as a member of the executive of a trade union or
any branch thereof, or of any federation of trade unions, and shall be disqualified
for election as such member, if-
(a) he is not a citizen of the Federation;
(b)
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4. Considering the Trade Unions Act 1959, in particular section 2(the Interpretation
section), it is clear that the act does not distinguish on the basis of nationality of
‘employees’ or ‘workmen”.
"employee", when used with reference to a trade union or political party means
any person who is engaged for hire or reward on a full-time or part-time basis;
"workmen" means any person, including an apprentice, employed by an employer
under a contract of employment to work for hire or reward and for the purposes
of any proceedings in relation to a trade dispute includes any such person who
has been dismissed, discharged or retrenched in connection with or as a
consequence of that dispute or whose dismissal, discharge or retrenchment has
led to that dispute.
The definition of Trade Union in the Act is also important.
"trade union" or "union" means any association or combination of workmen or
employers, being workmen whose place of work is in West Malaysia, Sabah or
Sarawak as the case may be, or employers employing workmen in West Malaysia,
Sabah or Sarawak, as the case may be-
(a) within any particular establishment trade, occupation or industry or within
any similar trades, occupations or industries: and
(b) whether temporary or permanent; and
(c) having among its objects one or more of the following objects-
(i) the regulation of relations between workmen and employers, for the purposes
of promoting good industrial relations between workmen and employers,
improving the working conditions of workmen or enhancing their economic and
social status, or increasing productivity;
(ia) the regulation of relations between workmen and workmen, or between
employers and employers;
(ii) the representation of either workmen or employers in trade disputes;
(iia) the conducting of, or dealing with, trade disputes and matters related
thereto; or
(iii) the promotion or organisation or financing of strikes or lock-outs is any trade
or industry or the provision of pay or other benefits for its members during a
strike or lock-out;
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5. When we consider the specific provisions as to the formation of unions, we again
see that there is no deprivation of the right to migrant workers from forming
unions.
9. Date of establishment of trade union.
(1) For the purposes of this Act, a trade union is established on the first date on
which any workmen or employers agree to become or to create an association or
combination within any particular establishment, trade, occupation or industry,
and whether temporary or permanent, for the furtherance of any one or more of
the objects specified in the DEFINITION of a trade union in section 2….
Further, Section 8 of the Employment Act 1955 also clearly recognizes the right
of migrant workers to organize trade unions.
8. Contracts of service not to restrict rights of employees to join, participate in
or organize trade unions.
Nothing in any contract of service shall in any manner restrict the right of any
employee who is a party to such contract-
(a) to join a registered trade union;
(b) to participate in the activities of a registered trade union, whether as an
officer of such union or otherwise; or
(c) to associate with any other persons for the purpose of organising a trade
union in accordance with the Trade Unions Act 1959.
Today, the government has permitted certain employers, like the outsourcing
companies and labour supply companies, to have almost all workers who are
migrant workers, and surely these workers/employees must have the same right
as accorded to all other workers in Malaysia. Surely, workers in these companies
also should be accorded the right to form unions.
Migrant Worker and Social Security
In Malaysia, whilst local workers are generally covered by the Social Security
Act, migrant workers are covered by the Workmen’s Compensation Act.
The Workmen's Compensation (Foreign Workers' Compensation Scheme)
(Insurance) Order 1998, imposed a further obligation on employers to get an
insurance policy for their worker, which provides additional benefits in the event
of death of a workman from personal injury sustained in an accident which arises
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6. out of and in the course of his employment, and also covers accidents which
occurs outside the working hours of a workman
4. Additional benefits.
The insurer, in addition to its contractual obligations to pay in accordance with
the policy of insurance subscribed by the employer in favour of his workman,
shall provide under the Scheme the following additional benefits without imposing
any additional premium on the employer:
(a) a sum of two thousand ringgit in the event of death of a workman from
personal injury sustained in an accident which arises out of and in the course of
his employment;
(b) where the personal injury is sustained in an accident which occurs outside the
working hours of a workman –
(i) a sum of twenty thousand ringgit in the event of death or permanent total
disablement; and
(ii) a sum of money equivalent to the amount of compensation awarded under
section 8 of the Act for, and in the event of, permanent partial disablement or
temporary disablement; and
(c) a sum of four thousand eight hundred ringgit or the actual expenses incurred
in repatriating a workman to his country of origin in the event of his death or
permanent total disablement, whichever is the lesser.
Maybe employers should also be required to get a similar insurance for local
workers that will cover accidents which occurs outside the working hours of the
workman
Migrant Worker and Access to Justice
Whilst Migrant Worker rights are protected under Malaysian laws, the problem is
in accessing justice. They have the right to make complaints to the Labour
Department, which includes access to the Labour Court. They also have right to
refer their complaints to the Industrial Relations Department, and eventually to
the Industrial Courts in cases including wrongful dismissal.
The problem, however, lies in the fact that their employment
permits/visas/passes are usually limited to one employer only, and when they do
attempt to avail themselves to the procedures and avenues of justice, employers
can and tend to cancel their permits/visas/passes and their options are to leave
the country, or become undocumented migrants who may be arrested, detained
and deported.
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7. There is a really a need for the Malaysian government to consider practices in
other countries that do provide board and shelter for migrant workers as they
pursue their rights in the Labour Departments, Labour Courts, Industrial Courts
and even the Civil Courts.
The other option is for the variation of their permits/visas/passes so that these
workers can work with other employers whilst they pursue their rights.
The Immigration Department, however, is more inclined to provide them with
Special Passes (Regulation 14, Immigration Regulations, 1963), but these
normally will cost the worker RM100 per month, and without employment and
sources of income it really does not help much.
The Director General of Immigration does have wide powers, and this includes
the power to vary permits/visas/passes, which could include the durations and
even the name of the employer. An example of a case when the Director General
of Immigration did use this power to change the name of the employer, and
extend the duration of permits/visas/passes was in the case of Rajakannu
Boopathyii.
I call upon the Government to implement the recommendations made in the Bar
Council Memorandum on the Special Passiii which recommends inter-alia:-
(i) That a migrant worker pursuing legal remedy be allowed to remain in the
country until conclusion of the legal proceedings;
(ii) Whilst remaining in the country, the migrant worker be allowed to work;
(iii) That the fee for the Special Pass be waived;
(iv) That cases involving migrant workers be given priority and be expedited.
Inadequacies In Domestic Employment Act
Foreign Workers First Out= (FWFO) policy when it comes to retrenchment finds
support in section 60N of the Employment Act, 1955. The section, I believe, is
also ultra vires the Federal Constitution, i.e. Article 8 whereby this is certainly not
one of the permissible discriminations as provided in Article 8.
It also is contrary to the right not to be discriminated as stated in section 60L of
the Employment Act. I support the stance taken by 51 civil society groupsiv calling
for an end of this unjust, discriminatory and unconstitutional policy and practice,
known as Foreign Workers First Out = (FWFO) principle. The Last In First Out
(LIFO) principle should be used for all workers, irrespective of whether they are
local workers or migrant workers.
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8. 60N. Termination of employment by reason of redundancy.
Where an employer is required to reduce his workforce by reason of redundancy
necessitating the retrenchment of any number of employees, the employer shall
not terminate the services of a local employee unless he has first terminated the
services of all foreign employees employed by him in a capacity similar to that of
the local employee.
Employment (Termination And Lay-Off Benefits)
When workers in Malaysia are laid off or retrenched, by virtue of section 60J of
the Employment Act, we have Employment (Termination And Lay-Off Benefits)
Regulations 1980.
60J. Termination, lay-off and retirement benefits.
(1) The Minister may, by regulations made under this Act, provide for the
entitlement of employees to, and for the payment by employers of-
(a) termination benefits;
(b) lay-off benefits;
(c) retirement benefits.
The changing patterns of employment in Malaysia make this Regulation no
longer appropriate or just. Today, employers tend to employ workers for a short
fixed term, which usually could range from 6 months to 3 years. This applies to
both local and migrant workers.
The Employment (Termination And Lay-Off Benefits) Regulations 1980 may be
good for ‘old fashioned’ long term employees, but not these new fixed short-term
workers. Firstly, the Regulations is clear that there is no benefits available if one
has been employed for less than 12 months, and the number of years of
employment is the factor for calculating the benefits the worker gets.
3. General provisions for the entitlement of employees to termination or lay-off
benefits payment. [Employment (Termination And Lay-Off Benefits) Regulations
1980]
(1) Subject to these Regulations, an employer shall be liable to pay termination or
lay-off benefits payment calculated in accordance with regulation 6 to an
employee who has been employed under a continuous contract of service for a
period of not less than twelve months ending with the relevant date if —
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9. (a) the contract of service of the employee is terminated; or
(b) the employee is laid-off within the meaning of regulation 5….
These regulations will do justice for the long-termed employee but surely not for
the short-fixed-term worker, which include Migrant Workers.
6. Amount of termination or lay-off benefits payment.[ Employment
(Termination And Lay-Off Benefits) Regulations 1980]
(1) Subject to the provisions of these Regulations, the amount of termination or
lay-off benefits payment to which an employee is entitled in any case shall not be
less than —
(a) ten days’ wages for every year of employment under a continuous contract of
service with the employer if he has been employed by that employer for a period
of less than two years; or
(b) fifteen days’ wages for every year of employment under a continuous contract
of service with the employer if he has been employed by that employer for two
years or more but less than five years; or
(c) twenty days’ wages for every year of employment under a continuous contract
of service with the employer if he has been employed by that employer for five
years or more,
and pro-rata as respect an incomplete year, calculated to the nearest month.
By reason of the continued existence of section 60J and the Employment
(Termination And Lay-Off Benefits) Regulations 1980, it does great injustice to
the short-fixed-term worker. There really must be a new section in the
Employment Act, and maybe even amendment in the Employment (Termination
And Lay-Off Benefits) Regulations 1980 to provide for calculation of termination,
lay-off and retrenchment benefits for short-fixed term workers. What would be fair
and just is that these workers, who do not have the security of long-termed
employment, should maybe be paid at the very least the basic monthly wages for
the number of months remaining in their fixed-term contracts. For the migrant
worker, this will definitely be just considering the amount of monies that the
migrant workers had spent coming to Malaysia and the sacrifices they made,
including separation from their loved ones. Many migrants also incur debts when
they come over to Malaysia to work.
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10. Worker’s Minimum Standard of Housing and Amenities Act 1990
Whilst these laws do cover worker’s housing, accommodation and amenities in
plantations, it really must be amended to cover all migrant workers, including also
the domestic worker.
Conclusions
Whilst there are good laws that protect Migrant Workers in Malaysia, the problem
that needs our attention is the question of access of justice, a matter that the Bar
Council is seriously concerned.v How can the migrant worker be able to claim his
right if he has to leave the country because the worker’s permits/visas/passes
have expired (or been revoked) and our immigration laws require that them to
leave immediately. Coming back to Malaysia, not once but maybe several times,
to give evidence in their trial or to attend the statutory meetings at the Labour
Department or Industrial Relations Department is beyond the means of these
migrant workers. Hence, all we may have in Malaysia is a beautiful proclamation
of rights which really does no justice to migrant workers.
i
Article 5 (Liberty of the Person), Article 6(Slavery and Forced Labour Prohibited), Art.7 (Prohibition
against retrospective criminal laws and repeated trials), Art. 8(Equality), Art. 11(Freedom of Religion) and
Article 13 (Right to Property) are amongst the 8 Articles under Part II (Fundamental Liberties) of the
Federal Constitution that applies to all persons. Art. 9(prohibition from Banishment and Freedom of
Movement), Art.10(Freedom of Speech, Assembly and Association), Art.12 (Rights in Respect of
Education) uses the word “citizen” and not “persons”.
ii
Rajakanu Boopathy & 35 Ors –v- Ketua Pengarah Imigresen Malaysia & Anor (Kuala Lumpur High
Court Usul Pemula No:: R2-25-76 TAHUN 2000]
iii
Bar Council Memorandum Relating to Special Pass
iv
Media Statement B 14/3/ 2009 - Malaysia=s >Foreign Workers First Out= Policy Is Unjust,
Discriminatory And Unconstitutional (Endorsed by 59 Civil Society Groups)
v
Developing a Comprehensive Policy Framework for Migrant Labour – Bar Council – 16th July 2008.
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