Malaysia’s ‘Foreign Workers First Out’ Policy Is Unjust, Discriminatory And Unconstitutional - 2009/03/15 01:01Dear Friends,
Just sharing with you about a joint statement issued by 47 organisations about how Malaysia's Foreign Workers First Out policy/practice is unjust, discriminatory and goes against the Federal Constitution.
Media Statement – 14/3/ 2009
MALAYSIA’S ‘FOREIGN WORKERS FIRST OUT’ POLICY IS UNJUST, DISCRIMINATORY AND UNCONSTITUTIONAL
We, the undersigned organizations, groups and networks, concerned about migrant and worker rights, are appalled at Malaysia’s unjust, discriminatory and unconstitutional anti-worker policy, known as ‘Foreign Workers First Out’ (FWFO) policy when it comes to retrenchment.
A recent Malaysian newspaper report read,“…Employers must retrench their foreign workers ahead of their Malaysian staff as they seek to weather the current economic slowdown, said Deputy Human Resource Minister Datuk Noraini Ahmad. She reiterated that employers should adopt the Government’s foreign worker first out (FWFO) principle…”(Star, 28/2/2009 - Retrench foreign workers first, employers told)
Whilst appreciating Malaysia’s concern for its own citizens’ employment, this should never excuse employers from fulfilling their contractual obligations to workers.
It is very wrong for the Malaysian government to compel/encourage employers in Malaysia to retrench their foreign workers first, before the expiration of the agreed duration of employment. Employers should have been fully aware of risks of economic crisis and other business risks, and as such there is no justification whatsoever of their breaching their employment agreements now.
It must also be appreciated that foreign workers do expend lots of monies, incur debts and make great sacrifices when they do decide to come over to Malaysia to work. These workers rely heavily on the representations of the employers and/or their agents especially with regards to wages and the length of period that they will be employed, before deciding to enter into employment agreements and coming over to Malaysia to work.
Employment agreements with migrant workers are usually for a period of 3 to 5 years, and it would be a great injustice if Malaysian employers are now encouraged and permitted to prematurely terminate this employment agreement, and send these foreign workers back to their home country.
Early termination of employment agreements for many a migrant worker means ending up in a far worse condition than when they first entered into employment agreements to come and work in Malaysia. This is a great injustice, and it is inhumane.
If there is going to be early termination of employment agreements which are for a minimum fixed period of employment, then the worker must be paid adequate compensation, at the very least basic wages for the remaining duration of their employment agreement. Usual termination and lay-off benefits paid to local workers will definitely not be just for a foreign migrant worker who is sent back to her country.
We also wish to state that this ‘Foreign Workers First Out’ (FWFO) policy and practice is unconstitutional, as it goes against Article 8 of the Malaysian Federal Constitution, whereby Article 8(1) clearly provides that 'All persons are equal before the law and entitled to the equal protection of the law...', and there is nothing in the Constitution that permits discrimination against non-citizens, in favour of citizens, with regard to employment. Therefore, section 60N of the Employment Act 1955, which some use as the basis of FWFO practice is ultra vires the Federal Constitution, and as such is invalid.
We believe that it is better that migrant workers who are now in Malaysia who are or will be prematurely terminated be first used to fill up existing manpower needs, rather that bringing in new migrants.
We call on the Malaysian government to immediately stop this unjust, discriminatory and unconstitutional policy and practice, known as ‘Foreign Workers First Out’ (FWFO) principle.
We call on Malaysia to demand that all employers fulfill their contractual agreements with regard to all workers, including foreign workers. We hope that mechanisms are put in place to ensure that employers pay workers adequate and just compensation for any early termination of employment agreement.
Charles Hector Pranom Somwong
for and on behalf of the following 46 organisations
ALIRAN, Malaysia All Nepal Women's Association (ANWA) (Nepal) Asian Forum for Human Rights and Development (FORUM-ASIA) Asia Pacific Mission for Migrants (APMM) Asia Pacific Forum on Women Law and Development (APWLD) Bahrain Center for Human Rights Building and Wood Workers International, Asia Pacific Region (BWI) CARAM Cambodia Civil Rights Committee - Kuala Lumpur and Selangor Chinese Assembly Hall (CRC-KLSCAH), Malaysia Committee for Asian Women (CAW)
Community Development Services (CDS), Colombo, Sri Lanka Coordination Of Action Research on Aids &Mobility (CARAM-ASIA) Federation of Trade Unions – Burma (FTUB ) Global Alliance against Traffic in Women (GAATW) Hope Workers’ Center, Taiwan IMA Research Foundation Bangladesh Institute for Migrant Workers (IWORK), Indonesia International NGO Forum on Indonesian Development (INFID) Lawyers for Human Rights and Legal Aid (LHRLA) Pakistan Legal Support for Children and Women (LSCW), Cambodia
MADPET (Malaysians against Death Penalty and Torture) MAP Foundation for the Health and Knowledge Of Ethnics Labour, Thailand Messrs Charles Hector, Malaysia Mindanao Migrants Center for Empowering Actions, Inc. (MMCEAI), Philippines Migrant CARE (Perhimpunan Indonesia untuk Buruh Migran Berdaulat) Migrant Services Centre – NWC, Sri Lanka Multi National Women's Organization of Burma ( MNWO Myanmar Refugee Volunteer Group (MRVG) National Alliance of Women Human Rights Defenders (NAWHRD), Nepal Nepal Institute of Development Studies (NIDS)
Network of Action for Migrants in Malaysia (NAMM) Nijera Kori, Bangaladesh Ovibashi Karmi Unnayan Program( OKUP), Bangaladesh Parti Rakyat Malaysia (PRM) Persatuan Masyarakat Selangor & Wilayah Persekutuan (PERMAS), Malaysia Raks Thai Foundation, Thailand Solidaritas Perempuan, Indonesia Suara Rakyat Malaysia (SUARAM) The Action Network for Migrant Workers (ACTFORM), Sri Lanka The Development Action for Women Network (DAWN), Philippines
The Prevention of HIV/AIDS among Migrant Workers in Thailand Project (PHAMIT) Transient Workers Count Too, Singapore United for Foreign Domestic Workers Rights (UFDWRs) WARBE Development Foundation, Bangladesh Writer Alliance for Media Independence (WAMI), Malaysia Women's Rehabilitation Centre (WOREC), Nepal Workers Hub 4 Change (WH4C)
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Will the Bar lead in stopping discrimination ..injustice to non-citizens? - 2009/03/27 19:33Will the Bar Council take this up?
No politicians...including former human rights activist is today going to come out and champion for justice and human rights of foreign workers - after all they are not the ones who will be voting in the MPs and the ADUNs.
The Foreign Worker First Out policy and practice is unconstitutional, as it goes against Article 8 of the Federal Constitution that guarantees equality. Article 8 (1) provides that 'All persons are equal before the law and entitled to the equal protection of the law...'. There is no exception that would allow the discrimination of a person based on whether he is a citizen or a foreigner. There is also no exception that allows for discrimination in the area of employment in the private sector.
When it comes to retrenchment, the general principle followed was 'Last In First Out' (LIFO) but today in Malaysia a new principle is emerging 'Foreign Workers First Out'(FWFO) - and the question is whether this is right.
Remember the highest law of the land is the Federal Constitution - and Article 8 (1) provides that 'All persons are equal before the law and entitled to the equal protection of the law...'. The word used is 'person' - and that clearly means it applies to both citizen and non-citizen.
Again Article 8(3), which uses the term 'person' states as follows: 'There shall be no discrimination in favour of any person on the ground that he is a subject of the Ruler of any State.' Does this refer to only the States in Malaysia - or does it refer to 'any State' as in any nation...any country? The word used is 'person', and not 'citizen' and as such it leans towards the interpretation that this applies also to foreigners.
There are stated exceptions in Article 8, where discrimination is permissible - but alas there is nothing that allows discrimination based on the fact that a worker is not a Malaysian national.
In the Employment Act 1955, Section 60N, it states:-
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.
[Ins. Act A1026]
Thus, it seems that the FWFO principle seems to be coming from the Employment Act - but is not section 60N going against the Federal Constitution?
Section 60N is ultravires the Federal Constitution - and that FWFO principle is unconstitutional, and must be stopped.
Foreign workers who have been retrenched using this FWFO principle can possibly commence legal action against their employers - and be awarded damages.
Employers must retrench their foreign workers ahead of their Malaysian staff as they seek to weather the current economic slowdown, said Deputy Human Resource Minister Datuk Noraini Ahmad.
She reiterated that employers should adopt the Government’s foreign worker first out (FWFO) principle. - Star, 28/2/2009 - Retrench foreign workers first, employers told
Article 8 of the Federal Constitution is laid out in full belowto convince you that there is no provision there that justifies discrimination of workers based on their not being citizens:-
(1) All persons are equal before the law and entitled to the equal protection of the law.
(2) Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.
[Am. Act A1130]
(3) There shall be no discrimination in favour of any person on the ground that he is a subject of the Ruler of any State.
(4) No public authority shall discriminate against any person on the ground that he is resident or carrying on business in any part of the Federation outside the jurisdiction of the authority.
(5) This Article does not invalidate or prohibit -
(a) any provision regulating personal law;
(b) any provision or practice restricting office or employment connected with the affairs of any religion, or of an institution managed by a group professing any religion, to persons professing that religion;
(c) any provision for the protection, well-being or advancement of the aboriginal peoples of the Malay Peninsula (including the reservation of land) or the reservation to aborigines of a reasonable proportion of suitable positions in the public service;
(d) any provision prescribing residence in a State or part of a State as a qualification for election or appointment to any authority having jurisdiction only in that State or part, or for voting in such an election;
(e) any provision of a Constitution of a State, being or corresponding to a provision in force immediately before Merdeka Day;
(f) any provision restricting enlistment in the Malay Regiment to Malays.
And the solution is not to push for a constitutional amendment so that we can constitutionally discriminate against foreign workers ..
We should be concern about all human persons - irrespective of their nationality, ethnicity, religion, gender, etc.
Our concern must be Equal Rights and Justice for All..
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Re:Will the Bar lead in stopping discrimination ..injustice to non-citizens? - 2009/05/26 12:38What is the Malaysian Bar doing about this?
Clearly, we are talking about foreign workers here - and unfortunately many of them do not have their own unions or associations to represent them - to take this issue of discrimination to court...
MPs and ADUNs or other political parties are not really going to be interested in this 'foreigners' - they do not have the right to vote. Further, taking a stance in this issue may not go down well with Malaysians themselves, especially when we are facing economic crisis. Malaysians also losing jobs...or are being threatened with job/business loss?
Human Rights is human rights - and these 'foreigners' are human persons...
Justice is Justice..
The Bar did have a committee on DISCRIMINATION - but now it has been absorbed in the Human Rights Committee...this would have been a matter for this committee
The Bar now have a committee on Constitution - maybe this can also be considered by this committee..
Either way, the Bar must at the very least come out with a statement (which is easy to do) on this issue of discrimination and unconstitutionality...
Charles Hector Former Bar Council Member Former Chair of the Bar's Anti-Discrimination Committee...
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