The Malaysian Bar welcomes the International Labour Organization (“ILO”)’s
1 initiative to include an agenda item on decent work for domestic workers for consideration at the 100th Session of the International Labour Conference (“ILC”), to be held in Geneva from 1-17 June 2011. This second discussion of the topic at the ILC will take place with a view to the adoption of a new and comprehensive international labour standard for domestic workers, in the form of a Convention supplemented by a Recommendation.
The Convention would be an international treaty that ILO member States could ratify and be legally bound by. The Recommendation would be a non-binding guideline to provide additional guidance on the application of the Convention.
Domestic workers make up an important segment of the labour force and play an increasingly significant role in the functioning of individual households in many countries. In spite of this, they are susceptible to abuse and exploitation because they often receive scant labour protection, are not accorded the same rights as other workers, and work in isolated situations without access to external assistance. It is thus timely that an international standard be adopted that sets out basic principles and rights of domestic workers and provides a framework for their protection, and that Malaysia then become a State Party to that Convention without delay.
The Malaysian Bar is deeply concerned about the plight of domestic workers, both local and foreign, who number over 300,000 in Malaysia. There have been numerous cases and reports of domestic workers being subject to physical and other forms of abuse, and appalling working and living conditions, and whose wages are not paid.
The Malaysian Bar is disappointed that, at the 99th Session of the ILC in June 2010, the Malaysian Government chose to join the minority of governments in favour of a non-binding Recommendation, and spurned the opportunity to take a visible stand in support of the rights of domestic workers. Furthermore, the views expressed by the government, which revolved around the flawed premise that “domestic workers cannot be equated to other workers in general”, were aimed at diluting the protections contained in the draft text of the proposed Convention.
For example, the Malaysian Government stated that:
(a) The terms and conditions of work – such as normal hours of work, overtime compensation, periods of daily and weekly rest, and paid annual leave – should not have to be on par with those for workers in general, and should be governed by individual employment contracts;
(b) Work done in a household relating to an employer’s trade, business or profession should be excluded from the scope of the Convention;
(c) Maternity benefits for domestic workers can differ from those for workers generally; and
(d) “Employment agencies should be allowed to deduct fees from the remuneration of domestic workers, provided that it is done in a fair and equitable manner that is agreeable to both parties”.
The government’s lack of commitment to safeguarding domestic workers’ rights is even more evident on the home front. Domestic workers receive minimal protection under the Employment Act 1955, which does not confer them with the same measure of protection as other workers. For example, the Act expressly excludes domestic workers’ rights where rest days, paid public holidays, annual leave, sick leave, maternity and termination benefits are concerned. Consequently, they are not entitled to a day of rest per week or to a limit in the number of hours that they can be compelled to work.
Reliance on the employment contract alone to protect domestic workers is woefully inadequate, as domestic workers do not have the bargaining power to negotiate contractual terms in their favour, and local domestic workers generally do not have such contracts. Furthermore, as such contracts are private in nature, aggrieved workers would have to pursue legal remedies under private contract law, which accords them less protection.
Rather, domestic workers’ rights must be codified through legislation, as the imposition of a statutory obligation will have far greater weight, and will allow the Ministry of Human Resources to enforce the provisions and prosecute those who breach them. Codification will also make these provisions applicable to
all domestic workers, both local and foreign. Furthermore, without statutory provisions, there is no threat of strong sanctions and harsh penalties for offending employers, and instances of exploitation will thus continue unabated.
The Malaysian Bar calls on the Malaysian Government to amend the Employment Act 1955 to ensure comprehensive statutory protection for domestic workers, who are sorely in need of greater protection from the State.
We also strongly urge the Malaysian Government to usher in a new era of upholding the rights of domestic workers, by voting in Geneva in favour of a strong Convention that would pave the way for governments to recognise domestic workers as workers and accord them fundamental workers’ rights consistent with international standards.
Lim Chee WeePresidentMalaysian Bar31 May 2011 1 The ILO is the United Nations’ specialised agency responsible for setting international labour standards.
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Looks like domestic workers will have better rights compared to junior legal assistants slaving away in law firms found in the Bar Council's directory.