By Leela Chelvarajah
This paper is about one of the five factors of production – manpower, of the foreign kind.
2. By the end of the 80's, in the wake of the industrial revolution that was started in the 70's, the country's population could not keep pace with the surge forward by eager entrepreneurs. Some sectors like the plantation and construction industries, actually turned off the local manpower.
3. So in the early 90's, the country needed to import a workforce while other countries needed to supply their manpower. These two complementary needs should lead to a marriage of convenience. The eager entrepreneur overcomes his manpower shortage problem at a reasonable cost and the foreign worker gets the opportunity not only to be employed but also with an income to improve the lives of his family, a dream come true.
4. At least, this is what was supposed to happen when the importing need and exporting need matched each other. Why then did the Chin Well case arise? Hot on its heels, why did the strikingly similar case of Fudex arise?
5. Of everything in between the first import of foreign workers and now, why is there an increasing number of cases being reported in the press and Malaysiakini that foreign workers are being cheated and short–changed by local employers, their local middlemen and their foreign agents? These reported cases are far from being sporadic or isolated cases of exploitation. They appear in all the states that import foreign workers.
6. It should be noted that regardless of country of origin, the exploited workers bemoan a similar pitiful story of victimization at the hands of their employers with the help of the employer's local and foreign agents. It would be naive to conclude that the number of incidents of exploitation of foreign workers is as rare as the only two known cases to reach the High Court level, as above mentioned. One diplomatic mission alone says that it has 300 complaints received from its countrymen but not one has been pursued with the authorities. Embassies and High Commissions, being diplomatic missions, are hesitant to intervene in a private contract of employment which could throw up a potential dispute about the interpretation of Malaysian laws which is forbidden territory for a diplomatic mission. As for the foreign workers themselves, it comes as no surprise that, without a common language of the perpetrators of the cheating, and being culturally disoriented, the foreign workers should be joining the ranks of the other neglected groups in this country.
7. Experience on the international front has proven that migrant workers have been important contributors to the development of nations. Look at our gleaming new buildings and highways; you will know that without the sweat and labour of the foreign workers, none of that would have been completed in that time frame. And we know that foreign workers are going to be needed here for a very long time. They perform tasks that our local manpower reject, or step in when the local numbers are insufficient. One would have thought that some appreciation or gratitude would be appropriate. But no, sad to say, it is greed and inhumanity on the part of employers that have caused the shameful incidents that are being reported.
8. Perhaps it is time to understand the extent to which the conspiracy between the local employer, his local middleman and his foreign agent has shattered the dreams of the foreign workers. The details given here make up the cover story only. There is much more mess exposed in the judgment of the Chin Well case, which highlights the plight of about 80 workers from India. Each of them had indebted himself by having to pay Rupees 100,000 (about RM8,000) to the employer's foreign agent in India to secure the employment in Malaysia. The foreign agent led them to believe that they would earn a basic salary of RM600 per month and with overtime would earn RM800 per month, a monthly wage of Rupees 10,000 being a princely sum in India. It was established in Court that the employer had signed a contract of employment and three other documents as required by the Indian High Commission promising a basic salary of RM600 per month. Having arrived and worked in this country, they were eventually paid only RM350. Further, the employer deducted a 'levy' of RM152 from this sum though he had expressly contracted not to do so in the official documents.
9. Not only were they deprived of income, the employer cut off the water and electricity supply to the hostel so as to evict them from the hostel when they protested.
10. The employer then attempted to force them to sign a fresh contract for a pay of RM350 and to agree to the deduction for levy. One of the six workers who succumbed had this pathetic rationale, 'I simply could not stand the hunger'.
11. The High Court rescued them from a desperate and helpless situation. The court found that the local employer, the local middleman and foreign agent had all conspired to defraud these innocent workers who had been 'cheated, degraded and denied food and basic amenities'. Strong condemnation indeed!
12. The modus operandi in the conspiracy to defraud the income of the foreign workers in the Fudex case is similar to that of the Penang High Court case but even more draconian in other aspects. Here, the pay was halved to RM300 per month. Some two months after the start of work, the local middleman and the foreign agent (who had flown in) physically beat up the workers one night in the hostel to soften them up so that the next morning the employer could compel the workers to sign a fresh contract for the halved pay and for consent to have their pay deducted for levy.
13. Forty five workers who did not sign were locked out from the workplace. For two months they languished, depending upon charity for their single meal a day. They literally had to beg, and sob at the humiliation of having to do so. The employer left them stranded. One worker attempted suicide while another two ran away. Nobody should go through such suffering.
14. The employer stopped payment of the electricity bill at one of the three hostels occupied by the workers, which resulted in the occupants cramming themselves into the other two hostels in unhealthy and deplorable living conditions.
15. The employer then singled out some of the workers, got their work passes cancelled at the Immigration Department which had been all too easy with a fabrication that the identified workers were ringleaders of a strike; obtained some policemen from the district police station for the purpose of intimidating the identified workers; manhandled them onto a bus with the police escort sitting in; pushed them forcibly into the exit area at KLIA and deported them, ie the authorities harassed them. All in a day's work for the employer made easy by his wrongful retention of the workers' passports.
16. This was the situation which the team from the Bar Council Legal Aid Centre, Melaka found them to be in, and managed to prevent further deportations. It would be timely to quote the 2003 Nobel Peace Prize winner Shirin Ebadi: 'A human being divested of all dignity, beaten....., humiliated and plundered, is not in any position or state to recover the rights he or she has lost'.
17. Apart from the issues of (1) defrauding and (2) deportation, one should also be aware of the other horror stories befalling this lot:
- a) being locked out and stranded in a foreign country with no home or family to go to;
b) unsafe working conditions (which locals refuse to accept) without protective equipment. Bad burns were caused on their forearms for lack of long–sleeved gloves, something as common and inexpensive as that. Scalding was caused on their feet by boiling water used to wash the floor at the end of the shift, yet no safety boots were provided;
c) refusal to let them see the company panel doctors even for the employment injuries caused by non–provision of protective equipment;
d) deplorable hostel conditions;
e) total polarization from local employees;
f) deprivation of benefits given to other workers;
g) condonation of abuse of the workers by local employees;
h) victimization by their supervisors with no recourse to a grievance procedure; and
i) social needs totally ignored.
18. Despite eventual consent by the employer to abide by the terms of the contract of employment, the workers report incidents of these aberrations every now and then, meaning that victimization by the employer continues with scant regard for the High Court order of settlement.
19. You will be reminded, from this account, of the stone–age master/servant relationship in England during its industrial revolution, and duplicated in this country prior to our Labour Ordinance 1955. We have made so much progress since then to become enlightened employers and civilized employees. Yet in this day and age, some employers are still resorting to their stone–age tactics, but not on the local employees. Their target is the hapless foreign workers. The question is why. 'Human Greed' is the answer, helped along by the non–intervention on the part of the diplomatic missions of the workers, and a very large dose of apathy on the part of our very own authorities who should be looking after their welfare, and an equally large dose of harassment from our other authorities who accept implicitly the fabrications made up by the employers. This is the perspective today of the foreign workers in Malaysia.
20. The theme today is 'Their rights and employment in Malaysia'. That leads to the question: what rights do they have and the attendant question, which laws are we concerned with?
21. First, since the sequence of events started with a contract of employment, we will look at the contractual rights of the foreign workers.
22. The employer signs a contract of employment to lure the foreign workers into coming to this country, then promptly breaks the fundamental terms of the contract, and deviously attempts to force the workers to sign another contract so as to retrospectively justify his breaches of the original contract. In Chin Well the Court held 'that notwithstanding the fact that the Plaintiffs had not signed the agreement, the very fact that they came on the representation made by the Defendant's agent and the fact that the Defendant's Managing Director himself had signed the contract of employment, are sufficient grounds to hold that there indeed was a contract between the Plaintiffs and the Defendant'. The Court also held that the Plaintiffs are entitled to all the benefits stated in the contract document. The facts in Fudex are also identical.
23. In both High Court cases, the employer's rationalization for his breach of contract was that the contract was a 'mere formality'. There is a sinister ring about this phrase 'mere formality', stated with the same words by two different employers far away from each other. It smacks of a hidden hand providing a pattern of planning and training of unethical employers on the lookout for minimal cost of cheap labour, or better still, at no cost at all. The likely planners of this unholy scheme would be the unscrupulous local middleman and the foreign agent on the prowl for ludicrous commissions. Such persons may even be part of an international gang of traffickers of illegal immigrants.
24. Our country has the codified Contracts Act 1950 firmly in place, efficiently dispensed with by our courts. So the problem is not one of inadequacy of our codified contract law. It is the problem of enforcement which prevents more such actions from reaching the courts.
25. The reason is that the foreign workers have very little capacity to enforce their rights in the contract. The major problems are the language barrier, the cost of lawyers, inability to remain in the country to fight the case or work as the employer will inevitably instruct the Immigration Department to cancel their work passes by citing some fabrication such as strike, assault, etc. It is also hard for them to even know about or scout around for a volunteer lawyer. They are culturally disoriented and simply just ignorant of who to turn to. Even if they were to know that, they would be just too plain scared to complain to the authorities for fear of repercussions with the employer who holds the trump card by wrongfully retaining their passports with which he threatens deportation. These actions are claimed by employers to be 'their rights'!
26. Foreign workers are entitled to be given what was promised to them in the original contract of employment. The solution lies in more proactive action to be taken by all authorities involved in the subject of employment, regardless of whether it is for the locals or foreigners. This is not the Ministry of Home Affairs' matter alone just because this Ministry issues the permits to import the foreign workers. The subject of employment must involve the Ministry of Human Resources.
27. A number of interactive actions stated below may well alleviate the problem:
- a). The Bar Council in a Press Statement on 28th July 2003 said 'The Ministry of Human Resources must immediately conduct a thorough review of the process of recruitment of migrant workers to ensure that they will no longer be susceptible to deception or exploitation in this country. Wherever necessary to achieve that aim, the co–operation of its counterpart in the supplier countries must be sought and obtained. The authorities on both sides must see that agreed conditions of employment are strictly adhered to, and t deception takes place'. Clearly neither the suphat no misrepresentation or plier country nor Malaysia can stay in isolation over this issue.
b). The Ministry of Human Resources must work with the diplomatic missions on a standardized set of terms and conditions for General Workers (as the manual workers are known), the contract for which will be originated by the diplomatic mission and endorsed by the Ministry of Human Resources. Employers will be wary of fooling around with a contract containing the Ministry of Human Resources' endorsement. It is all too easy for them now to thumb their noses at the diplomatic mission's documents. Chin Well highlighted this need when the Court stated that 'it is necessary and appropriate for both Governments to look into this recruitment procedure for manual workers more intently so that such an episode is never repeated'.
c). The diplomatic missions and the Ministry of Human Resources must also ensure that local middlemen be excluded from the process at the first stage till completion of the contract; the employer must be made to deal directly with the diplomatic missions. However, if the Government allows agents as announced in the press, it should only be for accredited, registered agents with a conscience. Otherwise, there will be a repeat of the fiasco ten years ago of fly–by–night touts calling themselves agents. If we care to remember our past experiences, we will learn our lessons.
d). As for the foreign agent, the diplomatic missions must eliminate such touts except for making travel arrangements. They should take a cue from the Indian experience of appointing a Protector Of Emigrants who will ensure that his government's wishes for the protection of its citizens going abroad to work, are executed correctly within his country, and without the country by its diplomatic mission.
e). The diplomatic mission itself must, if it is to protect its citizens from further damage, take a more pro–active and interventionist role in obvious incidents when local employers openly flout or show disregard for documents originated by the diplomatic mission and accepted and signed for by the local employers in the diplomatic missions and witnessed by the diplomatic staff. Such aberrant local employers should be reported by the diplomatic missions to the Ministry Of Human Resources where a special unit set up for foreign workers should activate remedial action through the normal procedure of Employment Department investigation and adjudication. Recently, a group of IT expatriates in Brickfields were protected by their diplomatic mission but why the same protection is not extended to the uneducated manual workers is not understood.
f). The diplomatic mission must insist that in the event of an imminent cancellation of a work permit, placement in a holding camp or deportation of its citizen, it must be given immediate notice of it and access to its citizen prior to high–handed action by the Immigration and Police authorities. Let these two departments not forget the lesson they were taught over the Brickfields IT expatriates case when the Home Minister had to apologize and guarantee disciplinary action against the bad boys in order to appease one diplomatic mission.
g). To work together with the diplomatic mission, the Ministry of Human Resource should compel the employer to justify his reasons for his actions against the foreign employees to the diplomatic mission, and give its staff access to the foreign employee prior to the actual cancellation of a work permit and/or deportation.
h). For all this to happen, an agreement has to be signed by the two governments of the supplying and receiving countries prior to the movement of workers from the former to the latter. Since such inter–governmental understanding is missing in many cases, is it surprising that employers take advantage?
28. Having dealt with the contractual obligations and responsibilities of the employers, we can move on to the specialised Law of Employment in the Employment Act 1955. Each state in the country has an Industrial Relations Department to deal with complaints of wrongful dismissal and an Employment Department to deal with breaches of an ongoing contract of employment. The Employment Act 1955 has a special portion dedicated exclusively to the handling of foreign workers in Part XII B. It is interestingly titled as 'Employment of Foreign Employees'. Note that the nomer for the foreigners is the dignified 'Employees', not 'Workers' or 'Labourers' or 'Aliens'. Reference is made to the following sections of the Employment Act 1955:
- a). section 60K imposes a duty on the employer to furnish information and returns of foreign employees to the State Employment Office;
b). section 60L enables the Employment Office to inquire and resolve any complaint from a foreign employee that he is being discriminated against in relation to a local employee;
c). as the foreign employees are entitled to the protection of the rest of the Employment Act 1955 as any other local employee would be, Section 24 in Part IV is relevant. Any employer who makes deductions from the wages of an employee otherwise than in accordance with this Act or without the prior consent of the Director, commits an offence punishable with a fine of RM10,000; and
d). part XII relating to conditions of service is relevant, breach of Sections 58 A to 60I being liable to prosecution in a court of law.
29. In both the High Court cases, when the foreign employees lodged complaints about breaches of their terms and conditions of service as well as of Section 60L of the Employment Act 1955 at the State Employment Office, 'their complaint was not acted upon' to quote from the judgement in the Penang case. The question is why not, if they are 'employees'?
30. When the Legal Aid team moved in on the Fudex case to initiate action on behalf of the foreign employees, the reaction from the authorities was 'why do you bother, they are only foreigners'. Such crass lack of concern for the foreign employees as human beings, and blindedness to the laws to be upheld rather than the status of the employee being focused on by the authorities, should be seriously reviewed by the Ministry Of Human Resources if there is any value to be given to specific laws passed by Parliament for the purpose of protecting the foreign employees as in Part XIIB of the Employment Act 1955.
31. Despite omissions of the employer's duty in Section 60K of the Employment Act 1955, and evidence adduced of unlawful deductions of wages in breach of Section 24 of the Act, all that has happened to the employers in the two High Court cases is that they have been ordered to reimburse the foreign employees all unlawful deductions made by them. The authorities were most reluctant to even censure the employers, leave alone take them to court on a summons. In one of the two cases, it was even proven that the employer had duped the Director of the Employment Department to give his consent and to retrospectively backdate such connived consent for eight months so as to 'validate' unlawful deductions made for the previous eight months.
32. As long as apathy on the part of the authorities condones the flouting of the employment laws by the employers, we cannot expect anything other than a worsening of the present situation. But can we afford for it to get worse? As at June 2003, the Ministry of Home Affairs has issued 1,163,194 work permits for General Workers. Another 80 thousand have been approved, which takes this country's foreign workers' population closer to 2 million, equal to almost 10% of our home–grown population. Clearly our employers need such foreign employees. Hence they must improve the situation.
33. The Ministry of Human Resources has to become aware of the necessity that (1) its state representatives have to give equal treatment to all 'employees' in the reception and adjudication of complaints regardless of their country of origin; and that (2) enforcement action in the courts against errant employers who flout the laws is the only way to send the message across to new hopefuls planning to try every trick in the book to get free labour.
34. Having discussed the contract and employment laws, I move on to the third area of the laws relevant to the foreign employees. This would be the immigration laws.
35. The unscrupulous employer takes possession of the passports. He claims it is for the safekeeping but in reality it makes it so convenient for him to threaten the foreign employees with deportation, and to cow them into submission in anything he wishes to do to them, and to get the Immigration Department to cancel the work–permits in the passports of these foreign employees who attempt to exercise their rights against the employer. In such an event, the cancelled work permit holder automatically becomes an illegal worker for 'failure to be in possession of a valid work document'. One may ask: how can a foreign employee who has entered the country on valid work documents, overnight become an illegal person during the tenure of his work permit for the reason that he 'failed to be in possession of a valid work document'? The logic escapes me. He is then thrown into a holding camp, along with actual illegal immigrants who attempted to enter the country without valid documents, before he is sent home ignominiously against his wishes.
36. In the Press Statement titled 'The Sorrowful Plight Of Foreign Workers', the Bar Council called upon the Ministry Of Human Resources to 'procure the cooperation of the Immigration Department to revoke the present practice of immediately cancelling the permits' for the deportation of the foreign employee. After all, the Immigration Department would not know whether the employer's explanation for the cancellation is truthful or his action to terminate the foreign employee is lawful. The current practice enables an unscrupulous employer to hold migrant workers to ransom. In the two High Court cases above, it needed an Interim Injunction from the High Court to stop further damage to the legality of their work permits from being done by the employer who was helped along unquestioningly by the Immigration Department.
37. The Immigration Department must not, in the first place, condone a breach of passport regulations by the employer when he holds on to the passports for his own ulterior motives. If the Immigration Department can enforce the passport regulation that the passport must remain in the possession of the passport–owner, the employer's holding to ransom and deportation of the foreign employee cannot be facilitated by the Immigration Department.
38. The Immigration Department should reciprocate to inform the Foreign Consulate should a foreign employee's work permit be imminent for cancellation. It was the same diplomatic mission which facilitated the entry of the foreign employee into this country. Diplomatic courtesy requires that the diplomatic mission be kept informed on the status of the foreign employee. Common sense requires that some diplomatic staff speaking the same language as the foreign employee be allowed to speak with the latter.
39. It should be interesting to know how many of the purported 'illegals' detained in the holding camps are not really 'illegal' within the immigration definitions of entry without documents or (2) overstaying or (3) breaching the laws of the country, but just because the employer has cancelled a work permit for his own hidden agenda and dumped the foreign employee in the holding camp so as to be out of his way!
40. In the case of Raja Kannu, the Plaintiffs had to obtain an order of mandamus against the Defendants to enforce an earlier consent agreement by the Defendants to allow the transfer of the Plaintiffs to a new employer who needed their services during the tenure of their valid work–permits, when their own employer did not require their services anymore. After agreeing initially to allow the transfer, the Defendants backtracked, preferring to cancel the work–permits which would have automatically made the workers to become 'illegals', with the consequences of a holding camp and deportation. And all because the original importer 'did not require their services anymore' during the tenure of valid work –permits! A tenuous argument indeed!
41. On 18th January this year, the press reported that the Home Ministry has bought machines costing RM8 million to process special identity cards to be issued to legal foreign workers. It is said that 'It can help protect foreign workers from undue harassment'. My question would be, how such an identity card per se would protect the foreign workers from undue harassment if the employer cancels the work–permit with a fabrication and the Immigration Department co–operates with him?
42. In all three areas relevant to foreign employees, ie the laws of contract, employment and immigration, one would have noticed that there are laws in place and these laws are adequately practised and applied to the local employees. In my humble opinion the sorrowful plight of foreign employees is not due to a lack of laws. It is due to a lack of the proper attitude and perception towards these people. The proper attitude should be one of appreciation to 'guests' who have been invited in by our own employers to shoulder the tasks that our own local employees are unable or unwilling to do. Instead, these people are perceived as 'aliens', on the same footing as 'illegals'. Rather than realising that these people are contributing their labour and sweat to the nation's progress on to material wealth, they are perceived as sucking benefits out of the country. It is this mind–set that is the cause of the apathy, the foot–dragging, the prejudice and discrimination shown by the authorities, which apathy etc. in turn condones the cheats, the greedy and the inhumane employers, and which keeps the middlemen and agents in comfortable living.
43. For purposes of good governance, the Bar Council called on the government to ratify the United Nations 'International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families' which came into force on 1st July 2003. The Convention seeks to play a role in preventing and eliminating the exploitation of migrant workers throughout the entire migration process. In particular, it seeks to put an end to the illegal or clandestine recruitment and trafficking of migrant workers and to discourage the employment of migrant workers in an irregular or undocumented situation. It provides a set of binding international standards to address the treatment, welfare and human rights of both documented and undocumented migrants, as well as the obligations and responsibilities on the part of the sending and receiving countries. The Convention also imposes a series of obligations on countries in the interest of promoting 'sound, equitable, humane and lawful conditions for the international migration of workers and their families. These requirements include the establishment of policies on migration; the exchange of information with other countries; the provision of information to employers, workers and their organisations on policies, laws and regulations; and assistance to migrant workers and their families'.
44. In particular, Part II deals with non–discrimination with respect to rights; Part III deals with human rights for all workers and members of their families; Part IV deals with other rights of workers; Part IV deals with the promotion of sound, equitable, human and lawful conditions in connection with international transmigration.
45. Here in this Convention, we have all the criteria for transmigration, all the rights and responsibilities of the supplying and receiving countries with the impact of such on the migrant workers, laid out comprehensively for us, the homework already completed. If Malaysia is committed to be a civilized and caring society which respects human rights, it must ratify the Convention. Then, it must put it into practice. The criteria in the Convention must be adopted in the intergovernmental agreements which have yet to be signed in many cases despite thousands of migrant workers who are already in this country from certain supplier countries.
46. Among others, Article 16 specifies that 'no migrant worker shall be subjected to torture or to inhuman or degrading treatment or punishment and not to be held in slavery or servitude.' A re–think by our country's authorities and employers along this line is required.
47. To deny the foreign workers the protection of this country's laws merely on the basis of their 'foreign–ness' is to add to the long list of differentiations this country practices. It is to derogate from the 'all are equal before the law' rule of law. Ultimately, it is that rule of law that must prevail; it is the country's laws that have to be respected, not whether the worker is less equal before the law because he is foreign.
48. To invite them into the country and then to allow the voiceless foreign workers to be cheated and ill–treated by turning a blind eye is a national disgrace!
49. We have marginalised them enough. The exploitation of migrant workers must become a thing of the past, a sad experience and memory for the thousands who have suffered at the hands of nasty employers. The 'ugly Malaysian' image that we have built up for ourselves overseas, must stop.
50. To end on a hopeful note, let me quote from the press reports in January 2004 that Malaysia is in the process of signing Memorandums Of Understanding with supplier countries. I suppose it is better to be late than never. Take the case of Indonesia. Considering that Indonesian workers were the first batches to arrive more than 10 years ago and that they presently make up 60% of the total foreign work force, the time has finally come for Malaysia and Indonesia to decide to sign such a Memorandum Of Understanding.
51. Now that the authorities are embarking on written Memorandums Of Understanding prior to allowing in further import of foreign workers, it would be even more positive if rather than reinvent the wheel in individual Memorandums Of Understanding, they could incorporate the 'International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families' and use it as the basis for the said Memorandums Of Understanding, at least where relevant if not in toto.
Published in Infoline March 2004