[APWSLMembers 435] Fwd: MTUC-ILO Follow up Workshop on Migrant Workers in Malaysia

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From: sinapan samydorai <samysd at pacific.net.sg>
Date: Dec 8, 2006 2:22 PM
Subject: MTUC-ILO Follow up Workshop on Migrant Workers in Malaysia
To:

MTUC-ILO Follow up Workshop on Migrant Workers in Malaysia
4-6 December 2006

Opening Remarks:  by Syed Shahir, President MTUC

MIGRANT SPEECH – 4/12/2006

Malaysia is a multi-ethnic, multi-cultural and multi-religious
country, on the verge of achieving developed nation status.
Malaysian people are a caring people concerned about justice and
human rights.

Today, there are about 1.8 million registered (or documented)
migrant workers in Malaysia. 15 countries now supply workers in
various employment sectors in Malaysia with the largest number
coming from Indonesia (1.2 million) followed by Nepal which
provides  170,000 workers.  Other sending countries include India,
Sri Lanka, Bangladesh, Pakistan, Burma, Thailand, Vietnam, Timor
Leste and the  Philippines

According to government estimates, there is an equivalent number of
unregistered (or undocumented) migrant workers in Malaysia, and
today that means at least 1.8 million undocumented workers. The
actual figure of unregistered (or undocumented) migrant workers in
Malaysia could be about 5 million.  This estimate is supported by
the fact that official entry-exit records in 2004 showed that there
were about 5,852,997 persons  or 38% of the total arrivals
overstaying. In fact, recently our Home Affairs Minister Datuk Seri
Radzi Sheikh Ahmad was reported saying that 800 to 900 foreign
workers arrive at the KL International Airport daily(Star,14/10/06),
and that did not include entry through land and sea. Undocumented
migrants can enter Malaysia so much more easily by sea and land,
avoiding immigration and customs authorities and that is, I believe,
the manner of entry employed by the majority of undocumented
migrants.

Malaysian labour force for the 3rd quarter of 2005 according to the
Malaysian Department of Statistics was 10,498,600 and that means
that number of migrant workers (both documented and undocumented) is
about 30% to 50% of the total Malaysian labour force. This fact of
the growing number of migrant workers in Malaysia also tally with
the figures of persons in the Malaysian prisons, where it was
disclosed that 25%  of the prison community were foreigners in 2003,
and in 2004 it was stated that the number of foreigners exceed the
number of local Malaysian in prisons.  A recent AFP report in
October 2006 reiterated that Malaysia's 10.5 million strong labour
force is made up of 2.6 million foreign workers.

We cannot deny the fact that in the past 3 decades migrant workers,
both documented and undocumented, have contributed significantly to
the economy of this nation.

MIGRANTS AND THEIR RIGHTS UNDER MALAYSIAN LAW

In Malaysia, we do not discriminate. We guarantee all persons
equality and equal protection of 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'  makes it most clear
that this guarantee of rights extends also to all persons, including
migrant workers, be they documented or undocumented, and also
refugees. Under our Trade Union Act, migrant workers have the right
to unionize and also be members of existing unions – and this is
very important to enable all workers, including Malaysian workers,
the ability to ensure greater protection and advancement of worker
rights, Migrant workers in law have access to the Labour Court and
the Industrial Courts just like any local worker.

The problem is that when Migrants come to the country, their very
presence and their ability to work legally is linked to a work
permit, which stipulates  a named employer. And when a migrant
worker, who has been victimized, wants to seek justice through the
Labour Court and/or the Industrial Relations Department, the usual
thing that happens is that the errant employer immediately
terminates the work permit leaving the migrant worker in a dilemma
having no right to continue to be in the country, without work and
capacity to earn a living. This makes a mockery of the protection
afforded in law, and we need to do something to remedy this state of
affairs. Maybe the migrant must be the person who is allowed to
apply for a work permit (or even apply for variation of a permit) –
not the employer.

NEED FOR NEW PROCEDURES TO ENSURE REAL JUSTICE FOR MIGRANT WORKERS

To overcome this problem, we should allow workers who do resort to
the Labour Court and/or the Industrial Court in pursuit of their
rights as workers against errant employers, to stay on in Malaysia
until the courts can mete out justice. In some countries, like Hong
Kong, shelters are provided by the government for workers during
this period as they claim this 'constitutionally guaranteed equal
protection' and justice under the law.

Maybe we should also be thinking of special tribunals for migrant
workers – which would provide a speedy procedure so that cases of
non-payment or under-payment of wages and wrongful dismissal, could
be dealt with speedily no later than 3 months from the date of the
complaint.

Better still, workers whose rights have been violated, and who has
filed a complaint should be allowed to work with another employer.

It is no use having good labour laws & courts with the object to
ensure that no workers will be deprived of their rights AND then
have a situation like what we have today that makes it almost
impossible for the migrant worker to access and/or get  justice.

Likewise, when a migrant worker makes a police report against
his/her employer. The government encouraged migrant workers, like
domestic workers, to complain about abuses by employers and/or other
members of their household. When they do complain, they lose their
job and it is sad that the government takes the position that the
migrant worker that complains will not get his /her permit varied so
that he/she can work with another employer until that criminal case
is disposed off.

Now, when a migrant worker makes a complaint about abuse, his
employer when charged ONLY has to just plead not guilty and most
likely he/she will get away with it because the complainant migrant
worker by reason of not being able to work is back in his home
country not able to appear in court to testify against his ex-
employer. We cannot allow this mockery of the criminal justice
system to continue.

A WORKER IS A WORKER AND HE/HER IS ENTITLED TO HIS/HER WAGES

A worker who works for an employer is entitled to his just wage, and
it should not matter whether he is documented or undocumented. It
will be a gross injustice for an employer who benefits from the
sweat and labour of a worker and then be allowed to escape his
obligation of paying wages.

True, the undocumented worker has broken the law concerning
immigration and for that he must be penalized. However, he should
not be deprived of the fruits of his labour – and these 'errant'
employer should never be allowed to escape his obligations to pay
wages.

Let us not forget that it is because of these bad employers who
employ undocumented workers that many come over to Malaysia to work
without the necessary documentation.

MIGRANTS ARE HUMAN BEINGS AND SHOULD NOT BE TREATED AS STRAY DOGS

We must also never forget that the migrant worker is a human being
just like you and I. Migrants are father, mother, brother, sister,
husband, wife, son, daughter and uncle to other human persons.

We must stop this "Catch a Migrant and Get Paid for it" policy which
we have since 2005. In 2005, members of the People's Volunteer Corps
(Rela), an organisation of uniformed part-timers who have some
policing powers, were offered and did receive cash rewards for each
migrant arrested as an economic incentive and this was most
disturbing and embarassing. It is sad that on the planned crackdown
next year, Home Affairs Minister Datuk Seri Radzi Sheikh Ahmad was
reported to have said Rela members would be again roped in for the
operation(Star, 14/10/2006). Since Rela was given authority last
year to nab illegal immigrants, its members had arrested about
19,000 foreigners.

We have the police, immigration officers and other enforcement
officers that are professionally trained and has the duty to enforce
the law – and as such the using of part-time RELA for the arrest of
a certain class of persons is certainly just not right and goes
against the guaranteed equality and equal protection of the law.
Further, there has been just too many complaints about the use of
excessive force, causing serious injuries to foreigners from
Indonesia, Bangladesh and Burma in recent months.

At least three incidents since July were recently highlighted in the
media when suspected illegal immigrants from Indonesia, Bangladesh
and Burma were beaten. Most were later discovered to have valid
immigration documents. It was also said that these RELA volunteers
also often force their way into homes without warrants, destroy
private property and wrongfully detain suspects. These kind of law-
breaking must end. Let us not forget that we are dealing with human
beings here, not animals

DISCRIMINATION

If a worker is paid more because of his working experience, academic
or technical qualifications and/or skills then it is perfectly
acceptable and just. But if a worker is discriminated on the basis
of his/her nationality, ethnicity and/or religious belief, this is
not at all acceptable. Today, migrant workers are being
discriminated based on their nationality despite the fact that they
do the same work. Indonesians are the lowest paid whilst the
Filipinos are the highest paid. This must end,

Another aspect of discrimination is when undocumented workers are
arrested, Some are deported immediately whilst others are charged,
tried,convicted and sentenced to imprisonment and sometimes
whipping. Either all are charged in court or all are immediately
deported. This is yet another discrimination that has to be stopped.

Foreign Domestic Workers and Protection of Migrants

Our employment laws generally do not provide for protection of
domestic workers' rights as it does for other workers, and given the
fact that there are today more than 300,000 domestic workers, we
must enact a law for the protection of domestic workers. Today
Jordan has such a law. Hong Kong also has such laws, and in Taiwan,
there is now a Bill before their parliament.

Given the unique differences when it comes to migrant workers, maybe
we too, like Singapore and some other migrant receiving countries,
should also enact a new law to cover migrant workers or just maybe
include a section in our existing employment laws. In these laws, we
must also deal with the question of recruiting agents both in the
sending and receiving countries.

Recently, in October 2006, a media report informed us about
Bangladeshi labour
agents who are illegally bringing workers from the Indian
subcontinent
into the country. In the said report Enforcement Director of the
Immigration Department, Ishak Mohamed said that "…every worker
brought into the country was forced to pay upto RM18,000 to these
illegal agents, who go to the
slums and villages and lure these poor people by promising them jobs
in
air-conditioned buildings, The poor villagers end up paying them a
fortune, mortgage their property and everything they own to work
here and then they end up slogging in
construction sites to pay off their debts back home…". This happens
in almost all countries. I ask whether it is right for us in
Malaysia to further penalize these "cheated" workers.

When it comes to wages, many migrant workers do not receive any
money for months as their wages are all deducted to pay off their
debts to agents, etc – and this is not at all right. A limit must be
set as to amount of their monthly wages that can be deducted, and
this should not be more than 30% of their wages. A worker who works
should receive some payment every month to use it as he/she pleases
including sending back of some monies to sustain their spouse,
children and families back home.

We need to have an education campaign, which should be initiated by
the government to ensure that migrant workers are made aware of
their rights in law, and also about where to go and what to do to
complain about rights violations and to get justice. We need special
offices, with persons who can do translations, all over the country
which is easily accessible to migrant workers,

We will soon also be having an ASEAN Charter, and we must ensure
that there are provisions therein that will deal with migrant and
migrant worker rights.

Malaysians are a caring people – and we must remember that all
migrants/refugees are human beings, and as human beings they have
human rights and worker rights and we must do all that is necessary
to ensure that these rights are not only acknowledged but also
respected. We have been paying too much attention to violation of
our country's immigration laws and way too little to worker rights
and human rights. It is time we remedy our failings.

Thank you.
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