Keywords

Exploitation, Migrant Workers, Undocumented Migrant Workers, Illegal Foreign Workers, Flexible Working Arrangements.

Introduction

Growing pace of economic globalisation has created the reliance on migrant workers and Malaysia is no exception where the country has increasingly relied on these workers to address its immediate labour shortages. Migrant workers permeate the occupational spectrum from professionals on fixed-term contracts to labourers in many sectors including construction, manufacturing, plantation, restaurants and domestic servants. Employment of a non-citizen in Malaysia is subject to him obtaining a valid work permit pursuant to the Immigration Act 1959/63. The employment permit is only valid in respect of the particular employment and the employer specified therein. Further, the work pass is only for a limited period and may be revoked if there has been any violation of the conditions attached to the work pass. Under section 55B (1) of the Immigration Act 1959/63, it is a criminal offence to employ a non-citizen unless he possesses a valid work pass. Accordingly, it is important for the documented migrant workers to be treated with dignity and equality. All forms of exploitation and abusive practices against these workers in the workplace are prohibited both by the international instruments and the domestic legislations. Unless otherwise provided by the statute, all forms of slavery and forced or compulsory labour is strictly prohibited. Having said the above, the rights of the documented migrant workers are explored in this article and with reference to ways to reduced over-dependence of these workers particularly the unskilled or semi-skilled migrant workers.

Migrant Workers

In general, a person can be considered as a migrant worker if that person is working in a foreign country where he or she is not a citizen. Accordingly, the Employment Act 1955 adopted the term foreign employee which is defined in section 2 namely, a person who is not a citizen. In this regard, various Resolutions of the UN as well as the Conventions and Recommendations of the ILO adopt the term migrant worker. The basic human rights of all persons including the migrant workers are emphasised in the Universal Declaration of Human Rights 1948 (UDHR), the International Covenant on Civil and Political Rights 1966 (ICCPR), the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR), the International Convention on the Elimination of All Forms of Racial Discrimination 1969 (ICERD), the Convention on the Elimination of All Forms of Discrimination Against Women 1979 (CEDAW) and other ILO’s Conventions including the Convention concerning Migration for Employment 1949 (Convention No. 97), the Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers 1975 (Convention No. 143) and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1990 (ICRMW) which is primarily intended to foster respect for migrant workers’ human rights.

A legally employed migrant worker or also termed as a documented migrant worker, ought to be accorded equal treatment with national workers in terms of working conditions. The domestic laws of Malaysia are aligned with the above international instruments. Article 6 of the Federal Constitution prohibits all forms of forced labour and slavery where Article 6 (1) provides that no person shall be held in slavery. The term no person in the above article reflects that neither local nor migrant workers shall be held in slavery or any form of servitude. Article 6 (2) further states that all forms of forced labour is prohibited. Meanwhile, Article 8 (1) provides that all persons are equal before the law and entitled to the equal protection of the law’. Again, ‘all persons in the above article would include a migrant worker. Hence, physically abusing a migrant worker such as causing hurt or their wrongful confinement among others is totally abhorred, a violation of the Federal Constitution and the various criminal statutes of the country. Likewise, to compel a migrant worker, for example, to work for another employer or company, without according him a choice is not only a form of forced labour prohibited by the constitution, but would also be in violation of the work pass or work permit issued by the Immigration Department of Malaysia (Chea, 2018; Lo, 2016). In short, all forms of exploitative working conditions such as subjecting these workers to force labour, forced overtime, debt bondage, withholding of wages and passport confiscation, among others are strictly prohibited and any employer who violates them should face harsh punishment.

It is noteworthy that there are many employment statutes providing basic legislative protection to both local and migrant workers against all forms of exploitation, victimization, abuses and unfair labour practices. This includes inter alia, the Employment Act 1955 (the law applicable in the States of Sabah and Sarawak are the Labour Ordinance Chapter 67 and Chapter 76, respectively); the Employment (Termination and Lay-Off Benefits) Regulations 1980; the Employees Provident Fund Act 1991; the Employees’ Social Security Act 1969; the Industrial Relations Act 1967; the Trade Unions Act 1959 (Revised 1982); the Factories and Machinery Act 1967; the Occupational Safety and Health Act 1994; and the Workmen’s Compensation Act 1952. Further, the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 prevent the trafficking of persons and smuggling of migrant for purposes of exploitation.

The Employment Act 1955, an important piece of legislation enforced in Peninsular Malaysia, prescribes the minimum protective rights to workers. The broad purpose of the Act is to protect employees by guaranteeing certain minimum standards in conditions of employment. Parties to an employment contract must abide by the minimum conditions laid down by the Act. This includes the payment of wages, restrictions in the deduction of workers’ wages, maternity protection, protection of female workers by prohibiting them from carrying out night work, underground work and in certain places of work, prescribing the rest days in each week, maximum hours of work a day, prescribing public holidays each year, annual leave, sick leave and overtime rates payable for extra hours of work. These minimum provisions must be followed and failure to provide any of the above benefits is an offence for which an employer can be prosecuted in the ‘Labour Court’ in accordance with the Act. The Act further provides that any terms or conditions of a contract of service or of an agreement, which provides a term or condition of service that is less favourable to an employee than a term or condition of service prescribed by the Act, shall be void and of no effect to that extent, and the more favourable provisions of the Act shall be substituted in its place.

It may be added that the Employment Act is also applicable to foreign workers with the exception of domestic servants. The Act however does not cover an employee whose wages exceeds RM 2,000 unless they fall within the category of manual labour as provided in the First Schedule of the Act. The legislature viewed that workers whose wages exceeded RM 2,000 would be able to negotiate the terms and conditions of employment effectively with the employer and hence, excluded them from the protection under the 1955 Act. The term ‘wages’ does not include any commission, subsistence allowance or overtime payment (Victorgkw, 2011). However, with effect from 01 August 1998, people earning more than RM 2,000 but not more than RM 5,000 per month who are not manual workers are eligible to seek redress in the Labour Court. The term manual labour involves physical exertion as opposed to mental or intellectual effort. It is not manual labour if the real labour involved is the labour of brain and intelligence. The test to determine whether or not a person is engaged in manual labour is dependent on what is the substantial or dominant purpose of the employment, to the exclusion of the matters which are incidental or accessory to the employment. It is therefore necessary to determine whether the work in question is essentially physical in nature as opposed to work which has a physical or manual content but which is readily dependent upon acquired skill, knowledge or experience.

Having said the above, it is suggested that the Employment Act should be made applicable to all workers irrespective of their wages or their categorisation such as manual or non-manual labour. The protection under the Act should also be accorded to domestic servants. Further, the foreign workers should also be protected against retrenchment and in this regard, section 60N which favours local over migrant worker should be reviewed in the interest of promoting fairness to workers. The above section provides that when the employer is required to reduce its workforce, 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. This move would be in conformity with the UDHR which provides inter alia, that all human beings are born free and equal in dignity and rights. Further, the discriminatory practices in the workplace in terms of promotion, job assignment, leave entitlement and termination, among others, is prohibited by the various ILO’s conventions and also the CEDAW with regard to women in general without any distinction whether citizens or foreigners.

In 1 ILR 598, the Industrial Court stated inter alia, that ‘if the country has to employ foreign workers both the law and equity, and good conscience demand that they be given their legal rights and this includes the payment of same wages as local workers’. It is also worthwhile 1 LNS 201 where it was held inter alia, that the issue of the citizenship is not a material consideration in deciding whether an employment is on a permanent basis. In the same vein, in 1 LNS 494, FC, where in this case the Federal Court accepted the appellant’s argument that citizenship of a worker has no bearing in deciding whether he is on permanent employment or under a fixed term contract. The ratio of 1 MLJ 115, was cited with approval. In Dr. A. Dutt’s case, the respondent an Indian citizen was engaged as a radiologist in the Assunta Hospital, on a fixed term contract of three years and was renewed for several times without any break before it was finally terminated. In relation to the description of his period of engagement as permanent in the letter of appointment, the Court stated: As for the non-citizenship status of Dr. Dutt, we shared the astonishment of the judge at the relevance of this point. Our views can be stated shortly; whether Dr. Dutt can get an extension of his visit-pass so as to be able to stay in this country or the issue of a work-permit in order to be able to take up the appointment are not matters that can influence the court in the proper exercise of the jurisdiction conferred on it by the Minister's reference of the representations for reinstatement. If an order is made ordering reinstatement and the workman is unable to obtain either the visit pass or the work-permit, the employer would not be in contempt of the order. It is for the workman to make the order effective. All that the hospital had to do is to make the post available to the workman. As for any suggestion that the order for reinstatement would influence the Ministry of Home Affairs to issue the visit pass or the work-permit, there cannot be any truth in it, and it cannot possibly be said that the Ministry of Home Affairs is bound to comply with the order for reinstatement. In any event, it is of no concern to the hospital.

In light of the Federal Court stated that the proposition of law propounded above is correct in law. The citizenship of the appellant/claimant has no bearing in deciding whether the appellant/claimant was in permanent employment or in employment under a fixed term contract. We also note that the Industrial Relations Act 1967 does not make any distinction between the citizens of Malaysia and non-citizens. The term workman is defined in section 2 of the Industrial Relations Act 1967 (IRA) to mean any person employed under a contract of employment, and in the case of a trade dispute, he is a person whose dismissal, discharge or retrenchment from employment leads to or is the cause of the dispute. The word person in the above mentioned statute is not limited to a citizen but include a non-citizen and in this case, a migrant worker. Under section 2 of the IRA, the contract of employment is defined as any agreement, whether oral or in writing and whether express or implied, whereby one person agrees to employ another as a workman and that other agrees to serve his employer as a workman, while trade dispute is defined as any dispute between an employer and his workmen which is connected with the employment or non-employment or the terms of employment or the conditions of work of any such workmen.

Further, the ILO’s Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers 1975 (Convention No. 143) to which Malaysia is a party was referred by Federal Court in Ahmad Zahri Mirza’s case. In particular, Article 10 of the Convention requires the Member States to undertake to promote and guarantee equality of opportunity and treatment between migrant workers and nationals. It states that:

“Each Member for which the Convention is in force undertakes to declare and pursue a national policy designed to promote and to guarantee, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, of social security, of trade union and cultural rights and of individual and collective freedoms for persons who as migrant workers or as members of their families are lawfully within its territory”.

This Convention, according to the Federal Court, is applicable to migrant workers and nationals equally.

Furthermore, Article 9 (1) of the Convention states that:

“Without prejudice to measures designed to control movements of migrants for employment by ensuring that migrant workers enter national territory and are admitted to employment in conformity with the relevant laws and regulations, the migrant worker shall, in cases in which these laws and regulations have not been respected and in which his position cannot be regularised, enjoy equality of treatment for himself and his family in respect of rights arising out of past employment as regards remuneration, social security and other benefits”.

In relation to this provision, 5 CLJ 79 stated that:

“This ILO Convention, to which Malaysia is a party, expressly provides that where laws and regulations which control the movement of migrants for employment-such as the Immigration Act-have not been respected, the migrant worker shall nevertheless enjoy equality of treatment in respect of rights arising out of past employment. This is the international labour standard prescribed by the ILO”

In light of the above national and international legal instruments, the Federal Court in Ahmad Zahri Mirza’s case held that all workers without distinction whether they are local or migrant should be treated with fairness, dignity and equality in line with Article 8 (1) of the Constitution namely, all persons are equal before the law and entitled to the equal protection of the law. Hence, in Ahmad Zahri Mirza’s case, the Federal Court held that the Court of Appeal’s decision in this case which held inter alia, that a foreign national cannot have a permanent contract of employment cannot withstand judicial scrutiny and is liable to be set aside. In short, a documented migrant worker is entitled to equality of opportunity and treatment with the national workers and that there is no bar to engage such workers on a permanent employment though on a fixed term engagement.

It must be added that although there are various national and international instruments according protection to migrant workers, it is however not uncommon to hear physical violence, verbal abuse and sexual harassment involving these workers especially if the workplace is a private home, where it is more difficult for voices to reach out for help. In fact, cruel and inhumane treatment of migrant workers is a global phenomenon with Malaysia having its fair share of ‘hell on earth’ cases involving migrant workers such as the inadequate work conditions and of physical and sexual abuse. The employers sometimes lose sight of the fact that the migrant workers are humans who possess hearts and souls similar to themselves.

The irresponsible employer sometimes engaged in inhumane practices against the migrant workers knowing well that these workers are desperate for jobs and cannot afford to go back to their country or even find another job. Further, employers know that these workers are not familiar with the criminal justice system of the host country and even if they are, that it would be very costly for them to engage lawyers for legal services. Hence, those abusive and exploitative employers take the advantage by invoking fear on these workers if they were to attempt leaving the employment. This makes the migrant workers’ eternally loyal to the employer even if he is underpaid or, at times, his wages withheld for months by the employer. It is worth adding that in relation to physical abuse or ill-treatment of migrant workers, the Penal Code has ample provisions to address the above. The various offences and the associated penalties are summarized in the Table 1 below.

Table 1 Selected Offences and Penalties Under the Malaysian Penal Code
OFFENCES	PENALTIES
Murder	Death Penalty (Section 302 of the Penal Code)
Culpable homicide not amounting to murder	Up to thirty years imprisonment (if death was intended); or Up to ten years imprisonment (if not intended to cause death) ((Section 304 of the Penal Code)
Voluntarily causing hurt	Up to 1 year imprisonment and/or RM 2,000 fine (Section 323 of the Penal Code)
Voluntarily causing hurt by dangerous weapons or means	Up to 3 years imprisonment, fine or whipping, or any 2 of these punishments (Section 324 of the Penal Code)
Voluntarily causing grievous hurt	Up to 7 years imprisonment; offenders are also liable to be fined (Section 325 of the Penal Code)
Wrongful confinement	Up to 1 year imprisonment and/or RM 2,000 fine (Section 342 of the Penal Code)
Wrongful confinement for 3 or more days	Up to 2 years imprisonment and/or fine (Section 343 of the Penal Code)
Wrongful confinement for 10 or more days	Up to 3 years imprisonment and fine (Section 344 of the Penal Code)
Assault or use of criminal force on a person with intent to outrage modesty	Up to 10 years imprisonment, fine or whipping, or with any 2 of these punishments (Section 354 of the Penal Code)
Assault or criminal force in an attempt wrongfully to confine a person	Up to 1 year imprisonment or RM 2,000 fine or with both (Section 357 of the Penal Code)
Exploiting any person for purposes of prostitution	Up to 15 years imprisonment, whipping and fine (Section 372 of the Penal Code)
Persons living on or trading in prostitution	Up to 15 years imprisonment, whipping and fine (Section 372A of the Penal Code)
Unlawful compulsory labour	Up to 1 year imprisonment, fine or with both (Section 374 of the Penal Code)
Rape	Between 5-30 years imprisonment and whipping. If, whilst committing or attempting to commit rape causes the death of the woman, between 15-30 years imprisonment and with whipping of not less than ten strokes (Section 376 of the Penal Code)
Criminal intimidation	Up to 2 years imprisonment and/or fine. If hurt or fear of hurt is caused: up to 7 years imprisonment and/or fine (Section 506 of the Penal Code)
Word or gesture intended to insult the modesty of a person	Up to 5 years imprisonment and/or fine
Attempt to commit an offence	Term of imprisonment imposed shall not exceed one-half of the longest term provided for the offence (Section 511 of the Penal Code)

Undocumented Migrant Workers or Illegal Foreign Workers

In relation to the undocumented or the illegal foreign workers in Malaysia, it is estimated that there are up to 3.3 million illegal foreign workers flooding the domestic labour market and they are posing greater risks to public safety and national security as some engaged in criminal activities (The Straits Times, 2020). A person become “undocumented” or illegal for various reasons, either because they enter a foreign land without proper documentation or that they entered legally but loses the legal status due to their over staying in the country.

The undocumented migrant workers are vulnerable to exploitation where in certain sectors they are subjected to physical, verbal or psychological abuses with little or no consideration for their well-being. Exploitation of the undocumented migrant workers is not uncommon as some employers take advantage of these workers knowing well that these workers had limited avenues to raise their grievance. Poor and hazardous working conditions, excessive and unreasonable work demands, excessive working hours, inadequate rest days, public holidays or annual leave, non-payment or lower payment of wages, forced labour, child labour, sexual exploitation and verbal or physical abuse, among others are the usual grouses of these workers. Such acts are often captured and highlighted by the international media which in turn tarnishes the good image of the country besides creating tension between the host and the labour supplying country. In the wake of Covid-19 pandemic, undocumented migrant workers and illegal foreign workers become more vulnerable than ever (Al-Jazeera, 2020).

As stated above, there are many undocumented migrant workers in this country and despite the various amnesty offered by the government for their repatriation to their home country or to legalize their employment, many undocumented migrant workers refuses to take the advantage simply because some unscrupulous employers keep hiring these workers. Sheer disobedience and contravention of the law is not healthy as it promotes anarchy, fear and the erosion of civilization. Hence, vigorous enforcement of the laws is required and the employers found guilty of hiring the illegals should be subjected to the maximum fines, imprisonment and whipping (Syed, 2018). Hiring illegal migrant workers or even harbouring these workers is an offence under the Immigration Act where the punishment, if found guilty, is a fine between RM 10,000 to RM 50,000 (The Sun Daily, 2018). Where it is proven that the person has at the same time harboured more than five of such persons, that person shall be liable to imprisonment for a term of not less than six months but not more than five years and shall also be liable to whipping of not more than six strokes.

Given the fact that the fine and imprisonment as above is not deterring the employers from engaging the illegal, it is therefore proposed that the punishment should be enhanced. The fine should be raised to RM 100,000 or more and further, the compulsory whipping for engaging or employing each illegal migrant worker should be viewed positively as the deterrent sentence will ensure firstly, that the legally hired foreign workers do not freely abscond from the services of their original employer and secondly, to stop the employer from enticing and hiring the illegals. The deterrent sentence will not only deter the individual offender from committing offence in the future but also deter the potential offenders from committing the crime. It is hoped that with the severe punishment and strict enforcement of the law, the country would be free from the illegal workers.

Flexible Working Arrangements for National Workers

As noted earlier, migrant workers have contributed significantly to Malaysia’s economic growth, especially in sectors with acute shortage of workers such as agricultural, construction and plantation. It is evident that Malaysia is swarmed with un-skilled or low skill migrant workers who cannot contribute meaningfully to Malaysia’s aspiration of becoming a high-income nation. The Malaysian government’s efforts to reduce the reliance on low-skilled migrant workers are on-going. These attempts, however, cannot be done overnight, as a sudden repatriation of these workers can cause serious repercussions on the economy. Alternative measures should also be considered and this includes providing attractive incentives to the Malaysian workforce as a means to replace such migrant workers. It cannot be denied that with the rapid expansion of small and medium-sized industries in the food, furniture and metal fabrication enterprises have created an increased demand for skilled and semi-skilled industrial workers. Instead of depending on the migrant workers who make up for the shortages in these industries, the domestic workers could be encouraged to be involved in the said industries. Hence, it is suggested that in order to reduce dependent on un-skilled migrant workers the flexible working arrangements should be explored (Hayman, 2009). The flexible work arrangements will enable the local workers to make necessary bargain with the employers in terms of hours of work, place of work, job sharing and homework, to name but a few (Ramakrishnan & Arokiasamy, 2019). This would be possible to attract particularly female workers if the above flexible working arrangements are in place (Subramaniam et al., 2015).

The flexible work arrangement patterns have, to some extent, become the preferred work arrangements worldwide including Malaysia due to the Covid-19 pandemic which has brought along the ‘new normal’ that include, inter alia, the social distancing rule. It includes the flexible place of work such as working from home or at a certain location other than the employer’s usual place of business. The flexible work arrangements however can be challenging since the existing employment law lacked legal framework on flexi-work arrangements and hence, the recent proposal by the Ministry of Human Resources to review the labour legislations to suit the Covid-19’s new normal is much welcomed.

Conclusion

Unfortunately, all forms of exploitation of migrant workers is a global phenomenon despite the fact that there are numerous international conventions and legal instruments as well as national legislations applicable to protect rights of migrant workers. Accordingly, it is proposed that States across the international community have to ensure adequate protection to the migrant workers and guarantee them of their rights not only through the enactment of legislations but also with the proper implementation and effective enforcement mechanisms.

With regard to the influx of undocumented migrant workers in Malaysia, the government should tighten all the entry points, i.e., by air, land and sea with efficient enforcement personnel. It should continue to identify undocumented migrant workers who are already in the nation and process for their repatriation to their home country. The employers who hire undocumented migrant workers and harbour them with accommodations should also be subjected to severe punishment and strict enforcement of the law to make the country free from the illegal workers. The authors further propose that the flexible working arrangements for local workers should be given serious attention with a view to implement it under proper legal framework in order to reduce dependent on migrant workers.

Acknowledgements

Authors gratefully acknowledge the contribution of the IIUM Research Initiative Grant Scheme (Publication) [P-RIGS] (Project No: P-RIGS18-014-0014). This research article, in fact, is an output of the said research project.

References

1. Al-Jazeera, A. (2020).Locked up in Malaysia’s lockdown. Retrieved August 7, 2020, from https://www.aljazeera.com/programmes/101east/2020/07/locked-malaysia-lockdown-200702104523280.html
2. Chea, D. (2018). Transfer of employees in Malaysia. Legal news & analysis-Asia Pacific-Malaysia-labour & employment.Retrieved November 8, 2020, from https://www.conventuslaw.com/report/transfer-of-employees-in-malaysia/
3. Hayman, J.R. (2009). Flexible work arrangements: Exploring the linkages between perceived usability of flexible work schedules and work/life balance. Community, Work & Family, 12(3), 327-338.
4. Lo, A. (2016). Striking a fair balance: The star. Retrieved November 8, 2020, from https://www.thestar.com.my/metro/views/2016/01/22/striking-a-fair-balance-need-to-safeguard-rights-of-employees-and-employers-during-a-company-takeove
5. Ramakrishnan, S., & Arokiasamy, L. (2019). Flexible working arrangements in Malaysia: A study of employee’s performance on white collar employees. Global Business and Management Research: An International Journal, 11(1), 551-559.
6. Subramaniam, G., Overton, J., & Maniam, B. (2015). Flexible working arrangements, work life balance and women in Malaysia. International Journal of Social Science and Humanity, 5(1), 34-38.
7. Syed, N. (2018). Malaysian employer caned for hiring illegal workers. Human resources director. Retrieved November 8, 2020, from https://www.hcamag.com/asia/news/general/malaysian-employer-caned-for-hiring-illegal-workers/151438
8. The Straits Times. (2020). Malaysian govt urged to track coronavirus spread among illegal foreign workers. Retrieved August 7, 2020, from https://www.straitstimes.com/asia/se-asia/malaysian-govt-urged-to-track-coronavirus-spread-among-illegal-foreign-workers
9. The Sun Daily. (2018).Human resource manager fined RM 25,000 over hiring illegal immigrant. Retrieved November 8, 2020, from https://www.thesundaily.my/archive/human-resource-manager-fined-rm25000-over-hiring-illegal-immigrant-IUARCH568253
10. Victorgkw, A. (2011). My labour law thoughts: Definition of wages. Word press. Retrieved November 8, 2020, from https://kwvgan.wordpress.com/2011/06/06/definition-of-wages/