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Migrant Workers in Malaysia

A Cry for Human Rights

by Irene Fernandez
DURING the last one month. Tenaganita has been handling an increasing number of cases from migrant workers, particularly from the construction and manufacturing sectors. We have handled about 160 cases during the last six mouths. We expect the situation to become worse as the deadline for the yellow cards falls on August 15. 1997. Migrant workers are being thrown out in the cold by employers especially contractors and sub-contractors in the construction sector and by employers from the small and medium industries.
An analysis of these complaints. indicate a distressing growth in the number of very unethical practices by employers who believe that the authorities are on their side, that there are no laws that will m ike them accountable and that ultimately it will be the vu.nvia-ble migrant worker who will be arrested, detained and deported. At the same time, the Immigration authorities seem to aid and abet these unscrupulous employers. An example of this seemingly irrational and inhumane position of the Immigration maybe seen in the statement made by the public relations officer. Encik Mohd Sabry Zainal in the Sunday Mail. Aug. 10. 1997 under the heading "Work permit approvals — no more photostats."
He stated. "Foreign workers caught carrying a Photostat copy of their work permit approval letters will be sent straight to Immigration detention centers ". This is. according to Encik Mohd Sabry to "discourage employers from holding on to workers permit". He further adds; "It is an offence for an employer to keep the original passport belonging to an employee" Yet the punishment is aimed at the helpless migrant worker, as if he or she had any choice in the matter. Significantly enough there is no mention of any penalty that would be imposed on the errant employer. Our experiences seem to indicate that the employer not only is let off the hook, but in fact often uses this strange logic to his advantage when dealing with migrant workers.
Non-legalizatlon of Workers by Employers
In a case Involving a company called P K Construction Sdn Bhd. a number of workers paid RM 3.300 each to the employer for the processing of their documents and legalizing them during the amnesty period. late last year. In April 1997. the workers asked the employer to check their legal status. He reprimanded them. The workers took the Initiative to check with the Immigration department and discovered that they had been not registered.
The employer perhaps knowing that the workers would demand for their documents. dismissed them In June 1997 without any reason. They have not been paid their wages for two months These workers are without their passports and without work. They are open to arrest and detention. On the other hand, the employer has benefited from the large sum of money that has been collected, apparently with no fear of any action against It from the authorities The facts seem to In dlcate that the company has committed fraud
Furthermore It would appear that the workers cannot seek any redress at the Industrial Relations Department (IRD) nor the Labor Department because in the eyes or the law they are undocumented and are liable for arrest, detention and deportation.
Similarly in another case involving a construction company called Jltu Prqjek Team Sdn. Bhd.. 44 workers paid money to get themselves legalized under the ongoing registration exercise last year. It Is believed that the employer had collected over RM 60.000 from foreign workers In early 1997, the company closed Its office in Camerons Highlands, and left the workers in the lunch The workers upon their own investigations found out that they had not been registered with the Immigration Department. All their efforts to dialogue with the employer failed Tenaganita
managed to trace the employer. However he Insists that he had only loaned his company's name to a subcontractor. He Is not concerned over the plight of the workers and has Just denied all responsibilities.
These workers are again without documents, without a job to sustain themselves and are living In constant fear of arrest. They too have no avenue for redress as they are undocumented.
The above two examples are only one scenario of how migrant workers are exploited. Today we are seeing more and more workers being arbitrarily dismissed because many employers have not endorsed the work permits on to the passports of the workers. The yellow card called I MM 13 card was issued to employers during the legalization period in later half of 1996 when employers applied for work permits. The yellow card is an acknowledgment by the Immigration that the work permit application has been approved. Employers are required to use these documents to obtain passports of the workers from the relevant embassies and then get the work permit endorsed In the passports.
Many employers have collected monies from migrant workers or deducted from their wages but have not paid the required fee to the immigration or attempted to get the passports of workers. Again at the end of the day. the migrant worker not only has lost his money but may get detained and deported. It must be noted that it is only the employer (not the migrant worker) who can deal with the Immigration in this matter.
Improper Dismissal of Workers
A company called J PF Sdn. Bhd had a contract at the Kuala Lumpur International Airport. It has completed the project and has dismissed the workers ap-parenffy without any valid reason. In another case, two workers were dismissed when they asked clarifications regarding their contract and for a copy of their contract.
In both the cases, the workers have filed their dismissal complaint to the Industrial Relations Department. These cases are now being handled by the IRD. However, they do take a long time before a settlement is reached. The question is: Can the workers get extended visas while waiting for their case to be heard and a settlement reached? And can they find alternative employment as they need to live while waiting for redressal. The workers fear very much because the deadline for the IMM 13 cards is Aug. 15, 1997
These are important issues and questions that the Immigration needs to look into seriously It will be very unfair and unethical if visas are not granted by the Immigration while their cases are pending with the IRD or if they have been cheated by their employer. A civilized society would not continue to further victimize the victim.
Abuse of Workers by
Employers
Tenaganita is also very concerned over how cases of abuse perpetrated by employers have been dealt with recently. We think there must be much more empathy and concern over such cases, especially if women have been abused and sexually harassed by management
In the much publicized case of the Pakistani women workers working In Twin Advance Malaysia Sdn Bhd, the women had been working seemingly under abusive working condi-Uons When they decided to take steps to seek a solution to their problems, like complaining to the Labor Department, they were summarily dismissed from service by their employer. We later saw them being repatriated to Pakistan, while three of them were sent to detenUon, without an opportunity to seek redress Nothing seems to have been done to the management for their conduct that should not have been condoned If we believe In reducing violence In our society
Maids who have been abused have come to us for assistance. They are unwilling to make a police report against the abusive employer out of fear of getting arrested, because their documents are held by their employers.
It has been our experience that domestic helpers nave little or no avenue to seek redress. For one, they are deprived of practically all areas of protection provided for in the Employment Act of 1955. Further, their documents are almost always held by the employers. When they go to the police to lodge reports, they risk getting arrested and detained.
There seems to be a gap a lack of an avenue for domestic helps and women workers to get redressal for abuse. Quite often, as seen from the earlier examples the authoriUes take the po-siUon of detaining and deporting the victims. Such an action is not only unjust but a tacit approval of abuse by an employer.
Accidents at Work
Another major area where more and more workers are begin affected are industrial accidents. There have been various reports in the media of such cases. Though the government has been positive in making it a requirement for employers to get insurance for foreign workers. workers who have had accidents find it difficult to get compensation for their injuries.
We are currently handling the case of a migrant worker in the construction sector. In 1995, he lost four fingers in an accident at the work site. While the company paid his hospitalization fees, they did not file an accident report In the Labor Department. thus depriving him of the compensation due to him.
In February 1997, he met with another accident at the work site, while still employed by the same company. His initial medical fees were paid by the company. But the company did not file a report with the Labor Department.
Currently, he is unable to work because of the accident. His yellow card (visa) expires on August 15, 1997. So. the company wants to send him back before the August 15. 1997, deadline. So. the worker's leg is still in a cast and he is still un-. dec medlcaj treatment andJoL low tip here. If he returps totpfe village in> Ms home-eoMitry.J medical care will be inatbegsi-ble to him for various reasons. Isn't it unjust and unethical to send him back to his country at this point, and in this way?
When a worker is documented he can seek compensation through the Labor Department. On the other hand, there are many workers who are "undocumented". who have suffered accidents at the work site. They have been either dismissed or have had to return home with inadequate compensation, because of their legal status.
Yellow Cards Expiring on August 15,1997
In the case of workers with yellow cards, their right to stay In the country ends on August 15, 1997, if their work permit is not renewed and endorsed into the passports. Many employers have yet to complete the process of legalization of the workers. Some employers have begun to demand another RM 1.500-RM2000 for their new work permits. A large number of workers registered themselves only in November or December 1996. They were unaware that the Immigration had backdated the permit to August 1996. Many of these workers are sUll paying their levy. They have now another big amount to deal with Where workers find difficulty in getting the money, employers are dismissing them and canceling their permits.
These workers cannot take up an alternative Job In order to survive Though they can complain to the IRD. their position vis a vis their visa and work ermlt remains vague. They can come Illegal and thus risk being detained
The recent arinouncement that migrant workers would be issued LDs sounds positive. Though the card will make it easier for the Immigration to
track the legal status of Uie migrant worker, but we do not know who controls the Information input. Will the worker be informed of changes made in relation to informaUon on him and his status? Employers can arbitrarily cancel a workers fermit and unlawfully dismiss
Im. The worker may want to seek redress through the IRD. How will the Immigration then coordinate with the Ministry of Human resources and manpower?
Deportation and the Worker's Right to Seek Redress
The trend in dealing with foreign workers seem to be to arrest, detain, and deport migrant workers once the employer has canceled their work permit. This is a gross vlolaUon of their right to seek redress In the face of abuse, exploitation and fraud. There seems to be a lacuna within the Immigration Department regulations in recognizing workers who have been unlawfully dismissed or made illegal by fraudulent employers and workers who have come into employment ille-
The Immigration Department should insUtute a mechanism whereby there will be effective coordination between the IRD. Labor Department and itself. The Immigration Department could issue extended visas for alternaUve work permits to those who come with letters from the IRD stating the their case Is being investigated and handled by the IRD or the Labor department.
In this manner, we are re-specUng the basic rights of a worker to redress and to be heard. It will also go a long way towards making employer more responsible. This would give more substance to the Ministry of Human Resources statement that all foreign workers should be treated equally.
Recommendations
We therefore call on the authorities, especially the Immi-graUon Department to be more humane In the treatment of workers when the deadline for the yellow card renewal expires on August 15. 1997. The authorities should take to task irresponsible employers and mete out deterrent punishment to "■them.’1 ’f ” '
' I Migrant workers who- have been registered but whose work permits renewal have not been | crone by fhe ertrployer should be 1 able to seek redress through our laws, particularly the Industrial relations Act and the Employment Act. For workers who have registered their complaints with the IRD, their visas should be extended. We propose alternative work permits be given to these workers so that they can survive and meet their basic needs.
The authorities need to relook at the policy relating to the mobility of the migrant worker. Many workers are employed by sub contractors where work gets completed within a year or less. These contractors then undertake projects in new companies. Thus the policy needs to be flexible so that work permits can be transferred to the new employers.
The Immigration Department together with the Labor Department should create a mechanism for workers to lodge complaints provide an opportunity for redressal. Through this process, we not only provide better protection for the worker but also keep track of irresponsible employers.
We also propose another amnesty for undocumented workers. Here, as In Sabah, the workers should be given the opportunity to register themselves in stead of leaving it completely to the hands of the employer.
And finally we call upon the authorities to streamline all policies and regulaUons regarding migrant workers to the 1LO Convention 87 on Migrant workers that the Malaysian government ratified in early 1996.
The writer is the Director of TENAGANITA. Kuala Lumpur, Malaysia, a platform of women’s activists.