UKM Report on The Right of MDW of Receiving Countries: Malaysia as Case Study

Prepared by: Ma Kalthum Ishak (P67261) Nursyuhada Matwi (P67264) Siti Nurimani Zahari (P67267)

Supervisor: Dr Rohaida Nordin

TABLE OF CONTENT
Background Laws: 1) Federal Constitution 2) Employment Act 1955 3) Industrial Relations Act 1967 and Trade Unions Act 1959 4) Workmens Compensation Act 1952 5) Immigration Act 1959/63 6) National Wages Consultative Council Act 2011 7) Anti Trafficking Persons and Anti Smuggling of Migrants Act 1990 8) Workers Minimum Standard of Housing Amenities Act 1990 Memorandum of Undertsanding: 1) Indonesia 2) Cambodia 3) Bangladesh Ratification of International Treaties and Conventions: 1) International Human Right Law 2) International Labour Rights Enforcement Mechanism of MOU Functions of NGOs and Statutory Bodies in Protecting the Right of MDW: 1) Advocacy 2) Legal Representative 3) Campaigning 4) Collaborating with National and International Organization to Enhance Protection 5) Providing Shelter Recommendation 31 32 33 20 23 25 27 28 29 30 12 16 17 4 5 7 9 10 10 11 12 2

BACKGROUND
Employment in private households is the most common occupation for women in our region; accounting for nearly one third of all female employment in Asia Pacific. Domestic work is also the largest driver of labour migration in the region for women trying to escape poverty. In 2010, under the mounting weight of globalisation led by neo-liberal demands for cheap, flexible and transitory labour, migration pressures have increased. Despite many governments increasing reliance on domestic worker remittances as a source of foreign currency, many fail to extend domestic workers the rights and benefits other workers enjoy. A gendered notion of work that links women with the private sphere of the home and men with the public sphere of paid work and enterprise means that domestic work in amongst the lowest paid, least valued, and least organised work in the region1. The United Nations International Labour Organization (ILO) defines Migration as primarily a labour issue which involves the movement of workers who cross borders to find employment, as well as the necessity of equal treatment, good working conditions and rights for these workers. Migrant workers can make a positive contribution to development both through their labour in their host societies as well as through the remittances which they send home; yet they lack labour protection at a national and international level and are thus vulnerable to exploitation and human trafficking2. Malaysia are major receiving countries of migrant labour in the region, and like migrant workers elsewhere, domestic workers in this country face a range of problems. There is a clear link between Malaysias economic development and prosperity and the work of migrant workers. It calls for the recognition of their role in economic growth, regardless of their immigration status. As had been mentioned by Tenaganitas co-founder: I want to state that there is no such thing as illegal human beings. For me, the whole world belongs to all of us. We are one earth. The only difference is that we have defined the boundary whereby we define our nation, our citizenship. So they
1

Domestic Worker Right and The UFDWR, available from: http://www.apwld.org/our-work/domestic-worker-rights-and-the-ufdwr/ 2 Issue of the moment: Crossing Boundaries : Protecting the Right of Migrant Domestic Workers, 2 December 2010, available on http://www.un.org/wcm/webdav/site/dpingorelations/shared/Documents/PDF%20Documents/Final%20Programme %202%20December%20Migrant%20Workers%20revised%20gbts.pdf

[migrant workers] dont have the same documents that we have. Thats why we [Tenaganita] refer to them as undocumented (Irene Fernadez). MDW remain one of the least protected groups of workers. The lack or absence of protection means that they are highly vulnerable to a wide range of abuses and exploitation which in its worst forms amount to forced labour and slavery. The abuse and exploitation of MDW could potentially increase tensions between labour sending and receiving countries and lead to regional instability. For example, cases of abuse and exploitation on Indonesian domestic workers in Malaysia in 2010 led protesters in Indonesia to stir up nationalistic sentiments, using slogans such as Crush Malaysia. Thus, a careful management of the migrant domesti c work sector is necessary not only to protect the (human and labour) rights of MDW but also to maintain regional peace and security3. This report will be divided into three parts. The first part will be dealing with laws governing the migrant domestic worker. In this part we will discuss on what is lacking in the law and whether the law is adequate or not to provide sufficient protection to the MDW. Second part will be dealing with the international standards and MOUs sign between Malaysia and sending countries. In this part we will look on whether Malaysia is in line with the international standard or not. Last but not least is the third part. Third part is on the functions of NGOs and Statutory Bodies in protecting the right of the migrant worker. This part will discuss what they have done to enhance the protection. At the end of this report, we will give our conclusion on the adequacy and recommendation.

The Domestic Workers Convention 2011: Implications for migrant domestic workers in Southeast Asia, NTS Insight April 2012, available from: http://www.rsis.edu.sg/nts/HTMLNewsletter/Insight/pdf/NTS_Insight_apr_1201.pdf

LAWS
1) FEDERAL CONSTITUTION

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, it is most clear that this guarantee of rights extends to all persons, including migrant workers, be they documented or undocumented. It must be pointed out that 6 of the 13 Articles under Part II of the Federal Constitution entitled Fundamental Liberties uses the word persons as opposed to word citizens, and as such usage of the word persons in Article 8 clearly is not conscious but also important.

This equality is also reflected in our Employment Act 1955 which applies to all workers, irrespective of whether the person is a local worker or a foreign worker (migrant worker). The right to complain about discrimination is accorded to all workers, local or migrant, and the duty is imposed on the Director General of Labour to inquire into these complaints 4. In section 2 of the Employment Act, being the interpretation section, the term employee is defined as: "employee" means any person or class of persons(a) included in any category in the First Schedule to the extent specified therein; or (b) in respect of whom the Minister makes an order under subsection (3) or section 2A;

In the First Schedule, item 1 which describes the first category of workers. ...1. Any person, irrespective of his occupation, who has entered into a contract of service with an employer under which such person's wages do not exceed one thousand five hundred ringgit a month.... And, item 2, describes the other category of workers covered by the Act. 2. Any person who, irrespective of the amount of wages he earns in a month, has entered into a contract of service with an employer in pursuance of which

Section 60L of Employment Act 1955

Besides the Federal Constitution, some of the domestic employment related laws that is applicable to workers, including the Migrant Worker, are:1) Employment Act 1955 (West Malaysia) 2) Sabah Labour Ordinance (Sabah) 3) Sarawak Labour Ordinance (Sarawak) 4) Workmens Compensation Act 1952 5) Workers Minimum Standard of Housing and Amenities Act 1990 6) Children and Young Persons Act 1966 7) Industrial Relations Act 1967 8) Trade Unions Act 1959 9) Occupational Safety and Health Act 1994 10) Immigration Act 1959/63 11) Immigration Rules 1960 12) National Wages Consultative Council Act 2011 13) Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007

2) EMPLOYMENT ACT 1955

Purpose of the Act This is the most important legislation with regard to employment in Malaysia. The purpose of this Act is to provide protection and minimum benefits to the workers who are covered under this Act. It is also to establish certain rights for both employers and employees.

Definition of Foreign Worker The definition of foreign worker as well as domestic worker has been provided in the Employment Act 1955 (here in after referred to as the Act), where it is the law that protects all workers in relation to terms and conditions of their employment. Section 2(1)of Employment Act 1955, defines foreign employee as an employee who is not a citizen. In other words, this definition shall also include legal migrant workers. Illegal immigrants cannot be regarded as workers who have entered into a contract of service under this Act and it is not possible for them

to bring the case due to the absence of locus standi. Any contract must be agreed upon by the parties who have legal status under the law.5

However, for domestic workers, they are not legally recognized as workers (but as servants) under the Employment Act 1955. Section 2(1) of the Act mentions that "domestic servant" means a person employed in connection with the work of a private dwellinghouse and not in connection with any trade, business, or profession carried on by the employer in such dwelling-house and includes a cook, house-servant, butler, child's nurse, valet, footman, gardener, washer-man or washer-woman, watchman, groom and driver or cleaner of any vehicle licensed for private use. Thus, more than 230,000 domestic workers are conspicuously excluded from enjoying all the rights a regular worker would enjoy. 6

Protection and Rights This Act continues to categorically exclude domestic workers from labour protection provisions. Regardless it has a special portion dedicated exclusively to the handling of foreign workers in Part XII B under the heading of 'Employment of Foreign Employees', Schedule I stipulates that Sections 12, 14, 16, 22, 61, and 64, and Part IX, XII, and XIIA are not applicable for domestic workers. In brief, they are exempted from the provisions of minimum number of days work in each month, maternity protection, hours of work, holidays, days off, termination, and overtime pay which renders the protection on them is clearly insufficient under the law.

To be more precise, Part XII outlines requirements for conditions of service. Employees are entitled, according to this act, to at least one rest day each seven-day period and should not be required to work more than forty-eight hours a week or more than twelve hours a day. However, the Act does not extend guarantees to domestic workers. Instead, these women are expected to work long hours without break for very little pay. 7

Kamal Halili Hassan. 2007. Undang-undang Malaysia: 50 TahunMerentasiZaman. FakultiUndangundangUniversitiKebangsaan Malaysia: Litmus Print Sdn. Bhd. p. 406-407 6 http://www.majodi.org/emi/index.php?option=com_k2&view=item&id=26:domestic-workers-to-enjoy-greaterprotection&Itemid=34 7 Alice Huling, Domestic Workers in Malaysia: Hidden Victims of Abuse and Forced Labor, International Law and Politics, 2012

3) INDUSTRIAL RELATION ACT 1967 AND TRADE UNIONS ACT 1959

The Industrial Relations Act and Trade Unions Act govern the formal industrial relations system in the country and the law allows migrant workers to become members of trade unions (but not hold office). In other words, migrant workers can join and be a part of a trade union but is prohibited from holding an executive position in trade union8.

Definition Considering the Trade Unions Act 1959, in particular section 2(the Interpretation section), it is clear that the act does not distinguish on the basis of nationality of employees or workmen. "employee", when used with reference to a trade union or political party means any person who is engaged for hire or reward on a full-time or part-time basis; "workmen" means any person, including an apprentice, employed by an employer under a contract of employment to work for hire or reward and for the purposes of any proceedings in relation to a trade dispute includes any such person who has been dismissed, discharged or retrenched in connection with or as a consequence of that dispute or whose dismissal, discharge or retrenchment has led to that dispute.

The definition of Trade Union in the Act is also important. trade union" or "union" means any association or combination of workmen or employers, being workmen whose place of work is in West Malaysia, Sabah or Sarawak as the case may be, or employers employing workmen in West Malaysia, Sabah or Sarawak, as the case may be: (a) within any particular establishment trade, occupation or industry or within any similar trades, occupations or industries: and (b) whether temporary or permanent; and (c) having among its objects one or more of the following objects-(i) the regulation of relations between workmen and employers, for the purposes of promoting good industrial relations between workmen and employers, improving the working conditions of workmen or enhancing their economic and social status, or increasing productivity;

Section 28(1) of the Trade Union Act 1959

(ia) the regulation of relations between workmen and workmen, or between employers and employers; (ii) the representation of either workmen or employers in trade disputes; (iia) the conducting of, or dealing with, trade disputes and matters related thereto; or (iii) the promotion or organisation or financing of strikes or lock-outs is any trade or industry or the provision of pay or other benefits for its members during astrike or lockout;

Rights When we consider the specific provisions as to the formation of unions, we again see that there is no deprivation of the right to migrant workers from forming unions in which we can see the application in section 8 and 9 of the act.

9. Date of establishment of trade union. (1) For the purposes of this Act, a trade union is established on the first date on which any workmen or employers agree to become or to create an association or combination within any particular establishment, trade, occupation or industry, and whether temporary or permanent, for the furtherance of any one or more of the objects specified in the DEFINITION of a trade union in section 2.

Further, Section 8 of the Employment Act 1955 also clearly recognizes the right of migrant workers to organize trade unions.

8. Contracts of service not to restrict rights of employees to join, participate in or organize trade unions. Nothing in any contract of service shall in any manner restrict the right of any employee who is a party to such contract(a) to join a registered trade union; (b) to participate in the activities of a registered trade union, whether as an officer of such union or otherwise; or

(c) to associate with any other persons for the purpose of organising a trade union in accordance with the Trade Unions Act 1959.

However, although the laws are clear and the Department of Trade Union Affairs had ruled that migrant workers may join trade unions representing other workers at their respective enterprises, but the work permits issued by the Immigration Department stipulate, as a condition of employment, that migrant workers may not join a persatuan, or association, which is interpreted by employers to also mean a kersatuan or trade union. Most employers consequently prevent migrant workers from joining trade unions. In addition, since migrant workers supplied by labour contractors are not treated as employees of the workplace where they physically work, they are unable to join any of the existing 600 trade unions in the country which may only organize employees within similar industries or at the enterprise level. Moreover, the right to organize has been further obstructed for migrant domestic workers who are excluded from the minimum working conditions set out in the Employment Act and who have recently been denied the exercise of their organizational rights due to the refusal by the Registrar of Societies to register the newly created association for migrant domestic workers that had been constituted by the Malaysian Trade Union Congress (MTUC). 9

Today, the government has permitted certain employers, like the outsourcing companies and labour supply companies, to have almost all workers who are migrant workers, and surely these workers/employees must have the same right as accorded to all other workers in Malaysia. Surely, workers in these companies also should be accorded the right to form unions.

4) WORKMENS COMPENSATION ACT 1952

The Workmens Compensation Act 1952 also excludes domestic workers. There are only insurance schemes to protect domestic workers against accidents with long-lasting effects, medical and repatriation expenses and hospitalization. Since 1998, every employee has been required to contribute to the Employees Provident Fund (EPF) 10. For domestic workers, the

10

http://www.ilo.org/dyn/normlex/en/f?p=1000:50002:0::NO::P50002_COMPLAINT_TEXT_ID:2911366#1 Migrant labour in Southeast Asia

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employer shall insure them with the Foreign Worker Compensation Scheme in respect of any medical expenses the domestic worker may incur in the event of any injury where such injury arises out of and in the course of employment.

5) IMMIGRATION ACT OF 1959/63

The Immigration Act of 1959/63 stipulates that individuals may not remain in Malaysia if they are not in possession of a valid pass or permit. A persons pass is invalid immediately upon the expiration of the period of work that it is covering or if any of its terms or conditions are deemed to be contravened. Thus, women who leave their place of work early, even if they leave due to abuse or forced labor conditions are often arrested as illegal immigrants without the appropriate documentation. One escaped domestic worker explained that she was scared because she knew the Malaysian labor laws and felt that she would be prosecuted or deported, despite being the victim of abuse.11

In fact this Act permits employers to unilaterally terminate the work permits of a migrant worker and this is almost always done whenever a migrant worker lodges an official complaint with the Malaysian authorities resulting in deportation even before the case comes up for hearing before the courts. NGOs have over the years documented numerous cases where even pending court cases are derailed solely because the Immigration Department arbitrarily denied permission for migrant workers to stay and complete the trial.12

6) NATIONAL WAGES CONSULTATIVE COUNCIL ACT 2011

Minimum wages order 23. (1) Where the Government agrees with the recommendation of the Council under paragraph 22(2)(a) or 22(4)(a) or determines the matters under paragraph 22(4)(b), the
11

Alice Huling, Domestic Workers in Malaysia: Hidden Victims of Abuse and Forced Labor, International Law and Politics, 2012
12

http://www.majodi.org/emi/index.php?option=com_k2&view=item&id=26:domestic-workers-to-enjoy-greaterprotection&Itemid=34

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Minister shall, by notification in the Gazette, make a minimum wages order on the matters specified in paragraphs 22(1)(a) to (e) as agreed to or determined by the Government. (2) The Minister may, upon the direction of the Government, by notification in the Gazette, amend or revoke the minimum wages order.

In exercise of the power conferred by subsection 23(1) of the National Wages Consultative Council Act 2011, the minister has passed the Minimum Wages Order 2012 where the minimum wages rate payable to an employee shall be RM 900 per month in Peninsular Malaysia and RM800 per month in Sabah, Sarawak and Federal Territory of Labuan.However, this order shall not apply to a domestic servant in Malaysia. 13 Until now, the government is still silent on the issue of minimum wages payable to domestic helper particularly domestic migrant workers.

7) ANTI-TRAFFICKING IN PERSONS AND ANTI-SMUGGLING OF MIGRANTS ACT 2007

In 2007 Malaysia enacted its first legislation specifically banning human trafficking, with its Anti-Trafficking in Persons Act, and seemed to indicate that the government was prepared to tackle this issue in earnest. The legislation was largely passed in response to the country having received a low ranking from the United States in its annual TIP Report, which indicated that the country was failing to address its large human trafficking problem. Upon the acts passage Malaysias ranking was upgraded and it was placed on the U.S. State Departments Tier 2 Watch List, meaning that while there was still a lot of work ahead for the Malaysian government with regard to improving conditions, its legislation was noted and appreciated. The act clearly states that servitude, long working hours and debt bondage are all elements of labour trafficking.This is commensurate with the international understanding of labor trafficking.

13

Order 3 Minimum Wages Order 2012

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The Anti-Trafficking in Persons Act was amended in November 2010. The amendments broadened the countrys definition of trafficking to include all actions involved in acquiring or maintaining the labor or services of a person through coercion.While these am endments could be a positive expansion of those punishable for human trafficking, the way the amendments were presented threatened to further conflate human trafficking with human smuggling. This could mean, however, that those individuals caught transporting victims are penalized while individuals or groups orchestrating or most profiting from the trafficking, such as labor recruiters or even employers, are not prosecuted.

As written, the anti-trafficking law would provide comprehensive means by which to combat trafficking; however, it is not being sufficiently utilized, especially in prosecuting cases of forced labor.14

8) WORKERS MINIMUM STANDARD OF HOUSING AND AMENITIES ACT 1990

Whilst these laws do cover workers housing, accommodation and amenities in plantations, it really must be amended to cover all migrant workers, including also the domestic worker. 15

MEMORANDUM OF UNDERSTANDING (MOU)

1) INDONESIA16 Women from many countries throughout the region travel to Malaysia to take jobs as domestic workers, with the highest number of the 300,000 women working in Malaysia coming from

14

Alice Huling, Domestic Workers in Malaysia: Hidden Victims of Abuse and Forced Labor, International Law and Politics, 2012 15 Migrant Workers in Malaysia and Protection under Domestic Law Dato M Ramachelvam 16 Alice Huling, Domestic Workers in Malaysia: Hidden victims of Abuse and Forced Labor, International Law and Politics, (Vol 44:629), available at http://www.law.nyu.edu/ecm_dlv3/groups/public/@nyu_law_website__journals__journal_of_international_law_and _politics/documents/documents/ecm_pro_072115.pdf.

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Indonesia.17 In some cases the Malaysian government has set up individual agreements with the governments of these countries to determine employment terms for domestic workers. Rather than create binding bilateral agreements, however, Malaysia has signed Memoranda of Understanding that are not actually binding on either state party. 18 Terms for Indonesia domestic workers in Malaysia are laid out in a MOU established between the two countries in 2006 and revise in 2011.19

Following a rash of abuses in Malaysia and a disappointingly weak official response, the Indonesian government in June of 2009 put a ban on new migration of domestic workers to the country.20 Such action, however, does not necessarily help those women who are driven to seek work abroad due to dire poverty at home. As the ban continued while discussions of a new MOU flagged, it was feared that the number of women illegally seeking domestic work in Malaysia would drastically increase.21 The Malaysian government responded to the ban by stating that it would have to seek hired help in greater numbers from Thailand and the Philippines, noting that it has always received good, Muslim domestic workers from those countries.22 In actuality, the ban did result in an increase of domestic workers from Cambodia but also a discernible decrease

17

Indonesia/Malaysia: Proposed Labor Pact Lacks Key Reforms, HUM. RTS. WATCH (Mar. 4, 2010), http://www.hrw.org/news/2010/03/04/indonesiamalaysia-proposed-labor-pact-lacks-key-reforms [hereinafter Proposed Labor Pact].
18

Naj Ghosheh, Protecting the Housekeeper: Legal Agreements Applicable to International Migrant Domestic Workers, 25 INTL J. COMP. LAB. L. & INDUS. REL.301, 302 (2009). p 314-315.
19

Memorandum of Understanding Between the Government of the Republic of Indonesia and the Government of Malaysia on the Recruitment and Placement of Indonesian Domestic Workers, Indon.-Malay., May 13, 2006], available at http:// www.caramasia.org/docs/MoU%20My-Indonesia%202006.pdf. Revisions came when the MOU was renewed to address the problematic provisions within the Agreement. However, both revisions have been considered disappointments by many human rights activists, as they have failed to address some of the most problematic aspects of the MOU. The most recent version of the 2011 MOU is not currently publically available.
20

Indonesia: Guarantee Domestic Workers Rights in 2010: Government Slow to Address Discrimination and Mistreatment Both at Home and Abroad, HUM. RTS. WATCH (Feb. 13, 2010), available at http://www.hrw.org/en/news/2010/02/12/indonesia-guarentee-domestic-workers-rights-2010. 21 Putri Prameshwari, Malaysian Maid Deal Sunk Again, JAKARTA GLOBE (July 14, 2010), available at http://thejakartaglobe.com/home/malaysian-maid-dealsunk-again/385714
22

Malaysia Says Indonesia Maid Deal Delayed; Will Look Elsewhere for Hired Help, JAKARTA GLOBE (July 13, 2010), available at http://thejakartaglobe.com/home/malaysia-says-indonesia-maid-deal-delayed-will-lookelsewhere-for-hiredhelp/385560.

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in the overall number of domestic workers employed in Malaysia. 23 In May 2011 the two governments finally signed a new MOU, which addresses some, though certainly not all, of the provisions triggering human rights concerns but do little to indicate how it will be any more effectively carried out than its predecessor.

This agreement details protections and terms to which workers are entitled but also has some restrictive and problematic sections. The MOU is completely silent on some key issues, such as minimum wage, and is explicit in allowing other regressive and potentially dangerous practices. For example, though the newest iteration of the MOU does guarantee one rest day a week (an improvement over the 2006 MOU, which had no such provision); it states that a one day off can be compensated with overtime pay. 24 Thus, employers will have the option of paying domestic workers to forgo their day of rest, presumably adding some amount of extra pay to the pre-agreed monthly rate.25 However, there is nothing stipulating the amount of overtime pay that is appropriate to compensate for skipping a rest day, and the MOU does not provide the mechanics for how that overtime pay is monitored or delivered. As such, this provision seems prone to abuse and demonstrates the governments refusal to recognize the extreme disparity in negotiating power between Malaysian employers and poor, foreign, and often young women from Indonesia.

Other parts of the MOU involve vague language, consequently avoiding the establishment of finite standards with which employers would then have to comply. For example, the MOU says that employers shall provide reasonable accommodation and adequate rest, yet does not set any minimums defining those requirements. 26 Some parts of the
23

Indonesia/Malaysia: New Pact Shortchanges Domestic Workers, HUM. RTS. WATCH (May 31, 2011), available at http://www.hrw.org/news/2011/05/31/indonesiamalaysia-new-pact-shortchanges-domestic-worker. . [hereinafter New Pact Shortchanges Domestic Workers].
24

Irene Fernandez, Malaysia Continues to Sustain Modern-day Slavery in Domestic Work, SAYA ANAK BANGSA MALAYSIA (May 27, 2010), available at http://sayaanak bangsamalaysia.net/index.php?option=com_content&view=article&id=365:malaysia-continues-tosustain-modern-day-slavery-in-domestic-work&catid=1:letters&Itemid=
25

Indonesian Maid Issue Nears Settlement, NEW STRAITS TIMES (May 18, 2010), available at http://www.nst.com.my/nst/articles/Indonesianmaidissuenearssettlement/Article 26 Indonesia- Malaysia MOU, May 2011.

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MOU are clearer about their requirements, such as those relating to the costs the employers are supposed to cover. The new MOU stipulates that recruitment fees are capped at U.S. $1,500, which employers are required to pay up front. 27 It also prohibits employers from passing on recruitment fees of more than U.S. $600 to domestic workers and only allows deductions of up to fifty percent of their monthly wages. The MOU also stipulates that Indonesian women be able to communicate in either Malay or English in order to enter the country as domestic workers.

One important provision that was included in the most recent MOU after much pressure from the international and NGO communities is an allowance for Indonesian domestic workers to keep their passports. The 2006 MOU explicitly directed employers to hold workers passports, meaning that a domestic employees legal status in the country was co mpletely dependent on her employer. That the new version allows domestic workers to keep their passports instead of having to surrender them to employers is a positive change, according to Human Rights Watch.28. But the agreement does not set a minimum wage, as Indonesia had wanted, and perpetuates recruitment fee structures that leave workers indebted. 29

Further, in the latest memorandum of understanding between Malaysia and Indonesia on domestic workers in the country, there are escape clauses built in that place the domestic worker in a vulnerable state. The government did agree to a separate bank account for domestic workers, one-day off a week, and for passports to be kept with the worker herself. There are, however, follow-up clauses which state that the one-day off can be converted into overtime and passports can be kept for safe keeping by the employer. It is like the right hand gives and the left hand takes it away.30

27

Ibd. New Pact Shortchanges Domestic Workers, available at: http://www.hrw.org/en/news/2011/05/31/indonesiamalaysia-new-pact-shortchanges-domestic-workers.

28

World Report 2012: Malaysia, available at http://www.hrw.org/world-report-2012/world-report-2012-malaysia.

29

Ibd. New Pact Shortchanges Domestic Workers, available at http://www.hrw.org/en/news/2011/05/31/indonesiamalaysia-new-pact-shortchanges-domestic-workers.

30

R B Bhattacharjee, Respect All Workers Rrights, Govt Told, 10 May 2012, available at http://www.theedgemalaysia.com/in-the-financial-daily/213205-respect-all-workers-rights-govt-told.html.

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2) CAMBODIA31 Many Cambodian migrant workers abroad are employed in domestic work, that is, work carried out for an employers household, such as cooking, cleaning, looking after family members and other household tasks. Malaysia is a major destination country for Cambodian migrant domestic workers (as well as migrant workers from other countries in the region), who are predominantly young women32.

The history of this migration trend has not been an easy one and its future is not yet clear. Such was the extent of media reports on abuses, exploitation and even deaths of Cambodian domestic workers in Malaysia that on October 15th, 2011 the Prime Minister of Cambodia announced a ban on the recruitment, training and sending of domestic workers to Malaysia. This ban still remains in place, although many Cambodian domestic workers who were already there prior to the ban remain in Malaysia and it is believed that some are still going, through unofficial channels33.

A major issue contributing to the problems faced by domestic workers is that their situation has long been ignored or indeed purposefully excluded from many legal protections provided to other categories of workers, both in Malaysia and Cambodia, as well as in many countries worldwide. This reflects the undervaluing of this type of work by society in general, the view of domestic workers as servants rather than as workers and a reluctance to acknowledge private dwelling houses as places of employment that require to be regulated. Add the challenges faced by domestic workers to the discrimination and human rights abuses experienced by migrants in general and it is clear that migrant domestic workers are a category at high risk of having their human rights violated. Within this context, perhaps the multitudes of problem cases leading to the ban are not so surprising34.

31

Hoping for a brighter future for Cambodian migrant domestic workers. December 12, 2012. available at http://www.worldjusticeproject.org/blog/hoping-brighter-future-cambodian-migrant-domestic-workers-0 32 Ibid 33 Ibid 34 Ibid

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In June 2011, domestic work came under the international spotlight when the International Labour Organization adopted Convention 189 concerning decent work for domestic workers. This Convention guarantees minimum labour protections to domestic workers on an equal basis with other categories of workers. Neither Malaysia nor Cambodia has yet ratified this Convention, the protections of which would assist both their national domestic workers and migrants. The Malaysian and Cambodian governments have, however, commenced a dialogue surrounding the issue of Cambodian domestic workers in Malaysia which surely must be seen as progress. Malaysia35. The two governments are in the process of negotiating a Memorandum of

Understanding on the recruitment and employment of Cambodian domestic workers in

Even if this Memorandum of Understanding is agreed, is it enough to protect this vulnerable category of migrants? Although it may be a step in the right direction (depending of course on the terms of the agreed draft which remains to be seen), a Memorandum of Understanding alone will not have sufficient force or effect to really grant these workers the rights that they have been long denied and well deserve. That will require changes to national laws and a high level of commitment from those enforcing and implementing those laws, accompanied by a change in societys view of these workers generally, to recognize domestic workers for what they are employees who are employed to work in their employers households on tasks their employer wants their help with. Migrant domestic workers also fit within this description, the main difference being that they have left their homes and travelled to a new place, most likely encountering many further challenges, in order to fulfill this role36.

3) BANGLADESH37 A Memorandum of Understanding (MOU) on manpower export was signed between the government of Bangladesh and Malaysia in November 2012. Malaysia has announced the recruitment of Bangladeshi workers from January 2013. According to the agreement signed,
35

Hoping for a brighter future for Cambodian migrant domestic workers. December 12, 2012. available at http://www.worldjusticeproject.org/blog/hoping-brighter-future-cambodian-migrant-domestic-workers-0 36 Ibid 37 Aparupa Bhattacherjee, Malaysia: MOU wirh Bangladesh on Manpower Export, 23 January 2013, available at http://www.ipcs.org/article/india-the-world/malaysia-mou-with-bangladesh-on-manpower-export-3801.html

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plantation workers will be recruited first, followed by workers for other sectors. Interested applicants keen on working in Malaysia have to register themselves. There will be no role of middlemen and workers will be allowed tenure of up to five years. The minimum wage will be 900 Malaysian Ringgit, which is equivalent to 25,000 Bangladeshi Taka 38. The UN estimates that nearly 50 to 150 Bangladeshis travel to Malaysia every week by paying traffickers operating the illegal sea routes. The MOU signed is a nave step taken towards stopping illegal migration. Moreover, the applicant worker can evade the involvement of traffickers or dishonest manpower agents who play a major role in the process. The agreement will put a stop to the harassment and exploitation of Bangladeshi immigrants working in Malaysia. It is a low cost affair allowing many such people from poor households and backward regions to avail the opportunity to work in Malaysias labour market. Before the signing of the MOU, the recruitment of such Bangladeshi workers was an expensive procedure. The hiring process, which is based on government-to-government arrangements, would also provide a better mechanism of recruitment in comparison to those going through agencies and middlemen. The MOU has strengthened the already existing strong bond between Bangladesh and Malaysia 39. The MOU signed is in fact a blessing for the Bangladeshi government, as the country is heavily dependent on remittances by expatriate Bangladeshis. In fact, after the garment industry, remittances are the second largest foreign exchange earner for Bangladesh. The three countries most Bangladeshi workers migrate to are Saudi Arabia, the United Arab Emirates and Malaysia. However, since 2007, Saudi Arabia has stopped hiring manpower from Bangladesh; recently, even the United Arab Emirates has stopped issuing fresh visas to Bangladeshi workers. Against the backdrop of this substantial decline in manpower export to key Arabian countries, the signing of this MOU with Malaysia is critical for Bangladesh. Bangladeshi workers often encounter discrimination and face the humiliation of being termed unruly and prone to getting involved in criminal activities. The social stigma Malaysian society associate with these workers may be done away through this government-to-government arrangement. Former policies of the Bangladesh government used to restrict labour migration of women, as they were more prone to exploitation. The majority of migrants, therefore, were male workers leading to a gender
38

Aparupa Bhattacherjee, Malaysia: MOU wirh Bangladesh on Manpower Export, 23 January 2013, available at http://www.ipcs.org/article/india-the-world/malaysia-mou-with-bangladesh-on-manpower-export-3801.html 39 Ibid

19

imbalance. In this regard, the security assured by the MOU might also encourage female migrants to travel to Malaysia for work40. Malaysia boasts of a newly industrialized market economy, which is growing rapidly. Due to rapid development, most educated Malaysians are shifting towards service sectors that promise a better standard of living. As a result, there is greater demand for foreign workers to fill gaps in the labour-intense markets of palm oil, construction, domestic help, and other such sectors that Malaysians are generally not involved in. There has always been an influx of migrants into Malaysia, mostly from neighbouring countries such as Indonesia, the Philippines, and Bangladesh, in search of jobs. Recently, Indonesian and Filipino workers, who are provided training by their governments, have become costly compared to their Bangladeshi counterparts. Thus, the need for cheap labour in the different sectors of the Malaysian economy is expected to be met by Bangladeshi workers arriving under the recent agreement reached by the signing of the MOU41. At this juncture, however, two pertinent questions arise. First, will the signing of this MOU help in successfully curbing the illegal migration of thousands of Bangladeshis? Second, will it effectively end the harassment and exploitation migrant workers are subjected to? The answers to these questions can be positive if productive steps are taken on behalf of both the governments involved. Strict patrolling of the maritime region will deter the migrants to take advantage of the illegal sea routes. Night-time patrolling by the Bangladesh Border Security Force in areas prone to illegal migration can restrain such activities. Bangladeshi workers are prone to exploitation due to the absence of proper legislations that protect their rights on behalf of both the exporting country and receiving country. Moreover language sometimes poses a huge barrier for these migrant workers. So, the Bangladesh government will be providing their migrant workers with language and culture training of the receiving country. Thus, the success of the MOU depends on the initiative taken both by the Malaysian and Bangladeshi governments for the betterment of their citizens42.

40

Aparupa Bhattacherjee, Malaysia: MOU wirh Bangladesh on Manpower Export, 23 January 2013, available at http://www.ipcs.org/article/india-the-world/malaysia-mou-with-bangladesh-on-manpower-export-3801.html 41 Ibid 42 Ibid

20

RATIFICATION OF INTERNATIONAL TREATIES/ CONVENTIONS

1) INTERNATIONAL HUMAN RIGHTS LAW

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.

That is the first sentence in the Universal Declaration of Human Rights. As a member of the United Nations, Malaysia has proclaimed to hold this Declaration to the highest standards, to protect & promote respect for these rights and freedoms, and to actively secure effective recognition of these rights for all persons. Inherent, universal, inalienable rights applies, of course, to migrant workers too and it applies to all 2.6 million migrant workers in Malaysia. Article 24 of the UN Declaration of Human Rights further states that everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Accompanying, and perhaps enabling, the growth of international migration has been a concurrent development of international organizations and law. Much of the growth of international law that has occurred over the last sixty years has been in the field of human rights law. The international community has seemingly acknowledged certain inalienable human rights that no government or ruler should be able to deny. In 1948, the General Assembly of the United Nations set out these fundamental rights in the Universal Declaration of Human Rights (UDHR) and stated that they were to be globally and comprehensively protected. 43 While this is not a binding document establishing specific obligations of member states, it is meant to delineate the rights of citizens and noncitizens that all states must honor. However, many of the rights set forth in this document are not guaranteed to foreign domestic workers by Malaysian law.

43

Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948) [hereinafter UDHR].

21

The UDHR enumerates many fundamental rights that are to be protected and clarifies in article 2 that all people, irrespective of their race, gender, religion, or country of origin are entitled to these rights.44 The Declaration states that everyone has the right to security of person,45 that no one should be subject to cruel or degrading treatment or punishment, 46 and that everyone has a right to a standard of living adequate for health and well-being.47 Everyone should have the right to leave any country,48 the right to peacefully assemble and associate,49 and the right to participate in cultural life.50 These rights are effectively denied when employers keep their workers passports and the immigration laws are such t hat individuals cannot exit their workplace without their papers. Furthermore, the UDHR guarantees that no one shall be held in slavery or servitude,51 a basic expectation that is not being fulfilled given the current frequency of forced labor conditions faced by many domestic workers in Malaysia.

The non-discrimination provisions of the UDHR have become customary international law and some, such as the rule against discrimination on the basis of race, sex, or country of origin, may even be jus cogens.52 It is not yet the case, however, that all human rights have reached the point of jus cogens.53 Malaysia has not signed or ratified the two general human
44

Ibd. art. 2. Ibd. art. 3. Ibd. art. 5. Ibd. art. 25. Ibd. art. 13. Ibd. art. 20. Ibd. art. 27. Ibd. art. 4.

45

46

47

48

49

50

51

52

See Li Weiwei, Equality and Non-Discrimination Under International Human Rights Law, RESEARCH NOTES (Norwegian Centre For Hum. Rts.), 2004, at 1920, available at http://www.mittendrinundaussenvor.de/fileadmin/bilder/0304.pdf (There is little doubt that the right to equality and non-discrimination has the character of jus cogens.).
53

Andrew L. Strauss, Where America Ends and the International Order Begins: Interpreting the Jurisdictional Reach of the U.S. Constitution in Light of a Proposed Hague Convention on Jurisdiction and Satisfaction of Judgments, 61 ALB. L.REV. 1237, 1266 n.122 (1998) (identifying fundamental human rights as jus cogens, implying that some human rights are not fundamental, and thus not jus cogens).

22

rights treaties, i.e.; the International Convention on Economic, Social and Cultural Rights (ICESCR) and the International Convention on Civil and Political Rights (ICCPR), and thus is not formally bound by those conventions.54 Malaysia would only be bound by those provisions which have reached the status of customary international law or jus cogens. Even without signing any additional treaties, however, Malaysia is still failing to fulfill its current obligations.

Malaysia is party to the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and as such must pursue by al l appropriate means . . . a policy of eliminating discrimination against women. 55 According to the CEDAW Committees definition of gender -based violence, a practice or human rights abuse that disproportionately affects womens ability to enjoy their basic rights constitutes discrimination.56 Under this definition, the exploitative conditions which domestic workers face would be characterized as gender-based discrimination. By failing to adequately address these abuses the Malaysian government is ignoring its CEDAW obligations to provide women and men equal employment and remuneration.

Malaysia has also signed the Protocol to Prevent, Suppress and Punish the Trafficking in Persons, Especially Women and Children, Supplementing
57

the

United

Nations

ConventionAgainst Transnational Organized Crime.

This protocol focuses on human

trafficking conducted by organized crime syndicates and is not directly applicable in the type of
54

Malaysia has not signed either the International Convention on Economic, Social and Cultural Rights, Dec. 16, 1966, 999 U.N.T.S. 3, or the International Convention on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171. For a list of signatories to the ICESCR, see I MULTILATERAL TREATIES DEPOSITED WITH THE SECRETARY-GENERAL, at 182, U.N. Doc. ST/ LEG/SER.E/26, U.N. Sales No. E.09.V.3 (2009), available at http://treaties.un.org/doc/source/publications/MTDSG/2009/English-I.pdf
55

Convention on the Elimination of All Forms of Discrimination Against Women art. 2, Dec. 18, 1979, 1249 U.N.T.S. 13. For a list of signatories to the Convention, see I MULTILATERAL TREATIES DEPOSITED WITH THE SECRETARY-GENERAL, [hereinafter CEDAW]. 56 Ibd. CEDAW, art. 2, Dec. 18, 1979.
57

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, Nov. 15, 2000, 2237 U.N.T.S. 319. For a current list of signatories, see III MULTILATERAL TREATIES DEPOSITED WITH THE SECRETARY-GENERAL, at 255, U.N. Doc. ST/LEG/SER.E/26, U.N. Sales No. E.09.V.3 (2009), available at http://treaties.un.org/doc/source/publications/MTDSG/2009/English-III.pdf.

23

arrangements through which domestic workers in Malaysia find themselves in forced labor conditions. However, in signing this protocol, Malaysia committed to fight human trafficking, and it could better honor that obligation by acknowledging the organized and systematic trafficking of domestic workers that occurs throughout the country.

2) INTERNATIONAL LABOR RIGHTS

The particular rights and concerns of laborers are recognized in a number of more specific treaties. One treaty that is particularly applicable to the needs of Indonesian and other migrant women travelling to Malaysia as domestic workers is the 2003 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW).58 Malaysia hosted close to 4 million migrant workers in 2009, 59 and its economy is highly dependent upon the output of these laborers. Despite this dependence Malaysia is not one of the forty-five states party to this international treaty guaranteeing basic rights for such workers. The CMW requires that migrant workers be treated on an equal basis with nationals in terms of fundamental human rights, such as freedom from violence and exploitation.
60

However, this

document does not sufficiently address some of the gender-specific problems faced by women
serving as domestic workers in Malaysia.61

The International Labor Organization (ILO) has recognized that the women migrating to perform domestic work in growing numbers are disproportionately exposed to abuse and exploitation. On June 16, 2011 the ILO adopted a new treaty, the Convention on Decent Work

58

International Convention on the Protection of the Rights of Migrant Workers and Members of Their Families, Dec. 18, 1990, 2220 U.N.T.S. 3 (entered into force July 1, 2003) [hereinafter CMW], available at http://www2.ohchr.org/english/law/cmw.htm
59

U.S. DEPT OF STATE, TRAFFICKING IN PERSONS REPORT 78 (10th ed. 2010) [hereinafter 2010 TIP REPORT], available at: http://www.state.gov/g/tip/rls/tiprpt/2010/index.htm. 2010 TIP REPORT, at 223
60

CMW, art.11, 2526, 43.

61

Glenda Labadie-Jackson, Reflections on Domestic Work and the Feminization of Migration, 31 CAMPBELL L. REV. 67, 82 (2008). at 88.

24

for Domestic Workers, addressing issues faced by domestic workers.62 In developing his convention, the ILO attempted to come up with provisions that offer domestic workers the specific protection that they deserve, without condoning the State enactment of restrictive legislation characterizing women as inherently vulnerable. According to one senior womens rights researcher for Human Rights Watch, this convention is a long overdue recognition of housekeepers, nannies, and caregivers as workers who deserve respect and equal treatment under the law.63 It is hoped that this convention, which was overwhelmingly supported by the governments, employers organizations, and trade unions making up the ILO, will result in increased protections for domestic workers.

When the majority of countries at the International Labour Organisation voted in support of the Domestic Workers Convention (ILO Convention 189), Malaysia abstained despite having over 200,000 domestic workers in the country and having active plans to recruit more.64 It argued that domestic work is not ordinary employment and therefore a legally binding treaty would compromise the rights of householders and create unrealistic obligations for employers. 65

The International Labour Organisation (ILO) has adopted a groundbreaking treaty that sets the first global standards for the estimated 50 to 100 million domestic workers worldwide. Malaysia, Singapore, Thailand and Britain, however, abstained from voting on the Convention on Decent Work for Domestic Workers 2011. Under Article 21 of the Convention, the treaty is only binding on countries that ratify it. Governments ratifying the convention must provide domestic workers with protection equivalent to those of other workers, including for working hours, minimum wage coverage, overtime compensation, daily and weekly rest periods, social

62

ILO, Text for the Convention Concerning Decent Work for Domestic Workers, PR.15A (June 16, 2011), available at: http://www.ilo.org/wcmsp5/groups/public/-ed_norm/-relconf/documents/meetingdocument/wcms_157836.pdf.
63

Nisha Varia, ILO: New Landmark Treaty to Protect Domestic Workers, HUM. RTS. WATCH (June 16, 2011), available at http://www.hrw.org/news/2011/06/16/ilo-new-landmarktreaty-protect-domestic-workers 64 Ibd. Respect All Workers Rrights, Govt Told , available at http://www.theedgemalaysia.com/in-the-financialdaily/213205-respect-all-workers-rights-govt-told.html.
65

Pau Khan Khup Hangzo and Alistair D.B. Cook, The Domestic Workers Convention 2011: Implications for migrant domestic workers in Southeast Asia. available at www.rsis.edu.sg/nts/HTML-Newsletter/.../NTS-Insight-apr-1201.html

25

security and maternity protection. The treaty also obliges them to protect the workers from violence and abuse, and to ensure effective monitoring and enforcement.

The convention requires governments to set a minimum age for domestic work and to ensure work by child domestic workers above that age does not interfere with their education. An accompanying recommendation to the convention urges governments to limit their working hours and to prohibit work that would harm their health, safety or morals. The new convention also requires governments to regulate private employment agencies, investigate complaints, and prohibit the practice of deducting domestic workers salaries t o pay recruitment fees. The convention also stipulates migrant domestic workers must receive a written contract that is enforceable in the country of employment.66 ENFORCEMENT MECHANISM OF MOU Domestic workers in Malaysia are wholly under-protected, with their safety and fair treatment being almost entirely based upon the attitudes and practices of their assigned employers. The Indonesian-Malaysian MOU stipulates that Malaysian laws should be applicable to Indonesian domestic workers while they are in Malaysia. While it makes sense that migrants should be subject to and protected by the receiving states laws, this does not work as well in cases where the receiving country does not have laws specifying the rights of domestic workers. 67

Domestic work, by its very nature, is different from other forms of labor. Since it is work performed within the household, it is often excluded from the receiving countrys existent labor laws and thus has no functional oversight mechanism.68 This is the case in Malaysia, where domestic workers are specifically not covered by the Employment Act. Malaysian labor laws
66

ILO adopts standards for domestic workers, June 20, http://thestar.com.my/news/story.asp?file=/2011/6/20/nation/8931276&sec=nation.

67

2011,

available

at

Naj Ghosheh, Protecting the Housekeeper: Legal Agreements Applicable to International Migrant Domestic Workers, 25 INTL J. COMP. LAB. L. & INDUS. REL. 301, 302 (2009),
68

Glenda Labadie-Jackson, Reflections on Domestic Work and the Feminization of Migration, 31 CAMPBELL L. REV. 67, 82 (2008).

26

stipulate that provisions on working hours, rest days, and other conditions of service are not applicable to domestic workers, who consequently work much longer days without rest periods than other laborers.69 These resulting disparities between domestic helps working hours and other workers are a clear violation of international human rights standards, including the UDHRs non-discrimination clause.70 Domestic workers are normally kept almost exclusively within the confines of private homes, abuses against these women are not readily observable, as would be the case in larger, more public places of employment.71 Though Malaysia has recognized the governmental obligation to protect against domestic violence and enacted legislation guaranteeing protection from and outlining punishment for domestic abusers, it has refused to extend these protections to household employees. Thus, the organizational fear of public intrusion into the private sphere continues to prevent effective and sufficient protection of domestic workers The MOU outlines the basic requirements of the employers, recruiters, and workers but it does not establish any specific enforcement mechanisms, nor does it obligate the Malaysian government to monitor the fulfillment of its listed requirements. This means that compliance with the MOUs terms is based almost entirely upon the integrity of the employer and government officials, many of whom are not familiar with the documents content. Furthermore, the existence of an array of other sending country agreements with various stipulated terms and requirements means that policing and monitoring is even more complicated and thus less likely to be realized. Employers who prohibit domestic workers from ever leaving the premise or house where they are working are clearly committing human rights violations, yet the government does not prosecute or even monitor this conduct. Under the old MOU72, which directed Malaysian

69

Employment Act (Act No. 265/1955) (Malay.), http://crestforce.net/admin/FileStorage/crestforce/Payroll/LabourLaw.pdf;BOOKLET

70

available

at

Ibd. UDHR., art 2.

71

Ibd. Reflections on Domestic Work and the Feminization of Migration, 31 CAMPBELL L. REV. 67, 82 (2008). at 85.
72

Ibd, Indonesia-Malaysia MOU, 2006.

27

employers to keep Indonesian domestic workers passports, these women were even further prevented from exiting the house alone. This provision meant that not only could individuals be prohibited from leaving for a few hours if they did have time off, but also that there were serious barriers in place to their attempting to depart from an abusive and dangerous environment. The new MOU73 allows domestic workers to maintain possession of their documentation, but it is not clear what will be done to ensure that this is actually happening. Without enforcement by the Malaysian government, there is no reason to believe that this new provision will have any tangible benefit for these women.

FUNCTION OF NGOs AND STATUTORY BODIES IN PROTECTING THE RIGHT OF MDW

There are a great number and diverse workers rights organizations and trade unions in Malaysia. Although they were quite militant in the early post-Independence years, most trade unions have had their activities curtailed to suit the economic needs of the government. Enterprise-based unions and agreements have replaced industrial trade unions and they lack resources for effective negotiation and are discouraged from forming federations74. However, labour organizations in Malaysia have been active in mobilising migrant labour. The Trade Union Act allows legally resident migrant workers to become union members, although this right is often excluded from workers individual contracts. Sahabat Wanita, a national organization of womens workers, does not deal specifi cally with migrant women workers, but refers them instead to migrant worker organizations. At the same time, however, Sahabat Wanita sees its role as one of education and changing the mindsets of local workers about the needs and conditions of migrant workers, who are often perceived as taking away local jobs. Most have focused their attention on domestic issues, particularly campaigns to eliminate violence against women, and have rarely included noncitizens in their activities. A minority of womens groups, including Womens Aid Organization (WAO), SUARAM (Voice of Malaysians) and All Womens Action Society (AWAM) have addressed
73

Ibd, Indonesia-Malaysia MOU, 2011.

74

Eldridge, Philip J. 2002. "Malaysia: 'Illiberal democracy' and human rights." In The Politics of Human Rights in Southeast Asia, London: Routledge. p.96

28

issues to do with migrant worker rights issues. In some instances, these organizations have worked in partnership with Malaysias most visible migrant worker organization, Tenaganita75. 1) ADVOCACY Since MDW usually consists of person who does not know laws and their rights, they need someone to explain their right. Most of the abusive cases happen because these MDW do not know their right and where should they lodge their complaint to. This is where NGOs plays a vital role. They need to advocate these people on their rights as well as create awareness among the public. Tenaganita76 had introduced a programme called Migrants Rights and Health Desk. This program provides for an advocacy and support to the migrant domestic worker. Persatuan Majikan Amah Malaysia (MAMA), was established to protect the right of both the employer and migrant domestic worker. MAMA had introduced a project named HELPER which includes training to the maids, briefing to the employer, monitoring violence against the domestic worker and introducing special financial system to ensure payment of wages made by the employer consistently. Furthermore, this project also will oblige the worker to take takaful insurance in order to prevent employers should bear the medical expenses caused by an accident while working to prevent employers from bearing the medical expenses caused by an accident while working77. Malaysian Association of Foreign Maid Agencies (PAPA) is an organization which brings together all employment agencies licensed by the Department of Manpower, Ministry of Human Resources and registered with the Malaysian Immigration Department to recruit and bring in

75

Lenore Lyons, The Limits of Transnational Activism: Organizing for Migrant Worker Rights in Malaysia and Singapore, 2006, p.10-11. Available from http://cccg.umontreal.ca/pdf/Lenore%20Lyons_en.pdf 76 Tenaganita (or Womens Force) was formed in 1991 to promote and protect the rights of all women and migrant workers within a globalized world. Tenaganita is registered as a non -profit company and does not have a membership base like a traditionally structured NGO. Instead, it works with a large number of volunteers (estimated at over 1000) and uses a subscription basis for membership to specific programmes. Tenaganitas activities are organised under several programs that seek to empower, organize and consolidate migrant and women workers not only in Malaysia but regionally available from http://www.tenaganita.net/about-us/#mission 77 Amah Indonesia Wajar dilindungi- Maulya, MStar Online, available from: http://www.myhazman.com/amahindonesia-wajar-dilindungi-mulya?color=red

29

foreign workers including house maids. This organization also provides services such as advising and assists complainants to settle their problems with member agencies 78. 2) LEGAL REPRESENTATION In 2011, Tenaganita handled the cases of 453 migrants in Malaysia, who were predominantly victims of labour trafficking, including migrant workers, refugees and domestic workers. The top key violations were: unpaid wages; arrest, detention & deportation; denial of days of rest; overtime wages not paid; absence of a contract signed between the employer and the employee. These forms of violations reflect both the abuse of labour rights and the state of forced labour that these migrants were in while in Malaysia. These forms of violations are also not random acts by abusive employers.

Another NGO which also helped MDW in giving them legal representation is Parti Sosialis Malaysia (PSM)79. PSM has seven manifestos in which one of them is to safeguard the workers right. PSM got involved by helping the workers to file the case and revive the complaint at the labour department. They then will started working on for the Special Pass to legitimize the worker as their former employer had with them the work permits80.

Even though Woman Aid Organization (WAO) did not represent the MDW, but they helped in obtaining lawyers and initiating civil and criminal suits. Furthermore, they also insisted on obtaining a lawyer to hold a watching brief of the criminal proceeding of the abuse case. Besides, they assist in filing the complaints with the police, welfare and labour department as well as gathering medical reports and other evidence of abuse81.

78 79

http://www.papa.org.my/index.php?option=com_content&view=article&id=46&Itemid=73 PSM was established on 30th October 1998. It became the first party contested for general election in 1999. 80 The Story of Aye Cho; When Migrant Workers File a Case Against Their Employer, 2th October 2012, available from: http://partisosialis.org/en/node/2376 81 Migrant Domestic Worker Abuse, available from: http://www.wao.org.my/Migrant+Domestic+Workers_54_5_1.htm

30

3) CAMPAIGNING Many of the NGOs voices their opinion on the abusive treatment done to the MDW. Among them are WAO, SUARAM, SUHAKAM, Bar Council, PAPA, MAMA , Tenaganita and others. In 1995, after a series of severe abuse cases, WAO began documenting the womens experiences, using the press to highlight the problem of MDW. they also work hard in lobbying the media for case coverage and advocacy to raise the agenda of MDWs right and to educate public on the rights of MDW- that abuse is a violation of her human right and punishable by law82. On 9th May 2012, Tenaganita had released a press statement on the truth of migrants in Malaysia saying that As a member of the United Nations, Malaysia has proclaimed to hold UDHR to the highest standards, to protect & promote respect for these rights and freedoms, and to actively secure effective recognition of these rights for all persons. Inherent, universal, inalienable rights applies, of course, to migrant workers too. It applies to all 2.6 million migrant workers in Malaysia. This is a basic premise that Tenaganita call on the Malaysian government to accept. They also criticize on Malaysias action and response to numerous reports of serious rights abuses against domestic workers here in Malaysia. Despite of the various abusement and complaint, The Malaysian government, however, remains numb to action, and have not brought about any form of comprehensive legal mechanism to actively protect and promote the rights of domestic workers (who also have inalienable rights). When the majority of countries at the International Labour Organisation (of which Malaysia is a member to) voted in resounding support for the Domestic Workers Convention (known as ILO Convention 189) Malaysia abstained (despite having over 200, 000 domestic workers currently in the country and active plans to recruit more)83. Four years ago, Tenaganita and the Malaysian Bar, along with several other members of civil society, submitted a memorandum to the Malaysian government which consisted of a comprehensive policy on the recruitment, placement and employment of and model contract for
82 83

Ibid. In the latest MOU between Malaysia and Indonesia on domestic workers, there are escape clauses built in that once more place the domestic worker in vulnerable state.

31

migrant workers in Malaysia. The comprehensive policy would be the basic framework for the development of laws and mechanisms to actively protect and promote the rights of migrant workers in the country. This open and direct call for this policy was made to the State in recognition of the widespread and serious human rights violations against migrants in Malaysia. Four years later, the Malaysian government has still yet to respond to this call from civil society and the Malaysian Bar84. On 12th March 2013, Tenaganita released a Press Statement titled: Global Action: International Migrants Day 2012, 131,000 People Demand That Malaysia Recognize Domestic Work As Work, in which as a global response to stop modern day slavery in Malaysia, over 131, 000 signatures were collected by Womens World Day Prayer German Committee to urge Malaysian government to immediately ratify and implement the ILO Convention No.189 on Decent Work for Domestic Workers85.

4) COLLABORATING WITH NATIONAL AND INTERNATIONAL ORGANIZATION TO ENHANCE THE PROTECTION Tenaganita has formed links with a number of regional and international organizations. For example, several Tenaganita members have held executive positions in the Asia Pacific Forum on Women, Law and Development (APWLD)86. APWLD had organized CSW-57 Preparatory Workshop which had been attended Forty three womens rights civil society representatives and supportive UN agencies from 17 countries of the Asia Pacific region gathered in Bangkok, Thailand. Key messages for CSW includes promoting the ratification and meaningful implementation of all relevant international treaties, particularly those with inadequate international support including ILO Convention 189 on Decent Work for Domestic Workers87. In

84

Clearing Misconceptions: The Truth About Migrants in Malaysia, 9th May 2012, available from: http://www.tenaganita.net/clearing-misconceptions-the-truth-about-migrants-in-malaysia/ 85 Domestic Workers Campaign Goes Global Signature Petition, 12th March 2013, available from: http://www.tenaganita.net/domestic-workers-campaign-goes-global-signature-petition/ 86 The APWLD is a regional NGO that seeks to enable women in the region to use law as an instrument of change for the empowerment of women in their struggle for justice, peace, equality and development. It actively promotes the concept of human rights as enshrined in UN conventions, such as CEDAW. The APWLD has a Labour and Migration program that has worked to develop an acceptable working definition of domestic work in order to work towards state recognition of domestic work as work. Available from: http://www.apwld.org/about-apwld/ 87 CSW-57 Preparatory Workshop: Asia Pacific Civil Society Statement to UNESCAP. Available from: http://www.apwld.org/latest-news/asia-pacific-civil-society-statement-to-unescap-csw-57-preparatory-workshop/

32

addition, Tenaganita receives strong support from CARAM Asia (Coordination of Action Research on AIDS and Mobility)88. 5) PROVIDING SHELTER In order to remain legally in Malaysia, migrant workers are required to have valid passports and work permits. The Immigration Act, however, gives full power to the employer to obtain, renew and cancel the work permit, while punishing the migrant for any violations of the work permit. This is clearly problematic when migrants seek to take cases against their employers, as their employers can (and commonly do) react by cancelling the work permit thereby rendering the migrant undocumented and subject to arrest, detention, whipping (if they are male) and deportation. The Immigration Act does have an allowance for workers to apply for a special pass, at the cost of RM100 per month, and it can only be renewed three times. If the case is not resolved within these 3 months, the migrant worker must return home. Based on Tenaganitas experience during the past 15 years shows that due process takes more than 6 months, sometimes up to 6 years before a case is resolved. While the case is being investigated and brought to court for hearings, the worker is not allowed to work. The policy framework thus denies the workers right to stay to get redress and denies the workers right to work to support him/herself (and pay for the special pass) while the case is in court. Therefore, Tenaganita provides shelter for MDW whom waiting for the court order. For example Tieng SaSa, a Cambodia residing together with another eight maids, at the NGO Tenaganita in Kuala Lumpur, stuck in limbo as they wait for their cases to be processed in Malaysias courts. As they do not have their work permit, they need to find the shelter, if not, they are subjected to arrest or deportation 89. Since its inception in 1982, Womans Aid Organisation (WAO) began receiving several isolated cases of domestic worker abuse. The first case, in 1988, was of Filipina MDW who had been raped by her employer. Since that case, at least one MDW per year has sought refuge at
88

CARAM Asia is an NGO based in Malaysia with partner organizations throughout South and Southeast Asia. CARAM Asia seeks to empower migrant workers and their communities through the promotion and protection of their rights and the creation of an enabling environment at all stages of migration to reduce HIV/AIDS vulnerability available from: http://www.caramasia.org/index.php?option=com_content&task=view&id=301&Itemid=338 89 Maids Seeks Justice in Malaysia, 9th May 2012, available from: http://www.tenaganita.net/maids-seek-justice-in-malaysia-2/

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WAO for physical abuse. In 1999 alone, WAO provided shelter to 11 MDW who had been abused, and provided counseling and advice to more. Shelter and support is vital. Once employment is terminated, either by the worker or the employer, the woman loses her permit to work in Malaysia and is unable to financially support herself 90.

RECOMMENDATION
Looking at the laws and international standard, we found that Malaysia did not provide sufficient protection for the MDW. To effectively address the issue of MDW, a comprehensive regional approach involving collaboration among labour sending and receiving countries would be needed. ASEAN is well positioned to lead efforts to establish common standard for the region. Member states have already signed the ASEAN Declaration in the Protection and Promotion of the Rights of Migrant Workers. The next step is to make this declaration legally binding. To this end, ASEAN Framework Instrument on the Protection and Promotion of the Rights of the Migrant Worker, which would be legally binding on both sending and receiving countries, is currently being developed. When finalized, the Framework Instrument would serve as a blueprint for countries in the region to introduce complementary laws and policies on MDW 91.

Besides, a separate act is needed to govern the MDW to grant equal rights to domestic workers just like any other rights given to other workers. Even if the government refused to enact a separate act, Employment Act 1955 must be amended in order to protect MDW. They must get a weekly paid day off, sick leave and maternity leave. Furthermore, the employers also are required to give workers at least continuous period of eight hours of sleep, meals and separate room. They also must be permitted to hold their own personal belongings such as their passport and be given work as what they had agreed in the permit.

90

Migrant Domestic Worker Abuse, available from: http://www.wao.org.my/Migrant+Domestic+Workers_54_5_1.htm 91 Pau Khan Khup Hangzo and Alistair D.B. Cook,The Domestic Workers Convention 2011: Implications for migran t domestic workers in Southeast Asia, NST Insight April 2012, available from : http://www.rsis.edu.sg/nts/HTMLNewsletter/Insight/pdf/NTS_Insight_apr_1201.pdf

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In addition, a one stop centre also should be established so that if MDW wanted to make claim or report on their employers abusive action, they know where they should be headed to. This one stop centre also should provide shelter for the MDW awaiting for their case to be settled in the court.

With respect to the international law, Malaysia should sign and ratify the basic international human rights treaties, as well as the recently passed ILO Convention on Decent Work for Domestic Workers. Malaysia was recently appointed as a member of the United Nations Human Rights Council (HRC),92 giving some activists reason to hope that the government will now feel increased pressure to improve its own human rights system.93 Unfortunately, this hope has not been realized in other cases, with countries on the HRC, such as Saudi Arabia and Pakistan, remaining some of the worst human rights abusers. Malaysia should not follow in these countries abusive footsteps but rather should demonstrate its commitment to human rights by signing the ICCPR and ICESCR and meeting those treaties obligations.

Malaysia should also sign the CMW as an important step towards protecting the rights and interests of its migrant community. By doing this, and by going a step further and signing the Convention for Decent Work for Domestic Workers, the Malaysian government could further establish itself as the regional and burgeoning international leader that it seeks to be. In order for these ratifications to have any actual value, however, they would have to be accompanied by real, systematic change that indicates Malaysias active intent to comply with its human rights and treaty obligations within its borders. The UN Charter, the International Bill of Rights94 and the Vienna Declaration on Human Rights impose on States the responsibility to cooperate in the realization of all human rights.
92

Malaysia Re-Elected to UN Human Rights Council, STAR ONLINE (May, 14, 2010), available at http://thestar.com.my/news/story.asp?sec=nation&file=/2010/5/14/nation/20100514184557
93

Stephanie Sta Maria, Malaysia Has Excellent Human Trafficking Syste m, HUM. RTS. WATCH (Aug. 2, 2010), available at http://www.hrw.org/en/news/2010/08/02/hrw-malaysia-has-excellent-human-trafficking-system?print (quoting PhilRobertson, Deputy Asia Director at Human Rights Watch). 94 The International Bill of Rights consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights and its two Optional Protocols.

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There is a broadly-accepted understanding that States have the obligation to respect rights and refrain from interfering with their enjoyment; to protect rights against violations, including through ensuring adequate and accessible avenues of redress when rights are violated; and to fulfill these rights by taking positive action, including through appropriate legislative and administrative action, policies and the allocation of resources. 95

95

What are human rights; OHCHR; available at http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx.