Malaysia
Migrant Workers Caught In Limbo
Source: New Straits Times (Malaysia)
Date of issue: July 3, 2008
UNIONISTS say migrant workers should be allowed to join trade unions, but their contracts prohibit them from doing so. MARC LOURDES speaks to Human Resources Minister Datuk Dr S. Subramaniam and MTUC secretary-general G. Rajasekaran for their views.
Q: Is the Human Resources Ministry considering allowing migrant workers to join unions?
Subramaniam: The issue of opening up union membership to non-Malaysians has been brought up to the ministry before, but no decision has been made.
Q: Is there really a need for them to join unions?
Subramaniam: Migrant workers sign a contract which defines their terms of service, salary and conditions of work.
This agreement is akin to the collective agreements (CA) signed by unions for local workers. They are also protected under the country's labour laws, so the argument that not allowing them to join unions will lead to exploitation just does not ring true.
Rajasekaran: The relationship between foreigners and their employers is like slavery. Employers can pay them whatever they like, house them however they like and terminate them whenever they like.
Now we have the labour outsourcing system, which is even worse. Agents "rent" workers on a daily basis to companies and keep a portion of their income. So, what is the difference between these agents and pimps?
The MTUC gets at least 60 to 70 complaints a month from migrant workers beset with a host of problems, including abuse, unpaid salaries and accommodation problems.
We estimate that 15 to 20 per cent of the registered foreign workers in the country are being mistreated. It rings hollow to say it is not necessary for foreigners to join unions as they are well taken care of. If something is to be done, the first step is to admit that there are flaws and weaknesses in the system.
Q: Why aren't migrant workers allowed to join unions even though the Trade Union Act does not forbid it?
Subramaniam: There are many unwritten reasons why they are not allowed to do so.
Firstly, we look at them as a temporary phenomenon. We are trying to cut down our dependence on them. We don't see the need to unionise them as they will not be around forever.
Secondly, most of the issues that foreign workers face are legal issues, which have legal avenues they can turn to. They do not need the intervention of unions.
Thirdly, unions don't confine themselves to labour issues and are often politically inclined. If you let foreigners into the unions, you have to wonder what the effect will be politically.
In some sectors, such as the plantation sector, where foreigners outnumber locals, there is a possibility that they could take over control of unions.
Rajasekaran: The migrant worker phenomenon in the country is anything but temporary. When they come in, they are on a three-year contract which is extendable for another three years. This is not "temporary". Many locals stay in their jobs for less than that.
Many of the problems they face do not have legal remedies. Most of the time, they are promised high salaries when they are recruited in their home countries.
After they have coughed up the agent's fees, which run into the thousands, they come here to find that the pay they receive is much lower. What can the law or the Labour Department do to protect them when the promise, which is often only verbal, was made in another country?
There is no minimum wage in this country to protect them.
If they were union members, they would at least have the CA to fall back on. Unions can also intervene in the event of abuse and unpaid wages.
Another common problem is that employers often hold their passports and the Labour Department is unable to take up their cases for fear they may be illegals. There is no fear of them taking over unions or influencing them politically as only locals can hold office.
What's wrong if foreigners vote for representatives in whom they have trust and confidence? After all, at the end of the day unions negotiate a CA which applies equally to all employees.
Q: Does disallowing migrant workers from joining unions have an impact on locals?
Rajasekaran: Yes, it does. For a company to recognise a union, it must have the majority of its workers in it. Since foreigners make up a large part of the workforce in many industries, not allowing them to join the union means the locals can't form a union either.
With these kinds of obstacles, it's no wonder that only about eight per cent of the country's 10 million workers are unionised.
GROWING NUMBER OF COMPLAINTS
NON-GOVERNMENTAL organisation Tenaganita is flooded with complaints from migrant workers almost every day.
Migrant Rights Protection Desk head Florida Sandanasamy said Tenaganita, which began as a women's rights advocacy organisation, expanded to include migrant workers' rights when it started getting many pleas for help from male foreign workers.
Last year, Tenaganita opened 259 case files, involving 2,153 migrant workers.
Florida said the NGO networked with the Bar Council's legal aid centre to handle cases and disputes.
"We deal with the Immigration Department and other government departments. We also handle things like lodging police reports."
Florida said a simple issue like unpaid wages could have catastrophic consequences for the affected worker.
The employer, more often than not, would cancel a worker's work permit the moment the complaint is filed.
"This means he is an undocumented foreigner. He has to go to the Immigration Department to seek legalisation.
"However, the department's policy only allows him to stay a maximum of three months if he is undocumented."
During that time, the worker is not allowed to work and has to pay RM100 a month to the Immigration Department.
"How is he to survive? Even if he can borrow the money, he is still undocumented, leaving him open to police arrest.
"He is then either charged for being an illegal or deported and the case is dropped. The employer gets away scot free," she said, adding this was why migrant workers needed to be unionised.
TOILING AWAY AT MERCY OF UNSCRUPULOUS EMPLOYERS
IN a system where the employers hold all the aces, even allowing migrant workers to join unions seems to be futile.
Bar Council human rights committee member Renuka T. Balasubramaniam said even if a foreign employee were to be allowed to join his company's union, the employer could just choose not to renew his work permit.
"The truth of the matter is that he is completely at the mercy of his employer.
"Whether or not the worker is documented or undocumented is solely dependent on his employer. Should he be abused and want to report it, the employer can immediately terminate his contract, exposing him to possible arrest and detention.
"How then can you expect him to have the courage to take his case to court?" she asked.
Renuka said most migrant workers went into debts in order to pay the agents' fees to get them jobs in Malaysia.
That debt, she said, created a situation of extreme vulnerability and desperation making them vulnerable to exploitation by unscrupulous employers.
She added, however, that there were also employers who treated their workers well.
While several laws are in place to protect workers from exploitation, whether or not they are enforced is a different
matter.
Renuka pointed out that bringing foreigners to Malaysia en masse, forcing them to work and holding back their salaries were offences under the Anti-Trafficking in Persons Act 2007.
She added that the Industrial Relations Act 1967 and the Employment Act 1955 both state that employees cannot be barred by their employers from joining unions.
Yet, they are made to sign an agreement when they come into the country promising not to join unions. Often, the same stipulation is also part of their employment contract.
Malaysian Trades Union Congress vice-president A. Balasubramaniam said the current situation meant locals are being deprived of jobs.
"After all, why hire locals who know their rights better and will demand higher salaries, when there are foreigners who can be easily hired at much lower salaries?
He said the International Trade Union Federation, to which the MTUC is affiliated, had in past years organised regional meetings with trade unions from countries sending and receiving foreign workers.
"This is to allow unions to network and create awareness of workers' rights."
The MTUC signed a memorandum of understanding with its counterpart in Indonesia in 2006 to cooperate in preventing exploitation of migrant workers.
"We will do the same thing with our Indian and Nepalese counterparts later this year," Balasubramaniam said.
"Migrant workers are helping our country develop and at the same time helping their own economies. They should be protected, not
exploited."
HEARTBREAKING TALES OF MODERN DAY 'SLAVES'
THEIR names may be different, but their stories are heartbreakingly similar.
They are all tales of property sold, debts incurred and favours sought to raise money to secure a job in Malaysia.
However, once the agents are paid and the job is secured, they find that it is not the land of milk and honey that they have sought, but one which leaves them in bondage and at the mercy of masters who neglect, abuse and enslave them.
K. Sathiyamoorthy's tale is a particularly painful one.
The 46-year-old Indian national came to Malaysia in 2004 to earn enough money to pay the wedding dowries of his three daughters.
He borrowed RM9,000 from loan sharks to pay his agent's fees and came to work in a glove factory.
In the first 14 months, he was, by all accounts, quite happy even though he was only paid a basic salary of RM416 per month instead of the RM520 he had been promised in India.
Then a vat of acid tipped over and spilled the deadly corrosive liquid all over his lower body.
The accident left him not only severely scarred and in terrible pain, but also impotent.
He was hospitalised for 45 days.
When he returned for duty, it was only to find that he was unable to do heavy work due to his injuries.
Instead of sympathy or understanding, what Sathiyamoorthy got was a letter of termination and a flight ticket home.
He did not get a single sen in compensation for the injuries although his employment contract stated that he was given insurance coverage.
In another case, three Nepalese workers who arrived in 2005 found themselves on the receiving end of a beating and a sacking when they stood up for their rights.
The men had borrowed money from relatives to pay the RM4,000 their agent demanded from each of them.
But they reasoned it was worth it because they were promised jobs in a shipping company that paid between RM1,500 and RM2,000 per month.
Instead, they ended up at a solid waste management company earning RM481 a month.
And from that sum, RM150 was deducted every month for their employer to pay their levies.
They were made to live six-to-a-room in a small lot in the factory compound.
Even so, they decided to make the best of it and continued to work.
However, things came to a head in an unexpected way in May that year.
One of the men, Man Bahadur Budha Magar, had been given permission by his supervisor to have half a day off due to some personal emergency.
His employer saw him leaving the factory and immediately accosted him and told him not to come back if he left for the day.
When Man Bahadur insisted on leaving, his employer tore his punch card in his face and told him that he was fired.
The next day, two of his comrades, Kishore Kumar Kathariyatharu, 26, and Abash K.C., 23, went to see the employer to iron things out. Both men were instead slapped and sacked.
Mohammed Shakeel, an Indian national, also ended up a loser when he tried to stand up for himself.
When he, along with four other Indian workers, realised they were being cheated of their overtime, they lodged a complaint with the Labour Department in Subang Jaya.
However, days before their case was due to appear in court, his four co-workers were sacked and deported.
Mohammed Shakeel, 26, was the only one to escape deportation and is now here on a special pass while he fights his case.
'HAVOC FOR BOSSES IF THEY JOIN UNIONS'
ALLOWING migrant workers to join unions makes it pointless to hire them, according to some employers.
An employer, who declined to be named, said one of the main reasons companies hired foreigners was because they did not have the same "baggage" of Malaysians in terms of wages and employee rights.
"Basically, one of the main reasons we hire them is because they don't join unions and create havoc. If union memberships are opened to them, it will deter any abuse of workers.
"However, it will also deter employers from hiring foreigners altogether."
The man added that getting migrant workers into unions was unnecessary.
"Embassies are beginning to be more proactive in looking after their welfare."
He also said the various problems, including non-payment of wages and abuse, could be tackled if the agreements between employers and workers were tightly and fairly formulated.
"However, the problem is that most of the workers are illiterate and don't know what it is they put their thumbprint to," he said.
Some form of compensation, he said, should be paid to the employees in the event of termination and a government body - preferably the Immigration Department - should be proactive in making sure the agreement was adhered to.
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