Some hope for foreign workers?

by Chia Yong Tai
Aliran Monthly 2003:10

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The writer of your reply to my letter has apparently missed the main point of my letter�(AM 23:5) in which I urge that to raise the consciousness of your readers on the plight of the foreign workers and to help them, Aliran must arm itself with good and credible information and arguments.

The reply by the Aliran�s contributor gives the reader the impression that the foreign workers were cheated to come to work in Malaysia because the promised minimum salary of RM700 cannot be enforced in Malaysia. He comes to this conclusion solely based on the fact that the local authorities claimed that they have no jurisdiction over the contract which binds the employer to promise a minimum income of RM700 per month, because it is signed in Burma. Following that Aliran�s contributor went on to make a bold assumption (totally without basis) that all other partners in the recruitment exercise besides the workers know of this fact. Aliran�s contributor maintains that since they knew the contract could not be implemented and still sent the workers over, the local and foreign agents have enticed them to come to Malaysia to work.

Aliran�s contributor could only have consulted a lawyer to find out whether the local authorities� claim is true or not. A contract can be signed in a foreign country and yet governed by Malaysian laws and can be enforced in Malaysian courts. In a recent High Court case in Penang, the High Court Judge had no hesitation in holding that the Malaysian employer is liable to pay the foreign Indian workers the guaranteed salary of RM750 per month with overtime to be calculated. Although the contract document was not signed by the workers and was only signed by the Malaysian employer, the court nevertheless held that there is a binding contract between the foreign workers and the Malaysian employer. Thus if a contract document signed by only one party can be enforced in Malaysian courts, what more if it is signed by both parties!

The Aliran�s contributor is aware of this recent High Court case since that case was quoted in his reply. With this court judgement in mind, one would feel something amiss reading the following quote: �It appears that the Malaysian authorities, Malaysian employers and the recruitment agents are all to be blamed because all of them probably know that there is no way the RM700 wage can be enforced in Malaysia. How can the Myanmar Employment Agency give an assurance to the workers they will be paid RM700 in Malaysia when they jolly well know that there is nothing they can do to compel Malaysian employers to honour that assurance? In that sense, the workers were enticed with the so-called RM700 guarantee as all the other parties knew there was nothing to ensure compliance in Malaysia.� It is unfair for the Aliran�s contributor to arrive at such a conclusion and to embark on a finger pointing exercise.

In my opinion it would be more constructive to publicise the judgement of the High Court case widely not only to the foreign workers but also to the Malaysian authorities, the foreign governments from which the workers came from and the recruitment agencies. If the practices and procedures of the foreign governments differ from that adopted by the Indian government as described in the recent High Court case, it would be useful to persuade these foreign governments to review their practices and procedures so that they will be consistent with the principles of law enunciated by the High Court Judge in the said case.

I believe that the existence of the flow of immigrant labour from poorer to richer countries, either done �legally� or �illegally�, is part of the distortion in our present world economic order of unequal distribution of wealth. The flow of immigrant labour happens not just in Malaysia but also in other Asian countries, Europe and elsewhere. This problem is rapidly getting out of control due to globalisation taking place. However it is not a simple question of telling the employers �don�t hire these foreign workers� or telling the foreign workers �don�t� come here�. It would be timely if Aliran can publish a comprehensive and objective article on this issue.

CHIA Yong Tai
August 28 2003

Aliran replies: Practical problems

The unexpected and welcome court judgment only came after our reply to your original response was written. We were pleasantly surprised and we did highlight and welcome this decision as a postscript in reply. You are right to say this court decision should be publicised to all quarters.

In practice, however, there are some major practical problems for workers who want to go to court to enforce their employment contract. Apart from the language barrier, the workers cannot afford lawyers to go to court. Even if they did find a lawyer, once their work permits are withdrawn or expire, it is very difficult to get extended permission to stay back and fight a prolonged case. For instance, they cannot find other work while staying on a temporary permit. Also, it is hard for them to find volunteer lawyers to help prepare a case or to make a complaint to the relevant authorities due to lack of confidence, fear of repercussions, or simply plainignorance of their rights.

Also, your letter does not address the issue of some agents and middle-men making ludicrous amounts in commission, fees and profits from the trafficking of migrant labour. The �agents� commission�, in the case of the Burmese workers in question, had to be borne by the workers themselves. Many migrant workers spend their first year in Malaysia just repaying their debts on loans taken to finance their trip here. Why do migrant workers have to stump out so much cash just to come and work here when the cost of an airticket is relatively low?

We are not against migrant labour; in fact, we sympathise with them as they often come here to seek work out of sheer desperation. But as things stand now they have few rights under the law and have very little capacity to enforce such rights; hence they are easily exploited. If Malaysia is serious about human rights, we must immediately ratify the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families (MWC), which entered into force on 1 July 2003.

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