Home Web Specials 2011 Web Specials Lack of law enforcement main cause of workers’ rights violations

Lack of law enforcement main cause of workers’ rights violations

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Aliran member and rights advocate Charles Hector recently highlighted rights violations involving 31 Myanmar migrant workers allegedly committed by a Japanese multinational firm in Malaysia. Before he knew it, he was slapped with a lawsuit. Malaysian Digest caught up with Hector recently to find out more.

Charles Hector (centre) and his lawyer Francis Pereira (left) being interviewed by the media, 30 March 2011

Malaysian Digest: How long have you been involved in human rights, and what were some of the activist movements you have been involved in?

Charles Hector: Well, in University Malaya, I was in the Student Union. After that, I elected to work for human rights and justice and started with the National Office for Human Development (NOHD), then Suara Rakyat Malaysia (Suaram). After that I became a lawyer and was called to the Bar in 1996.

I have been involved in various human rights issues including campaigning for the release of the 106 detained in Operation Lalang. I was also involved in the development of Malaysia’s first civil society Human Rights Charter as well as the Reformasi movement where I defended those who had been arrested. Other than that, I was a coordinator of the Malaysian Action Front (MAF) together with Fan Yew Teng and Annuar Tahir (Abim). The MAF was involved in human rights and justice issues both in Malaysia and overseas. As a lawyer, I was also involved in Legal Aid and am also a former member of the Malaysian Bar Council.

I have been and continue to be concerned with human rights, worker rights, migrant rights, environmental issues, transparency and accountability issues, indigenous peoples’ rights, detention without trial, death in custody and also for the abolition of death penalty and torture.

In advocating human rights, what do you believe would be an effective strategy?

Human rights is a concern of all. Hence, the most important first step would be the creation of awareness of human rights. There is also a need to highlight human rights violations so that people have the chance to also choose to participate in the process of ending injustice and promoting human rights.

Greater support always helps injustices to end sooner – and it certainly also moves governments and other relevant authorities to act faster. Today, there are many options in this internet age including blogs, emails, Facebook, media statements, peaceful public protests, petitions and memorandums. Sadly, in Malaysia there is too much hindrance to freedom of speech, expression and peaceful protests that stands in the way of promoting and protecting human rights.

The government has used its many laws to curtail freedoms and rights, and now we see that even companies are using means like taking court action against human rights defenders who highlight injustices and human rights violations. I too have recently been sued for RM10 million for highlighting injustices that were happening to some migrant workers working in a company.

What is your comment on Asahi Kosei filing a lawsuit against you?

I am sad that when information about human rights worker rights violation was brought to the notice of companies where the workers work at, the. response, rather than investigating and ensuring that worker rights are protected, this company elected to go after the person who highlighted these violations through, amongst others, the blog.

I believe that every person has a duty and responsibility to highlight information about human rights violations to members of the caring public who, when made aware, will act to ensure that justice prevails and violations end.

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This duty and obligation of everyone, not just human rights activists or defenders, is clear from the United Nations Human Rights Defenders Declaration that states, “Everyone has the right, individually and in association with others, to promote and to strive for the protection and realisation of human rights and fundamental freedoms at the national and international levels”, and this includes the right to freely publish, impart or disseminate to others views, information and knowledge on all human rights violations.

This company is suing me for defamation, and they claim that the workers concerned are not their workers as they are workers supplied by an ‘outsourcing’ agent.

I am of the opinion that a company must be responsible for all workers that work at the company’s factory. In fact, in Malaysian law, a supplier of workers is not the employer. The employer must be the company where the workers work under its control and supervision, using the tools of the said company, and producing the products of the said company.

Anyway, this matter is now before the court, and I would prefer not to comment specifically on the said case.

What is your plan in ensuring that the 31 Burmese workers’ rights are defended?

The said workers have already lodged complaints at the Suhakam (Malaysian Human Rights Commission) and the Labour Department, and I believe that they are in the midst of investigating and will do the needful to ensure that justice will be served to the workers.

The only concern with migrant workers is that some employers/agents, possibly to avoid justice, will get their work permits/visas cancelled, making them undocumented or even try to send them back to their country of origin. When this happens, that normally will mean that all complaints and proceedings at the Labour Department, Suhakam and even the courts will suddenly come to a standstill and justice will not be obtained by the workers.

Now, we have the Whistleblowers Protection Act 2010 and, as such, these migrant workers should not be terminated or sent back until all investigations and proceedings at Suhakam, Labour Department and forums are completed. But we shall see what happens. About 26 of the workers have been taken back to work at Asahi Kosei but five were not, and I am most worried about this five.

In this particular case, I can tell you that my lawyers have filed an application to add these 31 workers as parties, and we also hope that this will prevent them being sent back to Myanmar. These workers are certainly important witnesses in my case – as all the information that I did publish came from these workers. That application will be heard by the court on May 13.

Why have there always been problems with outsourcing agents where foreign workers end up being victims?

Well, the government introduced this ‘outsourcing’ concept with regards to migrant workers in 2005. But I do not believe that the intention of the government was ever to make them employers – just suppliers of workers, who then may assist employers by looking after certain responsibilities like housing and transportation of migrant workers. In fact, in May 2010, our Deputy Prime Minister was reported saying, “… employers are the people who should be responsible for their foreign workers. Outsourcing companies are only responsible for bringing them in. After that, employers must assume full responsibility…”

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But sadly what has been practised by these ‘outsourcing’ agents and some employers is an attempt to avoid employment relationships, and the obligations that come with it that will ensure worker rights and benefits as guaranteed by Malaysian law. A lack of enforcement contributed to this problem, and some employers have wrongly treated workers supplied by outsourcing agents as not their workers, and this has resulted in discrimination in terms of wages and other benefits.

It started with foreign workers but today it also involves local workers. Some companies may also no more hire workers directly but depend on workers supplied by these ‘outsourcing’ agents.

Wages are different as many companies just pay the salary to these agents who then deduct their percentage/commission and pay the workers. This practice also weakens trade unions at the workplace, as their bargaining power is much reduced. Workers negotiate better rights and benefits through collective agreements with their employer. But then these ‘outsourced’ workers, considered by employers as not their workers, are prevented from being part of trade unions and/or benefiting from these collective agreements.

Employers also do not provide these ‘outsourced’ workers legally guaranteed rights like paid annual leave, paid medical/hospitalisation leave and maternity leave as they take the position that those rights must be claimed from the ‘outsourcing’ agents directly.

It must be pointed out that Malaysian Federal Constitution guarantees equality, and our Employment Act 1955 does not permit such employment relationship between what really are suppliers of workers and these ‘outsourced’ workers. The government tried to make suppliers of workers as employers by a Bill tabled in July 2010, which was then withdrawn after much protest.

The Malaysian government is aware but, sadly, it lacks the political will to ensure justice for all workers, not just foreign workers.

How do you view the overall rights of the migrants working in Malaysia? Do you feel that they are being treated fairly?

.The law protects all workers, including foreign workers, but unfortunately the problem sometimes is the lack of enforcement or the usage of exceptions in the law to violate rights. For example, employers for foreign workers were required to pay the government levy for every foreign worker, but then the Director General of Labour allowed some employers to recover this levy by deducting workers’ wages. Thankfully this practice was stopped in April 2010.

The other problem that affects all workers is that the Employment Act 1955 does not make it an offence for employers to discriminate against and/or terminate workers when they do exercise their rights and complain to the Labour Department, Suhakam or police. Many employers just terminate them when they (workers) complain. For migrant workers, it is worse because their work visa/pass that allows them to remain legally in Malaysia also gets cancelled and they cannot remain in the country to pursue their claims for justice.

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Passports are also wrongly held by employers/agents and when the police or Rela (Ikatan Relawan Rakyat Malaysia) apprehend them (foreign workers) and they cannot show the original documents, they get arrested and detained until the authorities can verify the documents.

Do you believe you have a good chance of achieving your goal of restoring human rights in this country?

We have human rights in Malaysia but not enough. We, the people, all need to continue to struggle for human rights to be respected and recognised fully and this is an uphill struggle which we have to continue to fight for. If the current government does not respect our rights, then maybe we must vote for a new government. The good thing today is that more and more people have joined in this struggle for human rights, and we hope for a better Malaysia where rights and justice are respected and recognised.

How do you view the rate of power abuse among the police in this country?

There are serious problems with the police. There is a need for mechanisms to check on these abuses and one such mechanism would be the. IPCMC (Independent Police Complaints and Misconduct Commission). Police should also become more independent and not allow themselves to be used or seen to be used by certain political masters, the rich and the powerful. Police should not allow themselves to be used by some employers/agents in what really is a labour dispute between workers and employers, which should rightly be dealt with by the Human Resource Ministry. There have been too many complaints of police personnel coming and threatening and even arresting workers at the behest of errant employers. This must stop.

Do you feel that the people here are able to exercise their rights as citizens when stopped by the police?

No. In Malaysia, the police just have too much power and it is absurd that, for the exercise of rights and freedoms, we need to get permission from the police. There should be no requirement for such permissions. Now, even to have a public forum or talk, we need to get police permissions and this is absurd.

Can you tell us in a simple way of how a person can avoid from being harassed by the police?

In Malaysia, if you stand up for rights and freedoms, the police can come and harass you. What the Malaysian government wants is for every person to quietly work, come back home and rest and go back to work again without questioning and/or demanding rights and freedoms.

But, Malaysians and all persons must not accept this any longer, and must overcome all fears and stand up for greater human rights and justice in Malaysia. We must bravely protest actions of governments, employers and others that try to curb freedoms and rights. Nothing comes easy and we have to fight, despite the risks, for a better Malaysia for us and our next generation.

Source: Malaysian Digest

The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.

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15 May 2011 7.51pm

It is not only the lack of law enforcement, there are also a lot of companies, who pay their top managements too high a salary… These … top managements are hired into another company and they bring their … cronies into their new company… with zero experience but 5 figure salaries… I know at least one company in Ule Kelang which is in dire straits…not because of the workers but becuase of the new management’s cronies and their attitude!!!!…this is a real disgrace because this company won the PM’s award as a caring employer in the 90’s and all the effort of the previous workers and management has gone down the drain!!!!!!!!!!!

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