High Court defers decision on undocumented worker’s right to claim unpaid wages

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The Shah Alam High Court on 4 March 2019 deferred its decision on the question of whether an undocumented migrant worker (ie without a valid work visa) has the right to claim unpaid wages after she had been employed for more than four years. Tenaganita reports.

The Shah Alam court stated that it wanted clarification from Wisma Putra and the Ministry of Human Resources as to whether Malaysia is a party to the International Labour Organization’s Migration for Employment Convention and Migrant Workers (Supplementary Provisions) Convention before making a decision on the right to redress for undocumented migrant workers.

The Shah Alam High Court’s adjourned ruling relates to a 2018 appeal by Nona (the pseudonym of a domestic worker from Indonesia), who, with assistance from Tenaganita, sought to exercise the right to make a claim against her Malaysian employer at the Port Klang Labour Office in 2017.

Nona is claiming a total of RM30,265 in unpaid wages for almost five years.

In early 2018 an official at the Labour Department in Port Klang declined to act on Nona’s complaint regarding non-payment of wages on the grounds that she did not have a valid work permit.

Nona appealed to the Labour Court in Port Klang, which on 14 August 2018 ruled that it did not have the authority to hear the case. The Labour Court stated that without a work permit, all transactions or actions carried out by an undocumented worker are not valid and therefore such a worker’s right to make any kind of claim against another automatically failed.

Nona appealed to the High Court against the decision of the Labour Court.

The Employment Act 1955 provides for the right to redress for all employees, irrespective of their immigration status, maintains Joseph Paul of Tenaganita, which is managing Nona’s case.

The Immigration Act should not have overriding authority to be used to deprive a worker of her wages for work that has been performed.

The Malaysian Constitution also provides that all ‘persons’ were entitled to basic human rights including the right to life and livelihood; it applies to all persons in the country and does not discriminate against those who are undocumented,” added Joseph Paul.

Tenaganita’s position is that although Malaysia has not ratified the ILO’s Migration for Employment Convention and the Migrant Workers (Supplementary Provisions) Convention, it is still a party to and bound by the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights to protect the rights of all human beings (including undocumented migrant workers).

Furthermore as an ILO member, Malaysia is bound to respect the rights of all migrant workers in line with the ILO Declaration on Fundamental Principles and Rights at Work, 1998.

Nona’s lawyers said they would write to Wisma Putra and the Ministry of Human Resources for clarification on Malaysia’s position on the ILO Convention on Migration for Employment and the Migrant Workers (Supplementary Provisions) Convention, as instructed by the High Court judge. They hope to obtain a speedy response from the government agencies.

Why is it so difficult for me to get my wages? said Nona. “How long more do I have to wait? Sometimes I feel like going back home, but it is not fair”, she added.

The Shah Alam High Court has set 15 April 2019 as the date for the decision on Nona’s appeal.

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