We, the undersigned 20 groups, organisations and trade unions, applaud Malaysia’s stated commitment to eradicate forced labour.
However, fining or even imprisoning employers only is simply not enough, as [the authorities] must ensure worker victims, including migrant workers, are justly compensated by the perpetrators of forced labour. Offering ‘compounds’ instead of prosecuting [offenders] in court allows perpetrators of forced labour to escape conviction.
Forced labour includes work or service which is exacted from any person under the threat of a penalty and for which the person has not offered themselves voluntarily. The International Labour Organization (ILO) indicators of forced labour are abuse of vulnerability, deception, restriction of movement, isolation, physical and sexual violence, intimidation and threats, retention of identity documents, withholding of wages, debt bondage, abusive working and living conditions, and excessive overtime.
Sadly, Malaysia’s Employment (Limitation of Overtime Work) Regulations 1980 states that the overtime limit shall be a total of one 104 hours in any one month, and this does not include work on rest days or paid holidays.
Until, this draconian law is amended, Malaysian law continues to promotes forced labour – ie excessive overtime.
The 1921 ILO Convention stated that workers will have to work not more than eight hours per day or not more than 48 hours a week, and this limit may “be exceeded in those processes which are required by reason of the nature of the process to be carried on continuously by a succession of shifts, subject to the condition that the working hours shall not exceed fifty-six in the week on the average” (Article 4, ILO Convention 1).
In Malaysia, overtime is not limited to exceptional situations in practice – but sometimes becomes the norm. Even though Malaysia has reduced the weekly working hours from 48 to 45 beginning January 2023, it is useless if the legal overtime limit remains 104 hours a month.
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Poor track record
Over the years, there have been several allegations of forced labour in Malaysia: countries like the US and even the UK did not stop with allegations but also took action.
Sadly, the Malaysian government generally claim the allegations are baseless and seldom does anyone get prosecuted for forced labour.
As an example, the US lifted a 17-month import ban on products from Malaysian rubber glove maker Smart Glove, saying the company has addressed exploitative labour practices, including repaying recruitment fees borne by migrant workers and improving workers’ living condition.
The London High Court is set to hear claims by migrant workers of forced labour and dangerous working conditions at a factory in Johor which manufactures components for Dyson electrical goods next week.
A survey by the ILO indicates that 29% of surveyed migrant domestic workers in Malaysia were in conditions meeting the ILO’s statistical definition of forced labour.
Local and migrant victims
Local workers and migrant workers are both victims of forced labour. When they do muster the courage to demand their rights, outstanding payments due and other entitlements provided by law, some employers respond with threats of termination (penalty), and in the case of migrant workers, cancellation of work permits and even detention and repatriation back to their countries of origin.
Note that avenues of justice for workers are in Malaysia, and many require the physical attendance of the affected worker – which is almost impossible for poor migrant workers who have already been sent back to their countries of origin. For poor local workers, the problem is [a lack of] resources (money and time) and capacity deters them from pursuing justice.
Victims left out
Since January 1… for various labour offences including illegal wage deductions, 272 employers were issued compounds totalling RM2.17 million, while 128 employers were fined by the court, amounting to RM242,000, he (Human Resources Minister V Sivakumar) said…
However, the minister failed to state how many workers were victims of forced labour practices, and whether these worker victims have been justly compensated.
Fines and compound payments go to the government – not to the affected worker victims of forced labour. Justice for forced labour victims must be a government’s priority that could be even be dealt by the court that convicts employers, directors and other officers for forced labour crimes.
Compensation for worker victims
In Malaysia’s Criminal Procedure Code, after the perpetrator has been convicted, Section 426(1A) provides that the court can order the convicted [accused party] to pay “compensation to a person who is the victim of the offence committed by the convicted accused in respect of the injury to his person or character, or loss of his income or property, as a result of the offence committed”.
A similar provision could easily be inserted in the Employment Act 1955 and other labour laws, so that adequate just compensation can also be awarded to victims of forced labour and for other worker rights violations in the same proceedings, without requiring victims themselves to go after the convicted perpetrators alone to get justice.
The Criminal Procedure Code further states that the such orders for payment shall not prejudice any right to a civil remedy for the recovery of any property or for the recovery of damages beyond the amount of compensation paid under the order.
At least, then, victims of forced labour will get some compensation after the court convicts forced labour offenders and still retain the right to get further compensation, if they so desire, through other civil remedies.
Now, Section 87A states: “(1) Where an employer has been convicted of an offence relating to the payment of wages or any other payments payable to an employee under this Act, the court before which he is convicted may order the employer to pay any payment due to the employee in relation to that offence.”
However, this does not extend to other forced labour or worker rights violations. Further, this can only happen, if the perpetrator is charged and convicted in court, not to those who were offered compounds and not charged in court.
Most victimised workers are poor and lack capacity, and simply choose not to pursue justice, hence allowing perpetrators of forced labour to get away with it. Fines and compounds alone do not do justice to worker victims of forced labour.
Were the directors, managers prosecuted?
Since 2012, the Employment Act 1955 was amended to include Section 101B, which states: “Where an offence under this Act has been committed by a body corporate, partnership, society or trade union – (a) in the case of a body corporate, any person who is a director, manager, or other similar officer of the body corporate at the time of the commission of the offence; (b) in the case of a partnership, every partner in the partnership at the time of the commission of the offence; and..”
Thus, it is important for the Malaysian human resources minister to disclose how many directors and officers of these corporations or entities were also prosecuted for forced labour offences. It is a grave injustice if actions is not taken against the human persons responsible for actions/omissions of a company. A company is a mindless shell, and thus merely fining or receiving compounds from companies – but not directors, managers or other similar officers – enables the real criminals to escape.
The minister must disclose how many human persons in the companies or body corporates were fined or paid compounds – for to not do so is basically protection of the human perpetrators of forced labour. Failure to prosecute will not deter these human perpetrators from repeating crimes of forced labour.
It is discriminatory to charge 128 employers in court – but not the other 272?
Was there discrimination or selective prosecution? All employers, directors and officers who committed forced labour or other labour offences must be charged in court, where it will be clear from the charges what offences are committed?
Were those who were offered compounds government-linked entities or persons? Why were they not charged and allowed to escape with no record of guilt for the offences of forced labour?
The compound process is an administrative action, not a judicial process. How much compound is offered is decided by the administration. In court, the judge will consider all factors including the injustices suffered by the many victims before pronouncing a just sentences.
Although the offence of forced labour provides for a sentence of a “fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding two years or to both”, it is shocking that the human resources minister’s disclosure implies that no one was sentenced to imprisonment, and this may be indicative of Malaysia’s commitment to eradicating forced labour and ensuring justice.
Among the many employers who were fined or who paid compounds, how many of these employers did justice to the worker victims? Were they compensated? Were they reinstated or paid instead of reinstatement? Has Malaysia forgotten to ensure justice to worker victims? Will the information of employers who paid compounds even be disclosed to the public or worker victims, [in the same way that information about] those who are charged in court and fined are available to the public?
A National Action Plan on Forced Labour 2021-2025 or having guidelines on preventing and eradicating forced labour practices in the workplace is just not enough without an indiscriminatory prosecution of all guilty of forced labour offences, and ensuring justice for all worker victims.
There, we call:
- For Malaysia to be intolerant of forced labour and worker rights violations, and ensure all worker victims are justly compensated
- For the repeal or amendment of all draconian laws or provisions of law that facilitate or fail to deter forced labour and workers’ rights violations. The Employment (Limitation of Overtime Work) Regulations 1980 must be amended to reduce the legal limit of monthly overtime from 104 hours per month to a level that will ensure that working hours with overtime, work on rest days or public holidays shall not exceed 56 hours a week on average
- For the Malaysian government to abolish compounds for forced labour offences and all worker rights violations, and ensure all perpetrators including human decision-makers be charged, tried and convicted in court
- For a transparent disclosure of all perpetrators of forced labour, with a practice where repeat offenders will receive higher sentence
- For a deterrent punishment that employers pay at least five times the amount of money withheld from workers wrongly. At present, all that the law requires is that “the employer to pay any payment due to the employee in relation to that offence” – not even with interest or double
- For Malaysia to defend and promote worker rights, and to eradicate forced labour.
Charles Hector and Apolinar Z Tolentino Jr
For and on behalf of the 20 organisations listed below”
- Worker Hub For Change (WH4C))
- Malaysians Against Death Penalty and Torture (Madpet)
- Building and Wood Workers International (BWI), Asia Pacific region
- Black Women for Wages for Housework
- Clean Clothes Campaign international office
- Clean Clothes Campaign (CCC), SEA coalition
- David Foust, México
- GoodElectronics Network
- Japan Innocence and Death Penalty Information Center
- North South Initiative (NSI), Malaysia
- Payday Men’s Network (UK/US)
- Persatuan Komuniti Prihatin Selangor and Kuala Lumpur
- Persatuan Sahabat Wanita Selangor
- Sabah Timber Industry Employees Union (STIEU)
- Sarawak Dayak Iban Association (Sadia)
- Serve the People Association, Taiwan
- Setem Catalunya, Spain
- Women For Equality Association, Malaysia
- Women of Color/Global Women’s Strike, US