Wrong to retain workers’ wages or deter workers’ right to leave employers

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Respect right to “eight hours’ labour, eight hours’ recreation, eight hours’ rest”, say 49 civil society groups.

We, the 49 undersigned organisations, trade unions and groups are perturbed by the Ministry of Human Resources’ proposal for employers to deduct 20% of their foreign workers’ basic salaries as a means to bond workers to the employer.

Minister M Kula Segaran said the proposal, among others, aimed at preventing foreign workers from fleeing and to avoid employers from incurring losses on investments to bring the workers in. (The Sun, 15 December 2018).

Prioritising corporation’s need over worker rights and human rights is wrong.

Force and bonded labour

Forced and bonded labour must be abolished. Mechanisms like keeping of part of a worker’s wage to prevent the employee from leaving his or her employer is wrong and could be considered forced labour.

According to the International Labour Organization (ILO), forced labour refers to situations in which persons are coerced to work through the use of violence or intimidation or by more subtle means such as accumulated debt, retention of identity papers or threats of denunciation to immigration authorities.

According to the ILO Forced Labour Convention, 1930 (No 29), which has been ratified by Malaysia, forced or compulsory labour is “all work or service which is exacted from any person under the threat of a penalty and for which the person has not offered himself or herself voluntarily”.

Of particular interest here is whether it is voluntarily. The term “offered voluntarily” refers to the free and informed consent of a worker to take a job and his or her freedom to leave at any time. This is not the case for example when an employer or recruiter makes false promises so that a worker takes a job he or she would not otherwise have accepted.

In Malaysia, migrant workers are allowed to work if they have a work pass: either a social visit (temporary employment) pass or an employment pass.

The problem now is that the pass allows the worker to work for just one specified employer. This means that even if there is a breach of promise or agreement by the employer over, for instance, the amount of wages, working conditions or type of work or if there is harassment or violation of the worker’s rights, the migrant worker, unlike local workers, has no freedom or choice to leave the employer and seek employment with another more just employer.

If the migrant worker leaves the specified employer, he of she would also lose the ability to continue to live and work in Malaysia. The Malaysian Immigration Department, on being informed by the employer, usually cancels the work pass without according the affected worker the right to be heard.

Retention of workers’ passports by employers violates law, human rights

The most common way that many employer have ensured continued loyalty is through the wrongful retention of migrant workers’ passports and visas or passes. In Malaysia, the inability to produce these identification papers is an offence, which can lead to arrest, detention and even prosecution. The fear of moving around without proper identification papers also restricts one’s freedom of movement.

Withholding payment of overtime, etc until the next wage period

In 2012, Malaysia amended the Employment Act 1955, which now allows the employer the ability to retain part of the wages, raising the possibility that could be used as a means of preventing workers from leaving their jobs.

Section 19(2) of the Employment Act 1955 now reads:

(2) Wages for work done on a rest day, gazetted public holiday referred to in paragraphs 60D(1)(a) and (b) and overtime referred to in section 60A shall be paid not later than the last day of the next wage period.

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This allows the employer to retain wages payable for overtime work and work done on a rest day, gazetted public holiday for another month.

Workers can leave their employment, but the usual requirement is that they give usually one month’s notice. If they want to leave immediately, then they will need to pay one month’s wages as a substitute for giving notice.

The reality of most poor or middle-income workers is that they simply will not be able to raise the money to pay one month’s wages as a substitute for notice – more so when their new, better or higher paying job requires them to immediately report for work.

As such, many workers will just leave, and their employers have the choice of pursuing them for that payment that was supposed to be made as a substitute for notice. Many employers elect not to do this in cases involving low or middle-income workers. After all, as wages are paid after work is done, there is really no loss except the inconvenience, as no work has yet been done that requires payment.

But with the new amendment brought after the previous Barisan Nasional government, the worker is not paid for overtime and work done on rest days and public holidays at the end of the month, as was the case before the amendment. They have to wait for the following month.

It is even more unjust because they receive no added interest for this part of their wages that have been delayed. Money paid today, used wisely, can easily generate additional income even after a day or two.

So, not only are workers in Malaysia suffering an injustice in the delayed payment of part of their wages (which is most important in an era where the cost of living is so high and most workers have monthly loan repayment obligations), the delay also prevents workers from additional income, which could even be obtained through placement in an interest-paying savings account or unit trust.

The object of this amendment seems to be to assist employers and possibly serve as another mechanism to deter workers from leaving their employer.

Working hours and excessive overtime

The government, especially the Ministry of Human Resources, needs to prioritise the protection and promote workers’ rights, which are human rights.

In Malaysia, the right to work only eight hours a day (or 48 hours per week) and thus having eight hours for rest and another eight for leisure and social life is also not sufficiently protected. There are simply too many ways in Malaysian law an employer can compel a worker to work longer hours.

Worse is the fact that Malaysia at present has a draconian overtime limit, as contained in yhr Employment (Limitation Of Overtime Work) Regulations 1980. These Regulations stipulate that the limit on overtime work is a total of 104 hours in any one month. Note that working on rest days and public holidays is not considered overtime. Hence, in Malaysia a worker can end up working 12 hours every working day.

Theoretically, a worker’s consent is required if he or she is to work overtime on rest days or public holidays. But the reality is that most workers just do not have the choice to refuse an employer’s request. Many workers fear the risk of being discriminated against when it comes to wage increases, promotions or even terminations. Short-term contract workers, who hope for a future extension of their contracts or even new contracts of employment are even more fearful of refusing to do what an employer wants.

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The past government’s solution for low wages was simply to suggest that workers work more overtime or just take on a second job. That suggestion itself was a suggestion to disrespect a worker’s right to just work an eight-hour day. Some employers, even now, have the audacity to suggest that it is the workers who want to work overtime and on rest days or public holidays; so they are being compassionate in acceding to the workers’ requests.

When a human right is acknowledged by the state, which usually also affirms it in law, the employers and employees no longer have the right to break the law or violate that right. After slavery was abolished, slavery cannot continue even if the slave wants it.

Hours of Work is the first International Labour Organisation Convention, but alas Malaysia has not ratified it. That 1921 Convention states that workers will have to work not more than eight hours per day or not more than 48 hours per week.

The 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).

Even in exceptional cases, where there is agreement between worker and employer, where a limit placed on hours of work may be exceeded, it is clearly stated that “the average number of hours worked per week, over the number of weeks covered by any such agreement, shall not exceed forty-eight” (Article 5, ILO Convention 1).

Since then, international standards are moving towards an even shorter hours of work. For example, there is the C047 – Forty-Hour Week Convention, 1935 (No. 47), which entered into force in 1957.

Malaysia’s limit of overtime work of 104 hours a month is draconian. As pointed out, the ILO maximum is not more than 18 hours a week, but on average a worker should not be made to work more than 48 hours per week. Overtime is only permitted in exceptional situations, and such situations are also stipulated in Malaysian law.

As a comparison, Indonesia has an overtime limit of 14 hours a week. China has a monthly limit of 36 hours. In France, they can work 10-12 hours a day, but workers should not be made to work more than 48 hours a week.

No retaliation against human rights defenders: investigate alleged violations highlighted

On 9 December 2018, the UK Guardian highlighted violations of worker rights including excessive overtime in a Malaysian company. The report stated, among other things, that “Top Glove workers – eight from Nepal and eight from Bangladesh – alleged that their factory was ‘mental torture’ where they had to work seven days a week, at least 12 hours a day, with only one day off a month… Payslips seen by the Guardian seemed to indicate workers often worked between 120 and 160 hours’ overtime a month, exceeding the 104 hours allowed by Malaysian law.”

The following day, Human Resources Minister M Kula Segaran was reported as saying that the “allegations of worker mistreatment at the company are mostly false”(Malaysian Insight, 10 December 2018). He even suggested that the allegations “could be the work of industry rivals out to beat the country’s rubber gloves manufacturer”.

It was also disappointing to see that one media conference was held together with the representatives of the company concerned.

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It must be stressed that when workers or human rights defenders highlight alleged human and workers’ rights violations, the state must speedily conduct an independent investigation and certainly not come out in defence of the alleged perpetrator or make allegations against complainants and human rights defenders, which includes the media.

With regard to overtime, it is not simply a question of exceeding overtime limits, but also whether it was for exceptional situations which allowed workers to be asked to do overtime. If it happens week after week, every month, then it may no longer be legally permitted overtime.

Section 60A(2) of the Employment Act states that the director-general shall have the power to inquire into and decide whether or not the employer is justified in calling upon the employee to work overtime and on rest days.

To ensure the livelihood of workers and their families, workers should earn a sufficient income in working no more than eight hours per day or 48 hours a week. This is an obligation of the state. Employers too should never prioritise profits over the wellbeing of workers and their families.

Therefore, we call on the Malaysian government to:

  • abandon the idea of retaining part of workers’ wages “as a means to bond workers to the employer”
  • repeal the provision in law that delays the payment of overtime, work on rest days and public holidays by a month (Workers should be paid promptly at the end of the month for overtime and work on rest days and public holidays)
  • take action against employers who retain the passports, visas or work passes of their workers – which is something used, among other measures, to curb the freedom of workers to leave their employers
  • reduce the overtime limit of 104 hours in compliance with international standards so that it is not more than 48 hours a week generally
  • investigate independently allegations of human rights violations and not make allegations or take retaliatory actions against human rights defenders, including media, who highlight such allegations
  • take prompt action against employers who violate workers’ rights, irrespective of whether the violation is ongoing or happened in the past (Penalties in law for violation of workers’ rights need to be increased to deter the violation of worker rights)
  • ratify and sign the Hours of Work (Industry) Convention, 1919 (No.1), and preferably also C047 – Forty-Hour Week Convention, 1935 (No. 47)
  • having ratified Forced Labour Convention, 1930 (No. 29), ratify C105 – Abolition of Forced Labour Convention, 1957 (No. 105) [Malaysia, which ratified C105 in 1958, denounced it in 1990]
  • ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
  • ratify all fundamental ILO and UN Conventions
  • promote and protect human rights defenders and enact legislation to prevent retaliatory actions against human rights defenders who highlight alleged human rights violations and
  • along with employers, respect and promote workers’ right and trade union rights in Malaysia.

Charles Hector issued this statement on behalf of the 49 organisations listed below:

  • Aliran
  • Asociación de Trabajadoras del Hogar a Domicilio y de Maquila–Atrahdom, Guatemala CA
  • Association of Maybank Executives
  • Bangladesh Group, The Netherlands
  • Banglar Manabadhikar Suraksha Mancha (Masum), India
  • Burmese Workers’ Circle, Fort Wayne Indiana, US
  • Center for Alliance of Labor and Human Rights (Central), Cambodia
  • Centre for Independent Journalism
  • Center for Migrant Advocacy, Philippines
  • Christian Development Alternative (CDA), Bangladesh
  • Clean Clothes Campaign
  • Electrical Industry Workers’ Union (EIWU)
  • Electronics Industry Employees Union Southern Region Peninsular Malaysia (EIEUSR)
  • Globalization Monitor, Hong Kong
  • Global Women’s Strike, United Kingdom
  • Global Women’s Strike, US
  • Institute for Development of Alternative Living (Ideal), Sarawak
  • International Labor Rights Forum, USA
  • Kesatuan Eksekutif Airod
  • Kesatuan Pekerja-Pekerja Perusahaan Otomobil Nasional Sdn Bhd (KPP Proton)
  • Legal Action for Women, United Kingdom
  • Malaysians Against Death Penalty and Torture (Madpet)
  • Malaysian Physicians for Social Responsibility (MPSR)
  • Migrant Assistance Program Foundation (MAP)
  • National Garments Workers Federation, Bangladesh
  • National Union of Flight Attendants Malaysia (Nufam)
  • National Union of Journalist (NUJ) Utusan
  • National Union of Transport Equipment & Allied Industries Workers (NUTEAIW)
  • North South Initiative (NSI)
  • Odhikar, Bangladesh
  • Parti Sosialis Malaysia (PSM)
  • Payday Men’s Network, United Kingdom
  • Persatuan Komuniti Prihatin Selangor, KL dan Perak (Prihatin)
  • Persatuan Sahabat Wanita, Selangor (PSWS)
  • PetPositive
  • Philippine Knowledge and Activity Centre in the Netherlands
  • Plantation Resource Centre (PRC)
  • Programme Against Custodial Torture and Impunity (Pacti), India
  • Radanar Ayar Association
  • Sahabat Rakyat 人民之友
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