Joint Statement by 49 NGOs:Wrong to retain/delay worker wages or use other mechanisms to deter worker’s right to leave employer and other freedoms - Respect right to "Eight hours' labour, Eight hours' recreation, Eight hours' rest"

Joint Statement by 49 NGOs: 
Wrong to Retain/Delay Worker Wages or Use Other Mechanisms to Deter Worker's Right to Leave Employer and Other Freedoms

Respect right to "8 hours' labour, 8 hours' recreation, 8 hours' rest"

31 December 2018

We, the 49 undersigned organisations, trade unions and groups are perturbed by the Malaysian government, being  the Ministry of Human Resources,  proposal for the employers to deduct 20 percent 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 Daily, 15/12/2018). Prioritizing corporation’s need over worker rights and human rights is wrong.

Forced and/or Bonded Labour

Forced and/or bonded labour must be abolished. Mechanisms like the keeping of part of the worker’s wage to prevent an employee from leaving his 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 voluntariness. The terms “offered voluntarily” refer 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 take a job he or she would not otherwise have accepted.

In Malaysia, migrant workers are allowed to work if they are in possession of a work pass, being either the Social Visit(Temporary Employment) Pass or the Employment Pass. The problem now is that the pass allows the worker to work for just one named employer. This means that even if there is a breach of promise/agreement by the employer like the amount of wages, working conditions and/or type of work, or if there is harassment or violation of worker rights, the migrant worker, unlike local workers, have no freedom or choice to leave the employer and seek employment with another more just employer.

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

Retention of Worker’s Passport by Employers Violates the Law and Human Rights

The most common way that many an employer have ensured continued loyalty is by the wrongful retention of the migrant worker’s passport and visa/pass, where 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 with 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, being possibility a means of preventing workers 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.’ 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, and if they want to leave immediately, then they will need to pay one month’s wages in lieu of notice. The reality of most poor or middle income worker, is that the simply will not be able to raise the money to pay the one month’s wages in lieu of notice more so when their new, better or higher paying job requires them to immediately report for work. As such many a worker will just leave, and their employer has the choice to pursue them for that payment in lieu of notice, which many an employer elects not to do in cases of low or middle-income workers. After all, since wages are paid after work is done, there is really no loss safe the inconvenience, since no work has yet to 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/or 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 any added interest for this part 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 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 month loan repayment obligations, but 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 also another mechanism to deter workers from leaving their employer.

Working Hours and Excessive Overtime

Malaysian government, especially the Human Resource Ministry, need to prioritize the protection and promotion of worker rights which is a human right. In Malaysia, the right to work only 8 hours a day (or 48 hours per week) and thus having 8 hours for rest and another 8 for leisure and social life, is also not sufficiently protected. There are simply too many ways in Malaysian law whereby an employer can compel a worker into working longer hours.

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

Theoretically, worker’s consent is required if a worker is to work overtime, on rest days and/or on public holidays but the reality is that most workers just do not have the choice to refuse the employer’s request. The risk of being discriminated when it comes to wage increase, promotions or even termination is feared by most workers. Short-term contract workers, who hope for a future extension of their contract, or even a new contract of employment, are even more fearful of refusing to do what an employer wants.

The past government’s solution to low wages was simply suggesting that workers work more overtime or just take on a 2nd job. That suggestion itself was a suggestion to disrespect a worker’s right to have to just work an 8 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/public holidays, so they are being compassionate in acceding to worker’s request.

When a human right is acknowledged by the State, which usually also affirms it in law, the employer and/or the employee no longer has 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 stated that workers will have to work not more than 8 hours per day OR not more than 48 hours a 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 limit placed on hours of work could 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 even shorter number of hours of work. As an example, there is the 1957 C047 - Forty-Hour Week Convention, 1935 (No. 47).

Malaysia’s limit of overtime work being 104 hours in any one month is draconian. As pointed out, the ILO maximum is not than 18 hours a week, but in 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 HR Defenders – Investigate Alleged Violations Highlighted

On 9/12/2018, the Guardian, the UK Daily, highlighted violation of worker rights including excessive overtime in a Malaysian company. (Guardian, 9/12/2018). The report stated, amongst others,  that ‘…The 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 Human Resources Minister M. Kula Segaran, was reported the following day stating that the ‘allegations of worker mistreatment at the company are mostly false.’(Malaysian Insight, 10/12/2018). 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.

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

With regard to overtime, it not simply the question of exceeding the overtime limits, but also whether it was for the 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. The Employment Act in section 60A(2) states that ‘…the Director General shall have the power to enquire 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 the worker and their families, workers should earn sufficient income working no more than 8 hours per day or 48 hours a week. This is an obligation of the State. Employers too should never prioritize profits over wellbeing of workers and their families.

THEREFORE, we

Call on the Malaysian government to abandon the idea of retaining part of the wages of workers ‘…as a means to bond workers to the employer..’;

Call on the Malaysian government to repeal the provision in law that delays the payment for overtime, work on rest day and public holidays by a month. Workers should be paid promptly at the end of the month for overtime and work on rest days/public holidays;

Call on the Malaysian government to take action against employers that retain passports and/or visas/work passes of their workers, something used, amongst others, to prevent workers the freedom to leave employers,

Call on Malaysia to reduce the overtime limit of 104 hours in compliance with international standards, which should not be more than 48 hours a week generally;

Call on Malaysia to investigate independently allegations of human rights violations, and not make allegations or take retaliatory actions against human rights defenders, including media, that highlights such allegations;

Call on Malaysia to take prompt action against employers that violate worker rights, irrespective whether the violation is ongoing or happened in the past. Penalties in law for violation of worker rights need to be increased to deter the violation of worker rights.

Call on Malaysia to ratify/sign Hours of Work (Industry) Convention, 1919 (No.1), and preferably also C047 - Forty-Hour Week Convention, 1935 (No. 47).

Call on Malaysia, who has ratified Forced Labour Convention, 1930 (No. 29) to also ratify C105 - Abolition of Forced Labour Convention, 1957 (No. 105). Malaysia, who ratified C105 in 1958 denounced it in 1990;

Call on Malaysia to ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families;

Call on Malaysia to ratify all fundamental ILO and UN Conventions;

Call on Malaysia promote and protect human rights defenders, and enact legislations to prevent retaliatory actions against human rights defenders that highlight alleged human rights violations; and

Call on Malaysia and employers to respect and promote worker and trade union rights in Malaysia.


Charles Hector
Mohd Roszeli bin Majid


For and on behalf of the 49 organisations listed below:

ALIRAN
Asociación de Trabajadoras del Hogar a Domicilio y de Maquila–ATRAHDOM,Guatemala C.A.
Association of Maybank Executives
Bangladesh Group, The Netherlands
Banglar Manabadhikar Suraksha Mancha (MASUM), India
Burmese Worker"s Circle, Fort Wayne Indiana, U.S..A
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
MADPET(Malaysians Against Death Penalty and Torture)
Malaysian Physicians for Social Responsibility (MPSR)
MAP (Migrant Assistance Program) Foundation, Thailand
National Garments Workers Federation, Bangladesh
National Union of Flight Attendants Malaysia (NUFAM), Malaysia
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 & Perak (PRIHATIN)
Persatuan Sahabat Wanita, Sgor (PSWS)
PETPOSITIVE
Philippine Knowledge and Activity Centre in the Netherlands
Plantation Resource Centre (PRC)
Programme Against Custodial Torture & Impunity (PACTI), India
Radanar Ayar Association
Sarawak Dayak Iban Association
Sahabat Rakyat 人民之友
SUARAM Malaysia
Tenaga Nasional Junior Officers Union (TNBJOU)
The Trade Union Solidarity Centre of Finland SASK
York Psychotherapy Centre, UK
Women of Colour in the Global Women's Strike, United Kingdom
Women on Color/GWS,US
Workers Assistance Center, Inc (WAC) , Philippines
WH4C(Workers Hub For Change)

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