Exploitation of Migrant Workers in Malaysia and Protection under

Domestic Laws

Sharmin Jahan Putul

, and Md Tuhin Mia

Faculty of Laws, University of Malaya, Kuala Lumpur, Malaysia

Ahmad Ibrahim Kulliyyah Of Laws, International Islamic University Malaysia, Gombak, Malaysia

(f_sharminputul, s_rajtuhin92)@gmail.com

Keywords: Domestic, Rights, Migrant Workers, Exploitation.

Abstract: The contribution of foreign workers into the rapid development of Malaysia is enormous. Nevertheless, the

workers have complained of exploitation and deprivation of their rights by their employers. This study aims

to examine the extent to which the allegation and claim are true. It investigates the manner of the said

exploitations based on the standards of International Labour Organization (ILO) and Malaysian law. The

Qualitative investigation revealed that the rights of foreign workers as clearly set out those Malaysian

domestic laws are breached. It therefore concludes that there is a need for Malaysia to take necessary measures

in ensuring to stop exploitation and rights of the foreign workers are restored and preserve

1 INTRODUCTION

In this modern time Malaysia has become the highest

labour importer in Asia. Unwillingness of local

Malaysian workers is continuing the trend of import

foreign workers over the past few decades. Despite

the trend of migration, the issue of abuse and

exploitation got attention in the society of Malaysia.

Many migrant workers are reported that they have to

work each and every single day in a week. Verbal

and physical abuse is common especially women who

are at most times subjected to incidents of sexual

harassment and assault including rape. Article 6(1)

and (2) of the Federal Constitution of Malaysia

declared that all type of forced labour and slavery are

prohibited in the territory of Malaysia. Art 6(1) states

that ‘no person shall be held in slavery’. In this article

the term ‘no person’ reflects that neither local nor

foreign workers shall be held in slavery or any form

of servitude. The sardonic truth is, around the whole

world migrant workers are exploited by their

recruiting agents in Bangladesh, Pakistan, Nepal and

Indonesia, or by their employers. Generally, the

exploitation begins with the seizure of foreign

workers passport either by their employer or by their

recruiting agents. This practice is only to control the

freedom of movement, to change the jobs, to make

complain about the poor condition or slavery of

foreign workers. This article will illustrate the

scenario of the exploitation of migrant workers based

on their rights with supported local laws of Malaysia.

2 DEFINITION OF MIGRANT

WORKERS

The term ‘migrant workers’ explains that a group of

foreign people who have legal right to work in a

country where they are officially recruited. The

Employment Act 1955(Act 265) defined migrant

worker as who is not a citizen of Malaysia. UN

Convention on the Rights of Migrants and Their

Families defines a migrant worker as a "person who

is to be engaged, is engaged or has been engaged in a

remunerated activity in a State of which he or she is

not a national." The above definitions confirmed that

migrant worker means a person who works in a

country where he or she is not a citizen.

3 DEFINITION OF

EXPLOITATION

Migrant workers travel in the foreign country with a

great hope to have a better life, better working place

and better salary. However, commonly they started

their new life with dangerous working condition,

Putul, S. and Mia, M.

Exploitation of Migrant Workers in Malaysia and Protection under Domestic Laws.

DOI: 10.5220/0010054801250131

In Proceedings of the International Law Conference (iN-LAC 2018) - Law, Technology and the Imperative of Change in the 21st Century, pages 125-131

ISBN: 978-989-758-482-4

125

violation of their human rights and restriction of

movement, and generally in beginning their

document are seized by the recruitment agents or

employers. Migrant worker is a human being are

entitled to enjoy their basic human rights not the

political rights, as declared in the Universal

Declaration of Human Rights and other international

human rights instruments.

The word ‘exploitation’ is meaning a lot in terms

of treat on migrant workers in Malaysia. Exploitation

is everywhere to migrant workers in the world while

Malaysia has more complain regarding that within the

area of Southeast Asia. Generally, migrant workers

are vulnerable to employers in a foreign land and they

tend to be constipated to comply with employer’s

decision or order. They are subject to weak

recruitment regulations, limited legal protection and

are vulnerable to exploitation by unscrupulous

recruitment agents and employers. Many types of evil

situation are conducted to migrant workers including

the following forms of exploitations.

3.1 Seizing Workers Passport

The most valuable and important document is

passport for migrant workers. It seems a life of a

migrant workers, though, it is withheld by employers

to keep off workers from moving anywhere.

Detaining Passport is prohibited under the Passport

Act 1964 and other domestic laws related to migrant

workers. Migrant workers have the right to free

movement and even right to change the job, however,

the situation of migrant workers in Malaysia is totally

opposite. The employers always deny to leaving a

foreign worker due to changing job from his/her

institution to another factory or company. If a migrant

worker wants to change the job or employer then he

has to go to the foreign ministry office and industrial

relations organisation to take permit which is very

tough to a migrant worker. This is because, the

processing will take a long time and worker has to be

free to do so which they cannot due to withholding

passport by employers. Sometimes, workers need to

go outside for shopping, medication or other needs

and often they are caught by police in the name of

checking valid documents. Thus, workers cannot

show their passport and police arrest them due to not

having the legal documents. The foreign workers are

sometimes taken off to some clandestine places by

police to fear and misappropriate money from them.

The employers and recruiting agents always neglect

this type of situations and do not take the issue

seriously. In addition, it happens sometimes that

migrant workers need to travel to his/her home

country for any emergency matter but they cannot go

because of locking up passport by employers. In

terms of the above cases, migrant workers cannot

move freely and cannot change the job rather they

quail to do so. They constantly think that their life is

in employer’s hand and they cannot do anything

beyond the employer’s permission. Therefore,

employers have no right to detain migrant workers

passport that is an exploitation of migrant workers in

free movement perspective.

3.2 Physical and Mental Torture on

Migrant Workers

It is obvious that migrant workers in Malaysia are

being abused physically or mentally. Torturing

physically, beating, pressuring for work, reviling, and

leering are available for foreign workers daily life in

the factory or workplace. There are a lot of case

related to abusing migrant workers in the workplace

by their employers even murder cases also noticeable

in the court. Migrant workers come to Malaysia with

a hope that they will lead their life happily and

construct a better future, however, due to oppressions

by employers their hopes become valueless. There is

no right to torture whether mentally or physically to

any workers under the international laws as well as

local laws. If a worker does any wrong which make

mischief to institution, employer can take action

namely deduce salary or commission, dismiss the job,

or anything provided by the law. However, any law

did not provide any right to torture to anyone rather it

is a criminal offence as in criminal law. Moreover,

migrant workers are the most vulnerable human being

in Malaysia as they cannot move anywhere leaving

their passport because of the fear to become illegal

status. Taking into account this reason, employers get

inspiration to violence against migrant workers

physically and mentally. Even, they do not take the

law seriously because they know that foreign workers

will not go to sue against them. Hence, employers are

the supreme while workers are the vulnerable being

to exploit in the workplace and the supremacy will be

continued as exploitation until the proper law of

enforcement.

3.3 Forced Labour

Forcing to work after working hours without taking

approval from workers is very common in Malaysian

institutions or workplaces, especially to migrant

workers. Every person has a capacity to work and out

of that capacity if something is pressured to do, that

will be an abusive manner other than exploitation. In

iN-LAC 2018 - International Law Conference 2018

126

Malaysia, all forms of forced labour are prohibited by

the federal constitution of Malaysia and any types of

abusive practice is a criminal offence under the

international and national laws. There are many cases

that employers forced to workers to work for extra

hours even for a day without any rest where workers

are not paid for that extra works. This is totally wrong

and an offence under the law. International Labour

Organization (ILO), United Nations (UN) and other

human rights organisations focused on forced labour

especially force to migrant workers as it is a human

rights violation and exploitation to migrant workers.

Many worst situation and abusive practices are

imposed to migrant workers in terms of excessive

works and extra working hours withoutor half or less

payment during busy schedule. Furthermore, if

workers deny doing so, then physical torture are

carried on them. Thus, migrant workers are

compelled to work for extra hours whether for few

hours or a whole day, even for day by day.

3.4 Sexual Harassment

Sexual harassment in the workplaces especially to

migrant domestic workers is common and becomes

general phenomena to employers in Malaysia.

Migrant domestic workers are the most vulnerable

among migrant workers due to some generous

reasons such as they cannot move freely without the

permission of the employer or owner, they cannot

communicate to others for any evil circumstances,

they cannot complain to others as their employer is

only place to share anything happens and so on. Many

cases in the court of Malaysia indicates that migrant

domestic workers are not safe anymore in terms of

sexual harassment, physical and mental torture, and

rape. As migrant domestic workers work in the house,

their passports are seized by the employer, their

accommodation and food are also provided in that

house, they are subjected to do what the employers

says otherwise things will be very tough to them like

physical and mental torture. Sometimes, domestic

workers stay alone in the house and employers get

opportunity to irritate the workers sexually, blackmail

them emotionally and fear them that if they tell this to

anyone then situation will be horrible to them. In

these circumstances, migrant domestic workers do

not have anything to do accept admire the torture

silently and shut their mouth up with tears.

3.5 Discrimination against Migrant

Workers

Migrant workers in Malaysia are constantly

discriminated in terms of sex, race, religion, colour

and many more ways in the workplace. They are

distinguished from local workers in salary, working

hours, accommodation, food, working sectors, fine,

deduction and even exploitation perspectives where

Article 8(1) provides that all persons are equal before

the law and entitled to the equal protection of the law.

In addition, migrant workers cannot join trade union

and any types of association under the domestic laws

in Malaysia. There is a prohibition from Ministry of

Home Affairs that migrant workers in Malaysia

cannot join any kinds of association which inspires

the employers to discourage migrant workers to join

unions. Furthermore, Under the Trade Union Act

1959 any union officer must be a citizen of Malaysia.

Since joining the work to dismiss from the work,

migrant workers are continuously discriminated with

a neglect and leer. It is claimed by the foreign workers

in Malaysia that local workers are paid more salary

than foreign labour though both of themdo the same

work and for same hours. During the busy schedule

in the workplaces, local workers deny working as

overtime, however, migrant labours are compelled to

do that. There are many complain against employers

that they provide so many advantages regarding

illness, leave of absence, allowance, and so on to local

workers where foreign workers are deprived from

those benefits. However, any discrimination is

prohibited by the federal constitution of Malaysia and

court decision while employers are careless to obey.

As the Industrial Court in Chong WahPlastic SdnBhd

and Others v Idris Ali and Others, noted inter alia, that

the principles of law, equity and good conscience

demand that migrant workers must be given the same

legal rights as local workers. All the above positions

make migrant workers reluctant to work sincerely in

the workplace, as a result abusive practices are

returned to them.

3.6 Salary Deduction:

Migrant workers come to Malaysia with a hope as to

earn more money for maintaining their family and

expecting a better future after going back to their

home country, however, the situation is the opposite

to them. They are the being to whom employers can

be capricious and cut down salary in the name of fine

though it is nothing than exploitation. The claim from

migrant workers is available regarding detruncate

salary after working for a long month and migrant

Exploitation of Migrant Workers in Malaysia and Protection under Domestic Laws

127

workers cannot complain about that due to the

vulnerability in a foreign country. Employers will

provide the accommodation under the domestic laws

but they do not do so, rather they cut salary as the

accommodation fees if they provide. Moreover, as

Malaysian laws, the levy will be paid by employers

where employers reap salary of migrant workers as

the levy charge as well as insurance fee. Furthermore,

there is a basic and overtime salary payment limit by

the government to migrant workers, however,

employers follow only the basic scheme and outwit in

terms of overtime payment. Therefore, migrant

workers in Malaysia are dissatisfy with their salary

after working a month with pressure and not

mentionable rest while their inspiration to work

carefully become less.

3.7 Poor Living Condition

As human being, migrant workers may demand

treating them well and decent, providing them healthy

living condition, and equal facilities as local workers

in accommodation perspective. A lot of research has

been done on migrant workers health issue and found

that poor living spaces is the main reason pulling to

become sick. Often, foreign workers die also due to

the unhealthy environment such as working in plastic

factories with no protection, living in grimy and

unclean room without ventilation and

accommodating many people together in a small

room and become cachectic. The previous research

showed that in many cases 5 people live in a room

like 200 square meters without any ventilation where

they cook, sleep, dine and entertain themselves.

Though, they pay for their living cost, the condition

of the places is not absolute to live. However, under

Malaysian laws, employers will provide the

accommodation with nice, healthy and habitable

living spaces. The law is there but employers are

careless to follow and deny providing such

conditions. In these circumstances, migrant workers

are helpless to do something against employers rather

they must survive and dwell silently.

3.8 Harassment by Police

Another problem to foreign workers is harassment by

police in the name of inspection or checking

documents outside of the workplace. Migrant workers

scare police though they have legal documents. This

is because, some police stand on the way where

migrant workers pass between living room and

workplace and stop them, then fear and harass

intentionally, so that they can get easy money from

workers. Workers claim that, police arrest them if

their passport or legal documents are not with them

due to withhold by the employer. In addition, few

police take workers to a clandestine place in the name

of arrest and then they force to give money. Workers

are docile to give money to police because employers

do not take the issue carefully and do not come to

unhand from the police when they call to employers.

That is why, migrant workers do not want to stay

outside than workplace or living room. If a worker get

arrest once, he needs to offer sometimes even half of

their monthly salary otherwise police will not leave

him/her and employer also will deny unhanding. This

is such kinds of mental torture to migrant workers in

a way while workers have nothing to do against this

practice.

3.9 Levy System

The levy is eliminated from the monthly salary of

migrant workers though they paid a huge amount of

money to broker or agent in their home country in

terms of all kinds of cost related to them. However,

they are forced to pay levy fee again behind a reason

showed by employer that there is a condition with

their agent in the deed to cut salary as levy fee. That

is why, from the begging month of work employers

detruncate salary and workers lose their hope to

survive in Malaysia though they do not have any way

to leave the job as they come to Malaysia by spending

a lot of money borrowed from others. In a sense,

migrant workers are paying levy charge two timesand

they are not satisfy with this levy fee at all. However,

Malaysian government recently declared that

employers have to pay levy not workers though the

situation is still same as previous. Hence, if migrant

workers need to pay levy again then they cannot clear

the loan or borrowed money from others and cannot

reach the hope with they came to Malaysia.

3.10 Others

The problems faced by migrant workers in Malaysia

are many and among them the above are the main

claim in terms of exploitation and abusive practices.

There are some other issues that also really exist and

harm to migrant workers. For instance, employers

refuse to renew the foreign workers visa sometimes

due to remaining extra hassles. They just leave this

issue to migrant workers and ignore any types of

disturbance. For this cause, migrant workers fall into

problem and face uncertain matters. In addition,

claims are provided by workers that there is no proper

safety and healthy tools in the workplace especially

iN-LAC 2018 - International Law Conference 2018

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in the construction sides. Moreover, religious

practices are also prohibited during working hours in

few factories or companies. If employers give time to

pray, they fix the time as workers cannot finish

praying within the time limit. Furthermore, Job

dismissal is another bad thing happen to migrant

workers without any notice and remedy. After

dismissal, employers cancel the workers visa and

foreign workers are bound to return back to their

home country. If they want to stay after discharge

then systematically they will be illegal. However,

there are laws regarding unfair dismissal that migrant

workers can complaint under the Industrial Relations

Act but it takes a long time and long procedure to

resolve. They are provided special pass for 1 month

and it can be extended for one month increments

under the Regulation 14 of the Immigration

Regulations of 1963. During special pass, they do not

have any job rather spend money for living cost, thus,

they do not engage with the case procedure normally.

Last but not least, if migrant workers complain to the

actual authority, employers do counter claim against

migrant workers and workers are vulnerable here as

they do not understand the language they

communicate in the court.

4 PROTECTION OF THE

RIGHTS OF MIGRANT

WORKERS UNDER

MALAYSIAN DOMESTIC LAW

According to ILO constitution, ILO member

countries are committed personally to protect the

rights of foreign workers. As a member of ILO,

Malaysia always tries to ensure the rights of migrant

workers with their own policies according to the

international labour standard to maintain a healthy

labour migration system. Millions of migrant workers

are getting justice under the Malaysian domestic laws

of Malaysia. Basically, some fundamental rights are

very general between ILO and UN conventions, such

as Equality at work, Freedom of movement, Freedom

from forced labour, Rights of Trade union, Medical

treatment, Right forholding Passport, Proper wages,

Access of justice, and Decent work and living

condition.However, Malaysian Employment Laws

given some basic rights for migrant workers where

domestic workers are included, as follows:

 Overtime pay after eight hours per day or 48

hours per week.

 No more than 12 hours of work per day and

104 hours of overtime for per month.

 Every after five hours of work 30 minutes

rest period.

 One day off each week except any

emergency.

 Twelve paid holidays each year.

 Paid annual leave at least eight days if the

employee has worked a full year.

 Paid sick leave of at least 14days each

calendar year.

The Employment Act 1955(Act 265) is the main

employment legislation in Malaysia to protect the

minimum rights of workers. This Act prescribes the

minimum protection of the rights of local as well as

foreign workers except the domestic workers in

Malaysia. The Act 265 included the proper wages of

workers, over time wages and deduction of payment,

maximum working hour in a day, maternity matter for

female workers, all types of leave and holidays each

year. According to the Act 265, if employer failure to

provide all these benefits to the worker can be

prosecuted through the Labour Court.

The Workmen’s Compensation Act 1952 is now

protecting only migrant workers for their injury.

Injured person indicates only those workers who are

working in government industries and those workers

who are working in the place with less than five

workers. According to the Workmen’s Compensation

Order (Foreign Worker Scheme) (Insurance) 2005 the

workers who are earning RM500 per month or less

they can participate. Under the Foreign Workers

Scheme, an employer should contribute RM86 per

year for each migrant worker.

All sections of the Trade Union Act 1959 are

applicable for migrant workers in Malaysia. This Act

confirms the rights of workers and employers to form

a Union and migrant worker can participate in the

activities of trade union.

The Industrial Relations Act 1967 also protects

the rights of migrant workers in Malaysia. If an

employer restrains any employee to join in a trade

union, the employee can make a complaint with the

Director General of Industrial Relation. However,

generally migrant workers will not get justice under

this Act because mostly after the complaint migrant

workers are dismissed by the employer, cancel the

work permits and forced them to go back to the

country. In this issue Bar Council of Malaysia given

one press statement against this practice and

neglected the employer’s attitude.

The Occupational Safety and Health Act 1994

ensured the rights of safety and health of migrant

workers in work place. This Act applicable for some

specific sector workers like Construction,

Manufacturing, Agriculture, Mining, Transport and

Exploitation of Migrant Workers in Malaysia and Protection under Domestic Laws

129

storage, Hotel and restaurant. Under this Act an

employer should provide necessary guidelines and

training before using any dangerous equipment in

work place. Further, when an employer has more than

40 workers he must established a committee to

control health and safety matter. If the employer

neglects this order and any accident happen in

workplace he will jail for not more than 2yeras or will

charge fine at RM50000.

The Factory and Machinery Act 1967 also secure

health and safety for worker in the factory. The Act

ensure that if any accident happen in workplace due

to the negligence of employer and worker loss their

life or body injury must report to the nearest inspector

and employer may fine up not more than RM5000.

Basically, when worker terminated from job

without any fault employer give compensation to the

employee under the Employment (Termination and

Lay-Off Benefits) Regulation 1980. Foreign workers

are always cheaper than local workers and due to that

there was a trend to retrench local worker and prefer

foreign worker. After the amendment of the

Employment Act in 1998 the trend is stopped.

However, following workers will not be entitled to

get the termination or layoff benefits:

 An employee who retires.

 An employee dismissed from job for

misconduct.

 An employee who renew his contract by the

same employer with same terms.

 An employee who denied renewing his

contract with same terms.

 An employee who willingly terminate the

employment contract.

As from the above discussion undoubtedly in

Malaysia migrant workers have the same

employment rights as the other local workers have.

5 METHODS

This paper is adopted a qualitative approach. Semi

structured interview is one of the major instruments

for data collection. The population is this study is the

construction migrated workers based in Kuala

Lumpur. Simple random sampling method has been

utilised for 30 workers, living in the various

construction sites based in Kuala Lumpur.

6 FINDINGS

It is beyond doubt that Migrant workers have

contributed enormously to the development in

Malaysia. But surprisingly some of these foreign

workers are still abused by their employer. All states

are under the obligation of human rights to preserve

the minimum rights of migrant workers whether they

are documented or undocumented. The ILO’s

member countries are committed by their own selves

to protect the rights of foreign workers according to

the ILO’s Constitution. Malaysia always try to

develop their own policies according to international

standard to manage labour migration as well as

protecting their rights. Millions of foreign workers

now benefited by the national laws of Malaysia.

Since, there are some good laws which are able to

protect migrant workers’ rights in Malaysia but the

question is to access of justice. It is recommended that

Malaysia should amend some domestic laws

according to the regulation of the ILO.

7 CONCLUSION

As Malaysia is the largest foreign labour importer in

the Southeast Asia region, Malaysia should pay

attention more on migrant workers in terms of proper

recruitment, admission, management, law making

and law enforcement. Phillip S Robertson Jr rightly

said that “The Malaysian Government does not have

a comprehensive legal and policy framework to

regulate the recruitment, admission, placement,

treatment, and repatriation of migrant workers.”

Although many specific laws are there, a special law

should be made which focus only migrant workers

perspectives. Some contradictory laws are still visible

that should be cleared. Regular fair investigation in

the institution should be practiced more thus, healthy

accommodation and workplace should confirm. The

levy issue need to clear that whether it would be paid

by employer or employee and whether it would be

paid at home country or after arrival in Malaysia.

Moreover, it is needless to say that there are

inadequate laws to protect migrant workers in

Malaysia rather poor law enforcement and

enforcement policy, and poor human rights practices

are here. Hence, Malaysian Government, Ministry

Offices, NGOs and other authorities related to

migrant workers should take the issue seriously and

take necessary steps carefully.

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