Withdraw Employment Bill For Failing To Meet Ilo Standards

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MP SPEAKS | The International Labour Organisation (ILO) defines forced labour as "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."

The ILO forced labour indicators include 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.
While I take note of the positive inclusion of threat, deception, force and restriction of movement, the bill to amend the Employment Act 1955 has failed to incorporate the definition of forced labour and 10 other indicators, all of which Malaysian employers have been accused of for decades.

Malaysia has ratified the ILO fundamental Convention 29 on forced labour and this requires us to ensure that the use of forced labour is punishable as a penal offence and that penalties are really adequate and strictly enforced.

However, a penalty not exceeding RM100,000 or a prison term not exceeding two years or both hardly qualify as adequate. It’s in fact, only pocket change for wealthy employers and serving one-third of a two-year prison term, if at all, won’t warrant effective changes.

While the amendments criminalise the restriction of movements, this is made redundant by the failure to articulate the withholding of identity documents.

Migrant workers can become undocumented when their employers take away their identity documents or decide to terminate their employment visas. Not having documents in hand seriously curbs the freedom of movement, fearing arrests and detention.

It’s also time to legislate on access to legal remedies as most migrant workers are unaware of their rights and do not know how to access legal aid: factors that further increase their vulnerability.

Modern-day slavery

The country’s Federal Constitution, the Anti-Trafficking in Person and Anti-Smuggling of Migrants Act (ATIPSOM Act 2007) and the Passport Act 1966, which prohibits employers from withholding passports of their workers help mitigate the absence of forced labour law but the lack of monitoring makes it tough to effectively implement these laws to the advantage of migrant workers and primarily those who are undocumented.

It’s no denying that forced labour is modern-day slavery and slavery is considered a serious violation of international law. 
The prohibition of slavery exists in customary international law but also has a “jus cogens status”, recognised by the international community of states as a whole, as a norm from which no derogation is permitted. 
Malaysia, as such, cannot be smug about having presented a half-baked set of amendments without looking at critical elements that further inflict torture and abuse by exploiting the vulnerability of workers.
The ATIPSOM Act which is the principal act criminalises trafficking of forced labour and provides higher penalties. The Employment Act is quasi-criminal with limited elements of criminal prosecution and the standard of proving a crime is much lower.

ATIPSOM Act should be amended to provide a definition of forced labour and outline the 11 indicators as per ILO Convention 29 which Malaysia has ratified. Subsequently, the Employment Act can be amended.

Without incorporating the issues raised, how could this bill become the law of the land?

If we want to see how seriously we have fallen behind, we just need to look at how products from Sime Darby, FGV, Top Glove and Supermax were stopped by the customs in the US because of forced labour.

As such, juxtaposed against the ILO’s definition and indicators of forced labour as a framework, this bill falls short and should be withdrawn for failing to meet adequate standards. - Mkini


CHARLES SANTIAGO is Klang MP.

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.

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