Malaysia allows migrant workers to file complaints for wrongful dismissal and take the matter right up to the highest courts of the land. The problem is they are not allowed to work under the ‘special pass’ that allowes them to remain in the country while their cases are being heard, laments Rani Rasiah.
Like local workers, migrant workers in Malaysia can be sacked from their jobs anytime by their employers.
What is good is that Malaysia allows migrant workers to file complaints for wrongful dismissal at the labour and industrial relations departments and pursue the matter all the way right up to the highest courts of the land.
But this right is invalidated by the government policy of denying a work permit for dismissed workers to earn a living while waiting for the courts to resolve their matter. Myanmar worker Aye Cho is only one of hundreds caught in this situation, and without doubt, one of the very few who despite the many odds is trying to seek justice.
Aye Cho, 39, left behind his aged mother, wife and six young children in Myanmar to work at a printing company in Ipoh, just over five years ago in August 2007. The conditions of employment were not quite what they were initially promised, and finally in February this year, Aye Cho and four other fellow workers mustered the courage to request the following from the boss:
i. that overtime be calculated after the normal eight-hour workday and not after 11 hours, as was the practice for migrant workers at the company
ii. that the monthly RM100 levy deduction from their wages be stopped following an April 2009 ministry circular, stating that it was thenceforth to be borne by the employer
The workers’ action infuriated the employer, and he terminated the two whom he saw as the ringleaders, on the spot.
Stunned by the turn of events, and alarmed by the implications, Aye Cho and his workmate apologised and appealed to be allowed to continue working.
But the boss had decided, and though the workers returned to the workplace a few times after that hoping they would be taken back, he remained adamant. He tossed them out of their Spartan lodgings upstairs at the factory into the streets, with only their meagre belongings and some ringgit in their pockets. The boss held on to their passports and work permits, thereby exposing the two workers to arrest and detention.
The workers’ own initiatives to sort out their problems received no support or sympathy from the government agencies they approached. At the police station where they were hoping the police would help recover their passports from the employer, they were sent away without their reports being taken. At the labour office, the officer who handled the complaint later visited the factory and decided to buy the employer’s story that the workers had absconded from the workplace.
This was when the PSM got involved. We helped the workers file for reinstatement at the Industrial Relations Department and revive the earlier complaint at the labour department. The boss was summoned for discussion but the matter could not be settled as all he was prepared to offer as full and final settlement was RM2000 per worker and a ticket to Myanmar.
We then started working for a Special Pass to legitimise their continued stay in the country, as their former boss had gone to the immigration and cancelled their work permits.
It was an uphill task. The Putrajaya immigration department declared that the workers had to leave the country immediately and come back only after a date for the labour or industrial court case was fixed.
Seeing the whole thing as futile, one of the workers gave up and returned home to his country.
But Aye Cho has decided to stay until the issue is resolved. We have managed to get a unionist to represent him at the Labour Court and a lawyer for the Industrial Court, both on a pro-bono basis.
Aye Cho’s case at the Labour Court is for claims totalling RM19,800 and that at the Industrial Court is for reinstatement under Section 20 of the Industrial Relations Act. The RM19,800 represents all the unpaid labour the boss had extracted over the four and a half years he worked there – two and a half hours of unpaid overtime work every day for four and a half years, denial of paid annual leave for each year of work and levy wrongfully deducted from wages every month after April 2009.
Aye Cho holds a special pass, which allows him to stay on in Malaysia but which prohibits him from working. It needs to be renewed at intervals of two to four weeks with a levy payment of RM100 for each renewal.
Aye Cho’s application for a fresh work permit for the duration of the court case was turned down by the Director General of Immigration who said it was policy not to allow migrant workers who had been issued a ‘check-out memo’ and then a special pass, to work and earn. Our appeal to Home Minister Hishammuddin Hussein has drawn no response.
Without a job, a migrant worker in Aye Cho’s shoes will be forced to drop whatever claims he has filed, pack his bags and leave the country. One can’t fight on an empty stomach. The sacked migrant worker’s right to take up his case at the labour or industrial department is thus a worthless paper right. The special pass unjustly puts him in the same category as a tourist, who is not allowed to work while visiting the country.
This situation speaks volumes about our government’s insincere and uncaring attitude towards the seemingly indispensable migrant labour force in the country and its support for heartless employers who exploit and cheat even the weakest to add to their profits. It explains why migrant workers, who are so much easier to bully, dismiss and despatch home, are preferred by employers to unskilled Malaysian workers.
Rani Rasiah is an Aliran member based in Ipoh.