THE Shah Alam High court yesterday again deferred its decision on the question of whether a migrant worker without a valid work visa has the right to claim unpaid wages after she had been employed for more than four years.
This ruling relates to a 2018 appeal by “Nona” (a pseudonym), a domestic worker from Indonesia who, with assistance from Tenaganita, sought to exercise the right to make a claim against her Malaysian employer at Port Klang Labour Office in 2017.
Nona is claiming a total of RM30,265.32 in unpaid wages for almost five years.
Months after Nona filed the claim, Tenaganita was informed by the Labour Department that it could not act on the complaint because she did not have a valid work permit. Nona appealed to the Labour Court in Port Klang which, on Aug 14, 2018, ruled that it did not have the authority to hear the case.
The Labour Court stated that without a work permit, all transactions or actions carried out by an undocumented worker are not valid and therefore such a worker’s right to make any kind of claim against another automatically failed.
Nona then appealed to the High Court against this decision.
On March 5, 2019, the Shah Alam High court deferred its decision stating that it wanted clarification from Wisma Putra and the Human Resources Ministry on whether Malaysia is a party to the International Labour Organisation’s (ILO) Convention (Co 97) on Migration for Employment and the Migrant Workers (Supplementary Provisions) Convention, 1975, before making a decision.
The case officer said today that, “The Ministry of Human Resources has confirmed that Malaysia has not ratified the ILO Convention on Migration for Employment and the Migrant Workers (Supplementary Provisions) Convention, 1975, and is therefore not bound by the principles on which the conventions are based”.
He further added that in deferring his decision on the case today, the High Court judge has asked Nona’s legal counsel to make a submission on the following question: Since Malaysia has not ratified the above-mentioned ILO conventions, what recourse is available for an illegal alien working in Malaysia to enforce her contract of employment? Since it was noted that this question had been addressed in earlier submissions, the legal counsel was advised to draw on cases from other jurisdictions.
The case officer went on to say that, even though Malaysia has not ratified the ILO conventions they are persuasive and should reinforce the provisions of the Malaysian the Employment Act 1955 which provides the right to redress for all employees, irrespective of their immigration status.
Malaysia is a party to and bound by the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights to protect the rights of all human beings (including undocumented migrant workers).
The Malaysian Constitution also provides that all “persons” are entitled to basic human rights, including the right to life and livelihood; it applies to all persons in the country and does not discriminate against those who are undocumented.
Tenaganita’s position is that the Immigration Act is a separate matter, and one’s immigration status should be dealt with separately from one’s claim for unpaid wages. The Immigration Act should not have overriding authority to be used to deprive a worker of her wages for work that has been performed.
Failure to provide undocumented migrant workers an avenue to seek redress for unpaid wages will potentially open the floodgates for employers to employ undocumented migrants and refugees (who are legally not permitted to work in Malaysia) and get away with impunity without paying them their wages. In fact, Tenaganita is already dealing with dozens of similar cases.
It is important to note that most of these undocumented migrant workers are victims of fraud, deception, and convoluted, opaque immigration procedures; they become undocumented through the unbridled activities of recruitment agents, often in cahoots with immigration officials. For far too long these undocumented migrant workers have been further victimized through labour rights violations.
It is well beyond the time for all of us, citizens and the government of Malaysia, to acknowledge some basic truths: 1. We have no right to enslave anyone. 2. We have no right to exploit the desperation brought on by poverty. 3. We do not own the labour of another person. 4. The Malaysian government is duty-bound to ensure no person, regardless of immigration status, nationality, socioeconomic status and gender, is caught in any form of slavery in this country. 5. The work done by domestic workers (in this case, Nona) is not done as a favour to us, it is work and she must be respected for it and accorded all rights as any other worker.
GLORENE A. DAS
Tenaganita Women’s Force