Friday, June 19, 2009
As regional network, foreign and local domestic workers associations, trade unions, non-governmental organisations and community based organisations working on issues related to migrant workers, we welcome the recent move by the Malaysian government to provide a mandatory paid day off for foreign domestic workers (FDW).
As a major destination country within the region, the Malaysian government’s move to enforce a weekly paid day off for FDWs by incorporating the provision in the Employment Act by the end of this year is certainly a mark of social change. However if the Malaysian government wishes to protect the rights of FDWs, there is an urgent need for a more comprehensive measure. This can only be achieved by incorporating a mandatory standard contract into the Employment Act to address the specificity of domestic work, issues related to gender and the home as a private sphere.
While employers enjoy the benefit of at least a day off a week, the nature of domestic work usually means that most FDWs are on call for work twenty four hours a day and seven days a week. It is time that all levels of Malaysian society recognise the contribution FDWs make throughout society, by granting them the same labour rights and protection that is accommodated to any other worker who deserves a day’s rest from work for the sake of their physical and psychological well being.
As such we call on the Malaysian government to implement these initial changes to legislation as swiftly as possible. Furthermore, domestic workers must be given the choice between financial compensation or the day off and must not be compelled by employers to only take the compensation in place of the day off. FDWs must be empowered to have the choice.
FDWs are usually confined to their employer’s household and lack the means to access health services and legal redress mechanism should they face abuse. Due to the nature of home being viewed as simply a private sphere rather than as a place of work, domestic workers are isolated from public scrutiny. Perpetuators usually have little to fear from the criminal justice system. Unless the home is recognised as a workplace under these conditions and those employed within are protected in terms of their labour and human rights, the problem will continue and the abuses left unchecked.
Under existing legislation, domestic workers in Malaysia are defined as “servants” under the Malaysian Employment Act 1955, and as such they are currently excluded from regulations relating to such issues as rest days, hours of work, and termination benefits. As a “domestic servant” defined by the Employment Act, the domestic worker in Malaysia can only claim for unpaid wages in the labour courts.
The situation is further compounded by the fact that FDW are the lowest paid workers (especially Indonesians who constitute the majority of FDW) in the absence of a legal minimum wage. Yet, with their passports and other legal documents held by employers or agents, they risk arrest by the immigration services and RELA if they attempt to leave their employers to access the justice system. Moreover, the mechanisms there are in place, such as the government funded helpline, is inaccessible to FDWs who are constantly under the surveillance of their employer.
It is within this context that we call on the Malaysian government to incorporate a mandatory standard employment contract into the Employment Act according the same range of labour rights as any other workers. Any such measures must herein address the specificity and nature of their employment arrangement. We note with great concern that as the job description of the FDW is arbitrarily defined by employers, the current legal framework do not protect them from exploitation. In many cases, FDWs find themselves working not only in the employer’s house but also in the homes of employers’ relatives, restaurants and other business outlets owned by their employer. As a result, some FDWs have to work as long as sixteen hours a day, seven days a week without a break in a year.
Malaysia’s move to amend its domestic legislation would also mark a move to fall in line with international labour and human rights standards. The country has already committed to uphold human rights protections through its ratification of both the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC). As such, the Malaysian government must acknowledge its commitment to this through its transference of these principles into domestic law with subsequent enforcement. Only then will their commitments to international obligations be met, and the rights of women and children be guaranteed under the law.
The General Comment 26 of the CEDAW Convention acknowledges that domestic work should be protected by labour laws and entitled to wage and hour regulations, health and safety codes, holiday and vocation leave regulations etc. This convention adopted by Malaysia also states that ‘these laws should include mechanisms by which to monitor the workplace conditions of migrant women…’ If the state can hold perpetrators of violence against women accountable for what they did in private homes, they must also monitor the working conditions of FDWs.
Malaysia has also ratified several ILO conventions, including the ILO Forced Labour Convention (No. 29), the Worst Forms of Child Labour Convention (No. 182), and the ILO Right to Organize and Collective Bargaining Convention (No. 98). As such, Malaysia has an obligation to protect the rights of workers as set forth in those treaties.
Next year, the International Labour Organization (ILO) will start working on the process of adopting a new standard for domestic workers that could possibly lead to a new specific Domestic Workers Convention. Therefore, if Malaysia can amend and make additions to domestic legislation on domestic workers, it will be a progression in line with the international community that will convene during the 2010 ILO Conference on Decent Work for Domestic Workers.
Therefore we reiterate our call that the government should:
Incorporate a comprehensive mandatory standard contract for domestic workers into the Employment Act without discrimination on the workers’ nationalities stating clearly terms and condition of work with well defined job scope, a minimum wage and prohibiting employers or agents to keep a domestic workers’ passport and any other personal legal documents. This contract spells out all the labour rights for FDWs in the Employment Act which would then be enforceable as part of the Employment Act.
Ensure the right to a paid day off for all domestic workers is enforced by the end of 2009 as announced by the Human Resources Minister.
Develop redress mechanisms for more effective accountability of non-State actors (employers, recruitment agencies, brokers) for violations against domestic workers.
This statement is written by:
CARAM Asia, a regional network representing 29 NGOs and CBOs across Asia with its secretariat based in Malaysia.
Endorsed by the organisations below in Malaysia:
Malaysian Trade Union Congress (MTUC)
TENAGANITA, Malaysia
Suara Rakyat Malaysia (SUARAM), Malaysia.
The Justice, Peace and Solidarity in Mission Office, The Good Shepherd Sisters
Women's Aid Organisation
Health Equity Initiatives, Malaysia
Endorsed by the organisations across Asia below:
Action for Health Initiatives (ACHIEVE), Inc, Philippines
Adaleh Center, Jordan
Asia Pacific Mission for Migrants (APMM), (a regional network)
Asian Migrants Coordinating Body (AMCB), Hong Kong
Association of Indonesian Migrant Workers in Macau
Association of Indonesian Migrant Workers in Jakarta
Association of Indonesian Migrant Workers in Hong Kong
Bahrain Center for Human Rights, Bahrain
CARAM Cambodia, Cambodia
Community Development Services, Sri Lanka
Committee for Asian Women (CAW) (a regional network)
Development Action for Women Network (DAWN), Philippines
Humanitarian Organization for Migration Economics (H.O.M.E.), Singapore
Human Development Organization(HDO), Sri Lanka
Mission For Migrant Workers - Hong Kong.
Migrante International
NIDS (Nepal Institute of Development Studies)
Ovibashi Karmi Unnayan Program(OKUP), Bangladesh
Solidaritas Perempuan (Women's Solidarity for Human Rights), Indonesia
St. John's Cathedral HIV Education Centre, Hong Kong
The Executive Commitee Members of Transient Workers Count Too, Singapore
United Indonesians Against Overcharging (PILAR), Hong Kong.
Endorsed by independent individuals below:
Eleanor C. Conda, Independent human rights advocate, Philippines
Russell Heng, Vice President, Transient Workers Count Too, Singapore
Shelley Thio, Executive Committee Member, Transient Workers Count Too, Singapore
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