Advocating for the Rights of Migrant Workers in Malaysia, 2017

Transcription

1 Advcating fr the Rights f Migrant Wrkers in Malaysia, 2017 Mdule 2 Kuala Lumpur, 2-5 June 2017 [Draft] PROGRAM REPORT Summary Diplmacy Training Prgram (DTP) in partnership with Migrant Frum in Asia (MFA) Bar Cuncil Migrants, Refugees and Immigratin Affairs Cmmittee (MRIAC), Nrth Suth Initiative (NSI) and Migratin Wrking Grup (MWG) rganised mdule-2 f the Advcating fr the Rights f Migrant Wrkers in Malaysia frm 2-5 June The yearlng prgram is designed t build knwledge, skills and netwrks t enhance and supprt civil sciety advcacy fr the prmtin and prtectin f migrant wrkers rights in Malaysia. The prgram brings tgether Malaysian advcates with advcates frm cuntries f rigin, including Nepal, Bangladesh, Philippines, and Indnesia t build links and netwrks and t develp shared advcacy strategies fr greater impact in Malaysia and cuntries f rigin. The prgram strategy frms part f DTPs brader thery f change, whereby the direct benefits f the training prgrams are expected t translate int mre effective and strategic engagement with the internatinal human rights system and natinal gvernments, and int mre systematic participatin in plicy dialgues and in reginal fra such as the Abu Dhabi Dialgue, the Clmb Prcess and ASEAN. The prgrams als share gd practice frm ther cuntries f rigin and destinatin, develped understanding f the situatin in cuntries f destinatin and built links with NGOs and netwrks there. Mdule 2 f the prgram had a fcus n case dcumentatin/ management and rganising f migrant wrkers. Mdule als included sessins n the Malaysian legal and plicy framewrk gverning migrant wrkers, and a practical engagement with a member f Parliament n the rle f parliamentarians fr the prtectin f the rights f migrant wrkers. Participants f the prgram revisited the issues and expectatin f the prgram identified in mdule-1 and set pririties fr change t develp campaigning strategy. Participants frm Nepal and Bangladesh were invited t jin this mdule t build netwrk and cllabratin between advcates frm cuntry f rigin (COO) and Malaysia, and t build their capacity. COO participants shared their perspectives and experience n recruitment practices.

2 Resurce persns fr the prgram were Pathma Santiag Reginal Crdinatr Asia Pacific at a Glbal Unin; Aplinar Z Tlentin Reginal Representative at BWI; Dat Ramachelvam Manimuthu Chairpersn at Migrants, Refugees & Immigratin Affairs Cmmittee Bar Cuncil f Malaysia; Dr. Michael Jeyakumar Devaraj Member f Parliament; and Sahul Hamid Vice Chairman at MTUC Penang Divisin. This was the secnd f the five-mdule capacity building training prgram in Malaysia. The next mdule in August will fcus n the respnsibilities f private sectr fr the prtectin f the rights f migrant wrkers. Prgram Cntent Mdule 1 Recap, Participant Intrductin, and Mdule 2 Overview Participants intrduced themselves, their rganizatin, and what they have been ding since March 2017 (Mdule 1). Recap f mdule 1 reviewed the key issues faced by migrant wrkers in Malaysia. During the discussin participants suggested additins t the list identified in mdule 1. The cntent f mdule 1 - the human rights mechanisms, Universal Peridic Review (UPR), the nine human rights Treaty Bdies (TB), Special Prcedures (SPs) and Special Rapprteurs (SRs), Office f the High Cmmissiner f Human Rights (OHCHR), and the United Natins Cuntry Teams (UNCTs), and ILO Cnventins relevant t migrant wrkers were als recapped. Patrick Earle then intrduced the brad agenda f mdule-2 and participants expectatins and led a review f the verall bjectives and expectatins frm participants. Updates n Glbal and Reginal Prcesses Tatcee Macabuag frm MFA updated participants abut the current glbal and reginal prcesses and CSO initiatives. The Clmb Prcess (CP) is an infrmal and nn-binding reginal intergvernmental prcess bringing tgether 11 cuntries f rigin f migrant wrkers: Afghanistan, Bangladesh, China, India, Indnesia, Nepal, Pakistan, the Philippines, Sri Lanka, Thailand and Vietnam. Gvernments participate supprted by IOM. The prcess mstly lks int recruitment practices. Civil sciety is trying t engage t encurage experience sharing and best practice and mre cperatin amng cuntries f rigin t prevent their wrkers frm suffering frm cmpetitin fr labur markets. The Abu Dhabi Dialgue (ADD), brings tgether member states f the Clmb Prcess and cuntries f destinatin including: Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, United Arab Emirates (UAE), and Yemen. The Republic f Krea, Japan and Singapre act as Observer States. The ADD was established t address issues f temprary cntractual labur mbility and t ptimize labur mbility s benefits fr all participating cuntries. There is n space fr civil sciety fficially but civil sciety is seeking space in this frum and trying t put rights n the agenda thrugh lbbying member gvernments including n issues f recruitment and standard cntracts t be brught t the attentin f cuntries f destinatin within the ADD. Glbal Frum n Migratin and Develpment (GFMD) is a gvernment led prcess with a limited view f lking at migratin frm a develpment perspective nly. It is a nn-binding prcess with

3 discussins fcusing n remittances and market discurse. Civil Sciety have been calling t have a space t talk abut migratin and human rights. The representing authrity at the frum frm Malaysia is the Ministry f Hme Affairs. Glbal Cmpact fr Migratin (GCM): On 19 September 2016, the UN General Assembly set in mtin a prcess (New Yrk Declaratin) t develp a Glbal Cmpact n Safe, Orderly and Regular Migratin (GCM) in respnse t the grwing glbal phenmenn f large mvements f peple. The GCM is t build n existing bilateral, reginal and glbal cperatin and partnership mechanisms, and t facilitate migratin in accrdance with the 2030 Develpment Agenda. The GCM is functinal and pragmatic apprach n migratin. Civil Sciety s bjective is t find space t push fr pprtunities t dialgue with wn gvernments and thers. Malaysia will play an bserver rle in the GCM prcess. ASEAN Declaratin 2007 and the Prpsed Instrument: ASEAN is finalizing the draft ASEAN instrument t implement the ASEAN Declaratin n the Prtectin and Prmtin f the Rights f Migrant Wrkers (Cebu Declaratin, 2007). The instrument is expected t serve as a set f guidelines that legally binds all member cuntries. Sending states, such as Indnesia and the Philippines, have pushed fr a legal deal that wuld ensure the fundamental rights f all ASEAN migrant wrkers, including their family members, and t have the natinal plicies harmnized with reginal minimum standards f treatment pertaining t scial prtectin and security. Hwever, it was nted that Malaysia, Singapre and Thailand may nt agree t a binding treaty t prtect migrant wrkers in their cuntries. Access t Justice and Remedies: Challenges and Gaps Dat Ramachelvan started by defining the terms, Access t Justice: the legal and practical ability f individuals t enfrce their rights and btain a just remedy thrugh bth frmal and infrmal mechanisms. Remedy: A legal means t recver a right r t prevent r redress a wrng. Redress: T set right r cmpensate fr a wrng. Redress may include financial r ther cmpensatin, remving the cause f the grievance (such as returning dcuments), r seeing wrngders held accuntable and punished. The principle f access t justice can be attributed in different legal dcuments like the UDHR (Article 8), Federal Cnstitutin f Malaysia (Article8), ASEAN MWs Declaratin (Article 5,7,9) which are relevant t Malaysia. But fr migrants there are barriers t justice such as nn-natinality, dcumentatin undcumented status & fear f arrest, accessibility t curts administrative system t address grievance, nn-availability f legal assistance, lack f infrmatin, language, and lack f financial resurces are nly sme. There are Malaysian statutes that prvide rights t wrkers. Sme examples f Malaysian legal framewrk that prtect MWs rights are, Rights under the Passprt Act Prhibits the hlding f anther persn s passprt

4 Rights under Emplyment Act 1955 Right t a Written Emplyment Cntract Right t Wages & Deductin - Minimum wage f RM 1,000 per mnth Hurs, Overtime, Time Off and Annual Leave: - 8 hurs per day, 48 hurs per week; - 5 cnsecutive hurs - wrker entitled t 30 minutes break - Overtime up t a ttal f 12 hurs per day, maximum 104 hurs per mnth - Rest day 1 day per week, 11 paid days ff fr public hlidays, 8-16 annual leave per year - Sick Leave days sick leave, if hspitalized 60 days fully paid sick leave per year Freedm f Assciatin - It is illegal fr emplyers t include any prvisin in a cntract f service which restricts the right f an emplyee t jin a trade unin r participate in trade unin activities. Terminatin f Emplyment, Breaches f Cntract and Unfair Dismissal - Terminatin benefits between 10 and 20 days wages upn terminatin ther than end f cntract, resignatin, miscnduct willful breach. Rights under Wrkmen s Cmpensatin Act 1952 N fault scheme whereby emplyers are respnsible fr cmpensating wrkers if they suffer injury r ccupatinal illness in the curse f their wrk Freign Wrkers Cmpensatin Scheme (FWCS) Rights under Trade Unin Act 1959 Nn-citizens are prhibited frm hlding ffice r being emplyed as staff f a trade unin Rights under Wrker s Minimum Standard f Husing and Amenities Act 1990 Applicable t wrkers emplyed at any wrkplace lcated utside municipal areas, e.g plantatins r farms which prescribes minimum standard f husing and amenities fr wrkers and dependents - including free and adequate waters, electricity and Emplyers have t prvide health, hspital, medical and scial amenities N guidelines fr wrkers emplyed in urban areas Rights under Cntract Act 1950 Emplyment Cntracts between Emplyer and wrkers can be enfrced in the Civil Curts Rights under Civil Law Act 1956 Claim fr Negligence at wrk site, traffic accident and etc Entitled t claim fr lss f wages, lss f future earnings r ensuing capacity Rights under Criminal Prcedure Cde (Act 593) Right t make Plice Reprt Rights f Detained persns - A persn can be detained by Plice if there is a reasnable suspicin that a crime has been cmmitted. - A detainee has t be prduced within 24 hurs befre a Magistrate befre being detained any further. - N detentin & remand beynd 14 days. - Dcumented migrants are entitled t Bail.

5 (Nte: Immigratin Authrities are allwed t detain persns up t 28 days befre charging in curt r releasing such persns pursuant t the Immigratin Act) Right t Bail Right t be infrmed f investigatins Rights f Migrant charged in Curt - Right t be represented by legal cunsel Fr Undcumented Migrants wh are charged with Immigratin Offences Usually there are n defenses available. Gaps in Rights Prtectin f Migrant Wrkers The current Malaysian legal framewrk prvides limited rights t dmestic wrkers. They are excluded frm key prtectins in the Emplyment Act 1955 and the Wrkmen Cmpensatin Act There is n prtectin mechanism fr wrkers wh file claims against their emplyer. The standards fr accmmdatin, fd and ther amenities are limited t wrkers living in nn-urban areas there is n prvisin fr wrkers emplyed in the urban areas. One f the key issues faced by MWs is lack f prtectin frm discriminatin especially pertaining t immigratin ffences. Law has n clear penalties fr refusing t allw a wrker t end a cntract. The Immigratin and regulatins have very few rights fr nn-citizens nly right is the right t appeal in certain limited circumstances refusal f entry, cancellatin f permit r pass r deprtatin. Fr death penalty cases, high curt prvides lawyers. There are apprximately 1,000 persns n death rws nw. Bar cuncil is wrking fr seeking clemency fr MWs and lcals. All immigratin ffenses are tried in immigratin curts. Immigratin law is als enfrced by plice and nt just immigratin fficers. Curts cannt g against the wrk/decisin f the immigratin curts immigratin curt has the last say except nly in sme cases. Engaging with Member f Parliament Member f the Parliament f Malaysia Dr. Michael Jeyakumar Devaraj spke abut hw CSOs can influence MPs and what mtivates MPs t pick up issues f wrkers. He highlighted that every parliamentarian perates differently. New laws usually cme frm the cabinet rather than frm the Parliament flr. Hence, Dr Jeyakumar argues that very few bills are changed/mdified and if they are mdified it is because the issue has becme a natinal issue and depending n hw much tractin the issue has with the general public. He als highlighted that MPs are wrried abut vtes and lsing supprt when taking up issues f MWs. His party is an ppsitin party and has talked abut minimum wage fr MWs but taking up issues f MWs has a repercussin they lse public supprt because it is deemed as nt caring fr the lcals. Dr Jeyakumar believes that there is a need t educate and enlighten the public need t get Malaysians t feel fr MWs issues. Engagement with MPs des nt mean yu can persuade them, CSOs shuld engage them t put the issue in natinal agenda. Currently, it is nt pririty f MPs but struggle is t make migratin a natinal pririty. He reiterated that the fcus fr change shuld nt be n MPs but t educate the Malaysia public because MPs fllw the public, and engagement shuld be fcused nt t persuade MPs but t expse them.

6 Case Dcumentatin Why is dcumentatin imprtant? Dcumentatin helps t crdinate and evaluate services. It is als a liability tl and risk management, appraisers can apprise themselves f technique, related ethical standards and ptential pitfalls they may face in their wrk. Dcumentatin is imprtant fr CSOs and in scial wrk because it helps t gather infrmatin, fcus n prblems, fr access t justice, maintain recrd, as evidence, effective lbbying and advcacy, determine next curse f actin, cntinuity f thse ding the wrk (when case wrker retires, etc.), fficial reprts t authrities (missins), s that persn is nt frgtten, reprting t the partners, funding purpses, cunseling t see hw and why they need. Dcumentatin can be kept fr 5 years. It is imprtant t keep hard cpies and save n digital and ther technlgical means. When dcumenting MWs cases, it is imprtant t build slidarity, listen, empathize, lk fr facts, take dwn ntes and nt put wrds int their muth r have yur wn interpretatin f their recrdings. Dcumentatin can prvide statistics fr MPs. Dcumentatin can be prvided as evidence thus the facts must be valid in rder t build a slid case and must get permissin frm clients whether the infrmatin is kay t use fr research and t disseminate Functins f Dcumentatin 1. Assessment and planning Clear and cmprehensive case-related facts and circumstances is essential. Shuld check if data prvided is a reliable surce f measuring perfrmance and utcme. Incmplete recrds may lead t inadequate planning, interventin and pr utcmes fr clients and stakehlders. 2. Service Delivery - Cmprehensive recrds are necessary fr cmpetent delivery fr agency based services and interventins (stakehlders). It prvides a slid fundatin fr CSO, scial wrkers and ther stakehlders. Recrds are useful fr evaluatin f prgrams and persnnel. 3. Cntinuity and crdinatin f services - dcumentatin facilitates prfessinal and interdisciplinary cllabratin. Fr eg. NGOs and faith based cmmunities need t share their bservatin and have t have up-t-date details cncerning client s needs. 4. Supervisins Under the legal dctrines f vicarius liability and respndent superir ( let the master respnd ), supervisrs, case managers, administratrs, and agencies, can be held liable fr, if there is evidence the errrs and missins f their staff this is ne f the main reasns why scial wrk needs t be carefully dcumented. 5. Service evaluatin Dcumentatin and recrds prvide essential data fr prgram evaluatin. Data and infrmatin recrded is vital fr future prgrams and supprt and t maintain integrity f prgrams. 6. Accuntability t clients and agencies and ther stakehlders Dcumentatin helps t meet request frm clients, gvernment bdies such as the immigratin, labur department, and thers, and amngst civil sciety t share infrmatin. Cnsultatin btained needs prper dcumentatin fr accuntability purpses.

7 What t dcument and hw t interview? It is crucial t make the envirnment cmfrtable fr a MW t be pen and t share infrmatin. Interviewer needs t build trust by wrds and gestures and envirnment. It is very imprtant t knw the language in which MWs find cmfrt in sharing their stries. Find smene yu trust wh can and knws hw t interview. The table belw utlines sme f the essential infrmatin that needs t be recrded fr dcumentatin and fr evidence. Date f arrival Valid Visa issue Dcuments withheld dcumentatin Place f wrk Overstaying Rights restricted Situatin lcked up Salary Need f migrant Discriminatin Salary nt given wrker t g hme Accmmdatin Type f wrk Having t much cntent, t little cntent r wrng cntent can be harmful expsure t risk f liability there have been cases where cmpanies have sued and wn against limited infrmatin/ dcumentatin. T much r t little details can be vague and quality f service may be cmprmised. Wrdings in dcumentatin is as imprtant as the cntext. Avid lse and casual language and terminlgy. In dcumentatin, chse the wrds carefully clear, specific, unambiguus taking care t be clear t fully supprt cnclusins drawn t avid defamatry language. Migrants Rights Vilatin Reprting System (MRVRS) The MRVRS is an nline database tl develped by the MFA secretariat t recrd and manage infrmatin n migrants rights vilatins in Asia. MRVRS enables MFA and its members t generate evidence and trends f rights vilatins, which prvides supprt t their advcacy wrk t influence plicy change. It als serves as ne f the platfrms where a migrant wrker s situatin can be reprted and addressed by the netwrk. The system is user friendly which cnverts qualitative data int quantitative data, allwing civil sciety t demnstrate rights vilatins. MFA prvides trainings n the system with individual members n a request basis. Organising Migrant wrkers Trade Unin Perspective Sahul Hamid f the Penang Divisin f MTUC started by citing the Malaysian Industrial Relatins Act 1967 Sectin 5 (1) & (2) accrding t which wrkers in Malaysia have the right t frm and jin Trade Unin. N emplyer shall prevent a wrker frm jining a Trade Unin by impsing a cnditin in the cntract f emplyment. Mrever, n emplyer shall refuse t emply a wrker because they are a Trade Unin member. The Act als states that n wrker shall be threatened with dismissal r dismissed if they prpse t jin a TU r t participate in TU activities.

8 MTUC fcuses n grassrt campaigns using mapping techniques t analyze and target wrkers frm different natinalities t bring them tgether t frm a unin. The strategies fr bringing wrkers tgether are cmmunicatin spreading the news, and cllecting infrmatin. The Migrant Resurce Center Penang fcuses n empwering MWs they talk t wrkers in their hstel, industrial areas, shpping malls, night markets t educate wrkers abut their rights, and them aware abut the wrk f MTUC. MTUC als fcuses n advcacy wrk including assisting MWs in filing cases against emplyer, and t make plice cmplaints. Sahul highlighted that nly 7% f 14 millin wrkers in Malaysia are uninized. Due t high unin busting by emplyers TU membership has been affected. One f the alternative is t have a Yellw Unin r inhuse unin a unin within the cmpany. T frm a TU in Malaysia there needs t be at least 7 wrkers. MTUC encurages wmen t jin TU. Sahul highlights that in the electrnic industry the membership f wmen is abut 30% but in ther sectrs it is much less. Hwever, migrant wrkers frm almst 30-40% f the members f the MTUC. MTUC, hwever, has been struggling t uninize dmestic wrkers but they are wrking with MW cmmunity wrkers and learning frm ther COD trade unins t rganize dmestic wrkers. Priritizatin f Key Issues Participants in mdule-1 identified list f issues faced by migrant wrkers which was revisited in mdule- 2. It was identified that participants wuld wrk twards priritizing sme f the key issues t make change/impact thrugh campaign strategies. In grups, participants were asked t priritize three key issues based n the criteria 1) whether the issue will help in rganizing MWs; 2) urgency - grups at risk, external factrs; 3) frequency f vilatins; 4) scale f impact; and 5) practicality - can actin have an impact. Participants identified the fllwing list f issues as the cre Pririties fr Change - Health: - Lack f health and safety - wrkmen cmpensatin - Excessive cst t access health services - T identify area f epidemic/health crisis such as TB Cntract substitutin and vilatin Withhlding f passprt - Case dcumentatin t prvide evidence f passprt withhlding and t lbby fr increase in prsecutin rates T have a paid day ff fr wrkers better implemented eg. Jlvan campaign strategy Review f Labur Law - T rganize a ne-day frum/input sessin t review the amendments f the Labur law Stateless children - T seek embassies assistance fr slutin Wages - Differences in wages between dcumented and undcumented wrker Lack f decent wrk & safe wrking cnditins - 3D & OSH

9 Next Steps In the final plenary f the prgram, participants agreed t cntinue wrking in-between mdules n the grup-wrks identified in mdule 1, - Submissin f Cases t Special Prcedures and AICHR Grup members will submit at least 10 cases t SP and AICHR. Will fcus n submitting cases related t DWs. - Building Knwledge, and Develping CSO Strategy fr Engagement with the Prcess f Glbal Cmpact fr Migratin Fcus n infrmatin cllectin, and arrange meetings t discuss n thematic issues including with academics. Use briefing thematic paper fr guidance. Draft recmmendatins and best practices. - Unexplained Deaths f Yung Migrant Wrkers Cntinue t fcus n cllating infrmatin and evidence fr study n unexplained deaths amngst Nepalese migrant wrkers. - Cllabratin and Dialgue with MTUC aim t maximize and expand t ther natinalities - nt just Filipins, t rganize wrkers and cntinue dialgue with MTUC Participants als suggested that DTP-MFA t create a database f participants and trainers including their field f wrk and rganizatin details, and a separate database f cuntry f rigin rganisatins wrking fr the prtectin f the rights f MWs t be shared with Malaysian advcates. The mdule cncluded with the cmpletin f evaluatin frms, and a final grup reflectin. The feedback n the mdule was psitive. Participants valued the presence f cuntry f rigin participants, and them sharing their experience and best practices. Prgram partners thanked participants and trainers fr their valuable time and fr sharing their knwledge.