7 th Regional Conference on Human Rights and Agribusiness in SEA: Reality of Safe Migration for Indonesian Plantation workers in Malaysia

Transcription

1 7 th Regional Conference on Human Rights and Agribusiness in SEA: Reality of Safe Migration for Indonesian Plantation workers in Malaysia Alex Ong Migrant Care, Malaysia

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3 An overview of Malaysia's migrant workers

4 Indonesian Migrant Workers participation in Malaysia work Force

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9 BMI Remittance from Malaysia

10 Indonesian Migrant Workers Remittance

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12 Facts about Malaysia Oil Palm Sector Malaysia currently accounts for 39 % of world palm oil production and 44% of world exports. If taken into account of other oils & fats produced in the country, Malaysia accounts for 12% and 27% of the world's total production and exports of oils and fats. Malaysia is one of the biggest producers and exporters of palm oil and palm oil products, it has an important role to play in fulfilling the growing global need for oils and fats sustainably.

13 Key Points Oil palm tree will start bearing fruits after 30 months of field planting and will continue to be productive for the next 20 to 30 years; thus ensuring a consistent supply of oils. Each ripe bunch is commonly known as Fresh Fruit Bunch (FFB). In Malaysia, the oil palm trees planted are mainly the tenera variety, a hybrid between the dura and pisifera. The tenera variety yields about 4 to 5 tonnes of crude palm oil (CPO) per hectare per year and about 1 tonne of palm kernels. The oil palm is the most efficient oil-bearing crop in the world, requiring only 0.26 hectares of land to produce one tonne of oil while soybean, sunflower and rapeseed require 2.22, 2 and 1.52 hectares, respectively, to produce the same Today, 5.64 million hectares of land in Malaysia is under oil palm cultivation; producing million tonnes of palm oil and 2.13 tonnes of palm kernel oil. Malaysia is one the largest producers and exporters of palm oil in the world, accounting for 11% of the world's oils & fats production and 27% of export trade of oils & fats. The industry provides employment to more than half a million people and livelihood to an estimated one million people.

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15 Palm Oil Planted area by Categories, Dec 2015 Category Area % Private Estate 3,442, Felda 733, Felcra 169, Risda 56, State Agency 338, Independent Small Holders 902, Total 5,642,

16 Statistics of oil palm smallholders ownership Average range Age Holding Size to Oil Palm Age 19 4 to 26

17 Big Companies Hiring Company Migrant Workers Felda 36,000 Sime Darby 27,000 KLK 8,000 IOI 12,000 FELCRA 13,603 Hiring Cost 383 Foreign Worker Central Mgt Sys 125 IMM 610

18 Factors affecting production Particular RM/Ha RM/t/FFB Percentage Upkeep Fertilizer Harvesting Transportation General Charges Total FFB Cost of Production 3,

19 ILO Conventions and Malaysia Laws related to Plantation workers Force Labor and Child Labor

20 Relevant ILO Conventions C29 Forced Labour Convention 29 (1930) C105 -Abolition of Forced Labour Convention 105 (1957) P29 Protocol of 2014 to the Forced Labour Convention, 1930 C138 Minimum Age Convention, 1972 C182 -Worst Forms of Child Labour Convention, 1999

21 Passport Act, 1966 Criminalizes the withholding of passports and document with payment of fine or up to 5 years imprisonment or both. Any action taken by Director General of Malaysia Immigration so far?

22 Malaysian national laws related to forced labor and child labor Federal Constitution Slavery and forced labour prohibited (Section 6) No person shall be held in slavery. All forms of forced labour are prohibited, but Parliament may by law provide for compulsory service for national purposes. Exceptions: Work or service required from any person as a consequence of a conviction or a finding of guilt in a court of law functions of any public authority is to be carried on by another public authority

23 Anti-Trafficking in Persons and Anti Smuggling of Migrants Act 2015 exploitation means all forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, any illegal activity or the removal of human organs Means of exploitation (a)threat; (b)use of force or other forms of coercion; (c)abduction; (d)fraud; (e) deception; (f) abuse of power; (g) abuse of the position of vulnerability of a person to an act of trafficking in persons; or (h) the giving or receiving of payments or benefits to obtain the consent of a person having control over the trafficked person

24 Penal Code This law provides a definition for compulsory labor as labor against the will of that person

25 Employment Act 1955 The scope extends to foreign employees; Applicable to employees whose wages are RM2,000 and below, and all manual labourers irrespective of wages Domestic workers, labelled as domestic servants, are covered by the Employment Act. However, they are excluded from protection under key articles of the law Prohibition of night work among female employees Except in accordance with regulations made under this Act or any exemption granted under the proviso to this subsection no employer shall require any female employee to work in any industrial or agricultural undertaking between the hours of ten o'clock in the evening and five o'clock in the morning nor commence work for the day without having had a period of eleven consecutive hours free from such work (with exceptions)

26 Workers Minimum Housing Standards and Amenities Act of 1990 (Act 446) Prescribes minimum standards of housing, provision of nurseries for workers and their dependents, to require employers to allot land for cultivation and grazing in the place of employment, to require employer to provide medical and social amenities.

27 Child Act 2001 (Act 611) "child" (a) means a person under the age of eighteen years; and (b) in relation to criminal proceedings, means a person who has attained the age of criminal responsibility as prescribed in section 82 of the Penal Code [Act 574] The act prohibits exploitative acts often committed in the process of trafficking, such as the procurement of a child for purposes of prostitution/the purposes of sexual exploitation either within/outside Malaysia.

28 Children and Young Persons Act hazardous work means any work that has been classified as hazardous work based on the risk assessment conducted by a competent authority on safety and health determined by the Minister. light work means any work performed by a worker (a) while sitting, with moderate movement of the arm, leg and trunk; or (b) while standing, with mostly moderate movement of the arm

29 Occupational Safety and Health Act 1994 Employers have an obligation to identify workplace hazards, to assess the associated risks and to minimize those risks Hazardous work list is drafted and is currently tabled for discussion in Parliament in Q4 2017

30 Key issues to be addressed in the fair labor principles include: Elimination of all forms of forced or compulsory labor. Abolishment of the worst forms of child labor Abolish institutional sponsored trafficking; using social visit pass turn one year social visit calling visa to Malaysia. In 2015, MOHR registered 240,878 Plantation workers, while Indonesian Embassy recorded 540,825 migrant workers; 299,947 were undocumented. Largely contributed by the Malaysia Calling visa policy and human trafficking activities

31 Key issues to be addressed in the fair labor principles include: Respect freedom of association and the right to collective bargaining. Provide all workers adequate protective equipment free of cost. Provision of adequate housing, water, medical, educational and welfare amenities and protective equipment free of cost for all workers Ban of toxic, bio-accumulative pesticides, including all pesticides that are classified as World Health Organisation Class 1A or 1B, or that are listed by the Stockholm or Rotterdam Conventions, and Paraquat. Commitment to reasonable working hours and progress toward payment of a living wage

32 Key issues to be addressed in the fair labor principles include: Practice ethical recruitment with no fees for workers or seizure of identity documents. Reject exploitation based outsourcing/ sub-contract practices Establishment of a legitimate, accessible, and transparent grievance mechanism, consistent with international best practices Commitment to meaningful transparency and disclosure of all plantation processes

33 Points to ponder for Policy Recommendation How can Safe Migration be conceptualized and practiced? What plantation business model structural factors make Safe Migration possible? Why is there space for trafficking/forced labor/child labor to occur? How to promote institutionalized Safe Migration contribute to curtailing human trafficking and Force labor? How to promote Human Rights based good practices among the corporate Oil palm and Oil Palm products exporting countries? How Financial ecology system can ensure Human Rights good practices.

34 Thank You

35 7th regional conference on human rights and agribusiness in South East Asia, Pontianak October 2017 UNDOCUMENTED INDONESIAN MIGRANT WORKERS IN SABAH MALAYSIA

36 Its historical roots Takes place since the colonial Portuguese, coinciding with the Catholic missionary in East Flores (Larantuka) East Nusa Tenggara (NTT) crossing over to Sabah, Malaysia The massive migration of Flores people to Sabah was recorded in the 1950s, when Sabah was still under British rule. It seems that the Bugis first recruited Flores people to work for Sabah. The usual route is Larantuka Maumere Makassar Pare-pare Tarakan Nunukan Tawau. And for over 50 years, this route has not changed much.

37 The famous Tekong (informal brokers) at the time was Haji Ibrahim. Haji Ibrahim is the guarantor of migrant immigrants to obtain passport visit to Malaysia. The massive presence of Flores people into Sabah from time to time is also based on a sense of "faith" with the majority of Catholic Sabah citizens. In further developments, Tana Toraja migration to Sabah is also underway for the same reason. The first wave of Flores migration to Sabah earned a fortune by obtaining a valid British-Malay passport for life. Since 1979 the recruitment of unskilled laborers from Indonesia for labor-intensive sectors has been organized by the Malaysian Migration Fund Board (MMFB). This policy put an end to the centuries-old migration of self-help (cultural) we call migrasi kultural or migrasi swadaya.

38 Oil palm plantation as the main contributor Demographic population of Sabah (2014) is 3,214,200, with details as follows: a. Malaysian citizens 2,281,900, consisting of Malay: 362,700 people, Kadazan / dusun: 545,700 people, Bajau 398,100 people, Murut: 97,300 people, Other Bumiputera: 448,800 people, China: 280,600 people, others: 148,700 people. b. Not a citizen: 932,300. In general, the population of Sabah consists of 28 ethnic groups / tribes, consisting of; Kadazan-Dusun, Sino-Kadazan, Malay, Murut, Bajau, Kwijau, Illanun, Rungus, Lotud, Tambanuo, Dumpas, Mangka'ak, Suluk / Tausug, Ilocano, River People, Brunei, Kedayan, Bisaya Beaufort, Tidong, Maragang, Cocos, Paitan, Ida'an, Minokok, Rumanau, Yakan. Others are Filipino, Serani, Groups from Sarawak and Chabacano. The main export results of Sabah include: palm oil, chocolate, liquefied natural gas / LNG, oil, rubber, logs, plywood. The yield of palm oil plantations is the main contributor (40%) to Sabah's state income or about 30% of Malaysia's national oil palm, with an area of 1.5 million hectares

39 The Magnet of Indonesian Migrant Workers from East Nusa Tenggara (NTT) The number of official Indonesian migrant workers in Sabah reaches 538,180 people (2016). Indonesian migrant workers (un documented) are estimated to reach 329,388 people. 90 percent of the total plantation workers in Sabah, apart from the Philippines, India, Bangladesh and Vietnam. The average wage is only 500 Malaysian ringgit (RM) or about Rp 1.25 million and the highest is 700 RM ($ 166). Become a short-term and continuous solution to the viability of labor and poverty problems in East Nusa Tenggara (NTT) Cultural routes, Catholic religious similarities, "abundant" job vacancies are planted in palm oil, and the circular makes Sabah as favourite destination of NTT.

40 What,s problems? The status of those who work on oil palm plantations as illegal (undocumented). Thousands enter through the rat path (Jalur Tikus) on the border of East Malaysia with North Kalimantan (Kaltara). Kab Nunukan (Kaltara) occupies the most important transit points at the same time smuggling, trafficking, informasl brokers / mafia, humanity shelter, violence, illegal recruitment, fraud and falsification of documents and high cost. cost of got passport in Nunukan reaches 4-5 million Rupiah ($ 296- $ 370) through informal brokers (calo) official rate is IDR ($45)

41 Cont.. The status of illegal migrant workers (undocumented) also brings the effect of being caught raiding Malaysian Police, imprisoned, fined (Penalty for violation of immigration provisions is maximum 5 years imprisonment, or a maximum fine of RM10,000 ($ 2,372), or caning of cane (hukuman cambuk) 6 times and deportation to NTT via Nunukan. Many undocumented Migrant workers live in camps of oil palm plantation workers without adequate electricity, poor water and sanitation, no toilets, remote access from public service centers (health clinics, education, markets, places of worship, banks, transportation, etc.)

42 Cont.. In addition to not obtaining the rights of workers' normative rights (based on the Employment Conditions in Sabah (Labor Ordinance, Sabah CAP 67), undocumented workers are not covered by health insurance, including their sexual and reproductive health, insurance (based on Akta Pampasan Pekerja 1952), education and status children taken or born in Sabah (stateless children), stigma, legal status and cost. In accordance with Malaysian immigration regulations, Indonesian migrant workers are not allowed to marry while still in employment contract either with fellow workers or with the local citizen of Sabah Several reports indicate that female Indonesian Migrant Workers in Sabah experience sexual violence, trafficking victims, childbearing with unskilled help, late to health care and not using contraception

43 Child labor: child rights are not fulfilled? There are still thousands of Indonesian migrant worker,s children who are not educated The children of migrant workers in Sabah are estimated at 43,000. Of these, access to basic education is 31,477,000 people, through 314 Community Learning Center (CLC) Consulates of Indonesia Tawau and Kotakinabalu and Humana School (Foreign NGO). The Indonesian Migrant Children's School is also organized by the Holy Trinity Migrant Child Learning Center at Tawau, the RGS Children Learning Program in Sandakan, and private Thousands of children are stateless because their parents are undocumented (until 2009 there were 52,000 statelesss children) Many became child workers as collectors of palm oil, grassclearing and cleansing in oil palm plantations

44 What to do?... Complete the revision of Law 39 of 2004 from placement to protection of Migrant Workers and accommodate culture migration scheme from East Nusa Tenggara (NTT) The MOU is equal to the Malaysian government for the protection of Indonesian Migrant Workers Constraints to the Malaysian government for law enforcement to companies for the fulfillment of the rights of migrant workers The completion of undocumented migrant workers is not unilateral. Completion of the citizenship status of Indonesian Migrant Workers children, fulfillment of children's rights, especially the right to education for all children of Indonesia Migrant Workers.

45 Mulyadi (cak mul) Chairman of the Migrant CARE Board, Jl.Cempaka Putih Timur IV No. 11 A, Jakarta, Indonesia Fb:cakmul. HP :

46 AMNESTY INTERNATIONAL S 2016 REPORT THE GREAT PALM OIL SCANDAL; LABOUR ABUSES BEHIND BIG BRAND NAMES Papang Hidayat

47 RESEARCH SUMMARY Investigating the biggest palm oil producer in the world Wilmar Focussing on 5 companies: 2 Wilmar s subsidiary companies 3 Wilmar s supplier companies; all in North Sumatra & Central Kalimantan Around 120 interviewees (men, women and children) between February and October 2015 To research the corporate s crimes responsibility ; crimes both under international & national law - Indonesia is a State Party to many human rights treaties & ILO Conventions TITLE OF THE PRESENTATION 2

48 Key findings Exploitative system of work and wages that facilitate forced labour The use of child labour Gender discrimination Abuses of the rights to health Relatively good local/national legal framework, but extremely week in the enforcement

49 The exploitative work & wages system The target and piece rate system: for harvesters (around 900kg of palm fruits) and maintenance workers (certain amount of fertilizer and pesticide) Complex & opaque system of wages: combination of working time & output; the workers are responsible for factors beyond their control; many cases that the workers do not get the minimum wage Long working time with no overtime wages Penalty system for various things: salary deduction, longer working time, suspension from working (casual daily worker) The exploitative system of work may amount to forced labour

50 Child labour No official child worker, but there are de facto child workers (the youngest one is eight year old) Children have to help their parents to meet the target & piece rate system No safety equipment for them

51 Gender discrimination Four out of five companies employ women as casual workers (in maintenance unit; spraying pesticide and applying fertilizer Lack of health insurance, pensions and other benefits

52 Abuses of the rights to health The use of paraquat-based herbicides Inadequate safety equipment; including during the haze disaster Some serious injury incidents Health and medical test result not shared with the workers

53 Potential criminal offences by the companies The use of child labour Paid below the minimum wage Long hours & overtime work Employing casual daily workers breaching the existing legal framework The use of illegal and dangerous chemical pesticide

54 Indonesian legal framework on the issue There s a gap between the international and national legal frameworks (no criminal provision for forced labour), but Indonesia has a relatively adequate legal framework for labour rights (wages, overtime, working hour, permanent and fixed term contract, child labour, etc) The main issue is the lack of legal enforcement (very few criminal cases brought to justice for crimes under international law)