With many of our students looking to enter into the workforce after graduation, whether in the legal field or otherwise, labour laws and the issues surrounding employment have always been somewhat of a concern for most. Labour is an economic asset that plays this balancing act between being a mere commodity that lives by supply and demand while also encompassing a social formation that affects the lives of a majority of people. Flaws in our labour laws affect many and need to be acknowledged for their exploitive nature before they can be amended for the betterment of our society.
One issue that the labour force in Malaysia currently faces is the problem of forced labour and the exploitation of migrant workers. The Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (‘the Act’) was enacted with core reference to the Protocol to Prevent, Suppress and Punish Trafficking in Persons (Palermo Protocol). The Act aims to combat human trafficking; inclusive of the trafficking of migrant workers into Malaysia. While the Act was indicative of a move towards the counter-exploitation of migrant workers, there are still forced labour cases that unfortunately do not fall under the Act. According to the Act, ‘coercion’ is an aspect of the crime of trafficking of people for forced labour and is defined in Section 2 as the ‘threat of serious harm to or physical restraint against any person; any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; or the abuse or threatened abuse of the legal process'. Nevertheless, this is inconsistent with the Palermo Protocol, which outlines that trafficking also includes cases of coercion as well as abduction, fraud, deception, abuse of power or abuse of a position of vulnerability, or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person. By comparison, the Act has an extremely limited scope and barely covers the realities of modern-day exploitation that involves psychological coercion, deception, fraud, and abuse of vulnerabilities. The rising trend of migrant workers being trafficked for forced labour into Malaysia can be credited to recruitment methods that involve deception and fraud which continues throughout their employment.
Furthermore, Sections 370 and 374 of the Penal Code ban all forms of slavery and forced or compulsory labour. Some would also argue that Article 8(1) of the Federal Constitution provides that ‘all persons are equal before the law and entitled to the equal protection of the law’ technically includes all foreign workers. So why is it so commonplace to constantly hear about the abuse of migrant workers? This is not only a labour rights issue, but also a human rights predicament that Malaysia will need to overcome to uphold humanity and to maintain consistency with the International Labour Organization (ILO).
At the same time, child labour is also another issue. While there are existing domestic legislative frameworks aimed at protecting children from the exploitation of child labour, there has been no comprehensive study conducted to critically evaluate the adequacy of the Malaysian legislative framework. The International Trade Union Confederation reported in 2010 that Malaysia is a main destination country for men, women and children trafficked for forced labour or forced prostitution. In 2014, Malaysia’s palm oil industry was cited by the United States Department of Labour for using child labour and for forced labour in the electronics and garment sectors.
The Children and Young Persons Employment Act 1966 ('CYPA') permits children below 15 years old to engage in forms of employment specified in Section 2(2) of the CYPA and allows 'young persons', i.e. children aged 15-18 to be engaged in types of employment specified under Section 2(3). While these regulations supposedly prevent minors from doing hazardous works, the lack of a specific minimum age brings about the possibility of exploitation. Moreover, children under 18 are technically not competent to enter into a contract according to the Age of Majority Act 1971.
On an arguably more relatable sentiment, employees being overworked and underpaid have seemed to become the norm amongst us. A survey carried out by AIA Vitality Malaysia found that more than half the labour force in Malaysia sleep less than seven hours every night and that Malaysian employees exceed contracted working hours by up to 15 hours weekly. Section 60(1)(d) of the Employment Act 1955 (‘EA’) states that, ‘[Except] as hereinafter provided, an employee shall not be required under his contract of service to work more than 48 hours in one week’. Nonetheless, employers still tend to adhere to their own company regulations which — while it may not go directly against contracted terms and conditions — may still exploit employees by imposing impossible deadlines forcing employees to exceed standard working hours.
Wages are an essential part of employment, further highlighted by the EA’s provisions that ensure that wages must be paid not later than the seventh day after the last day of any wage period and failure of an employer to pay the wages in time may result in criminal prosecution and on conviction can be subject to a fine of RM10,000. A non-payment of wages can also constitute a fundamental breach of the employment contract where the affected worker may resign from employment and have his resignation treated as a constructive dismissal because the employer had repudiated an essential term of the contract.
In our own pool, the work environment surrounding the legal fraternity has been criticised for being less than admirable. Last year, a group of lawyers stood outside the Wisma Badan Peguam — the headquarters of the Malaysian Bar — to speak out and defend the rights of trainee lawyers in Malaysia to fair pay and humane work conditions. Vince Tan, a lawyer with over five years of experience, cited data that shows that trainee lawyers have been facing wage stagnation as far back as 2011. Pupils are paid only about RM400 - RM800 per month in the northern Peninsular States and are also not allowed to take leave without the Bar’s permission and many were working overtime without compensation. There is currently no requirement to remunerate pupils.
To conclude, legal protection is needed to defend the vulnerable communities of workers in Malaysia. The ILO has been pushing Malaysia to develop more comprehensive and updated labour laws for some time now. The law should be used to protect — not punish — the very people that fuel our economy, and that begins with ensuring that the labour force is aware and entitled to their rights.
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