EMPLOYMENT OF FOREIGN WORKERS ISSUES AND CHALLENGES Ministry of Human Resources Malaysia

1. EMPLOYMENT OF FOREIGN WORKERS ISSUES AND CHALLENGES Ministry of Human Resources Malaysia

2. SCOPE OF PRESENTATION Policy on the employment of foreign workers Profile on foreign workers employment -type, number and distribution Laws applicable to foreign workers Rights and entitlement of foreign workers under the laws Issues relating to the employment of foreign workers Department initiatives on foreign workers Conclusion

3. POLICY ON THE EMPLOYMENT OF FOREIGN WORKERS (FWS)

4. POLICY ON THE EMPLOYMENT OF FOREIGN WORKERS

5. MANAGEMENT OF FOREIGN WORKERS MINISTRY OF HUMAN RESOURCES Responsible for overseeing implementation of the National Labour Policies (NLP) with regard to labour and employment including the employment of foreign workers vis-a vis the protection of employment opportunity for citizens. Protect and promote the interest and welfare of Fws. During their legitimate employment in the country; and Administer and enforce strictly but fairly the various labour laws currently in force.

6. MANAGEMENT OF FOREIGN WORKERS MINISTRY OF HOME AFFAIRS Responsible over immigration matters and the recruitment i.e. the processing and approving application for Fws., determining the source country, issuing and revoking of employment visa, preventing illegal employment and deportation of foreign workers to their home countries. Administer and enforce the Immigration Act and the various rules made there under. MINISTRY OF HEALTH Responsible for health matter and controlling and preventing the spread of contagious diseases into this country.

7. TYPE OF FOREIGN WORKERS Documented Foreign Worker Enter legally and is employed under a valid temporary employment visit pas (TEVP) issued by the Department of Immigration Entitled to the protection and benefits provided under the various labour laws and regulations enforced in Malaysia Generally employed in lower and unskilled jobs Expatriate Issued with employment pass Allowed to bring spouses and family into the country Employed in executive and higher managerial and technical jobs Undocumented Foreign Worker Enter and work in the country in breach of Immigration Laws Not eligible for protection under the law ( contract void) Vulnerable to exploitation and abuse

8. NUMBER OF FOREIGN WORKERS EMPLOYED BY CATEGORY Expatriates 46,000 Documented Fws 1,790,380 Domestic workers 315,700 2,152,080* [* Include expatriates and citizens of Sri Langka, Pakistan, China and etc.]

9. FOREIGN WORKERS BY COUNTRY OF ORIGIN

10. FOREIGN WORKERS EMPLOYMENT BY SECTORS 2007 Sector Number % Number % 2006 2007 Manufacturing 646,412 35% 766,088 37% Plantation 354,124 19% 356,334 16% Construction 267,809 14% 302,410 15% Services 166,829 9% 202,349 10% Agriculture 123,373 7% 163,167 7% Domestic 310,661 16% 315,700 15% (Source: Immigration Department)?

11. LEGISLATION APPLICABLE TO FOREIGN WORKERS Employment Act 1955 (Peninsular Malaysia)? Sabah Labour Ordinance (State of Sabah)? Sarawak Labour Ordinance (State of Sarawak)? Workmen's Compensation Act 1952 Workers� Minimum Standard of Housing and Amenities Act 1990 Children and Young Persons Act 1966 Industrial Relations Act 1967 Trade Unions Act 1959 Occupational Safety and Health Act 1994 Wages Council Act 1947 Immigration Act 1959/60

12. LEGISLATION APPLICABLE TO FOREIGN WORKERS Part XII B Employment, Act 1955 Requires every employer to report/ submit information pertaining to Fws under his employment to the Director General of Labour within 14 days of their employment. Empowers the Director General of Labour to investigate discriminatory and unfair treatment of workers. Protects local workers against retrenchment in event of redundancy.

13. Right of Fws to: Statutory benefits under the Employment Act 1955 such as payment of wages, hours of work, shift work, overtime work, rest day, rest day pay, paid holidays, annual leave, paid sick leave etc; Social security coverage under the Workmen�s Compensation Act 1952; Written contract of services stipulating the agreed terms and condition of employment; Legal remedy through the Labour Court or Industrial Court System; and Enforce the terms and condition of service in the contract of service through the labour court.

14. SOCIAL SECURITY PROTECTION Under the Workmen�s Compensation Act, 1952 every employer is duty bound to insure his Fws under the FWCS Lump sum payment for injuries or death; Payments for injuries sustained out of working hours Payment for repatriating the deceased body to the country of origin. Labour Department is empowered to asses claim, receive payment and execute the disbursement. ( Note : 170,000 employers employing Fws had Insured their foreign workers under FWCS. Enforcement activities is stepped up to prosecute defaulting employers).

15. RIGHTS TO ORGANISE AND COLLECTIVE BARGAINING Right of Fws to join trade unions is governed under the : Trade Unions Act 1959 Fws. Can become a member of a trade union but not an official of the trade union Employment Act 1955 A contract of employment shall not contain a clause prohibiting a worker from joining a union Industrial Relations Act 1967 A worker cannot be dismissed for his unions activities

16. The right of redress for Fws under the labour laws: Complaint non-compliance of the labour laws committed by employers to Labour Dept. File claims against employers on matters governed by the contract of services or the provisions of the laws in the Labour court. Report unjust / unfair dismissal for conciliation in the Industrial Relations Department and Industrial Court.

17. COMPLAINTS RECEIVED FROM FOREIGN WORKERS (2005-2007)?

18. LABOUR CASES INVOLVING FOREIGN WORKERS (2005)?

19. LABOUR CASES INVOLVING FOREIGN WORKERS (2007)?

20. TYPES OF COMPLAINT Non-payment of wages/statutory benefits (o / time)? Wages paid is less than what was agreed in the contract Excessive deduction from wages (without consent and/or approval)? Job specification differs from the original offer Long working hours without compensation / rest Annual leave / rest days not granted Forced to work with different employers Abusive act of employers Poor living conditions

21. EMPLOYMENT ISSUES Over Dependence On Fws. 2.1 million Fws. in all sectors of the economy - large for a small country like Malaysia. More than 170,000 employers in all sectors employ Fws. Hampers economic transformation - ( to capital intensive and high value added industry). Country at risk of economic sabotage. Employers Preference For Fws. Number of application on the rise (On average 20,000 Fws approved every month. Locals being deprived/discriminated in the allocation of overtime Local workers retrenched and replaced with Fws. (direct and through outsourcing)? Employers not serious in recruiting locals (application bypassing the ELX system)? Fws employed through Outsourcing Companies to escape quota limit.

22. EMPLOYMENT ISSUES Exploitative and discriminatory labour practices: Non-payment of wages/statutory benefits to Fws. Wages paid to Fws. less than what was agreed in the contract or that paid to local in similar job. Excessive deduction from wages of Fws. Job specification differs from the original offer Long working hours without compensation / rest Annual leave / rest days not granted Fws. forced to work with different employers Allocation of overtime in favour of Fws. Poor living conditions of Fws.

23. MEASURES TO IMPROVE THE MANAGEMENT OF FOREIGN WORKERS Strengthen statutory inspections to places of employment with special focus on employers employing large number of Fws. Investigate complaints without giving prior notice to employer. Enlighten employers on their legal and social responsibility towards Fws through visit to places of employment. Speed up settlement of claims by Fws. against employers through the labour court system. Prosecute recalcitrant employers for offences committed against the labour laws.

24. MEASURES TO IMPROVE THE MANAGEMENT OF FOREIGN WORKERS Expand the coverage of the Workmen�s Compensation Act, 1952 to cover domestic workers Introduce a new provision in the law to deal with cases of sexual harassment involving foreign workers Introduce new provisions in the Employment Act to protect the wages and condition of work for foreign domestic servants and to control exploitative employment of foreign workers. Provide a standard contract of service for foreign domestic servants to guarantee better protection and for effective enforcement in the labour court. Enact a new law on the employment of foreign workers to eliminate and combat irregular and illegal employment

25. MEASURES TO IMPROVE THE MANAGEMENT OF FOREIGN WORKERS. Strengthening the manpower capacity of the government agencies responsible over the employment of Fws. to effectively enforce the laws. Stepping up enforcement on places of employment in particular those employing a large number of Fws. Enhancing Fws data and information collection through the National Employment Return (NER), e-Pampasan, Labour Market Database (LMD) and Electronic Labor Exchange (ELX) for effective monitoring, management and policy planning. Sharing data and information in the MOHA Foreign Workers Biometric Data System to improve monitoring of employers with Fws.

28. CONCLUSION Fws contribute to the economy of the country as such necessary measures are needed from all parties to protect and promote their interest and welfare. Employers and trade unions should join forces to eliminate illegal, exploitative, discriminatory and abusive employment of Fws. Serious attempt must be made by employers to recruit local workers through the ELX system and implement measures to retain them in employment. Strong efforts should taken by employers introduce and utilise technology to enhance business efficiency, increase productivity and reduce dependency on Fws. Compliance of the law is necessary in the employment of Fws. Government, employers and trade unions should engage in continuous dialogue and consultation to address and resolve issues and problems relating to the employment of Fws.

29. THANK YOU