Legal Protection, Not training

KUALA LUMPUR, 21 June 2009: In connection to the recent call by the Indonesia government for protection of Indonesian foreign domestic workers (FDWs) in Malaysia, CARAM Asia a regional network of 29 NGOs and trade unions across 17 countries in Asia would like to reiterate our recommendation for the Malaysian government to amend the Employment Act ensuring a comprehensive legal measure to protect the rights of all domestic workers.
The proposal by the Malaysian Association of Foreign Maid Agencies (PAPA) for employers to attend a one-day course on their responsibilities and duties will not prevent abuses.
How can FDWs who are confined to private homes, without a day off away from the surveillance of their employers and with their passports and legal documents held by employers, leave the house to seek help when abused and exploited?
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.
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.
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.
We also 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.
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.
CARAM Asia is NGO in Special Consultative Status with the Economic and Social Council of the United Nations . It is an open network of NGOs and CBOs, consisting of 29 members covering 17 countries in Asia and the Middle East. The CARAM Asia network is involved in action research, advocacy and capacity building with the aim of creating an enabling environment to empower migrants and their communities to reduce HIV vulnerability and to promote and protect the health rights of Asian migrant workers globally. Visit www.caramasia.org for more information on CARAM Asia.