Tuesday, March 23, 2010

The struggle for rights Burmese Migrants Workers of Jogoya Restaurants - Update

If workers fight for their rights - they will get it..

Fighting for your worker rights is not easy - there is always risks - but workers must overcome their fear and pursue their worker rights....

Sacked Myanmar workers' plight: Happily heading home

Labour Department resolves grouses of the shortchanged foreign employees

Tuesday, March 23rd, 2010 12:03:00

Myanmar Workers
SEEKING RESOLUTION: Workers stating their case at the FT Labour Department office in front of Madanjit recently (far left)

KUALA LUMPUR: The 26 Myanmar workers who claimed to have been duped by their former employer, an upscale restaurant in Starhill Gallery here, finally had their demands met and will get to return home.

The Malay Mail learnt that negotiations between the workers and Jogoya Restaurant concluded last    Wednesday and matters were settled amicably via intervention by the Federal Territories Labour Department and the Malaysian Trades Union Congress (MTUC).

At the end of negotiations, held at the FT Labour office in Wisma Perkeso, Jalan Ampang, Jogoya management agreed to return all levies deducted from the workers’ salaries from April 1, 2009 up until last month.

With each worker’s monthly levy being RM150, total levies deducted for all 26 Myanmar workers for 11 months would have amounted to RM42,900.

Jogoya also agreed to pay the workers their full salaries for January and February 2010 as well as their service points for January, which were previously held back after the restaurant claimed poor performance by the workers.

Jogoya additionally provided full airfare tickets for the workers who had been with the restaurant for more than three years, and a RM250 airfare subsidy for those who worked under three years.

The former employers will present the flight tickets and salaries by tomorrow latest at the FT Labour office after which the workers will depart Malaysia from March 25 to 30. This was confirmed by Jogoya’s legal representative, Alice Lee.

FT Labour Department assistant director Madanjit Singh, who negotiated the deal between the Myanmar workers and Jogoya, told The Malay Mail that employers of foreign workers must be alert to changes made to the law.

“Local employers cannot rely solely on what their employment agents say regarding our Labour laws. The employers have to take it upon themselves to be aware of the changing trends of the law,” he said.

To foreign workers who feel that they may have been duped by their employers here, Madanjit said they should not take the law into their own hands, such as by holding protests and such.
“Foreign workers should report the matter to their respective embassies or the Labour 

Department instead. Don’t take matters into your own hands because you may lose control of the situation and make the negotiation process more difficult.”

When contacted, a spokesperson for the Myanmar workers, Zar Ni Swe, said the workers were happy their rightful demands have been met.

“It was a long battle for us and we’re glad it is over. Although some of us were offered jobs here by other employers, all of us have chosen to return home to our families,” said the 29-year-old psychology graduate.

On March 15, The Malay Mail front-paged a report on the Myanmar workers' plight resulting from being unlawfully terminated from their job, evicted from their hostel, deprived of two month's wages and their passports, as well as having levies deducted from their salaries and non-payment of service points.

Jogoya also allegedly told the workers to pay a month’s salary (RM1,000) as compensation for “mistakes” committed during work.

Blacklist errant employers, says MTUC

PETALING JAYA: Companies who cheat their foreign workers should be blacklisted rather than negotiated with, said the Malaysian Trades Union Congress (MTUC).

Its secretary-general, G. Rajasekaran, told The Malay Mail he was surprised to learn that the Federal Territories Labour Department had negotiated with Jogoya Restaurant regarding its 26 Myanmar workers, when the former employer should immediately have been brought to book instead.

“The FT Labour Department should detect the breach of contract (by Jogoya) like deducting levies from wages. Workers’ pay must also be paid within seven days and not held back,” said Rajasekaran.

On April 20, 2009, the Peninsular Malaysia Labour Department had issued a circular to employers and embassies, stating that employers could continue to deduct levies from foreign workers’ wages only until their permit expires for the year.

On renewal of the permit, employers should bear the levy cost for foreign workers with no further deductions made for levy purposes.

The circular states employers are not permitted to deduct wages for the levy payment of workers recruited after April 1, 2009.

Previously, Jogoya had claimed they were unaware of the circular by the Labour Department. They claimed their employment agent had informed them it was permissable to deduct levy from their workers’ salaries.

But the workers disputed this. One of the 26 Myanmar workers, Zar Ni Swe, 29, told The Paper That Cares that the workers had obtained a copy of the circular and had handed a copy to the management. However, she claimed the management ignored it.

On this, Rajasekaran said such companies should be blacklisted and prohibited from bringing in foreign workers to avoid a repeat of the same situation to future employees.

Actions taken against these companies should be published in the media as a deterrent to others, he said.

“When foreign workers are mistreated, they don’t dare complain because they are usually threatened by their employers. If the Labour Department wants a list of such employers, MTUC is ready to hand it to them.”

He said MTUC had objected to employee outsourcing companies championed by the Malaysia government three years ago, but to date, 270 such licenses have been issued with 70 per cent of the licensees being in Kuala Lumpur and Selangor.

Chronology of events

● March 9: The Malay Mail, alerted by a source that 26 Myanmar workers were “unlawfully fired” by their employer and given a week’s notice to move out from their hostel, visited the workers at their  quarters in Jalan Changkat Thamby Dollah, Kuala Lumpur, to hear their story.

March 10: The Malay Mail went to Jogoya Restaurant to seek clarification from its management but was rudely turned away when one of its staff saw our photographer taking photos in front of the restaurant. Meanwhile, 10 out of the 26 Myanmar workers sought help from Yan Naing Tun, an information officer from Burma Campaign Malaysia, a non-governmental organisation. Naing Tun brought the workers to the Malaysian Trades Union Congress (MTUC) office where senior industrial relations officer Peter Kandiah attended to their case.

March 11: Kandiah and Naing Tun brought the workers to the Federal Territories Labour Department office. At noon the same day, along with FT Labour Department assistant director Madanjit Singh and four other officers, the group and The Malay Mail went to the restaurant in Starhill Gallery to demand the workers’ passports and unpaid wages from the management.
Drama broke out when a Jogoya senior management staff was seen trying to escape through a back door upon seeing the Labour Department officers. Despite one of the Myanmar workers giving chase, the Labour officers failed to meet with the management.

Madanjit then asked the restaurant, through its head chef, to send its representatives to the Labour Department office at 3pm to clarify themselves. From there on, negotiations began. The department  ordered Jogoya to return all of the 26 workers’ passports, failing which the restaurant will be brought to book.

March 15: Jogoya returned all 26 passports to the workers at the FT Labour office but refused to pay their February wages, claiming the workers had failed to show up for work during the period when they had protested against the restaurant's treatment of them. Negotiations further ensued.

March 17: Negotiations concluded with the employer agreeing to pay for the workers’ airfare, their January and February wages as well as January's service points.

See also earlier posts:-

Should we boycott Jogoya Restaurants until the workers who claimed their rights are re-instated?

Burma Campaign Malaysia, MTUC and Malay Mail do good in helping workers

Levy Deductions: Workers Complain Employers Terminate - Government Must Act Against Such Employers

26 Burmese Migrants suddenly terminated ....will they get justice?



Tuesday, March 16, 2010

Should we boycott Jogoya Restaurants until the workers who claimed their rights are re-instated?

The employer allegedly wrongly deducted from wages of their employees to recover the levy they had to pay the government of Malaysia for hiring foreign workers. 

The workers complained - and later referred the matter to the Labour Department - exactly what workers have to do when the employer violates their rights - wrongful deduction of wages, non-payment of wages/benefits, etc..

When these workers fought for their rights - and did what the Malaysian law required of them, the employer terminated them.  

The employer also withheld the passports of these workers - which again is wrong. Will the Malaysian police/immigration department charge the employer in court for holding on to the passport of another? Why not? Is it because the UMNO-led BN government is pro-employer anti-worker? Charge the employer....

Myanmar workers: Passports returned minus February pay

Tuesday, March 16th, 2010 11:06:00

BITTERSWEET: The Myanmar workers showing their passports returned to them

KUALA LUMPUR: It was a bittersweet day for the 26 Myanmar workers who lost their jobs as waiters and waitresses at a Japanese restaurant and subsequently had their passports withheld by their former employers. They received their passports yesterday.

However, it came at a cost.

Their previous employer, Jogoya Restaurant based in Starhill shopping centre, is now refusing to pay the February wages owed to them, and is instead deducting the wages from their service points.

A meeting between the Jogoya management, the Myanmar workers as well as Malaysian Trades Union Congress (MTUC) officials, took place at the Federal Territory Labour Department office in Wisma Perkeso yesterday.

However, MTUC senior industrial relations officer Peter Kandiah told The Malay Mail it was not entirely a happy ending for the workers.

"At the meeting, the restaurant management stated they were willing to give back the passports. However, they are not willing to pay the workers their February salary," said Kandiah.

"They claim this is because the workers failed to show up for work during the period when they had protested against the restaurant's treatment of them."

Kandiah also argued with the restaurant management's stand that they were only willing to pay the return airfares for 10 of the Myanmar workers, instead of all 26.

The restaurant, he claimed, stated that the other workers have to fulfill the contract requirements, and hence they didn't qualify for the tickets.

"However, as the restaurant had already acted illegally by deducting the workers' levy, they should not be talking about breach of contract. They should pay for all their airfares," he said.
Kandiah wants the Labour Department director-general to prosecute the restaurant management as he claimed they illegally and unlawfully deducted levy for the workers.

Kandiah is seeking a meeting with the department today.

Meanwhile, one of the Myanmar workers, Zar Ni Swe, said that despite the mess, she and her colleagues were grateful to get their passports back.

"At least I'm not afraid of being caught by the authorities without any identification documents on me. However, I still hope that the case can be resolved soon," she said.

The Malay Mail yesterday front-paged the plight of the 26 workers, who claimed that on March 2, they were given a week's notice that their services were no longer required.

Some were made to pay a RM450 levy to the restaurant, also a month's salary of RM150 as compensation for "previous mistakes" and immigration costs of RM150.

Those with no savings were told to work for another company until they paid their dues to get their passports back.

After receiving no help from the various authorities, the workers finally found support from the MTUC which referred them to the FT Labour Department.

The Paper That Cares was alerted to the development and last Thursday, the department sent five officers to the restaurant to get back the workers' passports but were unable to meet the management as well.

The Labour Department officers then instructed the restaurant to instead send its representatives to the department to return the passports, refund the deducted levies, to pay wages to the workers until March 15, and also provide their return air tickets.

The restaurant management met the department officers on March 12 to negotiate the department's demands. - Malay Mail, 16/3/2010, Myanmar workers: Passports returned minus February pay

You claim your rights - and your employer terminates your services & also do not to pay for their airfare back to their home country. Why? Because the employer alleges that the workers did not fulfill their contracts.

" Did not fulfill their contracts"  - Well, was it not the employer who wrongly deducted wages? Was it not the employer that terminated their services when the took steps to claim their rights?

The law provides an avenue for workers to complain if they believe that their worker rights are being violated - and this is the Labour Department (Labour Court), or in the case of wrongful dismissal where one is seeking re-instatement - the Industrial Relations Department.

When a worker goes to the Labour Department, he lodges his complaint and his claim. 

Labour Department informs the employer and seeks his response.

Labour Department tries to resolve dispute between employer and workers.

If 'mediation'/negotiations do not work - we proceed to the Labour Trial, where parties put forward their evidence (and challenge the other side's evidence), and at the end of the day, the Labour Court decides.

Then, if the court decides in favour of the workers - the employer will be ordered to do the needful.

If the court decides against the workers, that is it.

[Of course, parties have a right to then bring the matter to the High Court,...]

What must an employer do when workers claim their rights?
Certainly not terminate these workers - and, I believe, that the law must place a very high penalty  (or even make it an offence) on employers who terminate their workers when they utilize the mechanisms available to claim their rights as workers. 
What this Jogoya Restaurant did, as reported, is so wrong. Maybe Malaysians who are for human rights and worker rights should BOYCOTT Jogoya.until :-
a) All workers are immediately reinstated as workers without loss of benefits,
b) The employer returns all wrongful deduction from wages,
c) All these workers be allowed to work until at the very least the end of their contract period, and the employer pays for the necessary airfare back home, etc...

Jogoya Malaysia

Since its opening in January 2006, Jogoya's flagship Japanese buffet restaurant on the Relish Floor of Starhill Gallery, Kuala Lumpur has attracted more than 1 million customers. With a large area of nearly 30000 square feet, Jogoya buffet restaurant in Kuala Lumpur can accommodate up to 580 guests at a time.

The whole interior design is made based on the 'flowing' concept and has a variety of dining area such as the disclosed area, semi-disclosed, private seats for couples and the VIP rooms.

Using the highest quality of ingredients (No Pork), the creative and skilled chefs at Jogoya have prepared more than 200 dishes of different style like Chinese, Western, Japanese, Malaysian and a lot of other styles. This has made Jogoya an irresistible place to enjoy delicious cuisines.

Recently, we have added Haagen-Dazs ice-creams to our dessert menu as we want to serve you the best quality ice-creams. Besides, we also provides unlimited liquor such as wines and cocktails and you do not need to pay extra for it.- Jogoya Website

Monday, March 15, 2010

Burma Campaign Malaysia, MTUC and Malay Mail do good in helping workers

Today, many newspapers, NGOs and persons are focussed on the  political dramas happening in Malaysia. There is really too much attention given to that MCA internal problems, PKR's party hoppers and expelled MP,  'Anwar wants to be declared still Deputy Prime Minister' trial,  Anwar's Sodomy Trial, Anwar's Defamation Suit, MB Selangor's trials, PR -v- BN Perak trials, ....and little attention is given to struggles of the little person - the workers, the farmers, the 'warga mas', etc.. Interesting as all these may be, it is important for the media to also pay a little more attention to things that really matter in the lives of the poor and oppressed. 

Malay Mail just did highlight the plight of workers - Burmese migrant workers. Not only did they report this, but also caused to publish 4 reports about the plight of these workers, education n about levy - and how employers cannot deduct anymore worker's wages to recover their expenses, etc..
Burma Campaign Malaysia should also be applauded for the role that they played.

Malaysian Trade Unions Congress (MTUC) role must also be applauded.

What we need now is for the Malaysian government, in the person of the Minister of Human Resources and the Labour Departments to begin playing a more active role in protecting worker rights... and discouraging employers action of terminating workers who try to claim their rights as provided by law. Some action must be taken against such employers...

How The Malay Mail got the action going

CHAOTIC: FT Labour officers and the Myanmar workers in front of the restaurant last Thursday

KUALA LUMPUR: The Malay Mail had received a tip-off that the 26 Myanmar workers had been sacked by Jogoya Restaurant.

Our team had gone to the restaurant last Wednesday to seek clarification but to no avail.

On Thursday, the workers were brought by countryman Yan Naing Tun from an NGO called Burma Campaign Malaysia to the Malaysian Trades Union Congress (MTUC) to seek help from its senior industrial relations officer Peter Kandiah, accompanied by The Paper That Cares.

Kandiah led the group to the Federal Territory Labour Department office at Wisma Perkeso in Jalan Ampang to state their case. The same day, the department sent five officers to the restaurant to get back the workers' passports but were unable to meet the management.

Soon after, the restaurant manager was called to the FT Labour Department office and was told to return the passports, refund the deducted levies, to pay wages to the workers until today, and also provide their return air tickets.

The restaurant management met the department officers on March 12 to return the passports, and negotiate the department's demands.

On Friday, the management said they will provide air tickets for those who worked three years and above, and will only pay wages up to February. However, if both sides are unable to agree, the case will be brought to the Labour Court.

When contacted last night, Zar Ni Swe, one of the 26 Myanmar workers, said they hoped to get their passports today.

NGOs want more vigilance against errant employers

PETALING JAYA: Several NGOs have called on the Labour Department to be vigilant against employers who refuse salary slips to foreign workers and to prosecute employers who continue to deduct a levy from foreign workers.

“Last year, we received about 5,600 reports from foreign workers who claimed they didn't receive their wages, were subject to unknown deductions and were not issued with salary slips,” said Tenaganita director Irene Fernandez yesterday.

She said Tenaganita received reports in January of illegal levy deductions even though the government had deferred levy costs on foreign workers recruited after April 1 last year.

“Some foreign workers claimed they didn't get their salary or had unfair deductions from their wages. It is hard for us to ascertain the truth of such complaints since there are foreign workers who are not provided any payslip,” said Fernandez, adding that Tenaganita faced difficulties helping such workers when putting forward their cases to the Labour Department for action.

She hoped the Labour Department will constantly monitor employers, especially those in small-medium enterprises, manufacturing and service sectors to prevent such unhealthy practices becoming the norm in this country.

Meanwhile, the Malaysian Trades Union Congress (MTUC) urged the Labour Department to beef up enforcement against levy deductions on foreign workers.

“Some errant employers have apparently cheated their foreign workers with levy deductions, even with those who came to work in this country after April 1 and who renewed their work permits after that period,” said MTUC president Syed Shahir Syed Mohamud.- Malay Mail, 15/3/2010, Myanmar workers laid off without notice

See earlier posts:-

Levy Deductions: Workers Complain Employers Terminate - Government Must Act Against Such Employers

26 Burmese Migrants suddenly terminated ....will they get justice?


Workers Complain Employers Terminate - Government Must Act Against Such Employers

Levy - Malaysian employers who want to foreign migrant workers were required to pay levy to the Malaysian government. Why? The government wanted to encourage employers to employ local Malaysians, but if they wanted to still employ a foreign national, then the employers had to pay a levy to the government for each migrant worker they employ. That payment of levy should also allow these migrant workers access to public amenities, services, etc..

But, what a lot of 'naughty' employers did was that they recovered this 'levy' from the wages of the migrant workers...and the Government of Malaysia (i.e. the Minister of Labour) gave them the official permission  to do this. In law, they could not simply deduct wages of workers in Malaysia, and they needed this permission, and Malaysia's Labour Minister (DG of Labour) allowed certain(most) employers to do this.

The government's permission had a condition, i.e. that the individual  worker agree that his/her wages be deducted so that the employer can recover the levy that he had to pay the government. There were some other conditions too. But, alas the workers were made to believe that this was the law, and they had no choice in the matter. Many workers never agreed to such deductions....and the Labour Minister was just not bothered. Some employers put it in as part of the employment contract, and surely this was very wrong ...End result: Many workers worked without pay for many months as many unscrupulous employers just collected back what they spent on these workers (not just the levy..) from the worker's wages. Great injustice.

Finally, Malaysian government changed policy last year...and did away with these permission that allow employers to recover levy paid by them from worker's wages..
But, some still did so - and when workers complained...they were suddenly terminated. This is what happened to Burmese migrant workers in Nogoya 

Cut-throat employers will be booked, says Labour Dept


PETALING JAYA: Local employers are still fleecing foreign workers of levies from their salaries — despite the Labour Department warning employers about a year ago.
Federal Territory director Khamis A.R. Majid said the department was viewing the matter seriously.

“We witnessed numerous cases where employers were still deducting levies from the foreign workers’ salaries under unlawful terms,” he said.

Last April 1, the Labour Department had issued a circular stating that employers could continue to deduct levies from foreign workers’ wages only until their permit expired for the year.

On renewal of the permit, employers should bear the levy cost for foreign workers with no further deductions made for levy purposes.

The circular also states that employers are not permitted to deduct wages for the levy payment for workers recruited after April 1, 2009.

Until the new decision on Double Levy payment is made, the rates remain unchanged.

The annual levy for foreign workers can range from RM360 (domestic help and agriculture) to RM1,800 (services).

The circular, dated April 20, 2009 and signed by Labour Department director-general Datuk Ismail Abdul Rahim, was issued to business operators as well as foreign embassies in Malaysia.

Khamis said in the latest case, the department had to step in when 26 Myanmar workers from a KL-based Japanese buffet restaurant cried foul upon learning that their salaries were deducted by their employer for levy purposes, among other things.

“In the Myanmar case, the workers also claimed they were laid off without notice, and only given a week’s notice to move out of their hostel. This is a serious case because there have been too many cases of employers taking advantage of foreign workers and tarnishing the country’s good image,” he said.

“Rest assured we will take action against local employers pulling such stunts.”

Malaysian Trades Union Congress (MTUC) senior industrial relations officer, Peter Kandiah, who is helping the Myanmar workers, including getting their passports back from their employers, has called for the Human Resources Ministry to step up efforts against errant employers.

"It's too easy for local employers to dupe foreign workers because too many times, these foreigners don't know how, who or where to turn to for assistance," he said, when met at the FT Labour Department office last Thursday.

"The ministry's system is not effective enough even to protect local workers, much less foreign labourers." - Malay Mail, 15/3/2010, Cut-throat employers will be booked, says Labour Dept

See also earlier post: 26 Burmese Migrants suddenly terminated ....will they get justice?

26 Burmese Migrants suddenly terminated ....will they get justice?

Migrant workers, especially, come to Malaysia to work after being promised employment for a certain number of years, usually 3 or more years.

And to get to Malaysia, migrants end up paying a lot of money to agents, government officials, etc - and most migrants end up debt, even before they leave their home country to come to Malaysia to work. 

When they come to Malaysia, their work permits/passes are restricted  to that particular employer. These workers have no choice. They just have to work for that particular employer - and no one else. [Of course, the Director General of Immigration have the authority to vary the permit/pass of the workers, and allow them to work with some other employer. This was done in the case of Rajakannu Boopathy & 30 something other  Indian Migrant workers - but it required the migrants to take the DG and the Government of Malaysia to court before the DG voluntarily agreed to allow these workers permits/visas to be varied to permit them to work for another employer.]

Hence,  employers of migrant workers must fulfill their obligations and provide work and wages for the duration of the agreed period of employment. 

The law provides for worker rights. When rights are violated, then the law says that the worker can/must go to the Labour Department and lodge a complaint. And when they do so, employers cannot (or should not) penalize workers by immediately terminating them. This is very wrong, and the law must impose a minimum penalty on employers who do this, say 12 months basic wages of the affected worker.

A worker can be terminated for misconduct, etc - but before there can be a termination, there is a requirement that there be a domestic inquiry, whereby the worker will have his/her right to be heard. 
A sudden termination without a domestic inquiry will generally be a wrongful dismissal, and the worker has a right to complain about this to the Industrial Relations Department(IRD), and demand for reinstatement - but the complaint must be made within 60 days...see s.20 Industrial Relations Act 1967, which states as follows:-

(1) Where a workman, irrespective of whether he is a member of a trade union of workmen or otherwise, considers that he has been dismissed without just cause or excuse by his employer he may make representations in writing to the Director General to be reinstated in his former employment; the representations may be filed at the office of the Director General nearest to the place of employment from which the workman was dismissed.

(1A) The Director General shall not entertain any representations under subsection (1) unless such representations are filed within sixty days of the dismissal:
Provided that where a workman is dismissed with notice he may file a representation at any time during the period of such notice but not later than sixty days from the expiry thereof.

(2) Upon receipt of the representations the Director General shall take such steps as he may consider necessary or expedient so that an expeditious settlement thereof is arrived at; where the Director General is satisfied that there is no likelihood of the representations being settled, he shall notify the Minister accordingly.

(3) Upon receiving the notification of the Director General under subsection (2), the Minister may, if he thinks fit, refer the representations to the Court for an award.
The process is long - for if the employer refuses to reinstate the worker, then the matter is referred to the Minister, who then may refer the matter to the Industrial Court - then the the trial and then the decision. It really is a very unfair process for migrant workers - unless the law changes, and wrongfully dismissed workers be given the opportunity to live and work legally while claim is processed, heard and finally determined.

The other more common option is to go to the Labour Department, and claim for your unpaid salaries, overtime, unlawful deductions, termination payments, etc - But, what happen when work permits/passes expire.... The government must renew permits/visas to allow the workers to stay in the country until the dispute is determined by the Labour Department(Labour Courts). If the worker is not present for the appointment, trial at the Labour Court, the claim will be dismissed and the workers will not get justice...

Of course, the Malaysian government is more concerned about getting cheap labour in, exploiting them, and getting them out of the country when their permits/passes expire. The government of Malaysia has not demonstrated that they are concerned about the workers and their rights...If they are, the process for workers to get their rights need to be expedited, and workers, in particular migrant workers, be allowed to be present in the country (with right to work) until their labour cases are determined by the court, and they have received what the court awarded.
KUALA LUMPUR: In Myanmar, US$850 (about RM2,900) is enough to sustain a person comfortably for a year,  and that's what Zar Ni Swe from Yangon paid to an agent to get a job as a waitress in a restaurant in Malaysia.

But on Feb 15, the second day of the Chinese New Year, Ni Swe, along with 25 other Myanmar waiters and waitresses at Jogoya Restaurant in Kuala Lumpur, were given a week's notice that their services were no longer required.

This heart-breaking news was conveyed to them in a memo which gave no reason nor was it signed.

On top of that, the memo had more bad news — the first part dealt with Myanmar waiters who had savings, and the second part for those who didn't have money.

In the case of Ni Swe, she was asked to pay a RM450 levy to the restaurant, also a month's salary of RM150 as compensation for her "previous mistakes" (no matter whether she was at fault or not) and also immigration costs of RM150. 

Those with no savings were told to work for another company until they paid their dues to get their passports back.

Ni Swe, who worked for almost four years, had the courage to ask the restaurant management why she and her countrymen and women were given a week's notice when it should have been a three months'. No satisfactory answer was given.

Allegedly too, the restaurant had not paid their February salary.


What followed were frantic attempts to seek help from their agents in Myanmar ("We cannot help") and Malaysia ("We can't help too"), embassy of Myanmar ("Call your agents"), the Human Rights Commission of Malaysia or Suhakam ("Wait for labour office to investigate"), police ("Call your agents") and the Federal Territory Labour Department ("Give us some time to investigate").

The hostel where Ni Swe and another 69 Myanmars were staying were also in deplorable condition.

The hostel is a four-storey building at Jalan Changkat Thamby Dollah. The restaurant and storeroom are on the first floor, the male Myanmar workers live on the second floor and the females live on the third floor.

With so many cramped inside each living room, the air is stuffy. With limited number of fans, the environment is perpetually hot, humid and uncomfortable and it's hard to imagine how anyone can have a peace of mind under such conditions.

The staircase is cluttered with personal stuff that could not be accommodated in their living space. The walls of the staircase are also stained by urine.

Each worker is provided a thin mattress and they sleep on double-deckers. - Malay Mail, 15/3/2010, Myanmar workers laid off without notice

Tuesday, March 9, 2010

4 Migrant Workers from India burnt to death at workplace where they were staying

4 Migrant Workers Burnt to death ...."heard the men screaming for help and then go silent.."

Many workers, especially migrant workers are asked to stay at the workplaces, sometimes on top of factories,etc. The problem is that these places are normally fire hazards, and are not safe for human occupation. 

There need to be new laws that set minimum standards for worker housing/dwelling - that will ensure that these places are safe for the workers. There must be standards to ensure that these premises are not a fire hazard, and that there are adequate fire doors, emergency exits, etc. The law must also provide for maximum number of workers that can be housed within a particular area. They may be migrant workers, and there is no justification for overcrowding (to the extend that when they sleep there is no walking space). Besides being a fire risk, it is also a health risk when people are forced to stay in cramped inhumane conditions.

4 workers...migrant workers from India were just burnt to death in a saree shop where they were staying. Was there even fire exits, fire extinguishers...? Were they locked in by their employers? Thorough investigation need to be done. 

MASAI: Two Indian nationals, who had just arrived here two days ago to start work as salesmen, were burnt to death with two others during a fire that razed five double-storey shoplots in Masai here.

All four, believed to be in their 20s, have yet to be identified as they were badly charred during the 2.30am fire.

Eyewitnesses said that they heard the men screaming for help and then go silent. The high flames prevented them from going to the victims’ rescue.

Police have not ruled out arson as can of petrol was found at the scene.

Johor Fire and Rescue Department deputy director Sukor Sani Hashim said that investigations showed that the row of shops had been doused with petrol.

“We believe that the petrol was poured at the entrances of all the five shop lots, he said adding that the fire had started from the textile shop where the victims had been sleeping.

The body of the first victim was found at the ground floor of the building, the second at the stairway and the other two were still at the top floor, he said.

He explained that the fire had also spread very fast as the building had wooden flooring and was filled with flammable material.

Sukor said it took 20 firemen and two fire engines about 10 minutes to control the blaze but it was wholly put out only an hour later.

Those with information on the fire can call the police hotline at 07-2212999.- Star, 10/3/2010, 4 Indian nationals burn to death in saree shop (Update)

There is also a need to review the Workers Compensation Act to increase the amount paid out to death. Now, it is a mere RM18,000-00

...(a) where death has resulted from the injury, a lump sum equal to sixty months' earnings or eighteen thousand ringgit, whichever is the less:

Provided that if the deceased workman did not leave any dependants, the lump sum shall be the actual amount of the expenses of the funeral of the workman or one thousand ringgit whichever is the less; - Workmens Compensation Act, 1952.
By virtue of the WORKMEN'S COMPENSATION (FOREIGN WORKERS' COMPENSATION SCHEME) (INSURANCE) ORDER 1998, this sum is increased by a mere RM2,000
(a) a sum of two thousand ringgit in the event of death of a workman from personal injury sustained in an accident which arises out of and in the course of his employment;

(b) where the personal injury is sustained in an accident which occurs outside the working hours of a workman -
(i) a sum of twenty thousand ringgit in the event of death or permanent total disablement; and
(ii) a sum of money equivalent to the amount of compensation awarded under section 8 of the Act for, and in the event of, permanent partial disablement or temporary disablement; and
(c) a sum of four thousand eight hundred ringgit or the actual expenses incurred in repatriating a workman to his country of origin in the event of his death or permanent total disablement, whichever is the lesser. - Clause 4, WORKMEN'S COMPENSATION (FOREIGN WORKERS' COMPENSATION SCHEME) (INSURANCE) ORDER 1998

Let's not forget that the Social Secutity Act (SOCSO) and the Workmen's Compensation Act are really meant to protect employers, by limiting their liabilities. All employers need to do is to pay the required monthly payment/subscription and when there is an accident SOCSO and/or Workmen's Compensation (or the Insurer) pays the money.

Life is valued at RM20,000. For permanent disability, which means the worker will not be able to work for the rest of his life, the sum is also a miserable RM23,000. How long can these worker survive. Under workmen's compensation, it is just a one off payment. SOCSO, that applies for local workers provides pension benefits at least.

The law need to be amended, and the sum should be increased. In the case of death or personal disability, further there must be a requirement that the employer pays basic monthly wages for the remaining contract period. This would really help families and the permanently disabled workers to at least settle the debts/losses they incurred in coming to Malaysia to work.

Migrant Worker dies in Detention Centre in Alor Star

Another Burmese migrant dies in Alor Star Detention Centre

I received information that another Burmese Migrant dies in Detention Centre in Alor Star.

Name: San Oo
Body Number: 4630
Died on 3/3/2010

We recall that it was reported in the media in December 2008, that "About 1,300 illegal foreigners have died during detention in the past six years, Malaysia Nanban quoted Malaysian Human Rights (Suhakam) commissioner Datuk N. Siva Subramaniam as saying. He said many of them died in immigration detention centres, prisons and police lockups because they were denied medical treatment at the right time.” [Star, 18/12/2008, ‘1,300 foreign detainees died due to neglect’] This was again reiterated ABC News(28/5/2009) Malaysia detention centres 'violating rights' .The Bar Council tells us that, "...The Dewan Rakyat figure would mean that an average of one migrant dies in custody almost every day!" - Bar Council: Deaths of migrants in prisons, rehabilitation and detention centres
See earlier posts:-

Migrants eat grass...walk backfooted...and so they get sick and die...

No Za Bou, Women Migrant from Burma dies in KLIA Detention Centre - Could this death have been avoided with proper healthcare?

Minister of Health's lack of response shows a lack of accountability - Death of Migrants in Detention Centres by reason of Leptospirosis

Malaysian Trade Union Congress (MTUC) makes it 26 groups concerned about recent death of 6 Burmese in detention

2 migrants fell sick and died at the KLIA Immigration Depot. Could death have been avoided if the required healthcare was available?

126 groups:- Death of 2 Burmese Indicative of State of Detention Places in Malaysia - Denial of Healthcare Is a Violation of Right to Life 

* I have received a letter from the Ministry of Health recently, and I would try to post the same in this blog as soon as possible.

Monday, March 8, 2010

Workers! Do not wait - go to the Labour Department and report about unpaid wages/benefits

Government should proactively ensure that 'retrenched' workers get their wages/benefits - many are still waiting for the employers to pay.

Many workers are still waiting for their wages to be paid by companies/bosses who cease operations and delayed payment of back-wages (and benefits) by reason of the economic crisis. Some are waiting for 6 months wages...some for even 12 months wages. 

The shut-down of factories and workplaces, which is said to be temporary, also means that even the managers and the bosses are not coming in, and the workers may be cheated as many of these are relying only on 'verbal' assurances by the company.

For migrant workers, the problem is even greater. Now, some of the agents and/or employer's rep are asking them to go back to their home country, and they tell these workers that their outstanding wages/benefits will then be send to them. How? Some say that they will pay through their local agent, etc... - There is a great risk that these workers will ultimately be cheated of their wages/benefits unless the Malaysian government, in the form of the Human Resources Minister (or the Labour Department) steps in now to create a procedure...system that will ensure that these workers will not be cheated of their wages/benefits.
For many of these workers, it is not just the question of their basic wages, but also overtime allowances.

For workers, that are month wage earners, they are entitled to the full monthly wage irrespective of the fact that the companies only provided work for some days of the month. For many of these factories, before the factory stopped operating completely, the workers had to work only on a certain number of days per month. According to law, the workers will still have to be paid their full monthly wages - unless there was any agreement whereby the workers agreed to be paid for the days that they work only. But, rightly this 'agreement' would be invalid, and they should be paid their full monthly wages. 

Migrant workers, by reason of the work passes/permits suffer even more - since the current law restricts their employment to just that particular employer. At this time, the government must come out with a new policy that allows migrant workers in this situation, just like local workers, the freedom and the ability to seek alternative temporary wage paying employment wherever they can. 

Wages should be paid completely before migrant workers are sent back to their home country. In terms of fixed term contract workers, like migrant workers, they should be paid at least their basic monthly wages for the remaining uncompleted term of their contract if they are to be prematurely asked to return to their home country.

What the Minister of Human Resources (Labour) should do NOW?

* Get all these workers to come in to the Labour Departments, and determine the amount of wages/monies due and payable by the employer.

* Get the employer to come in as well. If the employer does not attend the meeting with the Labour Department, an order should be issued stating clearly the amount of monies die and payable to these workers.

* Copies of these orders should be given to the workers, and also the Employers - and thereafter, as usual, the Labour Department should try to enforce this order and give the said money back to the workers.

* If the monies due and payable could not be returned to the workers before they leave, the Labour Department must get details of the workers (or their family members) bank account in their home country, and undertake to transfer the said monies to the workers as soon as the Labour Department recovers the monies.

* The Labour Department must also sent to the Official Assignee copies of the Order, and details of the total sum due and payable by companies to the workers. Payment to workers should be the first priority, in the event the company is wound-up (or their employers made bankrupt). At present, the workers are waiting, relying on promises, for their wages/benefits but we do not know whether other people to recover their debts are taking legal action against the company, including winding-up and bankruptcy proceedings.

If no safeguards are put in place now, many workers will be cheated of their wages/benefits. Companies may be wound-up...sold, etc and the workers will still be waiting.

The Minister...the Labour Department must get pro-active in this matter to prevent workers being cheated. They cannot sit in their offices waiting for these workers to come to them. Adverts, Banners & Education Campaigns needed now. Seek out the workers... and help them.

Many of these are women workers, and this being International Women's Day, they should be protected and not cheated by employers and agents. 

Migrant workers, who have already incurred great debts and expended a lot of money in coming to Malaysia should be given a special attention. 

It will be easier for local workers still in Malaysia to chase and claim their rights - but the Migrant Worker, back home in their home country, will certainly find it near impossible to claim their rights.

Malaysia brought them in to exploit their 'cheap docile labour', and we hope that caring Malaysia would not cause them to be cheated of their wages, and thus further exploited. Employers really should be required to deposit at least 6 months wages of their migrant workers with the Malaysian government as a security measure - so that at least, they could get some money when employers abscond or become bankrupt/wound-up.