Monday, December 14, 2009

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

On 23rd April 1999, the Malaysian government together with other ASEAN governments signed THE BANGKOK DECLARATION ON IRREGULAR MIGRATION, and declaration 14 states as follows:-

Irregular migrants should be granted humanitarian treatment, including appropriate health and other services, while the cases of irregular migration are being handled according to law.    Any unfair treatment towards them should be avoided;
Health services was specifically mentioned. 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

Finally, the government tells us that it is because migrants eat grass...and walk around barefooted..Are they not provided footware?

The detention centers are an enclosed environment, it is not a village where animals may be freely moving around....or dying. Hygine of all detention places, especially within the fences, should be kept hygienic, clean  and disease free. And why are detainees eating grass ...are they not been sufficiently fed? Are they being starved...that they are force to eat grass?

Leptospirosis, a communicable disease, has been linked to environmental contamination in Malaysian detention centres, where eight deaths have been recorded this year.

Dr Anis Salwa Kamarudin of the Health Ministry's public health division said the cases are linked to certain habits of detainees, such as eating grass and walking around barefooted.

“Some of these detainees like to eat grass which grows in the camp (compound),” she said in a written response on how the disease spreads and what measures are being taken to prevent the incidence of communicable diseases in immigration detention centres.

In May, two detainees died of leptospirosis at the Juru immigration detention centre, while six more succumbed in August at the KLIA immigration detention depot.

Anis explained that infection occurs either directly through contact with urine or tissues of animal carcasses, or indirectly through the contaminated environment soil, water, drainage and plants.

This includes consumption of contaminated food and water, as well as breathing air with the leptospira bacteria.

NONEThe spread of infectious diseases in detention centres is also due to overcrowding and poor hygiene, Anis said.

"Diseases spread easily where the population density is high - scabies, impetigo, tuberculosis, pneumonia and influenza are among the communicable diseases," she said.

Diarrhoea, enterovirus, hand, mouth and foot disease, salmonella, Hepatitis A and polio are spread through contaminated faeces, while Hepatitis B and C, HIV/Aids and cytomegalovirus are caused by contamination of the blood.

Anis said the ministry has taken several measures to ensure the health and safety of the detainees, to control leptospirosis among other diseases.

These include annual inspection of cleanliness of living quarters, water supply, and areas where food is handled, prepared and served.

Medical services are extended to immigration detention centres every fortnight, with referrals to hospitals when required.

'More needs to be done'

Tenaganita director Florida Sandanasamy said, however, that much more can and should be done to improve the health of detainees.

She questioned the quality and adequacy of food and water supplies, pointing out that no one will resort to eating grass unless they are desperate.

Detention centres should have an in-house doctor to provide immediate medical attention, she said.

"When detainees complain of sickness, they are often not taken seriously and have to repeatedly ask for treatment. Sometimes, when their condition worsens and they are rushed to the hospital, it is too late.

"The government should also have better planning in space allocation, as it is a known fact that densely populated areas attract all kind of diseases.”

NONEFlorida also pointed to dirty toilets and the lack of proper bedding - or filthy, bug-infested items - as other sources of problems.

“In fact, the detainees are not given a change of clothes, sometimes having to wear the same clothing until they are released," she claimed.

She also called for attention to the mental health and overall well being of detainees, as this has been neglected by the government.

"The detainees suffer from trauma and abuse, and are very prone to depression," she added.- Malaysiakini, 14/12/2009,
When detainees turn grass-eaters...
Not including medical cost, the government says that a sum of RM30 is spent per migrant per day...and, this is surely to provide good balanced diet, clean food trays, bedding, clothes and slippers... RM30 works out RM900 per month, and this is more than what most workers earn monthly...

First, it was the Immigration Department who ran these Detention Centres, but they did not do a good job, and the government transferred the responsibility to the experts, the Prison Department. Then, for no reason this responsibility was given to RELA...and, maybe it has now been handed back to the Immigration Department...or is still under RELA?

Rela members will be trained to take over the full-time running of the country's 14 immigration depots by the end of the year.

Home Affairs Minister Datuk Seri Radzi Sheikh Ahmad said in a recent Cabinet decision, Rela had been given control of all such detention centres, which currently housed some 11,000 illegal immigrants.

Previously, these centres were run and managed by the staff from the Prisons Department, which came under the purview of the Internal Security Ministry.

"However, we will need about two years to train our own staff in running these immigration centres. So, for the time being, Rela members will be put in charge of these centres.- Star, 22/11/2007, Rela to take over immigration depots
Access to health care in detention centres is once every two weeks... for how many hours? Considering the number of detainees and their living condition, this is certainly far from adequate. There should be a  permanent mini-clinic at every detention centre manned by a medical assistant, and a doctor at the very least. After all, there is already admission that it is indeed an environment that people can easily contract diseases.

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 


Friday, December 11, 2009

No Za Bou, Women Migrant from Burma dies in KLIA Detention Centre

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

On 9/10/2009, I received information that yet another migrant from Burma, a woman, died at the KLIA Detention Centre.

Name:       No Za Bou
Body No:  7652

What did she die of? Disease. What disease? The authorities allegedly will not disclose the disease when a migrant in these Detention Centres die.

Letters written to the Health Minister about previous deaths have yet to be answered, the last being as follows:-

15th November, 2009

Minister of Health
Kementerian Kesihatan Malaysia
Block E1, E6, E7 & E10, Kompleks  E,
Federal Government Administrative Centre,
62590 Putrajaya, MALAYSIA

Dear Sir,

We have recently been informed that 2 Burmese Migrants, who were detained at the Lenggeng Detention Centre recently died at the Seremban Hospital by reason of disease. We seek clarification as to what was the said disease? Was it again Leptospirosis.

One of the deceased was allegedly Aung Myo Lwin [Camp Body Number: 22157], who died on 22/10/2009. Hospital did not say what disease he died from. He was buried on 29/10/2009. The other deceased was allegedly buried on 28/10/2009.

Please find enclosed also a Joint Statement of 21 organizations and groups, from all over the world, dated 25/9/2009, entitled “Leptospirosis Causes Death Of Another 6 Burmese In Detention In Malaysia - Denial Of Healthcare Is A Violation Of Right To Life

We are concerned about the report of recent deaths of 6 migrants at the KL International Airport (KLIA) depot.

We note that this is the 2nd time that this is happening.  In May 2009, 2 persons in the Juru Detention Centre, in Penang, Malaysia. We refer you to our earlier  letter dated 25/5/2009, which also enclosed the Joint Statement of 113 organizations and groups, from all over the world, dated 23/5/2009, entitled “Death Of 2 Burmese Indicative Of State Of Detention Places In Malaysia - Denial Of Healthcare Is A Violation Of Right To Life” [To date, 127 organisations have endorsed this statement]

The statement speaks for itself, and if there is need for further information and clarification, feel free to contact us [Charles Hector ( or Pranom Somwong (Bee) ( at 019-237100/300]

Kindly acknowledge receipt, and we expect your response. We note sadly that there was no response to our letter of 25/9/2009, and wish to state that this reflects very badly on your good self, the Ministry of Health and the government of Malaysia. As such, we hope that you will take the time to respond this time.

We would like to know whether there was an investigation conducted by the Ministry and/or its departments as cause of the contamination that resulted in the death by Leptospirosis.

We would also appreciate statistics as to the number of deaths of detainees in places of detention, and the causes of the deaths.

With regard to Leptospirosis, we would like the Malaysian statistics of persons infected by Leptospirosis and the number of deaths, and also the same statistics with regard to prisons, detention centers of undocumented migrants.

We would also like to know the steps being taken by the Government of Malaysia, your Ministry, the Public Health Department and/or other relevant bodies to ensure proper hygine, cleanliness, and most importantly how prompt and effective healthcare is to be provided at places of detention to prevent unnecessary deaths.

If you are unable or unwilling to provide the said information, kindly revert to us as to the reasons why. We hope that you will promptly respond to this letter.

Thank you.

In solidarity,

Charles Hector                                
For and on behalf of the organizations that have endorsed the said Statements.

Lot 3585A, Kampung Lubuk Layang,
Batu 3, Jalan Mentakab,
28000 Temerloh,
PAHANG, Malaysia
Tel: 019-2371 100/300


Dato' Sri Mohd Najib Bin Tun Haji Abdul Razak,
Prime Minister of Malaysia,
Prime Minister's Office,
Main Block, Perdana Putra Building,
Federal Government Administrative Centre,
62502 Putrajaya, MALAYSIA

Level 29, Menara Tun Razak
Jalan Raja Laut
50350 Kuala Lumpur.

And, of course there were previous letters and statements..

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

2 more Burmese migrants die in detention. Was it Leptospirosis again? Would hygienic conditions and proper healthcare prevented these deaths?


2 died in Juru Detention Centre of Leptospirosis - The SUHAKAM response.

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

Wednesday, November 18, 2009

Bar Council: Deaths of migrants in prisons, rehabilitation and detention centres

Malaysian Bar Council

No. 13, 15 & 17, Leboh Pasar Besar, 50050 Kuala Lumpur, Malaysia
Tel: 03-2031 3003 (Hunting Line) Fax: 03-2034 2825, 2026 1313, 2072 5818

Press Release
Deaths of migrants in prisons, rehabilitation and detention centres
The Malaysian Bar is disturbed about the high number of migrants who have died while in custody.
In July 2009, the Dewan Rakyat was told that some 2,029 persons died in prisons, rehabilitation centres and immigration detention centres between 2002 and 1 June 2009.  More recently SUHAKAM Commissioner Datuk Siva Subramaniam was quoted as saying that 1,300 foreigners died in detention within the past six years.  The Dewan Rakyat figure would mean that an average of one migrant dies in custody almost every day!
The authorities should conduct a thorough investigation to identify the underlying causes for this large number of deaths.  Brushing off these deaths as being due to illness, asthma or suicide is unacceptable.  When individuals are placed in custody and denied their freedom of movement, the detaining authority is responsible for their well-being and care.  The detaining authority has a duty of care towards all such individuals, which is a responsibility that should be taken very seriously.
In the event of a death, the questions that should be asked include whether the death could have been avoided, and whether the authorities were negligent in fulfilling their duty of care.
In order to address the worrying situation of deaths of migrants in custody, we call on the authorities to:
i. Take greater care to regularly monitor the health of all those in custody, especially those held in immigration detention centres.  This will involve conducting regular medical check-ups and allowing the detainees easier access to medical personnel and facilities;
ii. Give serious attention to health-related complaints made by the detainees;
iii. Conduct an inquest each and every time there is a death in custody;

iv. Reprimand and take disciplinary action against all staff members who, through neglect or indifference, fail to prevent a death from occurring;
v. Give lawyers and family members greater access to detainees and detention centres; and
vi. Monitor those in custody more carefully, including the use of closed-circuit surveillance and more regular patrols.
In addition, one concrete step to reduce instances of neglect and abuse and to improve conditions in detention centres is to set up a Board of Visitors in each and every detention centre.  The establishment of such Boards, which would have the power to conduct unannounced visits, will demand greater accountability from the system.  It will compel the detaining authorities to upgrade their facilities, become more transparent in their operations and be more vigilant regarding what is happening within the detention centres. 
The reports of deaths of migrants in custody are not new.  Migrants, especially those in custody, are extremely vulnerable.  They are more cut off from their families and community than Malaysians held in custody, hence there is an urgent need to take immediate measures to ensure that their welfare is protected and nothing untoward happens to them.
The Malaysian Bar also reiterates its call for open inquests to be held promptly and expeditiously to determine the cause of death of any person in custody. 
The litmus test of how civilised we are as a nation is measured by the treatment we accord those who are most defenseless and vulnerable among us.

Dato’ M. Ramachelvam
Law Reform and Special Areas Committee
Bar Council
18 November 2009

Saturday, October 31, 2009

2 more Burmese migrants in detention have died of disease - Hyginic Conditions & Immediate Healthcare may have prevented these deaths

Well, we have been informed that 2 more Burmese migrants in detention have died of disease. But what disease? Was it again Leptospirosis.

One of the deceased was allegedly Aung Myo Lwin [Camp Body Number: 22157]., who died on 22/10/2009. Hospital did not say what disease he died from. He was buried on 29/10/2009.

The other deceased was allegedly buried on 28/10/2009.

The 2 detainees was allegedly from the Lengeng Detention Centre, and they were taken to the Seremban Hospital where they died.

Remember that 6 other Burmese recently died of Leptospirosis at the KLIA Depot Detention Centre. This was an AFP Report, which was reported in the Singapore Straits Times. See Joint Statement dated 25/9/2009 in earlier post,LEPTOSPIROSIS CAUSES DEATH OF ANOTHER 6 BURMESE IN DETENTION IN MALAYSIA DENIAL OF HEALTHCARE IS A VIOLATION OF RIGHT TO LIFE

Recall also that 2 other Burmese detainees died of Leptospirosis at the Juru Detention Centre. See Joint Statement dated 23/5/2009 , 126 groups:- Death of 2 Burmese Indicative of State of Detention Places in Malaysia - Denial of Healthcare Is a Violation of Right to Life

We have a right to be informed of disease outbreaks and deaths in places of detention in Malaysia.

There is a need for permanent clinics manned by at least one doctor to be set up at all places of detention. There must be immediate access to heathcare, and continuous monitoring by the public health authority to ensure people in detention do not die by diseases, that most likely may have been avoided by ensuring cleanliness and adequate healthcare.

Monday, October 26, 2009

Employers should not be allowed to deduct worker wages to recover levy employers were required to pay

Employers who want to employ foreign workers are required to pay a levy.According to the Malaysian government...

The rationale behind getting employers to bear the levy was to discourage them from employing foreigners.... - Bernama, - Star, 16/4/2009

But then the government gave special permission to some (not all) employers to deduct the wages of their migrant workers to recover the levy these employers paid to be allowed to employ the migrant worker. This was a great injustice.

If the government wanted to help some employers, then the government should have just not required these employers to pay the said levy. It is wrong to allow these employers to recover the monies expended by deducting worker's wages.

PETALING JAYA: The Malaysian Trades Union Congress (MTUC) has called on the Labour Department to prosecute employers who continue to deduct levy from salaries of their foreign workers.

According to MTUC vice-president A. Balasubramaniam hundreds of workers have been “cheated ” by errant employers who continue to deduct the levy from their salaries although they have renewed their work permits after April 1, the date from which the levy was to be entirely borne by employers.

Prior to this, employers were allowed to pay the levy up front and later make monthly deductions from their workers’ salaries.

Balasubramaniam said that last week, about 2,500 foreign workers at a glove-making factory in Klang staged a five hour “strike” in protest against the management’s deduction of the levy from their salaries.

Similar complaints were also received from various parts of the country, he said.

Labour Department director-general Datuk Ismail Abdul Rahim, meanwhile, said that his department was continuing to be vigilant and was conducting checks on all establishments to ensure that there were no illegal levy deductions.

He said that employers were allowed to continue making deductions for workers who were employed prior to April 1, but this was only until the expiry of the work permits.

For all renewals and new employees after April 1, the employers should pay for the levy, he added.

He advised workers whose levy was still being deducted after the renewal of their permits to report the matter to the labour office.

The levy, paid annually, varies from sector to sector, with RM1,200 per foreign worker for the manufacturing and construction sectors, RM1,800 for restaurant and RM360 for maids. – Bernama - Star, 26/10/2009, Prosecute errant employers, urges MTUC

Friday, September 25, 2009


Joint Statement - 25/9/2009



We are shocked and disappointed to hear that another six Burmese migrants have died while in detention in Malaysia because of a suspected waterborne disease. Leptospirosis is caused by exposure to water contaminated by animal urine, like rat urine. (Straits Times, 25/9/2009, Migrants die in detention/ Associated Press, 24/9/2009).

From our investigation, the names of 3 of those who have died are So Thein [Prison Body number 0853, Block B1, Ethnicity: Burman, Age: 36], Min Khaing [Body number 5009, Ethnicity: Karen, Age: 23] and Min Nown [Ethnicity: Arkan, Age: 28]. The other 3 are of Chin ethnicity. It seems that the deaths happened in August.

This time the deaths seem to have occurred at the Detention Centre at the KL International Airport (KLIA) depot. The Straits Times report states that an official had informed them that ‘…the detainees likely contracted the disease in another centre. They were transferred together with some 700 others after a riot there...’. In an earlier report (Star, 24/7/2009), it was stated that ‘…some 700 Myanmar illegal immigrants involved in a ruckus at the Semenyih immigration depot early this month have been moved to the department’s KL International Airport (KLIA) depot…’

It must be noted that this is not the first case of death by reason of Leptospirosis. Sa La Hin, 26, and Thang Hoih Ping, 21, two Burmese migrants, died in the Malaysia’s Juru Immigration Detention Centre from Leptospirosis in May 2009. 127 civil society groups and organizations responded vide a joint statement entitled ‘Death Of 2 Burmese Indicative Of State Of Detention Places In Malaysia - Denial Of Healthcare Is A Violation Of Right To Life’.

Complaints were also lodged with the Malaysia’s Human Rights Commission (SUHAKAM), Malaysian Prime Minister Dato' Sri Mohd Najib Bin Tun Haji Abdul Razak,, Minister of Home Affairs Datuk Seri Hishammuddin Tun Hussein, and the Minister of Health Dato' Sri Liow Tiong Lai,

After that Leptospirosis outbreak in the Juru Detention Centre in Penang in May, the Immigration Director-General Abdul Rahman assured us that the cleanliness and hygiene at immigration depots nationwide will be stepped-up to ensure safety of staff and inmates there against contracting infectious diseases (Bernama, 19/5/2009).

SUHAKAM also vide letter dated 16/7/2009 had informed us that they had met with the Director General of Immigration on 4/6/2009, and amongst others, had recommended that ‘… as a measure to control contagious diseases to ensure that all immigration detention centres should have a doctor or medical officer in line with international requirements, and that cleanliness of detention centres should be taken care of.’

It must also be borne in mind that last year SUHAKAM identified medical care as an overriding reason why 1,300 detainees have died over the past six years, and had made recommendations to the government. At present the 22 centres throughout Malaysia do not have a permanent clinical dispensary manned by doctors or a medical assistant to help detainees. (ABC News, 28/5/2009)

In May 2009, it was reported that about 26 were admitted to hospital following a Leptospirosis outbreak in the Juru Detention Centre, and they survived, and this leads us to believe that prompt access to healthcare can avoid death. It is shocking that in this recent case, 6 have died. What is more disturbing is that there seem to have been no reported disclosure by the Malaysian authorities on this. We still do not know the number of detainees that have been affected this time.

This is a disease caused by exposure to water contaminated with the urine of infected animals, and is very rarely propagated through contact with affected persons. Question must be raised as to how detainees in an enclosed detention centre are contracting this disease. Are they being affected through the food and water supplied by the detention centres? Are the detention centres having a rat infestation problem?

After the recent deaths and outbreak in the Juru Detention Centre, one would have expected the Malaysian government to have taken immediate steps to ensure that there are no more cases of Leptospirosis outbreak and deaths. We wonder also whether the authorities took a lackadaisical attitude, and did not even conduct a thorough investigation to determine the source of the contamination that caused that outbreak. Results of such investigations will not only determine liability, but would also ensure that further deaths from Leptospirosis could be avoided.

We, the undersigned, call on the Malaysian Human Rights Commission (SUHAKAM) to immediately commence a public inquiry into these deaths and detention places generally, and come up with concrete recommendations which could be implemented that will improve state of cleanliness, hygiene and healthcare of all detention places in Malaysia. It was sad that SUHAKAM decided not to carry out a public inquiry after the Juru deaths in May.

We are also call upon the Ministry of Health and the government of Malaysia to conduct a thorough investigation into the cause of this Leptospirosis outbreak, which is reported to have already resulted in 6 deaths.

We also call for the resignation of Immigration Director-General Abdul Rahman, considering that this is second reported case of deaths by reason of Leptospirosis at Immigration Detention Centres within the last 4 months.

The Malaysian government must take necessary action to ensure that proper steps be taken so that such disregard for life does not happen again.

With regard to those who have died, their family and/or dependents should be given adequate compensation by the persons responsible, the detaining authority and the Malaysian government.

Officers and persons responsible for the acts or omissions that resulted in death and suffering should be charged and prosecuted for these crimes. They should not be permitted to hide behind safeguards provided to public servants, which unfortunately only promotes culture of impunity with no sense of responsibility and respect for human life.

Charles Hector

Pranom Somwong

Tun Tun

For and on behalf of the 23 organizations/groups listed below:-

Asian Migrant Centre (AMC)

Burma Campaign, Malaysia

Clean Clothes Campaign -International Secretariat

Coordination of Action Research on AIDS & Mobility (CARAM -Asia)

FIDH - International Federation for Human Rights

Khmer Kampuchea Krom Human Rights Organization (Cambodia)

Legal Support for Children and Women (LSCW) Cambodia

MADPET (Malaysians against Death Penalty and Torture)

MAP Foundation, Thailand

Mekong Migration Network (MMN)

Mekong Ecumenical Partnership Program-MEPP

Migrant Forum in Asia (MFA)

National League for Democracy [NLD (LA)], Malaysia

Network of Action for Migrants in Malaysia (NAMM)

Nepal Institute of Development Studies (NIDS) Nepal

Parti Rakyat Malaysia (PRM)

Persatuan Kesedaran Komuniti Selangor

Persatuan Masyarakat Malaysia & Wilayah Persekutuan (PERMAS)

Pusat Komas

The Shan Refugee Organization (SRO) Malaysia

Thai Action Committees for Democracy in Burma (TACDB)

The Action Network for Migrants (ANM) Thailand

Workers Hub for Change (WH4C)

Friday, July 3, 2009



Apakah pekerja yang diliputi oleh Akta Kerja 1955?
Semua pekerja yang mendapat gaji tidak melampaui RM1,500.00 se bulan, dan seseorang pekerja yang melakukan kerja manual tanpa mengira jumlah upah se bulan. Adalah pekerja dengan Kontrak Perkhidmatan.

Apakah Kontrak Perkhidmatan?
Sebarang perjanjian (sama ada lisan atau bertulis dan sama ada dinyatakan atau dibayangkan) di mana seseorang itu bersetuju untuk mengambil seseorang yang lain bekerja dan pekerja itu pula bersetuju untuk berkhidmat kepada majikannya sebagai seorang pekerja. Pekerja ada hak mendapat dan menyimpan sesalinan Kontrak Perkhidmatan.

Adakah Buruh/Pekerja Migran termasuk dalam Akta Kerja 1955?
Ya, Pekerja Migran juga diliputi, dan boleh bergantung kepada Akta ini.

Apakah jenis hak yang terkandung dalam Akta Kerja 1955?
Berbagai jenis hak pekerja termasuk jumlah jam kerja maksima, kerja tambah masa dan kadar pembayaran, cuti am berbayar, cuti tahunan berbayar, cuti sakit berbayar, gaji dan jenis potongan yang majikan dibenarkan buat, cuti salin dan faedah lain.

Jika seseorang pekerja sudah menandatangani kontrak dengan majikan, bolehkan pekerja masih bergantung kepada Akta Kerja 1955?
Ya, dia boleh. Jika hak yang terkandung dalam Akta Kerja adalah lebih baik daripada apa yang terkandung dalam Kontrak Perkhidmatan, pekerja berhak mendapatkan hak sapertimana tercatat dalam Akta Kerja 1955. Jika hak terkandung dalam Kontrak Perkhidmatan adalah lebih baik daripada apa yang terkandung dalam Akta Kerja, pekerja berhak menuntuk hak yang lebih baik sapertimana terkandung dalam Kontrak Perkhidmatan tersebut.

Apakah maksud “Waktu Kerja Biasa”?
“Waktu Kerja Biasa” ialah waktu kerja seperti yang dipersetujui di antara majikan dan pekerja dalam kontrak perkhidmatan sebagai waktu-waktu kerja biasa dalam sehari. Waktu kerja biasa tersebut tidak boleh melebihi: 8 jam sehari tidak termasuk waktu rehat; 5 jam bekerja berterusan tanpa rehat sekurang-kurangnya 30 minit; dan 48 jam seminggu.

Atas persetujuan bersama, pekerja boleh bekerja 9 jam sehari tetapi tidak boleh melebihi 48 jam seminggu.

Apakah yang dimaksudkan dengan ‘kerja lebih masa’?
Kerja lebih masa bermakna bilangan jam kerja yang dilakukan melebihi masa kerja normal sehari.

Apakah kadar bayaran kerja lebih masa?

Kadar bayaran kerja lebih masa hendaklah sekurang-kurangnya seperti berikut:
Pada hari kerja biasa, 1 ½ kali kadar gaji sejam untuk hari biasa.
Pada hari rehat, 1 ½ kali kadar gaji sejam untuk kerja hari rehat
Pada cuti am, 1 ½ kali kadar gaji sejam untuk kerja pada cuti am.

Adakah terdapat had kepada bilangan jam seseorang pekerja dibenarkan kerja lebih masa dalam satu bulan?
Seseorang pekerja tidak boleh dikehendaki bekerja lebih masa melebihi 104 jam dalam sebulan..

Adakah wajib bagi kontrak perkhidmatan untuk menyatakan tempoh gaji? Berapakah tempoh gaji yang sepatutnya?
Setiap kontrak perkhidmatan wajib menyatakan tempoh gaji yang tidak melebihi satu bulan. Sekiranya kontrak tersebut tidak menyatakan tempoh gaji tersebut, tempoh tersebut akan dikira sebagai sebulan.

Bilakah gaji harus dibayar kepada pekerja-pekerja?
Gaji (selepas dibuat potongan-potongan seperti yang telah ditetapkan oleh undang-undang) dibayar tidak lewat dari hari ketujuh selepas tamat tempoh gaji. Majikan boleh memohon melanjutkan masa pembayaran gaji daripada Ketua Pengarah Jabatan Buruh Semenanjung Malaysia.

Apakah potongan-potongan seperti yang telah ditetapkan oleh undang-undang?
Ini adalah potongan yang dibenarkan saperti Kumpulan Wang Simpanan Pekerja (KWSP), sumbangan keselamatan sosial (SOCSO). Akta Kerja juga membenarkan pemotongan untuk mendapat kembali gaji terlebih dibayar yang telah dibuat dalam jangkamasa 3 bulan sebelum, dan untuk mendapatkan kembali apa-apa pendahuluan gaji yang telah diberikan, di mana jumlah ini tidak boleh melebihi nilai gaji satu bulan.

Apakah jumlah potongan gaji yang dibenarkan oleh undang-undang?
Jumlah maksima potongan gaji yang dibenarkan adalah jumlah tidak melampaui separuh gaji yang harus diterima oleh pekerja bagi bulan tersebut. Pekerja harus dibayar sekurang-kurang separuh jumlah gajinya setiap bulan.

Bilakah gaji harus dibayar kepada pekerja jika berlaku penamatan kontrak perkhidmatan?
Gaji harus dibayar sebaik sahaja kontrak ditamatkan.

Apakah jenis pekerjaan yang mana wanita dilarang melakukannya di bawah Akta? Jenis pekerjaan di mana seseorang wanita dilarang melakukannya adalah seperti berikut:

i. Kerja bawah tanah;
ii.Bekerja di sektor perusahaan/pertanian di antara pukul 10.00 mlm sehingga 5.00 pagi tanpa pengecualian daripada Ketua Pengarah Buruh.

Berapakah kelayakan cuti rehat bagi seorang pekerja yang diliputi di bawah Akta ini? Setiap pekerja adalah layak untuk mendapat cuti satu hari penuh bagi setiap minggu.

Adakah sah dari segi undang-undang bagi majikan untuk meminta pekerjanya bekerja pada hari rehat?
Seseorang pekerja boleh dikehendaki oleh majikannya untuk bekerja pada hari rehatnya dalam keadaan-keadaan seperti berikut: kemalangan, sebenar atau diancam dalam tempat kerjanya; kerja yang mana perlaksanaannya adalah perlu kepada keselamatan masyarakat; kerja yang perlu bagi pertahanan atau keselamatan Malaysia; kerja segera yang harus dilakukan ke atas jentera atau loji; suatu gangguan kerja yang tidak mungkin dapat dijangka; kerja yang harus dilakukan oleh pekerja-pekerja dalam mana-mana kegiatan perusahaan yang perlu kepada ekonomi Malaysia atau mana-mana perkhidmatan perlu sebagaimana yang ditakrifkan dalam Akta Perhubungan Perusahaan 1967

Bagaimanakah kadar bayaran kepada pekerja yang diminta bekerja pada hari cuti rehat?
Seseorang pekerja yang dikehendaki bekerja pada hari rehatnya hendaklah dibayar bayaran satu hari tambahan gajinya atas kadar gaji biasanya. (iaitu 2 kali gaji hari kerja biasa)

Berapakah kelayakan cuti am bergaji pekerja dalam setahun?
Seseorang pekerja layak sekurang-kurangnya 10 hari cuti am bergaji dalam setahun. 10 Hari Cuti Am tersebut adalah Hari Pekerja (Mei 1), Hari Kelahiran Yang Di Pertuan Agung, Hari Merdeka (Ogos 31), Hari Keputeraan Sultan atau Hari Wilayah Persekutuan, dan 6 cuti am yang lain yang majikan harus memutuskan dan memberitahu pekerja melalui notis pada permulaan setiap tahun.

Bagaimanakah kadar bayaran kepada pekerja yang diminta bekerja pada hari cuti ini?
Seseorang pekerja layak mendapat 2 hari gaji sebagai tambahan pada kadar gaji biasa jika bekerja pada hari tersebut. (iaitu 3 kali gaji hari kerja biasa)

Berapa harikah kelayakan cuti tahunan bagi seseorang pekerja?
Bekerja kurang dari 2 tahun: - 8 hari setiap tahun
Lebih dari 2 tahun tetapi kurang dari 5 tahun - 12 hari bagi setiap tahun
5 tahun dan lebih - 16 hari bagi setiap tahun

Di mana seorang pekerja yang mengambil cuti tahunan berbayar, menjadi berhak untuk cuti sakit berbayar atau cuti bersalin semasa dalam masa cuti tahunan, pekerja tersebut akan diberikan cuti sakit berbayar atau cuti bersalin, dan cuti tahunan berbayar akan dianggap belum diambil untuk hari-hari pekerja tersebut mengambil cuti sakit berbayar atau cuti bersalin.

Berapakah kelayakan cuti sakit seseorang pekerja dalam setahun?
Kelayakan cuti sakit bergaji setahun adalah:
Kurang dari 2 tahun perkhidmatan - 14 hari
Lebih dari 2 tahun tetapi kurang dari 5 tahun - 18 hari
5 tahun dan lebih - 22 hari

Di mana hospitalisi diperlukan sehingga 60 hari

Apakah keadaan yang menyebabkan pekerja tidak layak mendapat cuti sakit bergaji?
Pekerja tidak layak mendapat cuti sakit bergaji bagi tempoh di mana pekerja berhak mendapat elaun bersalin atau menerima pampasan bagi ketidakupayaan di bawah Akta Pampasan Pekerja 1952 atau Akta Keselamatan Sosial Pekerja 1969.

Di dalam keadaan apakah dianggap bahawa Kontrak Perkhidmatan telah dilanggari oleh pekerja?
Seorang pekerja hendaklah dianggap sebagai telah melangggar kontrak perkhidmatannya jika ia berterusan tidak hadhir kerja selama lebih daripada 2 hari kerja berturut-turut tanpa kebenaran terlebih dahulu daripada majikannya, melainkan ia mempunyai alas an yang munasabah bagi ketidakhadhiran itu, dan telah memberitahu atau telah mencuba memberitahu majikannya tentang alas an itu sebelum atau pada peluang terawal semasa ketidakhadhiran tersebut.

Di dalam keadaan apakah dianggap bahawa Kontrak Perkhidmatan telah dilanggari oleh majikan?
Seorang majikan hendaklah dianggap sebagai telah melanggar kontrak perkhidmatan apabila gagal membayar gaji dalam masa tidak lewat daripada hari ketujuh selepas hari terakhir bagi mana-mana tempoh upah.

Bolehkah seorang majikan menamatkan kerja seorang pekerja tempatan, dan kemudiannya mengambil seorang pekerja migrant bekerja?
Tidak. Seorang majikan tidak boleh menamatkan kontrak perkhidmatan seorang pekerja tempatan bagi maksud mengambil kerja seseorang pekerja asing. (seksyen 60M)

Bolehkah seorang majikan memberikan layanan berbeda kepada pekerja tempatan dan pekerja asing?
Tidak boleh, Layanan sama harus diberikan kepada semua pekerja. Undang-undang jelas menyatakan bahawa sekiranya pekerja tempatan mengalami diskriminasi terhadapnya berbanding dengan pekerja asing, atau jika pekerja asing mengalami diskriminasi terhadapnya berbanding dengan pekerja tempatan berkenaan terma atau keadaan kerja, pekerja boleh membuat aduan kepada Pejabat Buruh. (seksyen 60L)

Apabila akan berlaku pembuangan kerja, siapakah yang akan mula-mula dibuang kerja?
Biasanya, prinsip terpakaii adalah bahawa pekerja yang akhir sekali diambil masuk bekerja akan dibuang kerja terlebih dahulu. Tetapi, seksyen 60N Akta Kerja 1955 menyatakan bahawa “Sekiranya majikan dikehendaki mengurangkan tenaga kerjanya oleh sebab lebihan pekerja, maka majikan itu tidaklah boleh menamatkan perkhidmatan pekerja tempatan melainkan jika dia telah terlebih dahulu menamatkan perkhidmatan semua pekerja asing yang bekerja dengannya dalam bidang tugas serupa dengan bidang tugas pekerja tempatan itu.

Kami tidak setuju, dan menyatakan bahawa seksyen 60N ini bukan sahaja tidak adil tetapi juga bercanggah dengan Perlembagaan Persekutuan Malaysia yang menjamin kesamaan. Maka, seksyen 60N adalah tidak sah.

Apakah peraturan yang memperuntukkan kelayakan Faedah Penamatan dan Rentikerja Sentara (Termination and Lay-off benefits) yang diliputi di bawah Akta ini?
Peraturan-peraturan Kerja (Faedah Penamatan dan Rentikerja Sentara), 1980

NOTA:- Risalah ini hanya mengandungi prinsip undang-undang asas, dan olehkerana itu adalah lebih baik merujuk terus kepada Akta Kerja 1955 (Employment Act 1955) untuk pernyataan sebenarnya. Pekerja boleh juga pergi ke Pejabat Buruh untuk mendapat nasihat dan juga membuat aduan menuntut hak pekerja. Bantuan nasihat juga boleh diperolehi daripada Pusat Bantuan Guaman Majilis Peguam, dan juga daripada Malaysian Trade Union Congress (MTUC).

* Risalah ini adalah satu hasil usahasama Workers Hub For Change (WH4C), Burma Campaign, Malaysia dan Network of Action for Migrants Malaysia (NAMM).



Which workers are covered by the Malaysian Employment Act?

All workers whose earnings do not exceed RM1,500.00 a month. All manual workers irrespective of how much they earn per month. These are workers with a contract of service.

What is a contract of service?

A contract of service is an agreement whereby a person agrees to employ another as an employee and the employee agrees to serve his employer as an employee;
A contract of service can be either oral or writing; The worker has the right to get and keep a copy of the contract of service (or employment agreement)

Are Migrant Workers covered by the Employment Act 1955?

Yes, Migrant workers are covered

What kind of rights are found in the Employment Act 1955?

All kind of worker rights including maximum hours of work, overtime work and rates of payment, annual leave, paid holidays, paid sick leave, wages and what employer can lawfully deduct from the wage and maternity leave and benefits.

If the worker has signed a contract with the employer, can the worker still rely on the Employment Act 1955?

Yes, he can. If the rights contained in the Employment Act is better that what is provided in the contract, then the workers must be given the better rights. If the rights in the contract are better than what is in the Employment Act, then the worker can claim those better rights in the contract.

What is the meaning of "normal hours of work"?

“Normal hours of work” means the hours of work as agreed between an employer and an employee in the contract of service to be the usual hours of work per day. The normal hours of work should not exceed :
i. 8 hours a day excluding a period of rest;
ii. 5 consecutive hours of work without a period of rest of not less than thirty minutes; and
iii. 48 hours in a week.
Upon mutual agreement, hours of work can exceed 9 hours a day but it cannot exceed 48 hours in a week. What does it mean by ‘overtime’? Overtime means the hours of work carried out in excess of the normal hours of work per day.

At what rate should an employee who work overtime be paid?
Overtime rate should not be less than the following:
On normal day, 1 1/2 times the hourly rate of pay.
On rest days, 1 1/2 times the hourly rate of pay on a rest day.
On public holiday's , 1 1/2 times the hourly rate of pay on a public holiday

Is there any restriction on the overtime hours that an employee could work in one month?

An employee should not be required to work overtime exceeding a total of 104 hours in a month.

Is it compulsory for a contract of service to specify a wage period? What should be the length of the wage period?

A contract of service shall specify a wage period not exceeding one month. If the contract does not specify this, the wage period would be deemed to be one month.

When should wages be paid to employees?

Wages (less any lawful deductions) are payable not later than the seventh day after the end of wage period.

The employer may apply for extension of payment of wages time from the Director General of Labour Department.

What are lawful deductions?

These are only those that are permitted in law like the Employees Provident Fund (EPF/KWSP) and SOCSO. The Employment Act also allows for deductions to the extent of any overpayment of wages made during the immediately preceding three months, deductions for the recovery of advances of wages not more than 1 months wages.

What is the total amount of lawful deductions allowed by law?

The total of any amounts deducted under this section from the wages of an employee in respect of any one month shall not exceed half the wages earned by that employee in that month. The employee must receive at least half monthly wages.

When should wages be paid to an employee upon a normal termination of contract of service?

Wages should be paid to an employee not later than the day when the contract of service is terminated.

What are the types of work that women are prohibited from doing under the Act?

The types of work that women are prohibited are: underground work, industrial and agricultural undertaking between 10.00 pm – 5.00 am without exemption from the Director General of Labour.

How many rest days should an employee be entitled to under the Act?

An employee should be entitled to one whole day of rest day in each week.

Is it lawful for an employer to require his employee to work on a rest day?

An employee can be required by his employer to work on a rest day under the following circumstances:

accident, actual or threatened in the workplace;

work which is essential to the life of the community;

work which is essential to the defence or security of the country;

urgent work need to be done to the machinery or plant;

an interruption of work which was impossible to foresee;

work to be performed by employees in any industrial undertaking essential to the economy of Malaysia or

any essential service as defined in the Industrial Relations Act 1967.

How should an employee who is required to work on a rest day be paid?

An employee who is required to work on a rest day shall be paid one additional day wages at his ordinary rate of pay. (i.e. 2 times normal wages)

How many paid holidays should an employee be entitled to in one year?

An employee should be entitled to paid holidays of not less than 10 days in a year. The 10 paid Public Holidays are Workers Day (May 1), King's Birthday, Independence Day (August 31), State Sultan's Birthday or Federal Territory Day, and 6 other public holidays that the employer must choose and inform the workers by notice by the start of the year.

How should an employees who are required to work on holidays be paid?

An employee who is required to work on holiday shall be paid two additional days wages at his ordinary rate of pay. (i.e. 3 times normal wages)

How many days of paid annual leave should an employee be entitled to?

Less than two years of service: 8 days per year

Two or more but less than 5 years of service: 12 days per year

Over five years of service:- 16 days per year

Where an employee who is on paid annual leave becomes entitled to sick leave or maternity leave while on such annual leave, the employee shall be granted the sick leave or the maternity leave, as the case may be, and the annual leave shall be deemed to have not been taken in respect of the days for which sick leave or maternity leave is so granted.

How many days of paid sick leave is an employee entitled to in one year?

Paid sick leave per calendar year:

Less than two years of service

14 days

Two or more but less than five years of service

18 days

Over five years of service

22 days

Where hospitalisation is necessary

up to 60 days

What are the circumstances under which an employee is not entitled to sick leave pay?

An employee is not entitled to paid sick leave during maternity leave or for any period during which he/she is receiving periodical payments under Workmen's Compensation or SOCSO.

Under what circumstances is a contract of service deemed to be broken by an employee?

A contract of service is deemed to be broken by an employee if the worker has been continuously absent from work for more than two consecutive working days without prior leave from the employer, unless the worker has a reasonable excuse for such absence and has informed or attempted to inform the employer of such excuse prior to or at the earliest opportunity during such absence.

Under what circumstances is a contract of service deemed to be broken by an employer?

A contract of service is deemed to be broken by an employer if an employer fails to pay wages within seven days after the wages period.

Can an employer terminate a local worker and then employ a migrant worker?

No, the employer cannot terminate the contract of service of a local worker for the purpose of employing a migrant worker. (section 60M)

Can the employer treat migrant workers and local worker differently?

No, they cannot. The law says if a local employee is being discriminated against in relation to a foreign employee, or if a foreign employee is being discriminated against in relation to a local employee, by the employer in respect of the terms and conditions of employment, then the worker can complain to Labour office.

When it comes to retrenchment, who will be terminated first?

Generally, it is the worker who is last to be employed who will be first to be terminated.

Generally, it is the worker who is last to be employed who will be first to be terminated.

However, when it comes to migrant workers, section 60N of the Employment Act states that, "Where an employer is required to reduce his workforce by reason of redundancy necessitating the retrenchment of any number of employees, the employer shall not terminate the services of a local employee unless he has first terminated the services of all foreign employees employed by him in a capacity similar to that of the local employee."

We say that this is unjust, and also goes against Malaysian Federal Constitution, which guarantees equality. We say this law is bad and invalid.

What is the regulation made pursuant to the Act that provides for the entitlement of termination and lay-off benefits?

The Employment (Termination and Lay-off Benefits) Regulations 1980

NOTE:- This pamphlet contains the basic law, and it is best to refer to the Employment Act 1955 (Akta Kerja 1955) for the exact wording.

Workers can also go to the Labour office to get advice and assistance.

Assistance can also be obtained from the Bar Council Legal Aid Centres and also the Malaysian Trade Union Congress (MTUC)

* This pamphlet is a result of a collaboration between Workers Hub For Change (WH4C), Burma Campaign, Malaysia and Network of Action for Migrants Malaysia (NAMM).

Thursday, July 2, 2009

Burmese Injured in Malaysian Camp Riots (Irrawady - 2/7/2009)

Burmese Injured in Malaysian Camp Riots

By LAWI WENG Thursday, July 2, 2009

Eight Burmese detainees were wounded after a small riot broke out at the Semenyih Immigration camp near Kajang Township, in Malaysia on Wednesday.

Speaking to The Irrawaddy on Thursday, Aung Lwin Oo, one of the detainees involved in the riot at the camp, said the trouble started at 8pm after camp authorities beat 30 detainees who were refusing to board a truck that was to take them to another camp.

The detainees began breaking up the walls of their rooms and throwing plates at security officers, demanding prison authorities release the 30 people who had been loaded onto the truck.

The police used tear gas to break up the riot.

“We are very angry after we heard they had beaten and forced fellow prisoners to get on a truck and be moved another camp. When they came for them they said it was only to meet officials from the UNHCR [United Nations High Commissioner of Refugees],” he said.

Aung Lwin Oo was in hiding as he talked to The Irrawaddy by phone from the camp. Camp authorities ban the use of mobile phones.

“On Tuesday, two Burmese detainees were also seriously beaten when they went to the clinic to ask for medicine. One detainee was beaten around the eyes,” Lwin Oo reported.

“We don’t know if he will regain his vision because his eyes are filled with blood. At the moment he can’t see,” he said. “The other detainee suffered cigarette burns on his body and is in serious condition now.”

Yante Ismail, a spokesperson for the UNHCR based in Kuala Lumpur told The Irrawaddy, Thursday, that a group from UNHCR left for the camp that morning to investigate the riot.

She said that she was unable to provide any further details on what happened at the camp.

The Malaysian National News Agency announced on their Bernama website that no one was injured during the riot and that the situation was under control.

According to Burmese rights groups in Malaysia, there are about 700 Burmese detainees at the Semenyih Immigration camp. They are accusing camp authorities of keeping people who have already served sentences in detention.

Roi Mon, a member of the Mon Refugees Organization based in Malaysia, said that inmates do not have enough food and water, and the camp is crowded because the authorities have refused to release detainees.

Meanwhile, in its annual Trafficking in Persons Report 2009 released in June, the US State Department put Malaysia back on the Tier 3 blacklist for its record of abuse and exploitation of migrant workers. Malaysia joins 16 other countries including Burma, North Korea, Sudan and Zimbabwe on the blacklist.

The report accused Malaysia authorities of deporting Burmese detainees to the Thai-Malaysia border and selling them to human traffickers, who then demanded ransoms for their release.

If payments were not made, the victims would be forced to work as slave labor on fishing boats in Thailand and Indonesia, and women could be forced to work as prostitutes in brothels.

Malaysian authorities have disputed the report’s conclusions.

According to the Kuala Lumpur-based Burma Workers’ Rights Protection Committee, about 500,000 Burmese migrants work in Malaysia, legally and illegally.