MALAYSIA’S ‘FOREIGN WORKERS FIRST OUT’ POLICY IS UNJUST, DISCRIMINATORY AND UNCONSTITUTIONAL
We, the undersigned organizations, groups and networks, concerned about migrant and worker rights, are appalled at Malaysia’s unjust, discriminatory and unconstitutional anti-worker policy, known as ‘Foreign Workers First Out’ (FWFO) policy when it comes to retrenchment.
A recent Malaysian newspaper report read,“…Employers must retrench their foreign workers ahead of their Malaysian staff as they seek to weather the current economic slowdown, said Deputy Human Resource Minister Datuk Noraini Ahmad. She reiterated that employers should adopt the Government’s foreign worker first out (FWFO) principle…”(Star, 28/2/2009 - Retrench foreign workers first, employers told)
Whilst appreciating Malaysia’s concern for its own citizens’ employment, this should never excuse employers from fulfilling their contractual obligations to workers.
It is very wrong for the Malaysian government to compel/encourage employers in Malaysia to retrench their foreign workers first, before the expiration of the agreed duration of employment. Employers should have been fully aware of risks of economic crisis and other business risks, and as such there is no justification whatsoever of their breaching their employment agreements now.
It must also be appreciated that foreign workers do expend lots of monies, incur debts and make great sacrifices when they do decide to come over to Malaysia to work. These workers rely heavily on the representations of the employers and/or their agents especially with regards to wages and the length of period that they will be employed, before deciding to enter into employment agreements and coming over to Malaysia to work.
Employment agreements with migrant workers are usually for a period of 3 to 5 years, and it would be a great injustice if Malaysian employers are now encouraged and permitted to prematurely terminate this employment agreement, and send these foreign workers back to their home country.
Early termination of employment agreements for many a migrant worker means ending up in a far worse condition than when they first entered into employment agreements to come and work in Malaysia. This is a great injustice, and it is inhumane.
If there is going to be early termination of employment agreements which are for a minimum fixed period of employment, then the worker must be paid adequate compensation, at the very least basic wages for the remaining duration of their employment agreement. Usual termination and lay-off benefits paid to local workers will definitely not be just for a foreign migrant worker who is sent back to her country.
We also wish to state that this ‘Foreign Workers First Out’ (FWFO) policy and practice is unconstitutional, as it goes against Article 8 of the Malaysian Federal Constitution, whereby Article 8(1) clearly provides that 'All persons are equal before the law and entitled to the equal protection of the law...', and there is nothing in the Constitution that permits discrimination against non-citizens, in favour of citizens, with regard to employment. Therefore, section 60N of the Employment Act 1955, which some use as the basis of FWFO practice is ultra vires the Federal Constitution, and as such is invalid.
We believe that it is better that migrant workers who are now in Malaysia who are or will be prematurely terminated be first used to fill up existing manpower needs, rather that bringing in new migrants.
We call on the Malaysian government to immediately stop this unjust, discriminatory and unconstitutional policy and practice, known as ‘Foreign Workers First Out’ (FWFO) principle.
We call on Malaysia to demand that all employers fulfill their contractual agreements with regard to all workers, including foreign workers. We hope that mechanisms are put in place to ensure that employers pay workers adequate and just compensation for any early termination of employment agreement.
A recent Malaysian newspaper report read,“…Employers must retrench their foreign workers ahead of their Malaysian staff as they seek to weather the current economic slowdown, said Deputy Human Resource Minister Datuk Noraini Ahmad. She reiterated that employers should adopt the Government’s foreign worker first out (FWFO) principle…”(Star, 28/2/2009 - Retrench foreign workers first, employers told)
Whilst appreciating Malaysia’s concern for its own citizens’ employment, this should never excuse employers from fulfilling their contractual obligations to workers.
It is very wrong for the Malaysian government to compel/encourage employers in Malaysia to retrench their foreign workers first, before the expiration of the agreed duration of employment. Employers should have been fully aware of risks of economic crisis and other business risks, and as such there is no justification whatsoever of their breaching their employment agreements now.
It must also be appreciated that foreign workers do expend lots of monies, incur debts and make great sacrifices when they do decide to come over to Malaysia to work. These workers rely heavily on the representations of the employers and/or their agents especially with regards to wages and the length of period that they will be employed, before deciding to enter into employment agreements and coming over to Malaysia to work.
Employment agreements with migrant workers are usually for a period of 3 to 5 years, and it would be a great injustice if Malaysian employers are now encouraged and permitted to prematurely terminate this employment agreement, and send these foreign workers back to their home country.
Early termination of employment agreements for many a migrant worker means ending up in a far worse condition than when they first entered into employment agreements to come and work in Malaysia. This is a great injustice, and it is inhumane.
If there is going to be early termination of employment agreements which are for a minimum fixed period of employment, then the worker must be paid adequate compensation, at the very least basic wages for the remaining duration of their employment agreement. Usual termination and lay-off benefits paid to local workers will definitely not be just for a foreign migrant worker who is sent back to her country.
We also wish to state that this ‘Foreign Workers First Out’ (FWFO) policy and practice is unconstitutional, as it goes against Article 8 of the Malaysian Federal Constitution, whereby Article 8(1) clearly provides that 'All persons are equal before the law and entitled to the equal protection of the law...', and there is nothing in the Constitution that permits discrimination against non-citizens, in favour of citizens, with regard to employment. Therefore, section 60N of the Employment Act 1955, which some use as the basis of FWFO practice is ultra vires the Federal Constitution, and as such is invalid.
We believe that it is better that migrant workers who are now in Malaysia who are or will be prematurely terminated be first used to fill up existing manpower needs, rather that bringing in new migrants.
We call on the Malaysian government to immediately stop this unjust, discriminatory and unconstitutional policy and practice, known as ‘Foreign Workers First Out’ (FWFO) principle.
We call on Malaysia to demand that all employers fulfill their contractual agreements with regard to all workers, including foreign workers. We hope that mechanisms are put in place to ensure that employers pay workers adequate and just compensation for any early termination of employment agreement.
Charles Hector
Pranom Somwong
for and on behalf of the following 59 organisations
ALIRAN, Malaysia
All Nepal Women's Association (ANWA) (Nepal)
Asian Forum for Human Rights and Development (FORUM-ASIA)
Asia Pacific Mission for Migrants (APMM)
Asia Pacific Forum on Women Law and Development (APWLD)
Association of Indonesian Migrant Workers in Hong Kong
Association of Indonesian Migrant Workers in Jakarta
Bahrain Center for Human Rights
Building and Wood Workers International, Asia Pacific Region (BWI)
BOMSA Women Migrant's Association of Bangladesh
BRAC Advocacy and Human Rights Unit, Bangladesh
CARAM Cambodia
Citizens' Watch Network Sri Lanka
Civil Rights Committee - Kuala Lumpur and Selangor Chinese Assembly Hall
(CRC-KLSCAH), Malaysia
Committee for Asian Women (CAW)
Community Development Services (CDS), Colombo, Sri Lanka
Coordination Of Action Research on Aids &Mobility (CARAM-ASIA)
COVA (Confederation of Voluntary Associations), India
Empower Foundation, Thailand
Federation of Trade Unions – Burma (FTUB )
Global Alliance against Traffic in Women (GAATW)
Hope Workers’ Center, Taiwan
IMA Research Foundation Bangladesh
Institute for Migrant Workers (IWORK), Indonesia
International NGO Forum on Indonesian Development (INFID)
Kav LaOved (Worker's Hotline), Israel
Lawyers for Human Rights and Legal Aid (LHRLA) Pakistan
Legal Support for Children and Women (LSCW), Cambodia
MADPET (Malaysians against Death Penalty and Torture)
MAP Foundation for the Health and Knowledge Of Ethnics Labour, Thailand
Messrs Charles Hector, Malaysia
Mindanao Migrants Center for Empowering Actions, Inc. (MMCEAI), Philippines
Migrant CARE (Perhimpunan Indonesia untuk Buruh Migran Berdaulat)
Migrant Services Centre – NWC, Sri Lanka
Multi National Women's Organization of Burma ( MNWOB)
Myanmar Refugee Volunteer Group (MRVG)
National Alliance of Women Human Rights Defenders (NAWHRD), Nepal
Nepal Institute of Development Studies (NIDS)
Network of Action for Migrants in Malaysia (NAMM)
Nijera Kori, Bangaladesh
Ovibashi Karmi Unnayan Program( OKUP), Bangaladesh
Parti Rakyat Malaysia (PRM)
Persatuan Masyarakat Selangor & Wilayah Persekutuan (PERMAS), Malaysia
Pusat Khidmat Pekerja Tanjung (PKPT), Malaysia
Raks Thai Foundation, Thailand
Safe Migration Facilitation Center Advocacy & Human Rights Unit, Bangladesh
Solidaritas Perempuan, Indonesia
St. John's Cathedral HIV Education Centre, Hong Kong
Suara Rakyat Malaysia (SUARAM)
The Action Network for Migrant Workers (ACTFORM), Sri Lanka
The Development Action for Women Network (DAWN), Philippines
The Prevention of HIV/AIDS among Migrant Workers in Thailand
Project (PHAMIT)
Transient Workers Count Too, Singapore
United for Foreign Domestic Workers Rights (UFDWRs)
United Indonesians against Overcharging (PILAR-HK), Hong Kong
WARBE Development Foundation, Bangladesh
Writer Alliance for Media Independence (WAMI), Malaysia
Women's Rehabilitation Centre (WOREC), Nepal
Workers Hub 4 Change (WH4C)
* Updated with additional signatories (as at 23/3/2009)
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