Malaysia's sustained high economic growth rates for about three decades have driven the increase in the number of migrant workers to meet rising demand in certain sectors of the Malaysian labor market. The purpose of the article is to identify potential opportunities for policy and legal reform in relation to Malaysia's implementation of its obligations as a host country for migrant domestic work (MDW), specifically with regard to the barriers for MDW to make claims when their rights have been violated. 5 UN General Assembly (1), International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 18 December 1990, A/RES/45/158, art.
10. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 2003 (CMW). CEDAW consolidates the provisions of the ICCPR and ICESCR regarding discrimination on the basis of sex and applies to both citizens and non-citizens. 9 Note that CEDAW does not contain an individual complaints mechanism in its articles, which would enable individuals or groups to complain about violations by a state party of any of the rights set forth in the Convention.
Among other things, the Optional Protocol establishes an individual complaint procedure and determines who ratifies the Optional Protocol recognizes the competence of the Committee on the Elimination of Discrimination against Women. Since domestic workers work in the private sphere, out of the public eye, it is more difficult to monitor their working conditions. The Workmen's Compensation Act 1955 protects foreign or non-citizen workers in respect of compensation for injuries suffered in the course of employment and section 26 of the Act imposes an obligation on employers to insure their foreign workers.
42 Memorandum of Understanding between the Government of the Republic of Indonesia and the Government of Malaysia on the Employment and Placement of Indonesian Domestic Workers, Annex A (ix), http://www.caramasia.org/docs/MoU%20My-Idonesia% 202006.pdf, accessed 20 .May 2013.
Trade Unions
Immigration Status
The Ministry of Home Affairs must automatically extend the six-month special permit and employment authorization for the same field of work as their original permit free of charge to workers making representations to the Department of Labor or the Department of Industrial Relations and renew them. goes without pay for at least three months at a time upon showing that the labor or industrial relations matters of the workers are still pending”.58.
Complaints Processing
If the dispute is not resolved, the MDWs can request that the matter be submitted to a disputes committee (for smaller claims) or to the Labor Court.66. MDWs, as we all know, do not have enough money to pay the legal fees to a lawyer so that their case can be taken to court. Local lawyers should be trained to assist MDWs and consulates of the countries of origin should be able to process or help report complaints.
Irregular Migration
Criminalizing irregular migration status further jeopardizes the ability of MDWs to access redress mechanisms and obtain justice or safe passage home. Malaysia usually detains migrants whose visa status has been revoked, regardless of their personal circumstances. Mexico, as a transit and origin country, has significant irregular migration flows.
In 2008, however, it decriminalized crimes (such as illegal entry) for which criminal sanctions were usually provided.71 In 2006, Mexico also introduced optional repatriation for illegal migrants from Central America in detention.72 These policies are still more problems, but it is a step towards recognizing the rights of migrant workers regardless of their legal status. Decriminalization of migration reduces the fear of reporting abuse and the fear of the government, its agencies and the police. On the other hand, it provides better access to legal mechanisms, as the worker is not threatened with immediate deportation.
Irregular migration should be under administrative rather than criminal law to ensure that the perpetrators of human rights violations are the target rather than the victims. Legalization programs, such as Malaysia's 6P program, have the potential to significantly protect migrant workers.73 The purpose of the 6P project was to allow irregular migrants to register with the Ministry of Home Affairs and either be legalized or return home.74 However, critics have argued that a much a clearer legal framework is needed to support a legalization program.75 Fears that amnesty-like projects actually increase irregular migration have proven false, at least in the US/.
MDWs are Unaware of their Rights
Memoranda of Understanding
The 2011 MoU requires MDWs to have a weekly rest day as well as a separate bank account for MDWs and passports to be kept in the personal possession of these workers.90. 89 Australian Domestic and Family Violence Clearinghouse, Domestic Violence Workplace Rights and Entitlements Project, (Commonwealth Department of Education, Employment and Workplace Relations Australia, 2011), p. The MoUs have not been accompanied by the establishment of enforcement mechanisms or additional monitoring.95 Da MDWs are excluded from the majority of Malaysia's labor laws, the burden of upholding the content of the MoUs rests on the employer, who is often not even aware of their content and subject to no sanctions for non-compliance.96 As a result, there a significant disconnect between the content of MoUs and what actually happens in households.
While it is a positive feature of MoUs that they can be tailored to the needs of specific countries, in reality it creates an unequal bargaining environment in which remittances and manpower are the primary concerns of states, rather than rights. It is also unlikely that an employer knows the content of specific countries' MoUs. Working through an intergovernmental, local body such as the ASEAN High Commission would be a good step forward in developing a standardized approach to the rights of MDWs in the region.
The Working Group on Migrant Workers and Their Families in the ASEAN Region should also be consulted for guidance on developing the domestic situation in Malaysia with regard to MDW. 94 Memorandum of Understanding between the Government of the Republic of Indonesia and the Government of Malaysia on the Recruitment and Placement of Indonesian Domestic Workers, Annex A(A)(xvi)–(xvii), http://www.caramasia.org/docs/ MoU%20My-Idonesia%202006.pdf, accessed 20 May 2013. 98 Memorandum of Understanding between the Government of the Republic of Indonesia and the Government of Malaysia on the Recruitment and Placement of Indonesian Domestic Workers, art.
The 2006 Indonesian-Malaysian Memorandum of Understanding states that MDWs from Indonesia must be able to speak Malay or English.
Legal Obligation to Implement International Laws
Conclusion
102 Sharan Burrow, Decent Work, Decent Life, Domestic Workers, (International Trade Union Confederation, 2010), http://www.ituc-csi.org/IMG/pdf/ITUC_dwd_AnglaisWEB.pdf, accessed 15 May 2013. EHS Today (January 9, 2013), http://ehstoday.com/safety/millions-domestic-workers-worldwide-are-excluded-workplace-protections?page=3, accessed May 15, 2013. Amnesty International Publications, 2010. http: // www.amnesty.org.au/images/uploads/ref/ . resident migrant workers_in_malaysia.pdf.
Commonwealth Department of Education, Employment and Workplace Relations Australia, 2011. http://www. dvandwork.unsw.edu.au/sites/www.dvandwork.unsw.edu.au/files/imce/ . domestic_violence_workplace_2012_July_2.pdf. Decent Work, Decent Life, Domestic Workers, International Trade Union Confederation, 2010) http://www.ituc-csi.org/IMG/pdf/ITUC_dwd_. Indonesian Migrant Domestic Workers: A Case Study on Human Rights, Gender and Migration.” The New School Graduate Program.
The Domestic Workers Convention 2011: Implications for migrant domestic workers in Southeast Asia.” Center for Non-Traditional Security Studies Insight (April 2012). Domestic workers in Malaysia: hidden victims of abuse and forced labour.” International Law and PoliticsVol. Help wanted: abuses against female migrant domestic workers in Indonesia and Malaysia.” Human Rights Watch Vol.
Ministry of Human Resources Government of Malaysia, Guidelines for the Formation and Registration of Trade Unions, http://www.mohr.gov.my/jheks/images/. Indonesia Malaysia: New pact changes local workers. http://www.hrw.org/news indonesiamalaysia-new-pact-shortchanges-domestic-workers.
Malaysia’s Standard Contract
Singapore’s Standard Contract
STANDARD EMPLOYMENT CONTRACT
Hong Kong’s Standard Contract
