By excluding domestic maids from existing laws which cover workers and foreign labour, the government has in effect relegated these employees to the category of "informal workers", left at the mercy of recruiting agencies, employers and shady contracts.
Often, trying to establish the relevant authorities in the case of domestic maid abuse is not easy. Because they are not regarded as foreign workers, domestic maids do not come under the purview of the Department of Labour and are instead handled by the Immigration Department which, critics point out, are not be necessarily well-versed with labour laws.
Despite numerous proposals for amendments to existing laws, there has been no progress to address this problem. As Tenaganita director Irene Fernandez noted, the 1997 Foreign Workers Bill, designed to provide more comprehensive protection of domestic workers, was proposed in 1996, but never made it in Parliament.
The plight of foreign workers is a global concern. In recognition of the size and contribution of migrant workers to the global economy, the United Nations General Assembly enacted, in 1990, the International Convention on Protection of All Migrant Workers and Members of their Families.
The convention was a reaction to the very serious and on-going problems associated with transnational flows of labour in developed and developing countries. The central theme of the convention was that migrant workers and their families are not second class members of a host country and therefore entitled to the basic human rights accorded to citizens. This includes holidays, fixed working hours, overtime and other benefits.
Unfortunately, the convention has yet to come into force, requiring the signatures of eight more countries. Of the 12 countries which have ratified the convention, only two are from Asia. Malaysia has yet to sign the convention. Presently, foreign domestic maids in Malaysia do not have any basic rights as workers: they do not have off days, medical benefits, or most of the other conditions stated in the Employment Act.
Current proposals to standardise contracts between maid agencies and employers seek to address specific terms relating to working conditions but may not offer real protection to domestic maids. Critics argue that such moves tend to favour the agencies and employers and overall fail to protect foreign domestic maids.
According to Fernandez, "The contracts talk about deductions, replacement of a maid if the present maid runs away, etc. The contract is only signed between the recruiting agency and the employer. There is no separate contract between the maid and the employer."
The Tenaganita director added that a contract drawn up between the foreign maid and her employer should include a lot more specifications referred to in the Employment Act, such as details of working hours, off days, medical leave and wages.
Two weeks ago, the Women's Aid Organisation proposed a model contract on the employment of foreign maids to the Human Resources Ministry. The contract, according to its executive director Ivy Josiah, included guidelines on how employers should treat their maids, the obligations of an employer and specific tasks of maids.
women should be accorded their rights. Their job functions should
not include massages and working for others such as relatives or friends
of their employers," Josiah said.
This has been the case with Filipino maids. As Fernandez explained: "The Filipinos have fought for their rights through their embassy. As a result, a standardised contract now stipulates a lot of things, including off days, minimum wages and job functions."
But winning such rights, as Fernandez observed, does not come without a cost. Filipino maids who have asserted their rights and successfully negotiated improved contract terms, through the Philippines government and its embassy here, have been discriminated against by the market as a result.
The shift away from Filipino maids is reflected in the increase of domestic helpers, hired from countries such as Indonesia and Cambodia, who are less organised as a workforce, and whose embassies have failed to push for their rights, unlike the Philippines case.
According to a member of Forum in Asia Network of Migrant Supports, Caridad Tharan, the intervention from the Philippines government has created a more positive working environment for Filipino maids in this country.
"The Philippines government has been quite strict with both the agencies and the employers. It has a way of blacklisting any agency or employer found to have many problems with Filipino maids," she said, adding that an Overseas Workers Welfare Centre has been set up in the Philippines Embassy here to offer Sunday courses and counselling to Filipino maids.
"The centre is quite well-equipped and it also has the capacity to provide shelter for maids who have major problems," she explained. Furthermore, Sunday off-days granted to Filipino maids have also allowed them to organise themselves and meet their fellow country-people, thus allowing them to share their problems and grievances.
"Filipino maids are in a better position. Unlike the Indonesians, they have more support groups and a standardised contract which stipulates certain things. Furthermore, the church has played a very strong role in providing support," said Tharan.
Foreign domestic maids, like most other informal sector workers, are not allowed to form associations or unions to support themselves. They immediately get penalised if they do so.
But it is the power of collective bargaining which is at the crux of the matter. Unless they are allowed to organise collectively to push for their rights and better conditions, domestic maids will remain unprotected and vulnerable to abuse.
"We have to allow these maids to form an association where they can have recreation, counselling, etc. The government should allow for an union to be set up, just like the Hong Kong Domestic Workers Union," said Fernandez.
Foreign domestic maids have been the victims of our own uncaring attitude in addressing their needs. Unless they are provided an avenue to organise themselves and be given rights as workers with standardised working conditions, Malaysians will continue to see brutal and bloody abuses take place in their neighbours' homes.