Govt 'recalcitrant' on migrant protection laws - lawyer

Summary

• Lawyer Joachim Xavier urges govt to enact a new Migrant Workers Act as the laws involving foreign labour are outdated.

• This comes after his latest win at the High Court, which upheld a more than RM760k award for 93 workers in a quota fraud case.

• Xavier laments Malaysia’s decades-long failure to reform migrant labour protection, which left many workers facing the same struggles the lawyer has been seeing since he started practising law 25 years ago.

A human rights lawyer has criticised the government for being “recalcitrant on migrant legislative reform” despite Malaysia being one of the largest importers of foreign labour in Asia.

Joachim Xavier said the country urgently needs a dedicated Migrant Workers Act, arguing that the entire migrant labour system is still governed under the outdated Immigration Act 1959/63 (Act 155) - a law drafted long before Malaysia started importing large numbers of migrant labour.

“To a large extent, the Employment Act does protect the migrant workers, but it gets circumvented by the Immigration Act,” he told Malaysiakini on Friday after winning a case involving overdue wages for 93 migrant workers caught in a quota fraud scandal.

“An employer can, at any time, cancel a work permit and send the worker back the moment the worker makes a complaint. That has to change,” the lawyer, who has taken on pro bono cases for migrant workers for the past 25 years, said.

Xavier (above) pointed out that the Employment Act is “wholly inadequate” to protect workers and that real reform must come through new legislation that sets clear standards on contracts, recruitment fees, accommodation, and workplace rights.

He said Act 155 continues to erode the safeguards in the Employment Act, causing nine out of 10 workers’ claims to collapse without NGO assistance. Out of every 100,000 workers, only about 100 see their cases through.

However, Xavier was not confident that meaningful reform would happen anytime soon.

“If Malaysia is serious about preventing abuse, we've got to come up with a Migrant Workers Act, or a Foreign Workers Act.

“However, Malaysia is not ready for this because it plays to the gallery of the capitalist, not to the migrant workers.

“We are not labour-friendly. We are capitalist-friendly,” he said, adding that the slow pace of reform continues to favour employers over workers.

‘Not stock labour’

Yesterday, the Shah Alam High Court upheld the Labour Court’s earlier decision in favour of 93 workers, awarding costs and more than RM760,000 in total claims, including RM120,000 for unlawful deductions for phone bills, bedding, gear and cleaning costs.

Each worker received between RM2,000 and RM11,000 in unpaid wages after the High Court rejected Aecor Innovation Sdn Bhd’s argument that salaries depended on actual work performed.

In her decision, High Court judge Narkunavathy Sundareson agreed with the Labour Court that employers cannot treat foreign workers as a “reserve labour pool”, calling the notion “absolutely wrong.”

“The terms of the contract are explicit - the workers will not be treated as stock and paid as and when they work.

“The workers will get paid from the date of their arrival in Malaysia,” she said.

Xavier’s senior associate, Sahain Nada Puthucheary, who also worked on the case, fought back tears as he reflected on how the court affirmed the workers’ rights to their overdue wages.

The workers in this case were among hundreds left jobless after being victims of a quota fraud syndicate that Malaysiakini exposed in November 2023.

A migrant recruitment syndicate of six Malaysian companies had allegedly brought in hundreds of workers using fake documents and exploiting loopholes in the government’s system.

READ MORE: Migrant worker import quota won via fake deals, then traded for millions

The workers have since secured jobs with the multinational shipping giant Maersk.

Deja vu cases

For Xavier, representing the 93 workers felt familiar, as conditions for foreign workers in general have not changed since he started working over two decades ago.

“Every time I hear these cases, it’s deja vu, and that’s because legislatively, we have not changed.

“We have maintained the Immigration Act exactly as it is. We have no other legislation,” he lamented.

In Malaysiakini’s investigation of the alleged quota fraud, the mastermind remained hidden behind shell companies or firms registered under other individuals, leaving no money trail linking him directly to the operations.

Collectively, the six companies had applied for more than 4,000 workers but received a quota approval of 1,625 workers who started arriving in January 2023, only to find no jobs waiting for them.

However, the police found no evidence of cheating under the Penal Code.

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