Recognise Domestic Work as Work

ONE PAID DAY OFF CAMPAIGN FOR DOMESTIC WORKERS

Overview of the situation of migrant domestic workers in Malaysia

Families in Malaysia employ some 400,000 migrant domestic workers, primarily from Indonesia, Cambodia, Philippines, Sri Lanka, Thailand and India. Yet, domestic workers are not recognized as workers and they do not enjoy the benefits and protection under the law as such. Employers continued to refer to them as maids, helpers, servants. In law, they are defined only as domestic servants under the Employment Act 1955. Consequently, they do not enjoy the benefits and rights enshrined in the Employment Act and in other labour laws like the Industrial Relations Act or the Trade Union Act. Their only right is the right to claim wages through the Labour Court. 

Due to the lack of protection and recognition as workers, many migrant domestic workers encounter physical, sexual and psychological abuse. Their wages are not paid, they do not get off days and they work long hours – 7 days a week, 16-18 hours a day. The workers, often referred to as maids or servants are confined to the workplace and their passports are held.

The numerous violations include excessive deduction of wages, food deprivation and cramped and unsanitary living space and conditions. Many domestic workers are made to do two jobs or more, which would include working at the business place of the employer.

Furthermore, employers ensure that their domestic workers remain isolated, made solely dependant on the family by cutting the domestic workers all means of communication even with their own family back in the country of origin. 

All these forms of institutionalized exploitation of the domestic workers have been ongoing for the last 30 years. The government continues to maintain the same form of labour – unprotected labour within domestic work. It is clear that the above forms of intense rights violations are nothing but bonded labour with intense servitude and debt bondage. This constitutes Trafficking in Persons.

Malaysia, having passed the Anti Trafficking in Persons Act in 2007, and bringing it into enforcement in February 2008, has yet to address or even look into the whole dimension of recruitment, placement and employment of domestic workers in its current form – which we reiterate is a form of trafficking in labour. Furthermore, the US government in its status report on Trafficking in Persons has included domestic work in its current reality as servitude and form of bonded labour.

There is a bit of good news: the increased reports of violent abuses and denying of labour rights of domestic workers, coupled with regional campaigning has led Indonesian women turning down Malaysia as a destination country. However, instead of learning from this, the Malaysian government remains adamant in its treatment of migrant domestic workers and has now begun to recruit domestic workers from Nepal, Vietnam and Laos. This strategy shows that Malaysia does not want to address the rights violations and continues to keep running to new source countries to get the domestic workers.

This form of escapism and arrogance will not deal with the root causes of the problem. The cycle of abuse among migrant domestic worker will continue, and unless the Malaysian government protects the rights of domestic workers by guaranteeing the rights through the law and setting up of mechanism it will not cease. 

Malaysia National and International obligations to protect domestic workers

National obligations

Malaysia has ratified the ILO Convention on forced labour. Forced labour is defined by the ILO Forced Labour Convention as "all work or service which is extracted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily." 

"Menace of any penalty" has been explained by the ILO Committee of Experts as a penalty that "need not be in the form of penal sanctions, but might take the form also of a loss of rights or privileges.”

Furthermore, Article 6(2) of the Malaysian Constitution states that “[a]ll forms of forced labour are prohibited.” 

In Malaysia, the Anti Trafficking In Persons Act 2007 is being enforced. The Act safeguards against trafficking in persons for purposes of labour exploitation. Yet, it is all too common to discover domestic workers in the situation of being trafficked for labour exploitation and forced labour.

Malaysia has the necessary legislation to address violence against women. These aspects are guaranteed under the Penal Code. A Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace is now in place under the purview of the Human Resources Ministry. These protective mechanisms must be made applicable to the domestic workers’ situation. 

International Obligations 

Upholding the rights of every person as stated in the 1948 Universal Declaration of Human Rights is based on international customary law – and therefore is binding on Malaysia. The rights encompass the right to life, liberty and security of person and the right to freedom. 

On top of this, Malaysia has both committed itself to uphold human rights conventions as defined in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC). The government must therefore ensure that its domestic law and its enforcement comply with their international obligations to protect the rights of women and children and to guarantee equality under the law. And this must extend to the protection of migrant workers as well.

Furthermore, Malaysia has also ratified several ILO conventions, including the ILO Forced Labour Convention (No. 29), the Worst Forms of Child Labour Convention (No. 182), and the ILO Right to Organize and Collective Bargaining Convention (No. 98). As such, Malaysia has an obligation to protect the rights of workers as set forth in those treaties.

Tenaganita's Experience 

Tenaganita has been working on domestic workers’ issue since 1994. It all started with cases involving Filipino domestic workers – followed by Indonesian, Cambodian, Sri Lankan and Indian nationals, as Malaysia recruit domestic workers from different source countries.

In June 2004, Tenaganita launched a 24 hours Domestic Workers Action Line in cooperation with Royal Malaysian Police to rescue domestic workers from abusive situations. The Action Line is also a counseling line for domestic workers and an information line for employers.

Tenaganita has received more than 300 calls through the 24 hour DW Action Line since June 2004 and had handled 215 cases consisting of 1510 human rights violations. These human rights violations include non payment of wages, wrongful deductions, withholding of passports, physical abuse, sexual harassment and rape, psychological abuse, bodily threats, long working hours, no off day, confinement, working in two places, child labour, non-provision of proper food, no access to treatment for various health problems, no freedom or access to place of worship/religion obligations as well as denied access and communications to family. 

Such forms of violations constitute bonded labour, that is classified as trafficking in persons.

Every single case that we have received comes with multiple complaints and usually for one particular case there are 7-10 complaints and rights violations. The top six violations received are as follows:

From the cases handled, it is very clear that many domestic workers suffer abuse and violence because firstly, they do not know what to do and where to go to seek help and assistance. Furthermore, they do not have an off day and they are confined in the employer's house. They suffer in silence until someone reports the abuses to the police or to non governmental organizations like Tenaganita. Many have left the employment due to the ill treatment by the employers or the recruiting agencies. All the above violations to domestic workers constitute forced labour or trafficking in persons for labour.

National and Regional Campaign to increase protections for domestic workers

National Campaign 

A “One Paid Day Off” Campaign leading towards the recognition of domestic work as work Campaign.

The reality speaks for itself. The situation and the trafficking of women and children in domestic work will continue if we do not work for change. Gender based violence will increase, as we have seen, becoming more brutal as time goes by. Most of all, Malaysians will begin to believe that it will be perfectly fine to beat, to rape, to hold in captivity migrant domestic workers.

WE NEED TO ACT. WE NEED TO MAKE THE DIFFERENCE COLLECTIVELY.

To achieve the goal of increased recognition of rights and protection, we need a national and regional campaign. The campaign will be officially launched in October 2008. But we will move into organizing a series of awareness raising activities targeted at employers and related government agencies. 

What do we want to ACHIEVE?

Our Long Term Goal: 

A special legislation that will enshrine basic labor and gender rights and give recognition to domestic work as work 

Our Short term Objective: 

1. A One Paid Day Off for Domestic workers.
2. A standardised contract for all migrant domestic workers with terms and conditions that uphold fundamental rights of decent work and decent wage.

Regional Campaign 

The National campaign will and must be part of the Regional campaign. Malaysia is the top destination country where domestic workers are being recruited from no less than seven countries. In order to reduce violations and increase protection of rights, all source countries need to work together for a standard contract.

Meanwhile, Caram Asia has been instrumental in leading the regional campaign for the recognition and protection of Foreign Domestic Workers’ rights. The campaign which is supported by various regional organizations is moving towards recognition of domestic work as work. The Malaysian campaign will become part of the regional strategy. Through this process, we will all be strengthened to realize the goals of the campaign. 

Launch of the Campaign

Date: 19th October 2008 (Sunday)

Venue: Sunway Pyramid 

The Tentative Program is as follows: 

A postcard campaign will also begin on the same day.