Two prominent speakers at a Bar Council seminar on foreign workers offered starkly contradictory views on Malaysia's treatment of foreign workers toiling in 'dirty, difficult, and dangerous' jobs.

The council's Industrial Court Practice Committee chairperson Roy Rajasingham charged that workers have constantly been exploited by their employers through poor enforcement of employment laws.

However, Human Resources Minister Dr Fong Chan Onn said foreign workers are adequately protected in the same manner as local workers.

In his address at the seminar entitled 'Foreign Workers/Migrant Work Force and Current Issues in Employment Law', Rajasingham said problems faced by foreign workers include exploitation at the hands of unscrupulous employers as well as inadequacy of laws to enable their access to justice.

As an example, Rajasingham said workers often come across employers who fail to abide by their contractual obligations and, in the process, put the workers at risk of arrest by rendering their status illegal.

"Some workers come in with valid visas or work permits but on arrival they find, to their dismay, that what had been promised to them by their agents or employers in Malaysia are something else and contractual obligations not fulfilled," he said.

"What was a legal entry into Malaysia can then turn into an illegal entry by these workers for overstaying," he added.

Obsolete laws

According to him, existing laws to protect workers and ensure industrial harmony are inadequate and too dated to cope with new challenges posed by the reliance of the economy on foreign labour.

In particular, Rajasingham said the Industrial Relations Act 1967 (IRA) is one which requires a series of reforms.

"The IRA is a 37-year-old Act. A lot of developments have taken place (but) this Act remains the same with obsolete provisions which are not practical anymore," he said, referring mainly to the lack of observation of clauses requiring labour disputes to be settled "expeditiously".

"It is common knowledge that it takes years from the time a complaint is lodged to the time when the Industrial Relations Department (IRD) investigates and for the minister to refer the matter to the Industrial Court. At the court, it can take another few years for the matter to be fully determined.

"Section 30(3) of the IRA states that the court should make its award without delay and where practicable within 30 days from the day of reference to it. The provision remains in the relevant legislation but in practical terms is not followed. Why have an obsolete provision if it has no legal relevance?"

Rjasingham expressed dissatisfaction with the ministry for not responding to various improvements suggested by the Bar Council - such as for disputes to be referred to the Industrial Court within six months from the time the complaint is first lodged.

"We have not heard from the ministry to date as regards this proposal and many others," he said.

Rajasingham also deplored the fluctuating tenures of employment for the president and chairpersons of the Industrial Court.

"There is no fixed retirement age and appointments are at the discretion of the minister. Some are appointed for six months, some for two years, and others in between.

"This uncertainty is unhealthy and reforms are definitely necessary, as the people who adjudicate employment disputes and interpret security of tenure provisions in a employment contracts are often caught in the web themselves."

'Flexible' laws

In his keynote address, Fong said all workers in Malaysia, local and foreign, are well protected by labour laws.

"While recognising the benchmarks of international labour standards, each economy may have its own unique set of characteristics and needs. Therefore, it is not unusual for countries to have slightly different requirements in labour legislation," he said.

"Our labour legislation provides the principles and legal framework which protect the basic rights of workers and at the same time ensure sufficient flexibility for business to function effective in the competitive market place."

Fong said the government has called six commissions of inquiry to investigate whether workers in certain occupations are working under poor conditions and earning very low wages.

"These six commissions have already submitted their reports and the government is studying their recommendations."

Also, in order to streamline foreign worker recruitment procedures, the government has signed Memoranda of Understanding with several sending governments - namely Vietnam, China, Pakistan, Bangladesh, Sri Lanka and Thailand.

Fong said the government is expecting to sign a similar MoU with Indonesia later this month.

"The recruitment of foreign workers must be approved by the respective authorities. This will ensure that Malaysian workers' interests are protected and that the recruitment of foreign workers will only be allowed when local workers are not available."

Unfair MoU?

Responding to complaints about the long period required for settlement of labour disputes, Fong said delays are often caused by diverse factors such as the failure of parties to attend proceedings.

"The number of cases reported to the IRD increased from 4,778 cases in 2000 to 5,663 in 2003. This has led to a backlog."

At a press conference later, Fong explained that the high number of labour cases pending settlement resulted from retrenchment exercises between 2000 and 2002.

"We recognise that any delay is a source of frustration and grievance to employers and employees. The ministry has engaged the Malaysian Trades Union Congress (MTUC) and the Bar Council to help resolve the problem," he said.

The ministry has also increased its staff and the number of Industrial Court chairpersons to process the cases.

On criticism against provisions in the MoU currently being negotiated with Indonesia, Fong denied that the terms being finalised were unfair to foreign workers.

"Foreign workers are given the same rights and protection as local workers. There are no provisions which discriminate against them. I don't think it is true (that the terms are unfair)," he said in response to claims that there are no provisions to protect workers who are unfairly treated by employers.

Last week, PAS member of Parliament Mahfuz Omar had claimed that several provisions in the document provide room for exploitation of foreign workers, including the lack of specification of employment terms, the amount of payable employment fees, and compensation should employers fail to abide by their obligations.

On whether the government was in the process of reviewing the IRA to give more powers to the minister to intervene in industrial disputes, Fong said the ministry would not suggest any changes without consulting the Bar Council and MTUC.

The proposal was made in response to the inability of the minister to reconcile rival factions in the National Union of Bank Employees, which have been at loggerheads for the past two years.