The government implemented a national minimum wage applying to both Malaysian and migrant workers in nearly every sector except domestic work early in the year. The minimum wage was established at RM800 ($245) per month in the states of Sabah and Sarawak and RM900 ($275) per month in peninsular Malaysia. The minimum wage rates were below the Ministry of Finance-published poverty income levels in Sabah and Sarawak.
Working hours may not exceed eight hours per day or 48 hours per week. Each workweek must include a 24-hour rest period. The law also sets overtime rates of 1.5 times the base hourly rate for regular overtime, two times the regular hourly rate for work on rest days, and three times the regular hourly rate for work on the 10 mandated public holidays. It mandates public holidays, annual leave, sick leave, and maternity allowances. The law specifically specifies limits on overtime, which vary by sector, but exceptions can be made. The limits also apply to migrant workers, but migrant domestic workers have protection only with regard to wages and contract termination, and they are excluded from provisions that would otherwise stipulate that they received one rest day per week, an eight-hour workday, and a 48-hour workweek. Instead, bilateral agreements or memoranda of understanding between the government and some countries of migrant workers’ origin include provisions for rest periods, compensation, and other conditions of employment for migrant domestic workers, including prohibitions on passport retention.
Occupational health and safety laws cover all sectors of the economy except the maritime sector and the armed forces. The law requires workers to use safety equipment and cooperate with employers to create a safe, healthy workplace, but it does not specify a right to remove oneself from a hazardous or dangerous situation without penalty. Laws on worker’s compensation cover both local and migrant workers but provide no protection for migrant domestic workers.
The National Wages Consultative Council is responsible for recommending changes to the minimum wage and coverage for various sectors, types of employment, and regions. The Labor Department of the Ministry of Human Resources is responsible for enforcing standards on wages, working conditions, and occupational safety and health. An international organization estimated there were 351 labor inspectors in the country. Mechanisms for monitoring workplace conditions were inadequate. Private, for-profit labor contractors, themselves often guilty of abuses, were often responsible for the resolution of abuse cases.
The national Occupational Safety and Health Council - composed of workers, employers, and government representatives - creates and coordinates implementation of occupational health and safety measures. It requires employers to identify risks and take precautions, including providing safety training to workers, and compels companies that have more than 40 workers to establish joint management-employee safety committees.
The government tried to enforce the law and hold employers accountable. From January to June, the Peninsular Malaysia Manpower Department found 56 employers had failed to comply with the minimum wage order. An official at the Ministry of Human Resources reported the Labor Department charged 97 employers with various offenses under the labor law during the year, with 80 percent of these related to salaries. The department charged five employment agencies for operating without a license and issued 461 summonses to various employers, of which 67 percent were for failing to report hiring foreign workers within 14 days of employment. The department issued another 10 percent of the summonses against employers who did not pay salaries within the stipulated period. The law allows all dismissed workers, migrants included, to challenge the dismissal through the Labor Department and the respective courts.
Penalties for employers who fail to follow the law begin with a fine not more than RM10,000 ($3,060) per employee and can rise to imprisonment of not more than five years. Since 2010 the Labor Department collected RM1.47 million ($450,000) in fines. Employers or employees who violate occupational health and safety laws are subject to substantial fines of up to RM50,000 ($15,290), imprisonment for up to two years, or both. The MTUC, however, complained some employers flouted the rules with impunity.
The government investigated complaints of abuses, attempted to inform workers of their rights, encouraged workers to come forward with their complaints, and warned employers to end abuses. The Department of Labor made 103 charges against employers who failed to insure migrant workers they employed or report accidents to the Ministry of Human Resources. Workers have the right to take legal action against abusive employers. NGOs reported courts generally sided with employees and ruled employers must pay back salaries and compensate plaintiffs for injuries. Nonetheless, NGOs claimed that some labor contractors regularly used intimidation tactics and physical abuse to prevent exploited workers from seeking justice. The MTUC reported no prosecutions of labor contractors.
In practical terms, laws on wages and working hours were not respected. The MTUC reported that 12-, 14-, and 18-hour days were common in food and other service industries.
Overall, migrant workers were more apt to face poor working conditions, worked in sectors where violations were common, and faced challenges in accessing justice. Migrant workers, legal and undocumented, often worked under difficult conditions, performed hazardous duties, had their pay withheld by employers, and had no meaningful access to legal counsel in cases of contract violations and abuse. Some workers alleged their employers subjected them to inhuman living conditions, confiscated their travel documents, and physically assaulted them. Employers of domestic workers sometimes failed to honor the terms of employment and subjected workers to abuse. Employers reportedly restricted workers’ movement and use of cell phones; provided substandard food and living conditions; physically and sexually assaulted workers; and harassed and threatened workers, including with deportation.
Long delays in court proceedings and rulings often posed obstacles to migrant workers’ access to the system of labor adjudication, particularly if they were undocumented or had lost legal status. Additionally, because laws forbid dismissed migrant workers from working for any other employer while the case is pending, their access to redress was limited.
The law permits migrant workers to bring employment disputes to the Industrial Court. Nevertheless, court policy did not permit consideration of undocumented migrants’ complaints. Industrial Court proceedings were time consuming, which may have prevented migrant workers from seeking redress through the court system. Once their work visas expire, migrants require “special passes” to stay in the country, in which case they can follow the court case but may not work. The passes are valid for one month and cost RM100 ($30.60) to renew. Renewal is subject to the discretion of the director general of immigration.
In January authorities carried out a nationwide crackdown on undocumented migrant workers. The Philippines Department of Foreign Affairs, however, claimed that authorities arrested and abused documented Filipino workers.
Also in January the Home Ministry launched a new identity card with biometric technology that was to become mandatory by year’s end for all migrant workers. The card would purportedly limit the ability of workers to change jobs and would entail a fine of up to RM12,000 ($3,670) if they do so. The cost of the card is included in the application fees for a work permit.
In January 200 Nepalese factory workers threatened to riot when their employers failed to assist a dying colleague. Police arrested three protesters but also discovered three prior deaths due to the poor conditions in the same hostel with no action taken. By year’s end authorities had taken no action on the investigation.
Tenaganita recorded more than 1,500 cases of abuse involving undocumented migrant workers and 500 cases of employer violations of immigration law in 2011. For the most part, the authorities deported the workers after serving a jail sentence and cleared the employers of charges.
In July the MTUC accused a multi-national electronics company of utilizing outsourcing agents when it discovered the passports of the employees were held by an intermediary.
According to Department of Occupational Safety and Health statistics, 83 fatalities were reported from January to June 2013, in a total 1,435 accidents.
