Saravanan: We're seeking prosecution in forced labour case involving 'Tan Sri'

The Human Resources Ministry will seek the prosecution of two high profile former employers of Indonesian domestic workers whose alleged employment practices reflected exploitation and forced labour.

Speaking to Malaysiakini, minister M Saravanan said the two cases have been forwarded to the Attorney General’s Chamber (AGC) to seek prosecution.

Stating that the former employers were high profile, he described one to be a ‘Tan Sri’, in his 70s, and the other as a retired high-ranking police officer.

In January this year, Malaysiakini reported that an Indonesian domestic worker who had fled her wealthy employers from their Kota Damansara home intended to sue for 12 years of unpaid wages.

She eventually received a payment of over RM100,000 from the Tan Sri, who cannot be named at this point for legal reasons.

“So far, we have referred two cases to the AGC.

“We have a lot of other cases, but these are the prominent ones that will become an eye-opener to others,” said Saravanan.

Unwilling to divulge more, Saravanan said if the attorney-general (AG) decided that a case could be brought against them, their identities would be made public.

Indonesian Ambassador to Malaysia, Hermono.

A ploy that works well for employers

Indonesian Ambassador to Malaysia, Hermono, welcomed the news of the minister’s decision to respond to case profiles he had shared with the minister at a recent meeting.

“We are glad to see the minister’s enthusiasm to explore every level of enforcement of the law including the AG’s role as a deterrent,” he said.

However, he urged that enforcement be carried out on all cases with no special focus on high profile cases.

Hermono pointed out that domestic workers frequently had their wages withheld by employers which was a forced labour element.

He added that the intentional hiring of undocumented domestic workers in many cases could serve as a strategic ploy that frequently worked out well for employers.

This was especially so because employers didn’t feel that they needed to face the long arm of the law, said Hermono, who, like many Indonesians, goes by a single name.

“Many workers were sent home empty-handed after experiencing years of forced labour. The law was quick to punish undocumented workers but not the employers who hired them.

“This was another reason why many employers declined to renew the work permit,” he explained.

Recalling the cases handled by the embassy where employers eventually paid portions of back wages, Hermono said usually, no further actions would be taken against employers by the relevant authorities.

He said these settlements were usually perceived as a sufficient penalty for the forced labour of withholding wages.

Explaining carefully, Hermono said paying the salary of workers was an obligation and not to be mistaken as punishment.

However, Hermono was confident that a new bilateral agreement that was signed on April 1 between Malaysia and Indonesia strengthened safeguards for domestic workers entering the country after May this year.

A case of 12 years unpaid wages

In January this year, Malaysiakini broke the story of the domestic worker who had worked for the Tan Sri for more than a decade.

The 43-year-old who declined to be named had sought refuge with the Indonesian Embassy in Kuala Lumpur (KBRI).

The worker who hails from the city of Malang in East Java had fled her allegedly 18-hour-per-day employment with her wealthy employer.

Opting to mediate with the KBRI, the employer finally made a payment of more than RM100,000 in mid-February this year.

However, prior to mediation, the domestic worker was dealt a further blow for apparently not giving her employer a two-week termination notice.

A claim of RM500 that was brought to the Labour Department by her employer was dismissed but, till today, no charges were brought against the employer for withholding wages or any of the other elements of forced labour practices alleged by the domestic worker.

The domestic worker who had remained at the KBRI for an additional year until the mediation concluded only flew home in late February this year to see her parents for the first time after 12 years.

AG’s considerations

Before signing an agreement in April this year, Malaysia’s memorandum of understanding with Indonesia had lapsed in 2016 but both domestic workers whose employers may face charges had entered the country long before this date.

An amending protocol that was signed in 2011 introduced amendments to the 2006 memorandum which included provisions that addressed, weekly rest days, passport retention, freedom of communication and timely payments of monthly wages.

Meanwhile, the AG could consider actions to be taken against employers under various immigration offences or the Anti-Trafficking in Persons and Anti-Smuggling of Migrants (Amendment) Act 2022.

Whether charges can be brought against employers for withholding wages or employing a migrant person without a valid employment pass would be determined by the AG.

However, if in the case that both workers have returned to their homes in Indonesia, Section 40A (1) of the Immigration Act 1959 offers terms under which a witness deposition could be obtained at a location outside the country, that would be admissible as evidence.

Their respective deposition could still be obtained before a consular officer or a judicial officer in Indonesia.

This can be done, in the presence or absence of the person being charged with the offence. - Mkini