Employers who fail to comply with court orders to settle unpaid salaries now stand to lose their property to clear the outstanding wages.
This is a new ruling introduced under the Employment Act 1995, which has come into force - a Labour Department representative said in a regional meeting organised by the Bar Council yesterday.
The little-known ruling was brought to light in the meeting to discuss a study on wage theft and forced labour among migrant workers, by the Bar Council's Migrants, Refugees and Immigration Affairs Committee and Migrant Forum Asia.
The officer, who declined to be named in media reports, said Section 87A of the Act allowed a magistrate to issue a warrant to levy a property belonging to an employer convicted for failing to comply with the initial court order to settle workers’ unpaid wages.
“The new rule is in force and applies to all employers, irrespective of the wage bracket of the employees. So far, no employer has been subject to this action,” he clarified to Malaysiakini on the sidelines of the meeting.
According to the Employment Act amendment, employees who have not received payments ordered by the court can make an application with the court to obtain the outstanding payment in the said manner.
The officer was responding to queries from meeting participants whose focus was to identify mechanisms to hold employers responsible for the employment of undocumented workers as this was lacking during the recent spate of raids conducted by the Immigration Department.
He also confirmed that the ministry was discussing with the Attorney-General’s Chambers (AGC) on the implementation of a Court of Appeal ruling - which upheld the High Court’s landmark decision that a worker’s immigration status should not deter the Labour Court from hearing their case.
The meeting saw the participation of about 30 members from Malaysian and regional NGOs, government agencies and migrant workers.
61pct of respondents didn't get regular wages
The study commissioned by the Migrant Forum in Asia (MFA) and the Asean-Australian Counter Trafficking (Asean-ACT) was presented by an MFA programme staff, Abby Guevara.
The study in question attracted 451 respondents who are migrant workers from five countries in the Southeast Asian region, namely Malaysia, Thailand, Indonesia, Cambodia and the Philippines.
Guevara said that 61 percent of the respondents reported not receiving regular wages during the pandemic.
Workers in the construction industry, she added, were the hardest hit, with 88 percent reporting non-payment of wages.
Correspondingly, men were the larger group who did not receive their wages - and 78 percent of respondents confirmed it.
Types of wage theft listed in the finding included unpaid and forced overtime, false promises of payments, forced signing of agreements, inappropriate deductions and the withholding of wages to prevent workers from leaving.
Other types include wage theft by recruitment agencies, false charges or cases made against workers and absence of regular payment of wages.
The study, carried out after movement control orders were lifted, found that 31 percent of those surveyed experienced wage theft but 46 percent also experienced other forms of forced labour, indicating a strong correlation between the two.
Guevera said several elements of forced labour were found to be similar to wage theft indicators. This includes mobility restrictions and confiscation of identity documents.
Similarly, mobility restrictions have a correlation to the forced labour indicator of physical and sexual violence, she said.
Asean-ACT senior partnership and engagement coordinator, Ploy Naruephon Boonyaban, said evidence of this correlation was significant in helping workers to recover their unpaid wages.
Forced labour: A grey area for govt agencies
Researcher Jo Sy Tey, who conducted the interviews, said undocumented workers fearing for their safety proved to be the most challenging to interview, but upon reassurance, the inefficiency of complaints mechanisms for workers was raised.
“Many felt there was no action taken against employers flouting the law.
“One very good example is the raids carried out in Nilai Springs, where an entire village of undocumented workers was wiped out but no one knows who was their employer.
“It was difficult for them to voice out their experiences because their jobs were their rice bowl and they had mouths to feed back home,” she said, expressing gratitude to all those who spoke out.
A multi-agency Immigration Department-led raid on Feb 1 at a migrant settlement in Nilai Spring, Negeri Sembilan, saw the arrests and detention of 67 undocumented migrants, including a 72-year-old and a two-month-old baby.
The detainees were taken to Lenggeng Immigration Depot pending a probe under immigration laws for entering and staying in the country without a valid permit.
Prosecute errant employers
Meanwhile, lawyer CR Selva lamented that forced labour remained a grey area for government agencies that relied on the limitations in the policies to explain the shortcomings in holding all relevant perpetrators responsible.
“Unless we revamp government policies, nothing moves in the government instruments,” he said.
To this, the Labour Department officer explained that the ministry was training its officers to better identify victims and include those who had been trafficked.
“In future, we will not be arresting workers who are victims and employers can be prosecuted,” the labour officer assured.
However, Bar Council Malaysia’s law reform and special areas committee chairperson M Ramachelvam stressed the need for the prosecution of employers in such egregious cases.
“There should be a fine and jail sentence for such offences. Only then will they have the fear and comply with the laws,” he said. - Mkini
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