Category Archives: Labour standards for migrant workers

Myanmar workers in Thailand go on strike for labour rights

Myanmar migrants going on a strike at INDEX, a motorcycle helmet factory in Bangkok. Photo – Supplied

“The 300 Myanmar workers have had their labour rights violated by the employers. A Myanmar worker was accused of being involved in a fire at the factory and was fired. So, all the other Myanmar workers launched a strike, demanding for their rights to be upheld,” AAC member Ko Ye Min told The Myanmar Times.

He also said that the workers made 10 demands, including to be allowed to take six days of casual leave in a year – which is compulsory under Thai labour laws – and for salaries not to be cut when sick leave is taken.

Workers also demanded to be paid back K200 million which was deducted from their salaries by factory officials supposedly for an emergency fund for workers. They also demanded to be issued original work permits, instead of photocopies.

Another demand was for the factory to prepare first aid material at the premises, and for workers to be allowed to work after taking leave.

According to the AAC, workers complained that those who took sick leave were “punished” by being barred from coming back to work for a period of three days, during which time they were not paid.

Ko Ye Min said that the factory also used to ask workers to work overtime every Saturday without getting paid.

The Myanmar workers were also told to use brokers assigned by the factory to apply for their passports and work documents. These brokers, they claim, charged a higher interest than others.

The strike, which began early on February 22, ended on the evening of the same day after factory officials agreed to most of the demands following mediation by the AAC, Myanmar embassy officials and Thai labour department officials.

“The factory acceded to most of the worker’s demands, and all workers accepted and called off the strike in the evening,” said Ko Ye Min.

“The factory officials had to agree to the demands after they were investigated by several labour rights groups including the Thai army because they really have violated their rights,” he said.

There are more than 300 workers at the INDEX motorcycle helmet factory, including the 300 Myanmar migrants who are holding pink cards and temporary passports.

The factory’s manufacturing processes were stopped for the whole evening on February 22 because of the strike, and workers resumed work on February 23 with no problems, according to the AAC.

The Myanmar Times could not reach the Myanmar Embassy yesterday for their comments about the INDEX worker disputes.

More than 10,000 Myanmar workers go to Thailand monthly for job prospects.

 

By: Zaw Zaw Htwe, Myanmar Times

Published on: 24 February 2017

ASEAN treaty on migrant workers: Can PH make it happen in 2017?

PART 3: All eyes are on the host Philippines to see if it could usher in an ASEAN treaty on migrant workers’ protection after a decade-long impasse

Part 1: Undocumented migrant workers: Hidden and helpless in ASEAN
Part 2: The bleak future of undocumented migrant workers in ASEAN


MANILA, Philippines – A decade ago, the Philippines was pivotal in the signing of the 2007 ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers on its soil. But to date, there is still no legally binding instrument or treaty to implement the commitment.

This still haunts the Philippines, as it hosts the 50th year celebrations of the ASEAN in 2017, which also coincides with the 10th year anniversary of the declaration. The country, as a major labor sending state, is one of the key proponents of the instrument, as well as of migrant workers’ rights regionally and globally.

For the longest time, intra-ASEAN migration has been on the upswing. In 2012, it generated close to US$40 billion in remittances for the whole region.

But in ASEAN, where consensus is king, there has been a deadlock between receiving states – Malaysia and Singapore – and sending states – Indonesia and the Philippines – on the creation of a legally binding framework. It is complicated. Aside from countries’ differing agenda, ASEAN member-states have varying and inconsistent laws on labor and migration.

For this year, the Philippines chose the theme, “Partnering for Change, Engaging the World.” As host, the country has the power to steer the agenda in the direction they desire.

Philippine President Rodrigo Duterte said 2017 would be the year for a “people-centered” and “people-oriented” ASEAN, touching on the protection of labor migrants.

It was the Philippines, as chair of ASEAN 2007, which pushed for the adoption of the declaration. This year, the country is taking ownership of the issue, as it is still doing the same for the creation of an instrument. The question, however, remains: Will it be a legally binding one, like a treaty, or just a mere guideline to follow?

A legally binding instrument, aside from being obligatory, would put in place redress or dispute mechanisms for migrant workers in the region.

“There is an ASEAN protocol dispute settlement that will allow certain dispute settlement measures to kick in once we agree that the instrument is legally binding, for instance arbitration,” Cacdac said.

“I don’t think it will take away exploitation and abuse but the workers will have at least redress. They would know what their rights are in the receiving state, they can file complaints, they can have access to services guaranteed by all the states,” said Thetis Mangahas, former International Labor Organization (ILO) regional director.

Philippines softens stand on treaty

Hans Cacdac, administrator of the Overseas Workers Welfare Administration (OWWA) and a decade-long negotiator in the ASEAN Committee on Migrant Workers (ACMW) tasked to work on the instrument, said ASEAN labor ministers have already declared their intention to finish the “agreement” by April 2017.

The question is: What kind and how strong of an instrument would it be?

“It is already 85% complete. I can tell you it contains substantial points that are clearly protective of migrant workers across ASEAN. In areas such as access to justice, protection during recruitment process, humane treatment of migrant workers – things like these are already in the 85% text so I think there’s already a lot to gain alone. However, we need to seek consensus the ASEAN way,” Cacdac told Rappler.

Early February, Cacdac flew to Kuala Lumpur to meet with his Malaysian counterparts from the Ministry of Human Resources to discuss the declaration, the Philippine embassy said. Details of the meeting, however, were not divulged.

There are 3 main contentious issues that have delayed the establishment of an instrument: the legal nature of the document, inclusion of migrant workers’ families, and protection of undocumented workers.

For sending countries like Indonesia and the Philippines, they are in favor of everything. But receiving countries, such as Malaysia and Singapore, oppose them, as they just want a mere guideline.

At present, there is only one remaining issue left. But senior officials would not want to divulge it yet.

Foreign Affairs undersecretary for policy Enrique Manalo said the Philippines is set to hold the labor ministers’ retreat from February 19 to 21, to be held in Davao City, to settle it.

“Very briefly, that is one of the priorities of the Philippines this year. There’s really only one major issue remaining and what the Philippines is planning in fact is to host a retreat among labor ministers of ASEAN precisely to look at this issue,” Manalo said.

But some are unconvinced this would actually work.

“A retreat would work if you feel or you see that the major problem is confidence building and therefore they’re assuming that by bonding, that it might reduce the lack of confidence but I don’t think that is so,” Mangahas said.

DFA Assistant Secretary Hellen De la Vega, also the ASEAN-Director General for the Philippines, acknowledged the struggles on creating a legally-binding instrument, citing the different laws and “comfort levels” of each member-state. She also refused to say what the remaining issue is.

“Well I’m sorry I cannot say that. We are looking at the remaining 15%,” she told Rappler in an interview.

Directly asked how confident she is, De la Vega said: “You said the instrument is already 85% ready. I will also put my rating at 85%. All I can say is we will exert all our best efforts, this is all a matter of political resolve. We’ve been working through this, we hope we will be able to reach something. We hope that we’ll be able to reach something that we can give as a gift not only to migrant workers of our country but all in the region.”

Former Labor Secretary Rosalinda Baldoz, after the 2016 summit in Lao PDR, said that the Philippines is amenable to a non-binding instrument, as long as 4 parameters would be present. This is contrary to the hardline stance of Indonesia, the Philippines’ ally in pushing for a legal instrument.

Here are the 4 parameters set by the Philippines:

  • the immediate development of an action plan, with timelines to implement the Instrument
  • negotiation of bilateral labor agreements between ASEAN Member States
  • sharing and documentation of best practices
  • designation of national focal points on Instrument implementation in every ASEAN member-state.

Bleak prospect for an ASEAN treaty?

While Philippine officials are mum on the remaining issue, migration experts, who have dealt and negotiated in the ASEAN, said it may have to do with the legal nature of the instrument.

“It’s all about the the binding issue. If it’s optional, why are they so contentious when it is up to them? If there’s a stalemate, it’s got to be that. Most likely it is that issue that is holding it back,” said Mangahas.

Mangahas said Malaysia and Indonesia have the two most polarizing views on the legally binding instrument. Indonesia has an all or nothing mindset, which is understandable as a sending state.

A factor to this is the bilateral relations between the 2 states. Indonesia has condemned Malaysia’s treatment of Indonesian migrant workers, which make up majority of the documented and undocumented workers in Malaysia.

“It is irreconcilable with the other so it’s a question of who gives in between the two. Indonesia doesn’t want to give in on this. Malaysia doesn’t want to give in on this. Indonesia is for a legally binding. They don’t want a diluted instrument. I think they’re all for binding or nothing,” she said.

Indonesia is not keen on backing down. Its strong resolve to push for migrant workers’ rights has all the more intensified under the administration of President Joko Widodo, following criticisms against his predecessor.

“The current Indonesian government has placed the protection of overseas Indonesians as one of its main foreign policy priorities following strong criticism of the previous government’s perceived neglect amidst a number of cases of mistreatment against Indonesian migrant workers,” said Ibrahim Almuttaqi, head of the ASEAN Studies Program at The Habibie Center in Jakarta.

“Despite Jakarta’s influence on the region, it would seem it has struggled to break through the current impasse. That is not to say that Indonesia will give up, it recognizes that this is a complex issue and will take many years to resolve,” he added.

Malaysia Bar Council’s Dato M Ramachelvam also opened the possibility of a “hybrid instrument.”

“In which case, some provisions which have been agreed by all members to be binding and the ones which are in dispute not binding,” said Ramachelvam, also the chairman of the council’s Migrants, Refugees and Immigrant Affairs committee.

But for some, having a non-legally binding instrument would not set a good precedent.

“If you give in, the legally binding instrument would likely never happen because your already agreed to a non-legally binding one. It’s a short-term solution that would be the reference point for the next 20 years. Others would tell the Philippines and Indonesia: ‘We already granted your request for an instrument. If you have this instrument, why do we need a legal document’? It doesn’t give you the opening to pursue it further,” said De Dios, member of the ASEAN Committee on Women and Children and a delegate to the United Nations.

Political will

The issue of migrant workers has been staring ASEAN in the face for a decade now. Some have lost hope while others continue to hang on to it.

For undocumented workers, a regional agreement would help them in their plight in the region.

Erika*,37, and Fe*, 34, want an end to recruitment agencies and employer’s non-compliance to their contracts, which in their case was the main reason they had to run away from their Malaysian employers and become undocumented workers.

STATELESS. Undocumented Filipina migrant worker Erika*, 37, with her 11-month-old son, who has no nationality and citizenship to date. Photo by Camille Elemia/Rappler

STATELESS. Undocumented Filipina migrant worker Erika*, 37, with her 11-month-old son, who has no nationality and citizenship to date. Photo by Camille Elemia/Rappler

They are hopeful that the ASEAN or their host country would be able to stop these agencies from collecting exorbitant fees from them.

“I hope they can help us, even with the agencies,” Fe said.

It all boils down to the political will of both the sending and receiving countries.

“In our view, the outstanding issues hampering the work are beyond labor and immigration technical issues. It is more about lack of political will,” said Abdulkadir Jailani, former Indonesian negotiator in the ACMW.

Former ambassador Rosario Gonzales, former Philippine Representative to the ASEAN Intergovernmental Commission on Human Rights (AICHR), said ASEAN was built on the basis of compromise. It’s not enough for receiving countries, she said, to just oppose the instrument, without adjusting its laws or policies.

“It used to be when we founded it, it was about consenus. If a state is not ready, then it should come forward and say what alternatives they are offering. That was consensus building not like this,” Manalo said.

“Singapore and Malaysia – they don’t want to change their national laws. Why are you not changing it? It’s been 10 years. Where’s the political will?” she added.

Rappler reached out to Malaysia’s Ministry of Home Affairs, tasked to formulate and oversee immigration policies; the Ministry of Human Resources, which supervises labor affairs and negotiates in the ACMW; as well as its ASEAN Secretariat, but they all declined interview requests.

“It should be elevated to President Duterte because it has taken so long. He should tell the DFA that he wants this. They should face the summit and tell it to the heads of state,” the former envoy said.

ILO’s Manuel Imson, also project coordinator of the ASEAN Triangle Project on migrant workers, said it all boils down to the nations’ leaders. The ministers negotiating in the committee, after all, just echo what their seniors tell them.

“In the final analysis, it all boils down to political will. Those working on this are really dependent on the country position defined by higher government levels because this is what they echo in the technical meetings. So in a case where there are issues like these, sa taas na ang decisions,” he said.

ASEAN, for its part, is working inch by inch while there is still no consensus – through information sharing, endless meetings, sharing of best practices, and the creation of an Asean Qualification Reference Framework (AQRF), which is a common referencing system for workers in the region.

“So you know that if I am a tourist professional, a tour guide of this level in Cambodia, I’m equivalent to a tourist guide in Manila of this certain level. A common referencing system to promote better mobility of workers,” Mangahas said.

But as ASEAN continues its debate, migrant workers – documented and undocumented – could only rely on their home country’s bilateral agreements and memoranda of understanding with other ASEAN nations for protection. – Rappler.com

 

By: Camille Elemia, Rappler

Published on: 14 February 2017

 

The bleak future of undocumented migrant workers in ASEAN

PART 2: ASEAN countries view the issue of undocumented migrant workers differently. Singapore and Malaysia view it as a ‘security threat’ while the Philippines and Indonesia as a matter of ‘human rights’

Part 1: Undocumented migrant workers: Hidden and helpless in ASEAN


KUALA LUMPUR, Philippines (UPDATED) – Ten years ago, the 10-member Association of Southeast Asian Nations (ASEAN) signed the Declaration on the Protection and Promotion of the Rights of Migrant Workers.

Then as it is now, the plight of undocumented migrant workers remains in the backseat of ASEAN’s agenda.

It has consistently struggled with the protection of documented labor migrants. What more with the highly contentious issue of the millions of undocumented migrant workers in the region? Is there even a future waiting for them?

The draft instrument was stalled from December 2009 to 2011, when the Philippines and Indonesia proposed a legally binding framework to include undocumented migrants. Malaysia and Singapore, the top receiving countries, opposed it. (READ: Foreign workers less welcome in Singapore?)

The desire of the Philippines and Indonesia to include undocumented workers come as no surprise, as the 2 are the major sending nations in the region.

As of June 2015, data from Malaysia’s Ministry of Human Resources show there are 876,339 documented migrant workers from Indonesia – the highest from any other ASEAN member-state – and 66,521 from the Philippines.

The highest number of undocumented workers also comes from Indonesia, said Tenaganita, a Malaysia-based non-government organization pushing for labor migrants’ rights.

Between the 2 sending states, it is Indonesia that has been solidly pushing for a legally binding instrument that includes protection for undocumented workers.

The Philippines, as host of the ASEAN in 2017, has said it is amenable to a non-legally binding instrument, as long as its parameters are followed.

What is stopping ASEAN from including undocumented workers, who, like their documented counterparts, contribute to the economies and societies of their host countries?

Undocumented as second-class citizens?

In 2015, ASEAN established the Asean Economic Community (AEC), which aims to have a freer flow of goods, services, investment, capital, and skilled labor in the region.

However, only 8 professions are covered – engineers, architects, doctors, nurses, lawyers and accountants. Migrant workers, more so undocumented ones, are excluded.

For Glorene Das, Tenaganita’s executive director, ASEAN seems to focus on businesses and investment climate that they tend to put the issue of migrant workers in the back seat.

 

TENAGANITA. Glorene Das, executive director of the Malaysia-based NGO, says the ASEAN has focused more on businesses and the economy than the issues of undocumented migrant workers in the region. Photo by Camille Elemia/Rappler

As for the contrast between professionals and not, she said undocumented and low- to unskilled migrant workers are easier to exploit than so-called “expats” or expatriates.

“I think in terms of expats there’s a certain accountability that’s needed from the state because of their level of education, work, expertise. And it’s not easy to exploit them. And there are legal redress mechanisms in place for them to puruse a case thoroughly,” Das said.

This was a sentiment shared by Aurora De Dios, member of the ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC) that also deals with migrant workers.

“Papaano, sila ang pinaka-useful. (It’s because they are deemed the most useful.) Those highly educated and skilled are needed for their economic industries. Their priority is economic growth. They refuse to acknowledge that the job of domestic workers and other low-skilled workers is actual work,” De Dios said, citing the Employment Act of Malaysia that considered domestic work as part of the “informal” industry.

Leong Sze Hian, president of Singapore-based human rights NGO Maruah, said ASEAN member-states argue that it is easier to deal with this group, as dealing with undocumented workers might cause bigger problems with receiving states such as Malaysia and Singapore.

All the more complicated is the issue of undocumented workers’ families – many of whom, like Erika*, 37, have children growing up stateless in the region.

STATELESS. Undocumented OFW Erika* and her 11-month old baby, who is not a registered national of any country. Photo by Camille Elemia/Rappler

STATELESS. Undocumented OFW Erika* and her 11-month old baby, who is not a registered national of any country. Photo by Camille Elemia/Rappler

“It is a much bigger problem to resolve if you look at both documented and undocumented workers. ASEAN is thinking step-by-step approach to look at documented workers first because it is a less contentious issue in coutnries where there are millions of undocumented workers. Also, they’d rather deal with the small problems first,” Leong said.

This is not to say, though, that the issue of irregular migration is completely ignored in the ASEAN. It has somewhat started to be tackled, but not as head-on as many would want.

Manuel Imson of the International Labor Organization and the project coordinator of the ASEAN Triangle Project on migrant workers said the issue of the Rohingyas in Myanmar has highlighted the issue in the region. (READ: Migrant crisis tests Southeast Asia diplomacy)

“The issue of irregular migration is a recognized issue within ASEAN of course. If you look at what has happened with the Rohingyas and all, the issue was enhanced. But formally, I think member states are still much focused on doing different issues on regular migrants, less of the undocumented workers,” Imson said.

Another problem, he said, is the lack of statistics on undocumented labor migrants, precisely because of the very nature of their situation. Each country, Imson said, has its own way of estimation.

Fear for national security vs protection of human rights

Since most undocumented laborers are low skilled to unskilled, they give life to the industries that provide so-called 3D jobs – dirty, dangerous, and demeaning jobs – which locals frown upon.

One of the stumbling blocks to ASEAN’s protection of undocumented worker is the conflicting views of sending and receiving states.

For sending countries, they believe it is a human rights issue, while receiving countries insist it is a national security matter.

Abdulkadir Jailani, former Indonesian negotiator in the ASEAN Committee on Migrant Workers, said the dichotomy is a product of conflicting interests among member-states.

“The divergence of policy is a result of the divergence of the interests among ASEAN countries. Technically speaking, the expansion of the scope of the protection, which include undocumented migrant workers, will create more practical burden for the receiving countries,” Jailani told Rappler.

MIGRANT WORKERS. Myanmar migrant workers look at the phone screen from a relative as they arrive in Yangon airport on in August 2016 after being released from detention camps in Malaysia. Photo by Ye Aung Thu/AFP

MIGRANT WORKERS. Myanmar migrant workers look at the phone screen from a relative as they arrive in Yangon airport on in August 2016 after being released from detention camps in Malaysia. Photo by Ye Aung Thu/AFP

Dato’ M Ramachelvam of Malaysia’s Bar Council said undocumented migrant workers are considered “threats” to the country’s security.

“Receiving countries perceive undocumented workers as a threat to national security, and as those who contravene the immigration laws and border control. Hence, policies to deal with migrant workers are very often dealt through the security lens rather than labor. [They] do not see migrant workers, let alone undocumented workers, as contributors to their GDP and economy,” said Ramachelvam, who is also the chair of the council’s Migrants, Refugess, and Immigration Affairs office.

Receiving states view leniency as an invitation for more undocumented workers, leading to an uncontrollable flow into their territory.

Ibrahim Almuttaqi, head of the ASEAN Studies Program at The Habibie Center in Indonesia, said receiving states fear that such lenient policy would burden them.

The problem, he said, highlights the huge “income disparity” between member-states. Countries like the Philippines, Indonesia, and Cambodia are poor and have high unemployment rate while others such as Malaysia and Singapore are well-developed and has a demand for jobs.

“There is perhaps the fear that legally recognizing undocumented migrant workers would lead to the ‘opening the floodgates’ in the region. The current situation of undocumented migrant workers is already alarming for ‘receiving states’ and if ASEAN was to openly deal with them, it will perhaps only encourage more,” he said.

But Das questioned the security issue, saying Malaysia, as a host country, even agreed to take these migrant workers in the first place. These workers, she added, became undocumented because of the lack of a comprehensive policy in the country

“If it’s real, why would they have them here in the first place? Then Malaysians should start doing their own work. You invite them because Malaysians don’t want to do the 3Ds. We need them that is why you invite them here. But you don’t have comprehensive policies, therefore they become undocumented in the process. And then you regard them now as threats to national security?” Das said.

With nearly 2 decades of engaging the government and ASEAN on the issue, Das said this is Malaysia’s usual response on it:

“So the only thing Malaysia will say is we’re not just getting everything. They’re sending money remittances from the money in Malaysia. As such, we are doing you a favor. It goes back to that mentality,” she said.

Rappler reached out to the Malaysian Ministry of Human Resources, Ministry of Home Affairs, as well as the ASEAN-Malaysia Secretariat but they all declined interview requests.

Political backlash

Jailani noted that receiving states worry of “legal and practical” burden at the national level should they become lenient to undocumented workers.

“Technically speaking, the expansion of the scope of the protection which include undocumented migrant workers will create more practical burden for the Receiving Countries. However, the exclusion of undocumented migrant workers is certainly not agreeable as it is both unjust and ineffective,” he said.

Politicians and leaders may face political backlash from their constituents should they agree with the sending countries.

The topic of labor migration has always been a “touchy, political issue,” said De Dios.

 

Former Ambassador Wilfrido Villacorta, Philippine Permanent Representative to the ASEAN 2011-2012. Photo by Camille Elemia

Former Ambassador Wilfrido Villacorta, Philippine Permanent Representaitve to the ASEAN from 2011-2012, said no country would want to be “flooded” with undocumented workers.

“No country would like to be flooded by foreign, unskilled or undocumented workers, because the locals feel they will be displaced. They will have revolution in their hands,” Villacorta said.

In Malaysia, with more than 2.2 million documented workers as of June 2015, migrant workers “are seen as outsiders and considered an invisible population” to the locals, said Ramachelvam.

“So politically, for any politician, they cannot be declaring open market for migrants, they will always only highly skilled even if they need househelp. The economic requirements of industry will be different from the political requirements in appeasing a population,” said Thetis Mangahas, former ILO deputy regional director.

She cited the case of Singapore, which faced backlash from its citizens for importing more foreign workers.

DOMESTIC WORKERS. Indonesians wait for their transportation to a maid agency after going through medical check in Singapore on in March 2012. Singapore's decision to grant a mandatory weekly day off for foreign maids was welcomed by social workers and human rights groups, but some employers were unhappy. File photo by Roslan Rahman/AFP

DOMESTIC WORKERS. Indonesians wait for their transportation to a maid agency after going through medical check in Singapore on in March 2012. Singapore’s decision to grant a mandatory weekly day off for foreign maids was welcomed by social workers and human rights groups, but some employers were unhappy. File photo by Roslan Rahman/AFP

Since the 2011 elections where the ruling People’s Action Party lost the most seats since independence, the government cut foreign worker quotas even while admitting that it needs so-called foreign talents to support one of the world’s fastest aging populations. (READ: Fewer jobs for Pinoys, foreigners in Singapore)

Philippines’ role

Ten years since the ASEAN declaration on migrant workers’ rights was signed on Philippine soil, it remains to be seen how the nation, as host of the 50th year, would push for the rights of undocumented labor migrants, or if it will even raise it at all.

Hans Cacdac, administrator of the Philippines’ Overseas Workers Welfare Administration and negotiator for the past decade, was non-comittal on the inclusion of the workers in the pending instrument.

He said it is still one of the 3 main contentious issues the ACMW has to settle before April, the target release of the instrument. The other 2 are the legal nature of the document and the inclusion of families of migrant workers.

“The ASEAN declaration makes reference to undocumented workers who became undocumented to no fault of their own. So meron ng (there isa) reference in 2007 but beyond what it says, it’s a whole different thing. It’s a main bone of contention,” Cacdac said.

While he maintained the Philippines is still pushing for the group’s inclusion, Cacdac also recognized the need to respect other ASEAN member-states’ national immigration laws.

“Some member-states would even want it off the table. But us, we believe undocumented workers should be given proper protections under the law and should also be provided necessary forms of assistance by all member-states especially if they are victims of illegal trafficking or illegal recruitment,” he said.

But that is all there is to the future of undocumented workers in the region. It is as unclear as how ASEAN moved forward with the 2007 Declaration for 10 years now. – Rappler.com

 

By: Camille Elemia, Rappler

Published on: 13 February 2017

Undocumented migrant workers: Hidden and helpless in ASEAN

PART 1: Despite ASEAN’s decade-long intention to protect migrant workers in the region, nothing has been done for the undocumented labor migrants, who continue to endure hardships in silence

KUALA LUMPUR, Malaysia – Filipina domestic helpers Erika*, 37, and Fe*, 34, face their daily lives with uncertainty, hanging on to daily prayers in the hope that the day would not be the fateful day when immigration officers find them.

Both ran away from their employers – the most common reason why workers turn into undocumented labor migrants in Malaysia, one of the top receiving countries of migrant workers in the Association of Southeast Asian Nations (ASEAN) region.

But a decade since leaders of the 10-member ASEAN signed the Declaration on the Protection and Promotion of the Rights of Migrant Workers, a deadlock on the creation of an ASEAN treaty to protect them remains. Neither is there final agreement on whether or not undocumented workers should be covered.

These hidden workers, like their documented counterparts, contribute to the economies and societies of their host governments.

Erika and Fe are just two among the estimated 5 million undocumented labor migrants in Malaysia, according to non-governmental oranization Tenaganita. The Philippines is one of the top sending nations in the region, besides Indonesia.

For more than a year, the two were not given days off and correct salaries by their respective employers. Add to that the enormity of their tasks, which were not indicated in their original contracts. (READ: Migrant workers: Undocumented, unprotected)

Contract substitution

The minimum salary set by the Philippine Overseas Labor Office for Filipino domestic workers in Malaysia is $400 (at least 1,700 Malaysian ringgit or P19,000). But more often than not, Malaysian employment agencies don’t follow this.

They end up amending the contract between the employer and the worker. Both Erika and Fe received only 1,000 ringgit monthly with a heavier than promised workload.

“They do not comply with the required days off here. If you’re a domestic worker here, the agency is the one that tells the employer not to give you any break. I had no day off for one- and-a-half years. I was not allowed to use cellphones and my passport was withheld from me,” Erika said in Filipino.

“I was hired as a caregiver. But, it turned out, I would also clean 3 big houses and 7 cars. They did not give me any day off even if it was in my contract,” Fe said.

Philippine labor attaché in Kuala Lumpur Elizabeth Estrada admitted that “contract substitution” is indeed one of the major problems faced by Overseas Filipino Workers, prompting documented workers to run away from their employers, turning them into illegal workers.

But the case is not just limited to Filipinos, as it is the prevailing situation of migrant workers coming from other neighboring countries, said Glorene Das, executive director of Tenaganita, a Malaysia-based NGO pushing for migrant workers’ rights.

All eyes are now on the Philippines, as it hosts the 50th year of ASEAN, which also coincides with the 10th year of the 2007 Declaration. It was signed on Philippine soil when the country last hosted the conference.

The case of Fe*

Photo by Camille Elemia/Rappler

Photo by Camille Elemia/Rappler

An excessive workload and stress took a toll on the health of Fe, a single mother of 3 boys. For 6 months, her monthly period did not stop, beginning from her first week with her employers.

Her employers sent her to a gynecologist for a check up. It turned out, she said, she had hormonal issues and an infection. Her doctor told her to get bed rest for one whole week but her employers would not hear of it.

“When the results came out, the doctor told me, in front of my boss, to just rest first. He told my boss: ‘Ma’am, allow her to rest for one week, let her sleep and eat while she’s still recovering,'” said Fe, recalling her doctor’s order.

“Since I didn’t want my employer to get mad at me, I immediately told the doctor that I was taking care of an old patient who could not walk and stand. He told me: ‘What do you want, to go back to the Philippines in a coffin?'”

“That’s because the doctor, and I myself, saw that I looked pale. My body lacked vitamins because they only gave me leftover food. If there’s chicken, they only gave me the bones. If there’s fish, they only gave me the head. I told myself: What kind of food is this? It’s like food for pigs.”

Fe ended up running away from her employer after she was still forced to work, contrary to her doctor’s advice.

“Why is it that just because they are locals, they can do what they want to us? That is why I cannot blame other runaway workers because I myself know and have experienced abuses.”

Toward legalization

Employers have two options in this kind of situation: they can either immediately call authorities to cancel the working visa of the worker or just let it expire. It is, after all, renewed yearly.

Fe was fortunate enough that her employer chose the latter, giving her ample time to get a new Philippine passport. Other workers are not as lucky.

For any migrant worker in Malaysia to be considered legal, he or she has to get a working visa and a contract besides a passport. But for undocumented workers, the process is difficult. Some do not even have their passports, as their employers withhold it from them.

Recruitment agencies take advantage of the situation, asking for payment of at least 7,000 MYR (at least P78,500) from poor undocumented workers. Fake agencies also swindle them.

Fe, who now works as a caregiver, said she is now saving money to “legalize” her stay in the country by March. Easier said than done, she admitted, as her family’s house in Surigao province, in the southern Philippine island of Mindanao, was destroyed by a recent typhoon.

I am afraid of being tricked by agents because it is difficult to earn money. But if it is the will of God, I will slowly do it, hopefully by March. I will just finish our roof back home because my mother and children are sleeping in the kitchen in the meantime,” she said.

Undocumented parents, stateless children

UNDOCUMENTED. 37-year old Erika* with her 11-month old son in Kuala Lumpur. Photo by Camille Elemia/Rappler.com

UNDOCUMENTED. 37-year old Erika* with her 11-month old son in Kuala Lumpur. Photo by Camille Elemia/Rappler.com

Just like Fe, Erika is a single mother of 3 in the Philippines. She also left her employer’s home after a year-and-a-half of working without any day off and with a salary of just 1,000 MYR (P11,000) a month.

“They will ask you to sign a blank paper. We had an original contract approved by the embassy, saying our salary is $400, but the agency does not follow it. Maybe they are getting the money meant for us. The employers do not give us days off,” Erika said.

Little did she know that her uphill battle would become even more difficult.

She left her employer in 2014 without any passport or proof of identity. She said her employer immediately cancelled her working permit.

Erika stayed with a Filipina friend and worked odd jobs. There, she met an Indian co-worker. As if it was not difficult enough for her, Erika and her boyfriend faced a new challenge when they had a baby in March 2016.

She had to borrow 3,500 MYR from her boyfriend’s employer to pay for a normal delivery in a private hospital. Giving birth in a public hospital was never an option, as authorities would bring her to immigration officials.

STATELESS. Undocumented OFW Erika and her 11-month old baby, who is not a registered national of any country. Photo by Camille Elemia/Rappler

STATELESS. Undocumented OFW Erika and her 11-month old baby, who is not a registered national of any country. Photo by Camille Elemia/Rappler

She could not register her son with the Philippine embassy, as she had no passport as proof of her identity. The embassy also supposedly told her to first register her son with the Malaysian government, which she could not do as an illegal worker.

She could not register him with the Indian embassy either, even if her boyfriend was a legal migrant worker, for the same reasons. Besides, they weren’t married.

Erika, in short, has since passed on her undocumented status to her now 11-month-old son. The baby remains stateless to date, having no nationality or citizenship.

No rights, privileges

Her baby has no birth certificate and passport. He has not been baptized into any religion for fear it might lead to her arrest.

All Erika has is the draft birth registration form given by the Malaysian hospital, which is useless because she could not register her son in JPN, or Malaysia’s equivalent of the Philippines’ National Statistics Office.

“When I was pregnant, I thought of putting him up for adoption because I am undocumented and I know then I would not be able to register him. But when I saw him, I could not take it. I pity my child that is why I want him to be documented and to be able to go back to the Philippines,” she said.

The problems do not end there. Undocumented children in the country grow up without any rights and privileges, effectively continuing the vicious cycle.

“If you do not have a permit, your child won’t have the right to study here, won’t have the right to public healthcare,” she said.

“These children grow up without any rights and education. They end up getting trafficked or being the traffickers themselves,” Das said.

At present, the baby has had only two vaccine shots. Erika said she could no longer afford it. She has to choose between her son’s milk or his vaccine.

“He only had two injections. I could no longer afford it because each costs 550MYR ro 650MYR (P6,000 to P7,000). I don’t get it why it is so expensive, in the Philippines it’s just free. But here, since we don’t have any permit, we cannot go to public hospitals. We need to go to private clinics all the time,” she added.

Big money in trading people

For the longest time, intra-ASEAN migration has been phenomenal. In 2012, it generated close to US$40 billion in remittances for the whole region.

But high remittances boost greater migration, encouraging more middlemen, like recruitment agencies, to trade in people.

Unfortunately, not all migrant laborers go through legal channels. It is complicated, lengthy, and expensive. Most people, like Erika and Fe, enter legally but end up being undocumented due to the middlemen’s abuse.

“It’s through the process of placement, employment they become undocumented. Almost all of our cases, domestic workers run away from abusive situations. A migrant worker stops work because she is not paid what is promised. The employer quickly makes a police report, which turns the migrant worker undocumented,” said Das.

As the biggest recipient of intra-Asean migrant workers, Das said Malaysia should have a coherent and comprehensive policy to support and protect them and local industries that depend on them, such as plantation and manufacturing.

Some of them are highly dependent on a low-wage economy or cheap labor.

“Locals do not want to do the 3D jobs – dirty, dangerous, and demeaning. Malaysia, as a host country, needs to have proper comprehensive policy to manage migration,” Das said, pointing out that migration is handled by the Ministry of Home Affairs but labor is under the jurisdiction of the Ministry of Human Resources.

“Policies are dictated by different ministers, without anything black and white, and the directive is not being followed through. There has to be one set of comprehensive policy to manage migration, from recruitment and placement to redress, repatriation, reintegration,” she added.

Das said the continuing lack of protection of undocumented workers is all about money. Trading people, both legally and illegally, is a lucrative business for the recruitment agencies, government offices, and even politicians.

Cashing in

Fe and Erika shared how the police get money, ranging from 500MYR to 2,000MYR (P5,600 to P23,000) in exchange for not arresting them. Since policemen in their areas already know their faces, they would keep on extorting money from them.

“This is a money-making business. The politicians themselves own agencies and become employers. When you have stayed in Malaysia 10 years, 5 years, you know how the system works: there’s no system. Corruption is embedded in the system. Why would they want to protect them when they are earning from them, from cheating them?” she said.

According to Malaysia’s Bar Council member Dato’ M Ramachelvam, another reason is that the employers and agencies that hire undocumented people go scot-free, both in the receiving and sending countries.

“At the same time we have receiving countries like Malaysia that allow migrants with no proper documents to enter the country and stay on to work. While these undocumented migrants may be detained, we do not see much action taken against the employers and agents who exploit these workers. Hence the demand for undocumented workers continues to escalate, especially when the recruitment fees that employers pay for documented workers increase,” said Ramachelvam, chairman of the council’s Migrants, Refugees and Immigrant Affairs committee.

Rappler reached out to the Ministry of Human Resources, Ministry of Home Affairs, as well as the ASEAN-Malaysia Secretariat but they all declined interview requests.

ASEAN’s silence on undocumented workers

Despite the contribution of migrant workers, undocumented included, there is still no clear regional stand on how to protect their rights. In fact, the 2007 ASEAN Cebu Declaration has no inclusive policy on undocumented workers.

ASEAN, Das said, has been focusing too long on investments and the business climate that it has put the welfare of migrant workers, the people who comprise and help economies, in the backseat.

The 2007 Declaration only has the following non-inclusive provisions:

  • “The receiving states and the sending states shall, for humanitarian reasons, closely cooperate to resolve the cases of migrant workers who, through no fault of their own, have subsequently become undocumented.”
  • “Nothing in the present Declaration shall be interpreted as implying the regularization of the situation of migrant workers who are undocumented.”

The issue of undocumented workers and labor migrants’ families is among the 3 main contentious issues that have delayed the creation of a legally binding instrument to implement the 2007 Declaration.

Another issue is the legal nature of the instrument – whether it would be legally binding or just a mere guideline. Receiving countries such as Malaysia and Singapore want undocumented workers and migrant workers’ families excluded from protection. At the same time, they have been pushing for a non-binding instrument.

“It’s hard to get full protection of migrant workers, how much more she, who is undocumented? Because of that status, they are not able to register a child in any mission and the baby becomes stateless. And there are no laws to protect the families of migrants. Even if you look at declaration,” Das said.

“And the other reason Malaysia or Singapore didn’t want to sign is because, [they think] why should we care for the families of migrants? Caring for migrants is already such a big deal, and now you’re heading for family? They’re not going to,” Das added,

As for Fe and Erika, legalizing their stay in Malaysia is their main objective, but not until they save at least 7,000 MYR (P78,000), which they will need to pay their agencies to secure an under-the-table working permit and, sometimes, a passport.

“I don’t want to go home yet because I don’t want to see them suffer, too. It’s better that I just suffer here alone than for us to be together but without any food to eat. No one will help us, I told my family,” Fe said.

As for undocumented workers – left with limited options and a system encouraging the status quo – they will continue to endure abuse and discrimination, which to this day, for many of them, is part and parcel of earning a living for their families. – Rappler.com

 

By: Camille Elemia, Rappler

Published on: 13 February 2017

Undocumented Cambodians to get legal status in Thailand

PHNOM PENH – Undocumented Cambodians who received migrant worker status cards after crossing illegally into Thailand are being advised to contact the embassy in Bangkok, which will help them legalise their position so they can get work.

Many Cambodians now find themselves in a grey area after having been issued with what are known as pink cards by Thai authorities. These give them migrant worker status, but are not enough to allow them to get a legal job, according to the Khmer Times.

The situation arose after the military coup in 2014, when large numbers of foreign workers were expelled.

Many Cambodians crossed back into Thailand illegally. Thai authorities created the pink cards as a way of normalising their presence, however the workers were left in employment limbo.

Cambodian and Thai government officials met to resolve the problem and a Cambodian government committee was set up to legalise the 231,626 undocumented Cambodian workers.

A ministry statement said on Tuesday: “The committee is ready to offer documents to workers following legal procedures required by Thai law.”

Heng Sour, a spokesman for the Ministry of Labour, said the undocumented workers were among one million Cambodians working in Thailand.

He confirmed that the undocumented workers had received migrant worker status cards from Thai authorities after they crossed illegally into Thailand to seek employment.

Cambodia’s Labour Ministry said undocumented workers should apply for travel documents from the embassy in Bangkok.

Workers need to pay 950 baht for the travel documents. These should be taken, along with 500 baht  and the pink card, to the Thai Immigration Department to apply for work permits.

 

By: Khmer Times, Bangkok Post

Published on: 26 January 2017

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