Forced Labour Indicator – Part Two

Malaysia is currently under scrutiny over numerous allegations of human trafficking and forced labour in the country’s main industries. The allegations span from the trafficking of illegal immigrants to unfavourable working conditions

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In this article, I am going to discuss the six (6) remaining indicators:

Physical and sexual violence

Violence can include forcing workers to take drugs or alcohol so as to have greater control over them. Violence can also be used to force a worker to undertake tasks that were not part of the initial agreement, such as to have sex with the employer or a family member or, less extreme, to undertake obligatory domestic work in addition to their “normal” tasks.

Physical abduction or kidnapping is an extreme form of violence that can be used to take a person captive and then force them to work. As violence is not acceptable as a disciplinary measure under any circumstances, it is a very strong indicator of forced labour.

Retention of identity documents

The retention by the employer of identity documents or other valuable personal possessions is an element of forced labour if workers are unable to access these items on demand and if they feel that they cannot leave the job without risking their loss. In many cases, without identity documents, the worker will not be able to obtain other jobs or access essential services, and may be afraid to ask for help from authorities or NGOs.

Employers will have to rely on the Passport Act 1966, Immigration Act 1959/63 and the undertaking provided to the Labour Department in regards to the retention of identity documents.

Withholding of wages

Workers may be obliged to remain with an abusive employer while waiting for the wages that are owed to them. The fact of an irregular or delayed payment of wages does not automatically imply a forced labour situation. But when wages are systematically and deliberately withheld as a means to compel the worker to remain and deny him or her of the opportunity to change employer, this points to forced labour.

Forced Labour Indicator – Part Two
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Debt bondage

Forced labourers are often working in an attempt to pay off an incurred or sometimes even inherited debt. The debt can arise from wage advances or loans to cover recruitment or transport costs or from daily living or emergency expenses, such as medical costs. Debts can be compounded as a result of the manipulation of accounts, especially when workers are illiterate. Employers or recruiters make it difficult for workers to escape from the debt, by undervaluing the work performed or inflating interest rates or charges for food and housing.

Abusive working and living conditions

Forced labour victims are likely to endure living and working conditions that workers would never freely accept. Work may be performed under conditions that are degrading (humiliating or dirty) or hazardous (difficult or dangerous without adequate protective gear), and in severe breach of labour law. Forced labourers may also be subjected to substandard living conditions, made to live in overcrowded and unhealthy conditions without any privacy.

Employers will have to rely on the Housing Amenities Act to be in compliance with the requirement and guidelines provided for the accommodation of employees. The cases involving forced labour allegations in Malaysia has been centralised around this issue.

Excessive overtime

Forced Labour Indicator – Part Two
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Forced labourers may be obliged to work excessive hours or days beyond the limits prescribed by national law or collective agreement. They can be denied breaks and days off, having to take over the shifts and working hours of colleagues who are absent, or by being on call 24 hours a day, 7 days a week.

The determination of whether or not overtime constitutes a forced labour offence can be quite complex. As a rule of thumb, if employees have to work more overtime than is allowed under the Employment Act 1955, under some form of threat (e.g. of dismissal) or in order to earn at least the minimum wage, this amounts to forced labour.

Conclusion

Employers are advised to take note of the NAPFL guidelines to prepare for possible changes in the company’s employment terms and practices (involving foreign workers). Be mindful to comply with the existing laws and regulations and to seek consultation to better safeguard the desired arrangements.

Forced Labour Indicator – Part Two
Dzulfadhli bin Lamin
Lead Consultant
MECA South Sdn Bhd
dzul@meca.com.my