Discrimination against Local Domestic Workers
(Employment and Housing Rights)
by Vivian Kuan and Hannah Nanneri Nanggai
(A) Background
Meenambal is a local domestic worker. She previously worked as a rubber tapper under a contract between 1983 to 1985 and subsequently lost her job when the estate she worked at was sold off. She was paid daily wages, and received no compensation following the loss of her job as a rubber tapper. During the two years of her employment, she sought the assistance of Persatuan Sahabat Wanita to lodge a complaint at the Labour Department to get Employees’ Provident Fund (EPF) and Social Security Organisation (SOCSO) benefits.
She subsequently worked as a cleaner (also under a contract) at the old Subang airport. In 1989, she lost her home when the estate where her home was located was redeveloped. She did not receive alternative housing, as her home was recorded as a kindergarten although it was only partly used by the community for such purpose. Upon the loss of her home, she started to work as a domestic worker. On average, she earned between RM450 to RM500 per month.
Meenambal’s issue in respect of her work is that there is no opportunity to ask for higher wages or shorter hours. There is no sick leave provided. A team of women domestic workers (including her) mobilised and sought EPF and SOCSO benefits for domestic workers following the death of a fellow domestic worker on her way home from work. This group of women comprised 12 persons, who each sought such protections from their individual employers. Only three of the 12 employers agreed to register their employees for EPF and SOCSO benefits. Meenambal’s employers refused, and she was asked to stop working if she persisted. Meenambal continued working, for the income.
The village where she lived at the material time was also earmarked for redevelopment, and once again she lost her home. She moved into a longhouse provided by the developer, and then moved to a low-cost flat where she still lives.
Meenambal cannot afford to quit her current employment as she will be left without any income or savings. She has also developed health problems over the years, including allergies to detergents, and breathlessness when using bleaching agents. She does not receive any medical benefits, and seeks treatment for her health issues at her own expense. Despite having received medical advice to stop doing work of this nature, she is unable to, for the sake of her survival.
(B) Situational Analysis
The systemic discrimination faced by Meenambal in respect of her employment as a domestic worker is directly related to the inadequate protection of her basic rights as an employee under the Employment Act 1955. It appears that Meenambal does not have a written contract as a basis for her employment as a domestic worker. This is the norm, given that there is no specific legislation in Malaysia that governs the rights of domestic workers — be they local or foreign — or regulates such an employment relationship. In the absence of a regulatory framework that recognises domestic work as “work”, Meenambal in essence may be a freelancer susceptible to wage discrimination, forced labour, extended hours of labour, and lack of basic protections such as right to sick leave etc.
In 2013, Malaysia implemented minimum wages that are applicable to all workers except domestic workers. The Malaysian Government made this decision following the recommendation of the National Wages Consultative Council established under the National Wages Consultative Council Act 2011. This express discrimination against domestic workers further exacerbates the dilemma of low income faced by Meenambal. There is no protection to ensure fair wages, or sanction for unfair wages.
Due to this income inequality, it is unfortunate that to date, Meenambal has been unable to enjoy adequate housing. The United Nations Committee on Economic, Social and Cultural Rights interprets the right to adequate housing as a right to live somewhere in security, peace, and dignity. This would include the following:
(1) Freedoms, including:
(a) Protection against forced evictions and arbitrary destruction and demolition of one’s homes; and
(b) The right to choose one’s residence, to determine where to live and to freedom of movement; and
(2) Entitlements, including:
(a) Security of tenure; and
(b) Equal and non-discriminatory access to adequate housing.[1]
From Meenambal’s story, it is evident that she has been unable to live in peace, security, and dignity at her residences due to the redevelopment, and lack of compensation for alternative housing.
(C) Status of State Interventions
(C1) Employment Law
The employment of a domestic servant is provided for under the Employment Act 1955. However, subparagraph 2(5) of the First Schedule excludes the applicability of the following provisions, where domestic servants are concerned:
(a) Section 12 (notice of termination of contract);
(b) Section 14 (termination of contract for special reasons);
(c) Section 16 (employees on estates to be provided with minimum number of days’ work in each month);
(d) Section 22 (limitation on advances to employees);
(e) Section 61 (duty to keep registers);
(f) Section 64 (duty to display notice boards);
(g) Part IX (maternity protection);
(h) Part XII (rest days, hours of work, holidays and other conditions of service); and
(i) Part XIAA (termination, lay-off, and retirement benefits).
In respect of Meenambal’s previous jobs, it appears that she did not have adequate protection despite being a contracted worker, due to the nature of her job and the exclusion of the above provisions in the Employment Act 1955.
It is discriminatory and unfair that contract workers whose job scope is that of a domestic worker be excluded from regular protections such as termination and lay-off benefits.
In 2017, Tenaganita along with several other non-governmental organisations (NGOs) drafted a Bill for domestic workers to address the loopholes in the Employment Act with hopes of seeing the Bill tabled in 2018.[2] It is unclear whether this draft Bill includes domestic workers. The status of the draft Bill is unknown at present.
Further, in her current capacity as a domestic worker, Meenambal is expressly excluded from any protection in respect of rest days and hours of work.
(C2) Minimum Wage
As of February 2020, the Malaysian Government increased the minimum wage for 56 city and municipality councils to RM1,200 and the hourly wage to RM5.80. This increase was part of the Malaysian Government’s Budget 2020 in an attempt to modernise the country’s workforce.[3]
The regions eligible for the minimum wage increase includes Petaling Jaya, where Meenambal currently works. However, it is appalling that domestic workers are still not considered to be a part of the national workforce and are therefore ineligible for the protection of a minimum wage.
(C3) EPF and SOCSO Benefits
In terms of EPF, which is the national retirement savings plan, ‘domestic servants’ — as defined under section 3 of the Workmen’s Compensation Act 1952 — are not liable to contribute to EPF. This directly discriminates against domestic workers, who are thus not able to enjoy annual dividends on retirement savings and other withdrawal options and benefits (including withdrawals for purchase of a home) that come with being an EPF member. Nothing has been done by the Malaysian Government to propose the inclusion of domestic servants as members liable to contribute. Without this change, workers such as Meenambal are at the mercy of their employers who are free to refuse to make the EPF contribution.
In terms of SOCSO benefits, domestic workers are protected under the Employees’ Social Security Act 1969 as well as Employment Insurance System Act 2017 effective 1 June 2021.[4] The categories of domestic workers include maids, personal drivers, gardeners, security guards etc. The registration for both domestic workers and employers may be made from 16 June 2021 onwards. This is a welcome change that ensures protection and insures domestic workers.
(C4) International Labour Organization (ILO) Conventions
Malaysia has ratified 18 ILO Conventions, which include six Fundamental Conventions, two Governance Conventions, and 10 Technical Conventions.[5]
However, Malaysia has yet to ratify the Domestic Workers Convention, 2011 (No. 189) (C189) along with the Recommendation No. 201 - Domestic Workers Recommendation, 2011 (R201). R201 is, in essence, supplementary to C189.
Ratification of C189 would ensure that Malaysia takes measures to guarantee that all domestic workers enjoy minimum wage coverage (article 11); are informed of the terms and conditions of their employment — including remuneration, method of calculation, and periodicity of payments (article 7(e)); and be informed of any other authorised deductions (para 6(g) of R201).
(C5) International Covenant on Economic, Social and Cultural Rights (ICESCR)
Malaysia is not a party to the ICESCR despite the urging and recommendation of many civil society bodies including the Human Rights Commission of Malaysia (SUHAKAM). Malaysia previously set up a Technical Sub-Committee to assess and recommend Malaysia’s accession to the ICESCR. However, Malaysia has yet to accede to that Covenant which, among others, would provide for the right to adequate housing for all.
In particular, article 11(1) of the ICESCR provides as follows: “The State Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.”
This would mean that Malaysia may need to revise, review, adopt, create, and put in place laws and policies to ensure the rights of all to be afforded adequate housing without fear of forced evictions and/or arbitrary demolition or destruction in favour of redevelopment.
(D) Recommendations
(1) The Malaysian Government to sign and ratify C189 and R201;
(2) The Malaysian Government to include domestic workers in the national minimum wage plan;
(3) The Malaysian Government to acknowledge the right of domestic workers to social security and protection, by recognising their contribution to the national workforce, and making the wages of domestic servants liable to EPF contributions; and
(4) Government departments, civil society organisations, trade unions and the private sector must include and promote a trade union and worker-endorsed contracts for employment.
Endnotes
[1] “The Right to Adequate Housing'. Office of the United Nations High Commissioner for Human Rights.
[2] Tan, Tarrence. “Tenaganita and NGOs draft Bill to protect rights of foreign domestic workers”. The Star. 18 December 2017. www.thestar.com.my/news/nation/2017/12/18/tenaganita-and-ngos-draft-bill-to-protect-rights-of-foreign-domestic-workers/.
[3] Falak Medina, Ayman. “Malaysia Increases Minimum Wage”. ASEAN Briefing. 26 February 2020. www.aseanbriefing.com/news/malaysia-increases-minimum-wage/.
[4] Social security coverage expansion for domestic workers. SOCSO. www.perkeso.gov.my/en/our-services/protection/employees-social-security-act-1969-act-4/domestic-workers.html.
[5] “Ratifications for Malaysia”. ILO. www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11200:0::NO::p11200_country_id:102960.