Based on witness testimonies by Meenambal and Adelina Lisao

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1. Background

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1.1 The abuse and exploitation of domestic workers in Malaysia are well documented. Whenever the severe abuse or death of a migrant domestic worker comes to light, the eruption of public uproar and fears of jeopardising bilateral relations lead to government promises of action. However, once media attention on the matter dies down, so too does the political will to bring change.

 

1.2 A key problem in the continued exploitation of domestic workers lies with the classification of domestic workers as “domestic servants” in the Employment Act 1955, and their exclusion from several key provisions safeguarding their labour rights under the law.[1] Consequently, they are denied regulated hours of work, rest days, holidays, sick leave, maternity protection, as well as termination and retirement benefits that all other workers enjoy. They are also not entitled to a minimum wage.  

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1.3 Domestic work is among the lowest paying jobs in the labour market. Most performing this job are women from poor and marginalised groups. In Malaysia, the majority are also migrant labour. It is not just the high incidence of informality involved or the low formal skills or educational levels of these women that account for their low wages, but also the undervaluation of domestic work. In turn, this stems from a gender stereotype that expects women to bear the brunt of care work. 

 

1.4 The back-breaking, endless and repetitive nature of domestic labour is rarely considered work, whether done by a domestic worker or any other woman in the household. It is thus unsurprising that the Employment Act 1955 regards domestic workers as different to other workers covered under the law. Social attitudes about domestic work and domestic workers not only influence the extent of legal protection, but also compliance levels even when rights and protections exist.

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2. Findings

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2.1 Issues of concern

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​(a) Low wages with no social protection

 

2.1.1 In 2013, Malaysia adopted a minimum wage for all workers but not domestic workers. The National Wages Consultative Council reportedly made this decision, thus denying domestic workers the right to a fair wage. In 2020, the minimum wage was revised to RM1,200 a month, but domestic workers were still denied this right.

 

2.1.2 ​Meenambal, a Malaysian national, used to work as a rubber tapper, and then a cleaner at Subang Airport. In 1989, she became a part-time domestic worker, earning around RM320 a month. As a local domestic worker today, she makes about RM900 a month. Backed by Persatuan Sahabat Wanita, she and other local domestic workers like her have demanded for higher wages and better working conditions. Their attempts have been unsuccessful so far.

 

2.1.3 Set by government-to-government Memorandum of Understanding (MOU), the monthly wages of live-in migrant domestic workers from the Philippines and Indonesia are RM1,682 and RM900, respectively.

 

2.1.4 A 2016 study by the International Labour Organization (ILO) on migrant domestic workers in Thailand and Malaysia found that most were paid above the then-minimum wage. However, when the number of hours of work was taken into account, this no longer held true. Since domestic workers in Malaysia work some 14 hours a day[2] — the longest in the world — their minimum daily wage rate should approximately be RM61.50. This should translate to a monthly salary of roughly RM1,600–RM1,900 depending on how many days are worked (Anderson, 2016:70-71). However, 92 per cent of workers earn RM1,600 or less. They are not paid overtime either (Anderson, 2016:61).

 

2.1.5 Many employers tend to regard the food and accommodation they provide for live-in domestic workers as payment in kind. They assume that this is part of the deal of live-in domestic work. This arrangement is not necessarily advantageous for the worker, but builds a dependence relationship where the latter is expected to sacrifice their freedom in return for the ‘free’ board and lodging.  

 

2.1.6 As mentioned, domestic workers are also denied work benefits and protections including health insurance, pensions, sick and maternity leave. Nevertheless, most workers in the 2016 ILO study reported that their employers would pay for their clinic visits and medicine. 

 

(b) Working hours, rest period, rest days, individual autonomy

 

2.1.7 Setting boundaries between working and rest hours is a particular challenge for live-in domestic workers given the personal context of their employment space. Restrictions in movement make it hard for them to enjoy their days off. The ILO defines ‘time-off’ or rest periods as periods during which a domestic worker is free to dispose of her time as she pleases and is not available to be on-call. It also includes the freedom to leave the home. In practice, this right to individual autonomy remains a struggle as not all domestic workers are able to leave on their days off, and those who are at home — by choice or otherwise — are still expected to work if instructed (Anderson, 2016:61).

 

2.1.8 Legally, a work day is eight hours long. However, the 2016 ILO study revealed Indonesians and Cambodians as having the most excessive extra hours (Anderson, 2016:58). Those giving care (to children, elderly or sick employers) work the longest hours as they are expected to always be on-call. Most are unhappy over the lack of control over their rest period, which employers do not see as an essential part of their worker’s wellbeing. They feel that since their domestic workers are not fully engaged during the eight-hour work day, extra hours are justified. Workers, however, feel that constantly being on stand-by to respond to the needs of their employers does not constitute real rest. 

 

2.1.9 This makes their rest days particularly important, as it gives them time to relax, be with friends. Malaysian labour law requires employees to receive a minimum of one weekly rest day. As noted, this right does not apply to domestic workers as they are not covered under the law. Existing MOUs give migrant domestic workers and employers the choice of whether or not to implement a weekly day of rest. Yet, having rest days is a right, not a ‘choice’. Unsurprisingly too, going out is seen by most employers as a privilege, not a right.[3]

 

2.1.10 A large part of the challenges live-in domestic workers face stems from them working in isolation, hidden from public scrutiny. Nor can their workplace, the private homes of employers, be easily subjected to labour inspection. Had this been possible, the fate of those like Adelina Lisao, the migrant domestic worker who died from ill-treatment by her employer, may have been avoided. 

 

(c) Between a contract and a family member

 

2.1.11 The model of treating domestic workers as “part of the family” is often problematic as it leaves them open to abuse since their status as workers is not recognised. They may, for instance, give up important contractual rights, including a minimum wage as well as rest and off-days, in return for an ill-defined relationship that can result in long working hours and poorly defined tasks (Anderson, 2016:43).

 

2.1.12 While some domestic workers might like being treated as part of the family and prefer this to other work that offers better pay and conditions, this arrangement — where they forfeit their rights as workers — does not necessarily translate into better protections as a family member. The kinship is fictive precisely because should the worker get pregnant, sick or old, or in some ways commit an ‘unacceptable’ act in the eyes of the employer, that relationship can be unilaterally dissolved. 

 

2.1.13 In effect, domestic workers are both part and not part of the family. Most migrant domestic workers in Malaysia do have a contract with their employer. But the contract they have serves as an immigration mechanism rather than a labour mechanism that defines and protects the rights of workers and employers. Most are unaware they have signed a contract, while some are unhappy they did so because it ties them to the employer with no right to leave. Instead, the contract enables an employer to report a ‘runaway’ migrant domestic worker to the Immigration Department and have her deported. 

 

(d) Immigration restrictions

 

2.1.14 Discrimination and conflicts in laws and regulations, along with immigration restrictions, place migrant domestic workers in further peril. Many fear being picked up by the authorities for whatever reason, so they rather choose to remain in the house — even on their rest days — than enjoy time away from domestic work. 

 

2.1.15 Even when the law allows them to file complaints of violations, immigration rules do not make this easy. For example, a migrant domestic worker with unpaid wages can legally stop working and file a case in court. However, doing so means she immediately becomes undocumented because the law also allows her employer to cancel her work permit. She then risks being arrested, detained and deported. At the same time, pursuing her case means paying for a temporary Special Pass, and potentially incurring further extensions and costs (Whelan et al., 2016). According to the 2016 ILO report, the Labour Department recorded more reports coming from employers for ‘runaway’ migrant domestic workers than from workers for ill-treatment and violation of rights. 

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2.2 Rights violated/standards not adhered to/failure of duty bearers (state)

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2.2.1 The explicit exclusion of domestic workers from key rights and protections offered under the Employment Act 1955 — and the silence about them in other laws like the Occupational Safety and Health Act 1994 and the Domestic Violence Act 1994[4] — is itself a fundamental violation of their right to equality and non-discrimination (Federal Constitution articles 8(1) and 8(2)).

 

2.2.2 Besides this, they are denied the right to decent work, and deprived of the right to dignity, freedom of movement, and freedom from violence, where in some instances they endure conditions that are akin to forced labour or slavery.

 

2.2.3 Where national legislation is concerned, some of the laws that employers and/or agencies of domestic workers have been known to contravene include: 

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• The Federal Constitution and the Anti-Trafficking in Persons Act 2007 — engaging in forced labour or practices similar to slavery or servitude;

• The Employment Act 1955 — delaying or withholding payment of wages;

• The Passport Act 1964 — withholding the passport of a migrant domestic worker; and

• The Penal Code — sexual violence, in particular, rape.

 

2.2.4 In terms of international human rights standards, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) provides for “the right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value” (article 11(d)), and obliges a State Party to uphold the “right to protection of health and to safety in working conditions” (article 11(f)). Malaysia also ratified the ILO Forced Labour Convention in 1957, and has recently indicated it would also ratify the ILO Forced Labour Protocol.

 

2.2.5 The ILO has an established set of indicators for forced labour. These represent the most common signs of the possible existence of a case and can be used by law enforcement officials, labour inspectors, trade union officers, non-governmental organisation (NGO)  workers, neighbours and others, to identify persons who are possibly trapped in a forced labour situation, and who may require urgent assistance. They are:

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• abuse of vulnerability (a worker might be of a different religion or does not speak the language of the employer);

• deception (when a worker is recruited under false promises);

• isolation (when a worker’s means of communication with family or friends is confiscated);

• restriction of movement (when a worker is not free to enter or exit the workplace);

• physical and sexual violence;

• retention of identity documents;

• intimidation and threats;

• withholding of wages;

• debt bondage; 

• abusive working and living conditions; and 

• excessive overtime. 

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2.2.6 All the above are commonly heard and documented forms of abuse of domestic workers in Malaysia. Going by these ILO indicators, it is clear that the gross lack of rights and protections for domestic workers here has exposed them to abuses that are tantamount to forced labour. In fact, as noted by Human Rights Watch, “in law and in practice, the rights of women migrant domestic workers are routinely flouted” (2004:73). The failure of the Malaysian government to address these violations is distressing.

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2.3 Victim impact

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2.3.1 The most egregious forms of abuse were inflicted on Adelina Lisao who died one day after she was rescued from her employer’s home. Her injuries were so severe that fluid from her injuries dripped onto the hospital floor. She lived in great fear of her employer that she would not accept food or drink at the police station or the hospital without their permission. Neighbours who could hear the employer screaming at Adelina and saw her sleeping outside with the family dog tried to directly help, but could not as Adelina was too fearful to speak up. The autopsy report showed that Adelina had a swollen face, dog-bite marks and acid burns and she died due to multiple organ failure caused by anaemia.

 

2.3.2 While Adelina’s case might seem extreme, frequent media reports and complaints of abuse show all the 11 indicators of forced labour are present and remain largely unchallenged as part of many migrant domestic workers’ day-to-day experience of employment relations in Malaysia.

 

2.3.3 In the case of Meenambal, she felt she had no choice but to accept the low wages of a local domestic worker. She had no negotiating power as her employer’s attitude was for her to “take it or leave it”. When she insisted that her employer register her for the Employees Provident Fund (EPF) and Social Security Organisation (SOCSO), she was threatened with dismissal. At the same time, she had no sick leave or any health protection to enable her to deal with the severe allergies she had developed to the detergents and breathlessness from the use of Clorox. She accepted her situation as she had no other income or savings.

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3. Recommendations

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3.1 Whether domestic workers are regarded as part of the family or as an employee, there is an urgent need to take immediate steps to stop their abuse and disempowerment, and to establish fair and just working and living conditions and employment relationships. 

 

3.2 For a start, the government is due to amend the Employment Act 1955 to change the term “domestic servants” to “domestic employees” to entitle them the rights and protections enjoyed by other workers. The government also announced that from 1 June 2021, domestic workers will be covered under the Employees’ Social Security Act 1969 and the Employment Insurance System Act 2017. This is important as they provide protection to workers against accidents and occupational hazards arising from their employment. However, it is noted that this new law might not apply to local domestic workers who work in several homes as they are considered self-employed.  

 

3.3 Given the perilous working conditions of domestic workers in Malaysia, more substantive steps to protect their rights need to be urgently taken by the government, embassies of source countries, workers’ groups and NGOs, and other concerned stakeholders.

 

Short term steps (within one year)

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3.3.1 Strengthen and implement the Guidelines and Tips for Employers of Foreign Domestic Helpers produced by the Ministry of Human Resources in 2017, with the support of the ILO. It is critical that employers recognise their relationship with a domestic worker is first and foremost a professional employer-employee relationship. This means a contract of employment is needed to establish clear terms and conditions of work, with the full knowledge and agreement of the worker. Employers shall establish mutually beneficial working conditions that include tasks/job scope; working hours; weekly rest day; salary and other remuneration; a comfortable room with privacy; an option to live-in or to live-out; and home leave, insurance coverage and other legal rights.

 

3.3.2 Given the excessive long working hours of domestic workers in Malaysia, the government must implement an immediate daily rest period and weekly rest days. This should be monitored by the Labour Department working with the embassies of source countries and workers’ rights groups.

 

3.3.3 The embassies of source countries should take more proactive steps to protect and represent the interests of their citizens by negotiating and updating MOUs with Malaysia with non-discriminatory and just terms and conditions of work. Such negotiations should involve workers’ representatives and NGOs in source countries, putting pressure on their governments to set better terms and conditions for their migrant citizens. The MOU signed with the Philippines government and the support provided by the embassy in Kuala Lumpur along with peer group and church support among Filipino domestic workers, provide them with better treatment and protection compared to those from other source countries. This can be emulated by other embassies here.

 

3.3.4 Provide a weekly space and time where domestic workers can gather and report any violation of rights and protections. 

 

3.3.5 Establish a mechanism and procedures for the investigation of complaints, alleged abuses and fraudulent practices concerning the activities of private employment agencies in relation to domestic workers.

 

Medium term steps (within two-three years)

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3.3.6 Establish a tripartite social dialogue. The emphasis on a legal approach and regulations to protect the rights of workers needs to be accompanied with a process of social dialogue that has the participation of both employers’ and workers’ groups as well as domestic workers, to extend rights and protections and facilitate collective bargaining. NGOs can provide training, advice and support for domestic workers to organise and build their own voice and representation in social dialogues where they can reach agreements on mutual interests with employers. It is also important to raise the awareness of full-time domestic workers about their option to live-in the employer’s home or away from the household where they work. 

 

3.3.7 Amend appropriate laws and regulations to enable migrant domestic workers with court cases to stay on in Malaysia without being declared undocumented and having to apply for special permits and pay fees. They must also be protected from harassment or threats from their former employers or the authorities. 

 

3.3.8 Comply with international standards. Given the continuing and growing need for domestic workers in this country, and the stories of abuse, exploitation and forced labour conditions, the government must:

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• Immediately ratify and uphold the ILO Domestic Workers Convention No. 189 (2011), which recognises domestic workers as workers and sets global standards for their rights and protections; and​

• Not only ratify the ILO Forced Labour Protocol (2014), which the government has indicated it would do soon, but also follow-on with the implementation of effective measures to prevent forced labour, protect victims and ensure access to justice.

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Long Term Steps (within five years)

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3.3.9 Enact a Domestic Workers Employment Act. Since 2017, advocates for domestic workers have been calling for a specific law to protect the rights of this vulnerable group of workers. A proposed draft bill drawn up by Tenaganita and other NGOs already exists. This sets up a list of rights and protections, including a minimum wage, hours of work, rest period, rest days, annual leave, sick leave, provision of food, accommodation, and decent working and living conditions, terms and conditions on termination of employment, medical insurance, and other treatment and medication to be borne by the employer, the type of work performed by and the responsibilities of the domestic worker, freedom of movement and freedom of association. 

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3.3.10 The government should engage with NGOs and domestic workers groups to negotiate for such a legislation, or amend the Employment Act 1955 to protect the rights and welfare of domestic workers. 

 

3.3.11 Enacting a new piece of legislation can take time. In the interim, the government should immediately strengthen and implement the Guidelines and Tips for Employers of Foreign Domestic Helpers produced by the Ministry of Human Resources in 2017 (see 3.3.1) and meet with advocates for the rights of domestic workers to work out the practicalities of application and monitoring. 
 

Endnotes
[1] The law’s First Schedule singles out the domestic worker sector and excludes them from labour rights listed in six "Sections" and three "Parts" under the Employment Act 1955.
[2] This is in contrast to the regular working week that is limited to 48 hours (i.e., a maximum of eight working hours per day and six working days per week) under the Employment Act 1955.
[3] Only four of 50 Malaysian employers surveyed in the 2016 ILO study felt that domestic workers should have the right to leave the house on their day off.
[4] This prohibits domestic violence among immediate family members in a household; it does not extend to non-family members like domestic workers.
 

References

Anderson, Bridget (2016). Worker, Helper, Auntie, Maid? Working conditions and attitudes experienced by migrant domestic workers in Thailand and Malaysia. Bangkok: International Labour Organization, Regional Office for Asia and the Pacific. https://www.ilo.org/asia/publications/WCMS_537808/lang--en/index.html.

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Human Rights Watch (2004). Help Wanted: Abuses against female migrant domestic workers in Indonesia and Malaysia. July. Volume 16. Number 9(c).

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International Labour Office (ILO). 2013. Domestic Workers Across the World: Global and regional statistics and the extent of legal protection. Geneva: ILO.

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Whelan, Jennifer, Rohaida Nordin, Ma Kalthum Ishak, Nursyuhada Matwi, Siti Nurimani Zahari, Nicole Mekler and Amritha Thiyagarajan (2016). ‘Abused and Alone: Legal redress for migrant domestic workers in Malaysia’. Indonesia Law Review. Volume 6. Number 1. April. pp.1-37.