Court Case in Malaysia Highlights Migrant Rights Abuses

Irrawaddy news, 2 June 2011

KUALA LUMPUR — on Feb. 7, 2011, a group of men, including uniformed police officers, entered a dormitory for workers at a factory in an industrial estate on the sprawling outskirts of Kuala Lumpur. They were there to deal with a “situation”: 31 Burmese migrant workers who were unhappy about their wages—which they said were far less than they were told they would receive before they arrived in Malaysia six months earlier—and various deductions imposed on them by their employer, including a penalty of nearly two days’ pay for each day of work they missed.

In this photo, taken on July 23, 2009, Burmese detainees hold up their documents through a fence at the Lenggeng Immigration Center on the outskirts of Kuala Lumpur, Malaysia. (Photo: AP)

The men who suddenly confronted the workers warned them that they would be sent back to Burma if they continued to press their demands. They also confiscated the workers’ cooking utensils and cut off their power. And then, to give weight to their threat to deport the workers, they hauled two of them away and drove them to Kuala Lumpur International Airport. The two were actually checked in on a flight to Rangoon, but somehow managed to escape before they could be put on the plane.

In itself, this episode is far from remarkable. In a country with an estimated 1.9 million registered migrant workers, and perhaps double that number of undocumented foreign laborers, employers routinely use the threat of repatriation to keep workers in line. As one factory owner casually remarked to this reporter: “Sure, if they cause any trouble, we send them back.” (He went on to say that Burmese workers were especially “aggressive” and reckless with their “investment”—the often large sums of money they are required to pay for the privilege of working overseas.)

What makes this incident significant, however, is the fact that it has become the subject of a multimillion-dollar lawsuit that could, by going to the courts, expose widespread abuses associated with a controversial labor practice that has become increasingly common in Malaysia in recent years.

The practice is the use of “outsourcing companies” to not merely recruit workers, but to actually act as their employers, effectively removing the companies that hire them from any direct contractual obligations to the workers. Unlike traditional employment agencies, which under Malaysian law are entitled to a fixed fee based on the agreed-to wages—paid for by the employee, employer, or both—outsourcing companies continue to collect a proportion of the money paid as labor costs for the duration of the worker’s period of employment, while the actual owner of the workplace assumes no responsibility for ensuring that workers’ legal rights are respected.

In the current court case, however, it is not the workers’ rights that are at issue. The plaintiff is not the workers—who have also taken their case to the Malaysian Human Rights Commission (SUHAKAM) and the Labor Department and appealed to the Malaysian Trade Union Congress for assistance—but Asahi Kosei (M) Sdn. Bhd., a subsidiary of Asahi Kosei Japan Co., Ltd., a supplier of electronic and automotive parts to a number of major international companies, including Hitachi, Sony, Toshiba, Toyota, General Motors, Ford and Chrysler. And the defendant is not the outsourcing company that allegedly used intimidation against the Burmese workers, but Malaysian lawyer Charles Hector Fernandez, a respected human rights advocate who has been accused of maliciously defaming Asahi Kosei in his account of what happened on Feb. 7 and in the subsequent days.

According to Asahi Kosei’s lawyers, Hector erred not in his description of actual events on his blog,—which the company has neither disputed nor confirmed—but in his characterization of Asahi Kosei as the employer of the workers who were harassed and later coerced into signing an agreement that made minor concessions but still fell well short of their original contracts. The company has disavowed any involvement in these matters, and is suing Hector for 10 million ringgit ($3.3 million) for libel.

The case has attracted considerable attention, not only because of its broader implications for Malaysia’s labor market, which is heavily dependent on foreign workers, but also because of the way that Asahi Kosei has pursued its legal action against a human rights defender who has highlighted the plight of workers at the company’s factory. Although Hector contacted the company for comment and clarification on the events of Feb. 7 before writing about them on his blog the following day, he heard nothing from Asahi Kosei until Feb.

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