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Over the past few months, there have been a rise in cases involving mistreatment of foreign workers in Malaysia.
During the recent Covid-19 outbreak, many foreign workers were prematurely detained by the authorities sparking uproars of xenophobia.
In the context of employment, most of these foreign workers are unaware of their rights by law which makes them easy targets for exploitation and mistreatment.
Employment Act 1955
The Employment Act 1955 (“EA”) is the primary law that governs the subject of employment in Malaysia. It provides protection for any employee specified under the First Schedule which includes persons with wages not exceeding RM2,000 a month, manual labor, person who is engaged in the operation or maintenance of any mechanically propelled vehicle, supervisor etc.
Section 2 of EA defines foreign employees as an employee who is not a citizen. In Chong Wah Plastics Sdn Bhd v Idris Ali # Ors [2001] 1 ILR 598, the Industrial Court held as follows:
“…Foreign employees in accordance with the definition of “employee” under the Employment Act 1955 are also employees. No difference is made between foreign and local employees… …Therefore in the court’s opinion the complainants notwithstanding that they are foreign employees are covered by both the Employment Act 1955.”
Therefore, all the laws applicable to employees in Malaysia are equally applicable to the foreign workers as well. This includes all the implied terms of an employment contract such as payment of wages, rest day, public holiday, and so on.
Here are some basic rights you are entitled to as a foreign employee:
Payment of Wages (Section 19, EA)
An Employer must pay your monthly salary no later than the seventh day after the last day of any wage period.
Working Hours (Section 60A, EA)
A worker cannot work for more than 5 hours consecutively without a minimum rest time for 30 minutes.
A worker cannot work for more than 8 hours per day and more than 48 hours per week.
Section 60L of the EA provides inter alia that the director general of labour
“may inquire into any complaint from a foreign employee that he is being discriminated against in relation to a local employee by his employers in respect of the terms and conditions of his employment; and the director general may issue to the employer such directives as may be necessary or expedient to resolve the matter“.
The highest authority which is invested with the power to investigate and to enforce labor law in Malaysia is the Director-General of Labour.
It is important for the foreign workers to know their rights as an employee as to avoid them being exploited by the employer. They may formally make a report to the labor office via various method if their statutory rights are being abused.
This process must be supported with documents to support the claims. Employers who are guilty of not complying with the labor law in Malaysia are usually fine and, in some instances, can even face jail time.
The Social Security Organization (PERKESO)
PERKESO is established to provide aid in the form of medical and financial for unfortunate employees involved in accidents and/or illnesses. The organization also provides aid to the family or dependent of a deceased employee through a pension scheme. PERKESO also provides social protection for foreign workers.
Beginning 01.01 2020, all employers are required to register their documented foreign workers with SOCSO. Upon registration, the employees being the foreign workers will then be able to enjoy the benefits provided under PERKESO.
Some of the benefits under the employment injury scheme for foreign workers includes medical benefit, temporary disablement benefit, dependents’ benefit, permanent disablement benefit, constant attendance allowance, funeral benefit (including repatriation cost) and rehabilitation facilities.
The Employees’ Provident Fund Act 1991
The Employees’ Provident Fund Act 1991(EPF) is another scheme which requires employers to contribute a certain amount of money towards the EPF of their employees. This is based on the rate prescribed in the EPF Act.
All foreign workers earning less than RM2,500 per month are required to contribute to EPF with the exception of certain categories such as foreign domestic maids, self-employed foreigners and out-workers who do cleaning and alteration repair works. These individuals can nonetheless opt in to this system.
The monthly statutory rate for contribution of foreign employees is 11% of their wage whilst for an Employer is only required to give RM5 per person.
Conclusion
There are a number of protections provided by the government for the foreign workers in Malaysia. Foreign workers should therefore know their rights and benefits provided under the law.
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