KUALA LUMPUR: Over a dozen men can be seen either sitting or standing amidst thick green foliage in a video that went viral on social media in 2018. Their watchful eyes skim across the area, occasionally darting towards the man in the middle.
The atmosphere was sombre.
The unidentified man in the middle, young and lean with dark skin and curly black hair, spoke to the camera in Tamil.
"We don't have food, we have not received our salaries and we have no place to sleep," he said, according to a translator. "There is no escape. Everywhere we go, there are eyes on us."
He added their employer had threatened them with beatings and death.
He was among 48 Indian nationals, all men, who were allegedly forced to work without salary at a construction site in Bentong, Pahang, where a high-voltage electrical tower was being installed.
There was also another video of a man urging viewers to spread the workers' video to as many people as possible to enable them to return home to Tamil Nadu, South India. He finished with a dark caution that the video might be the workers' last attempt to communicate with the public.
After making their video appeal, the workers managed to escape from their work site during the Deepavali holidays in 2018 and were eventually rescued and then detained by the authorities to have their documents processed so that they could be repatriated to India.
Five years later, their ordeal is not over.
Receiving their last two months' wages – September and October 2018 – proved elusive as their employer refused to pay them. Their monthly salary ranged from RM1,346.46 to RM3,334.34, and they were also entitled to a daily food allowance of RM150.
But unlike most incidents involving foreign workers and wage theft – the most common form of forced labour and modern slavery – the story of the Indian workers nears the end with a hopeful note and affirmation of workers' rights, which will have international implications.
Labour rights experts say the difference is that these workers were able to access the legal system in Malaysia, adding more work needs to be done to provide legal aid.
How it started
According to the International Organisation for Migration, citing Department of Statistics Malaysia (DoSM) figures, there were around 2.2 million documented migrant workers in Malaysia last year. Unofficial estimates of undocumented or irregular migrants stood at between 1.2 million and 3.5 million.
Foreign workers are more vulnerable to exploitation especially forced labour. Laws in Malaysia have been updated to protect all workers but the key to success often lies through the courts versus enforcement.
The plight of the 48 workers, whose leader was named Poosai Pandian Gunasekaran, went viral and caught the attention of local politician and Sabai assemblyman at that time, D. Kamache.
According to news reports and court documents, the workers had run away from their work site on November 3, 2018, taking advantage of the lack of guards during the Deepavali holidays.
Good samaritans helped bring the workers to a Hindu temple in Batu Caves, Selangor, for temporary shelter, where they met with Kamache.
Bernama contacted the former assemblywoman and Poosai numerous times for a comment but could not get any response.
Datuk N. Sivakumar, a trustee of the Sri Subramaniar Swamy Temple in Batu Caves, told Bernama they opened their doors to the workers upon request from the Indian High Commission, adding 2018 was a banner year for sheltering migrants.
"They were promised something and then they came in and did something (different). The promises were not fulfilled also. But at least salaries should be given to them," he said.
The Indian High Commission declined to comment on this story.
M. Kulasegaran, who was Human Resources Minister in 2018, told Bernama he directed officers to investigate the matter as soon as he found out about the workers through Kamache and social media.
"Because I saw the issue of forced labour was there," he said.
According to the Global Slavery Index 2022, about 202,000 people in Malaysia were living in modern slavery conditions. Forced labour sometimes includes victims of human trafficking and is defined as "all work or service which is exacted from any person under the threat of a penalty and for which the person has not offered himself or herself voluntarily".
Indicators of forced labour include deception, such as promises of higher pay and a different job, debt bondage where workers go into debt to get their job, and wage theft which is when employers withhold salaries for work done.
In 2021, the Malaysian Parliament passed the Anti-Trafficking in Persons and Anti-Smuggling of Migrants (Amendment) Act. Previously, the law required physical restraint as a defining characteristic of coercion. Under the amended Act, the definition has been broadened.
The following year, Malaysia ratified the Protocol of 2014 to the Forced Labour Convention, 1930, becoming the 58th country in the world and second Asean member state to ratify it.
How it went
As for the case filed on behalf of the 48 Indian nationals who were forced to work without wages, the Labour Court started hearing arguments on December 19, 2018. But the workers threw a spoke in the wheel during the proceedings.
All of them, jobless for a month and counting, testified they had not been paid for the months of September and October 2018. But they also said they wanted to withdraw their claim and expressed their desire to return home to India as soon as possible.
The lawyers for the employer, AJN Energy Sdn Bhd, were quick to seize on that fact, arguing that the court should refuse the workers' petition because they had withdrawn their claim.
They also said the workers had run away, committing a breach of contract and therefore were not entitled to wages.
On December 19, 2018, the Labour Court ruled against AJN Energy Sdn Bhd, ordering the company to pay the workers' wages as listed in their contracts, which amounted to RM95.617.01. The Deputy Director-General at the Bentong Labour Department also instituted an eight percent interest rate per year as penalty should the employer fail to pay.
The employer appealed to the High Court on December 6, 2019, which later set aside the Labour Court's decision. The High Court said because the workers withdrew their petition, there was no longer any basis for their claim. In other words, the Labour Court should not have ruled for the workers.
The workers had left Malaysia by then. The case was left in jeopardy.
"In the normal course of events, (the employer) would have got away. If there were no lawyers acting for these workers, who would want to pursue a claim when your individual claim is RM2,000 or RM3,000 and you don't have the resources or wherewithal to proceed?" asked Datuk Seri M. Ramachelvam, the lawyer who represented the workers in both appeals.
The lawyers for Poosai and his co-workers then appealed to the Court of Appeal, which ended up overturning the High Court judgment and reinstating the original ruling in Januarythis year.
It found that the Presiding Officer of the Labour Court had the right to continue investigating despite the workers withdrawing their claim. It also ruled the employer has a duty to pay wages under the Employment Act despite the withdrawal of claims.
"(The Court of Appeal) found the withdrawal was equivocal (ambiguous), not unequivocal," said Ramachelvam.
"It's nonsensical if I lodged a complaint for non-payment of wages and then I say I don't want the wages. It would necessitate further investigation by the Labour Department why that is said."
If the whole process seems long, complicated and expensive, that is because it is.
Costs
Labour rights activists and experts say most migrant workers are vulnerable to exploitation and wage theft because accessing the legal system is so difficult. Pursuing their rights tends to be a time-consuming and expensive affair.
The lucky few who have managed to get their rights recognised usually have had non-governmental organisations such as Our Journey and Tenaganita providing their assistance pro bono.
Our Journey founder and director Sumitha Shaanthinni Kishna told Bernama that ensuring accessible legal aid was important to ensure workers' rights.
"Going through the courts, there aren't many who can (access legal aid), because where got money? And then the workers also can't fight the system sometimes. They have to wait. It's a long process of having to wait for the courts and all that," she said.
It is practically impossible, not to mention expensive, for foreign workers to remain in Malaysia in order to resolve any dispute they have with an employer or to see the legal process play out.
For one thing, they can stay in Malaysia if they obtain a special pass from the Immigration Department, which costs RM100 a month and is renewable for only three months. Under this pass, they are not allowed to work and the pressure to work and earn money usually causes migrant workers to cut their losses.
And that is if the labourers even know their rights and are willing to seek redress for their grievances officially. And if they did, they would rather settle their dispute privately with the employers than go through the court system as the 2019 Bar Council Migrant Workers Access to Justice report indicated.
Labour rights advocates and groups have called for the government to allow workers who are in dispute with their employers in court to work for up to three years or until the matter is resolved. Others have also suggested pre-departure or post-arrival orientation for every worker to inform them of their rights and how to get help. They also suggest making legal aid more accessible to all workers.
While Poosai and his colleagues are still waiting for their wages, their lawyers told Bernama there is little room for the company to maneuver out of paying.
"They have not paid. We have returned to the Labour Court to register the order with the Magistrate's Court. Once the order is registered, then we can take enforcement action under the law," said Ramachelvam, adding they will not give up until the workers get their wages.
Bernama contacted AJN Energy and the company declined to give an immediate comment.
Kulasegaran, who is also the member of Parliament for Ipoh Barat, said it is important for Malaysia to take a firm stand against forced labour because it will have international repercussions if it did not.
In 2021, a Kansas City-bound shipment of 4.68 million latex gloves, valued at RM2.85 million and made by a subsidiary of Top Glove Corporation Bhd, was seized by the US Customs and Border Protection. In a statement, the enforcement agency said it was acting on a tip that the gloves had been made by forced labour.
"Say we're making a button with forced labour, so the whole … shirt is tainted. We lose a lot," Kulasegaran said. – Bernama