Malaysia has in the past been accused of being a poster child for forced labour.
With close to two million legal foreign workers and perhaps twice that in the country illegally, the allegation is bound to be made.
Writing in Lexology.com, a legal website, Siva Kumar Kanagasabai and Trishelea Ann Sandosam, partners in law firm Skrine, put the debate on the existence of forced labour in Malaysia to rest thus: "There is no doubt that several of the indicators of forced or compulsory labour exist in some employment relationships in Malaysia, particularly in relation to migrant and domestic workers."
Some of these troubled "employment relationships" were the subject of a Reuters' analysis of Dec 21. According to the news agency's findings, in the past two years, seven Malaysian firms, including the world's biggest glove maker and palm oil producer, have faced American import bans over allegations of forced labour.
In November, home-appliance maker Dyson cut ties with its biggest supplier, a Malaysian firm, over labour conditions. The Malaysian supplier, ATA IMS Bhd, told Reuters on Dec 7 that it had found instances of staff working excessive overtime and taken action against a manager who coached employees for a labour audit.
Now that Malaysia has ratified the International Labour Organisation (ILO) Protocol of 2014 to the Forced Labour Convention 1930 — the protocol will take effect from March 21 next year — the country has to work hard to keep allegations of forced labour at bay. The responsibility isn't the government's alone to shoulder. Employers, too, need to ensure that they do not fall foul of ILO's requirements. The impact can be bad for the company and the country.
For the company, there will be export bans, fines and loss of contracts. For Malaysia, there will be dwindling investment dollars. Not good news at all for a country that prides itself on being the third-largest economy in Southeast Asia. Start with the government. Here, legislation is a key lever that the government can use.
Consider the Employment Act 1955, the bedrock of foreign labour law. Sara Lau, a partner in Skrine, while acknowledging that some positive amendments have recently been made to the act to counter forced labour, says these are currently insufficient to bring local laws on a par with the ILO standards.
"There are no laws to prohibit and prevent debt bondage, which occurs, amongst others, as a result of hefty and unregulated agency fees and miscellaneous charges associated with the recruitment process." Safeguards against excessive overtime aren't there either.
Malaysian companies, too, need to get serious about forced labour. Owners, directors, legal counsels and human resource managers need to get familiar with what is and is not forced labour. Not as what the companies see it, but what ILO thinks it is.
The ILO treats forced labour as a crime. So must the companies. Service which is exacted from a person under the menace of penalty is a no, no. So is a service not offered voluntarily. There are 11 ways to tell if a company is engaged in forced labour: abuse of vulnerability, deception, restriction of movement, isolation, physical and sexual violence, intimidation and threats, retention of identity documents, withholding of wages, debt bondage, abusive working and living conditions, and excessive overtime.
The overriding principle is this: a worker isn't a slave. And he must never be treated like one.