A legal analysis of protection of foreign workers from oppression by private agencies

DESPITE strong economic and humanitarian arguments in favour of providing migrant workers with better rights, many remain in dire straits: underpaid, at risk of abuse, and enduring poor living conditions.

Cases of migrant worker abuse made headlines, causing the US State Department to downgrade Malaysia to Tier 3-the worst ranking-in its 2020 Trafficking in Persons Report, and to impose import bans on glovemakers Top Glove and Supermax, as well as two large palm oil conglomerates, over allegations of labour abuse.

While the demand for foreign workers is increasing drastically, the issue of law has existed because they are facing injustice treatment and oppression on them.

Speaking to New Straits Times in 2018, the Malaysian Trades Union Congress (MTUC) said the government should address the influx of foreign workers’ issue in its entirety.

Its president, Datuk Abdul Halim Mansor, said the Employment Act does not specify that it only applies to locals, and that it refers to anyone who is hired in this country, which means even foreigners deserve to get protection like locals do, as provided for under the Employment Act.

For modern jurisprudence, American philosopher Ronald Dworkin in his book “A Matter of Principle” draws out the most basic right which is the right to treatment as equal – the right to be treated with the same degree of concern and respect as anyone else.

Further, Dworkin asserts that the right to treatment as an equal must be taken to be fundamental under the liberal conception of equality.

From this point of view, The Employment Act is discriminatory to some extent, as we can see in Section 60M of Employment Act 1955, which says “No employer shall terminate the contract of service of a local employee for the purpose of employing a foreign employee”.

As far as I am concerned, this is implicit discrimination against foreign workers and although it aims to protect local workers, the law should balance the rights and interests of both sides instead of emphasising only one side. Hence, there is no way of equality for foreign workers.

Besides, the existence of employment law is to provide justice and equality to workers to avoid oppression.

From the jurisprudence perspective, British lawyer and jurist Tony Honoré puts forward the argument that justice is a matter of equal claims to equal shares in all advantages which are commonly desired and which are conclusive to human welfare.

Because people are mainly equal in nature, this principle seems the only one that is just, for it leads to social stability.

This is because such principles contain the requirement of affirmative discriminatory treatment in favour of the less privileged to bring people closer to equality with others.

So, it is natural that all workers in Malaysia, no matter whether local or foreign workers, must have equal opportunities and rights in the working place. – Jan 10, 2023


Soo Bow Pei is a third-year law student at Universiti Kebangsaan Malaysia (UKM) while Dr Nabeel Mahdi Althabhawi is a senior lecturer attached to the public varsity.

The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.


Main pic credit: Shutterstock

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