MALAYSIA – Stop “Foreign Workers First Out” policy!
21 April 2009 11:44 pm

To
cope with the present economic slowdown, the Malaysian government is
urging companies to fire migrant workers first. 47 organisations,
including FORUM-ASIA and its member Suara Rakyat Malaysia (SUARAM),
called on the Malaysian government to stop this "Foreign Workers First
Out" policy, by issuing a statement on 14 March 2009.
Stop "Foreign Workers To
cope with the present economic slowdown, the Malaysian government is
urging companies to fire migrant workers first. 47 organisations,
including FORUM-ASIA and its member Suara Rakyat Malaysia (SUARAM),
called on the Malaysian government to stop this "Foreign Workers First
Out" policy, by issuing a statement on 14 March 2009.
 
We,
the undersigned organisations, groups and networks, concerned about
migrant and worker rights, are appalled at Malaysia's unjust,
discriminatory and unconstitutional anti-worker policy, known as
"Foreign Workers First Out" (FWFO) policy when it comes to retrenchment.

A
recent Malaysian newspaper report read, "…Employers must retrench
their foreign workers ahead of their Malaysian staff as they seek to
weather the current economic slowdown, said Deputy Human Resource
Minister Datuk Noraini Ahmad. She reiterated that employers should
adopt the Government's foreign worker first out (FWFO)
principle…"(Star, 28/2/2009 – Retrench foreign workers first,
employers told)

Whilst appreciating Malaysia's concern for its
own citizens' employment, this should never excuse employers from
fulfilling their contractual obligations to workers.

It is very
wrong for the Malaysian government to compel/encourage employers in
Malaysia to retrench their foreign workers first, before the expiration
of the agreed duration of employment. Employers should have been fully
aware of risks of economic crisis and other business risks, and as such
there is no justification whatsoever of their breaching their
employment agreements now.

It must also be appreciated that
foreign workers do expend lots of monies, incur debts and make great
sacrifices when they do decide to come over to Malaysia to work. These
workers rely heavily on the representations of the employers and/or
their agents especially with regards to wages and the length of period
that they will be employed, before deciding to enter into employment
agreements and coming over to Malaysia to work.  

Employment
agreements with migrant workers are usually for a period of 3 to 5
years, and it would be a great injustice if Malaysian employers are now
encouraged and permitted to prematurely terminate this employment
agreement, and send these foreign workers back to their home country.

Early
termination of employment agreements for many a migrant worker means
ending up in a far worse condition than when they first entered into
employment agreements to come and work in Malaysia. This is a great
injustice, and it is inhumane.

If there is going to be early
termination of employment agreements which are for a minimum fixed
period of employment, then the worker must be paid adequate
compensation, at the very least basic wages for the remaining duration
of their employment agreement. Usual termination and lay-off benefits
paid to local workers will definitely not be just for a foreign migrant
worker who is sent back to her country.

We also wish to state
that this "Foreign Workers First Out" (FWFO) policy and practice is
unconstitutional, as it goes against Article 8 of the Malaysian Federal
Constitution, whereby Article 8(1) clearly provides that "All persons
are equal before the law and entitled to the equal protection of the
law…", and there is nothing in the Constitution that permits
discrimination against non-citizens, in favour of citizens, with regard
to employment. Therefore, section 60N of the Employment Act 1955, which
some use as the basis of FWFO practice is ultra vires the Federal
Constitution, and as such is invalid.

We believe that it is
better that migrant workers who are now in Malaysia who are or will be
prematurely terminated be first used to fill up existing manpower
needs, rather that bringing in new migrants.

We call on the
Malaysian government to immediately stop this unjust, discriminatory
and unconstitutional policy and practice, known as "Foreign Workers
First Out" (FWFO) principle.

We call on Malaysia to demand that
all employers fulfil their contractual agreements with regard to all
workers, including foreign workers. We hope that mechanisms are put in
place to ensure that employers pay workers adequate and just
compensation for any early termination of employment agreement.
 
Charles Hector
Pranom Somwong

for and on behalf of the 47 organisations.