Fleeing abuse, becoming undocumented
However, of the 30 Cambodian domestic workers she knows in Malaysia, she says at least 10 are undocumented because they had to run away from abusive employers.
“If your employer doesn’t pay you your salary, you just have to leave the house and find a new employer because you can’t file a police report,” she said. “When you’re undocumented, if they catch you then you just end up in jail.
“Sometimes the employer beats you, doesn’t pay you, you can’t go to the agency either because the agency might also be bad, so they run away and just find a new employer. They cannot do anything else, they’re scared to go to the authorities. It happens a lot.”
According to Por Heong Hong, from the economic and administration department of Malaysia’s Universiti Malaya, almost half the Cambodian migrant workers spoken to for her latest research project in Malaysia were undocumented.
“There are several reasons why people become undocumented. Some workers fled their abusive employers, so they became undocumented; some workers became undocumented because they were unable to renew their legal documents as their passports and/or work permits had been retained by their employers/agents who refused to return them to the workers; some came to Malaysia as tourists and worked without a permit,” Ms. Por said in a recent email interview.
She added that their subsequent illegal status then makes them even more vulnerable to exploitation as they fear going to the police or even to hospitals when in need of help.
“Whether the last situation is a decision out of one’s own choice is difficult to say, as some had been led by brokers into believing that taking the undocumented channel is a more convenient way,” she added.
In a recent presentation in Phnom Penh of her preliminary findings for her research “From Cambodia to Malaysia: the impact of labor migration on women and their children,” Ms. Por said that 25 of the 54 respondents she spoke to were undocumented Cambodian migrant workers living in Malaysia.
Anne Jacobs, the program manager for Malaysian NGO North South Initiative, echoed Ms. Por’s findings, saying that while there are some Cambodians who enter Malaysia illegally, there are many more who arrived legally but ended up undocumented simply for attempting to flee abusive households.
“A lot of them end up becoming undocumented. I would say half of them become undocumented workers. They run. They come with proper documentation and then they run away,” she said.
“One situation is their documents are being held by employers, but the moment they run, their permit is no longer valid because their permit states specifically where you should be working. So the moment you run, your permit is invalid and you’re illegal.”
An official from Cambodian NGO Chab Dai, who spoke to Khmer Times on condition of anonymity, said employers keeping migrant workers’ passports was illegal as it strips the workers of their freedom of movement.
“A lot of people are not aware of their rights and the consequences. If they’re told ‘you have to give me your passport and documents only then you’ll get your job,’ a lot of them will do it,” he said in a recent interview.
“No one ever told them that their passport is the most important thing. We know it, but they don’t realize that.
“In this context a lot of domestic workers do not have the liberty to walk away. As soon as you cannot walk away, you’re being held captive.”
The problem now lies in the flimsy legislation protecting such victims. Minister in the prime minister’s department Paul Low said in a previous interview with Khmer Times that while the Malaysian government was working on new policies to protect all migrant workers in the form of an Employer Mandatory Commitment (EMC), domestic workers did not fall into the same category.
“No, it’s not for domestic workers because it doesn’t involve companies, it involves individual employers, so it has to be a different legislation,” Mr. Low said.
The EMC, while not yet fully implemented, would ensure employers provide migrant workers with health insurance, a livable minimum wage, guaranteed days off and overtime payments while forcing employers to foot the bill for other costs including logistical fees and the yearly levy.
None of these benefits are now extended to domestic workers.
In 2011, Cambodia banned sending domestic workers to Malaysia after reports of severe abuse, and even several cases resulting in death, emerged from the country. However, the ban was lifted four years later after both nations signed a memorandum of understanding (MoU).
While the 2015 MoU between Cambodia and Malaysia stipulates that domestic workers be extended the same protection, enforcement is lax and is not helped by the fact that the MoU is not legally binding.
This means that while Malaysian employers are encouraged to abide by those terms, they are not bound by them.
Cambodia’s Labor Ministry spokesperson Heng Sour also had little recourse for undocumented domestic workers in Malaysia apart from encouraging them to present themselves to the authorities.
“If they are there illegally we still protect them. If there is abuse, they can report to us but if they don’t report then it is difficult to protect them,” he told Khmer Times recently.
Malaysia Deputy Home Minister Nur Jazlan Mohamed said his government was working on creating an EMC for employers of domestic workers that ensured they remained accountable.
“The problem of abuse is that it’s done by the employers and the agents. All the laws are already there, we have our Immigration Law and our Employment Act,” he said, but stopped short of providing details, insisting Malaysia’s Human Resource Ministry was tasked with drawing up the EMC.
“[Employers] already know this, they know their responsibilities. So the EMC puts the responsibility on the employer to abide by the laws.”
He added that the EMC was also how the Malaysian government planned to tackle poor enforcement of the law, something NGOs have long highlighted.
“They are millions of legal and illegal domestic workers in Malaysia. The amount of enforcement officers we would need, we can’t employ that many,” he admitted.
“That’s why we’re moving to the EMC and putting the responsibility on the employer. They cannot keep [the domestic workers’] passports and all that, no more.”
However, NGOs still remain wary of enforcement efforts in both the sending and receiving countries, with or without new legislation.
“They need to make sure in the MoU it states how many hours these women can work, they must have proper accommodation and what their job is, that must be clearly specified. If not the abuse will continue,” Ms. Jacobs said.