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Undocumented migrant worker in Malaysia wins right to be heard

UCA News, Malaysia, 30 July 2019 - Undocumented migrant workers in Malaysia have the right to seek relief from exploitation and file suit for unpaid wages despite their legal status, a Malaysian court has ruled.

The Shah Alam High Court of Selangor State, that includes the capital Kuala Lumpur, made the ruling in a case involving a Malaysian national who has allegedly tried to deny a migrant worker wages amounting to around 30,000 Malaysian Ringgit (US$7,300) because she was working in the country illegally.

The High Courts of Malaysia are third in a hierarchy after the Federal Court and the Court of Appeal.

Nona from Indonesia, the plaintiff, (name changed to afford her privacy) filed a claim at the Labor Department office in October 2017 against her employer for a proportion of unpaid wages for a period of four and a half years.

Three months later, in January 2018, an officer from the department informed her that the employer had denied employing her under the terms claimed and they could do nothing more as she did not have a valid work permit.

Nona appealed to the Labor Court against the decision of the department.

However, the Labor Court dismissed her claim for back wages because Nona was an undocumented migrant worker.

The court stated that any claims by irregular workers against others automatically failed.

Nona appealed again, this time to the High Court, with assistance of Tenaganita, an NGO focused on human rights.

Her lawyers argued that summarily dismissing her claims for unpaid wages on the grounds that she was undocumented, and denying her an opportunity to state the grounds of her appeal, was unjust.

In her ruling, High Court Judge Azizah Nawawi allowed the appeal by Nona stating that the Labor Court had acted prematurely in dismissing her claims on the grounds that it does not have jurisdiction to hear a case against an undocumented worker.

"It is premature for the Labor Court to consider the valid (work) permit issue without first ascertaining whether there was any employment relationship between the appellant and respondent," she said. She ordered that the case be remitted back to the Labor Court for a full hearing of the merits of Nona's claim for unpaid wages.

Tenaganita's Glorene Das said the court decision is heartening as it finally provided a legal avenue for redress against claimed exploitation of undocumented migrant workers.

"It is a well-known fact that the vast majority of undocumented migrant workers in Malaysia fall into the category of irregular migrants through no fault of theirs," Das said.

"In fact they are usually victims of scams by labor agents, often aided and abetted by corrupt officials.

"Hence, denying the workers their just wages is tantamount to rubbing salt into their wound."

The court decision means that Nona is effectively back in the same position that she was in when she first filed the case with government labor officials in October 2017.

Nevertheless, Justice Azizah’s decision is seen as a step forward in fighting against cynical attempts to use the Immigration Act to override basic human rights.

At an earlier hearing, Nona was quoted as saying: "I cleaned the employer's house for almost five years, took care of his children and his dog and also worked long hours in his shop. All I want is my wages that I have worked for so that I can go home to my family."

While encouraged by the High Court decision, Nona finds what she regards as the heartless of her erstwhile employer hard to fathom.

Now she has to prove in court that she did in fact work for him for almost five years at an agreed rate of pay that was not honoured, a task she thinks would have been much easier two years ago when she first sought help from Malaysian authorities.

Nona said her monthly salary that was paid was 550 Ringgit (US$133), an amount lower than the 700 Ringgit (US$169) she was allegedly promised by an agent before her departure from Indonesia.

She added that up until August 2018, she had only been paid 9,000 Ringgit (US$2,183) in total, which was banked into an account belonging to a family member back home.


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