Chapter 2 of the ASEAN Consensus on the Protection and Promotion of the Rights of Migrant Workers is a list of definitions which construct the functional boundary of this agreement. The applicability of the Consensus to different categories of migrant workers is subject to the laws, regulations and policies of respective ASEAN member states. In some states, female domestic workers do not fall into the broad category of migrant workers. Due to the nature of their work in the host country, these domestic workers are bound by different regulations. If there is no proper recourse, the safety and welfare of female domestic workers risk being compromised. By virtue of their gender and work environment, they are more vulnerable to harassment, exploitation and abuse. Some incidents are reported. Most of them are not. Enforcement mechanisms against abuse do not render female domestic workers freedom from potentially precarious situations.
The Consensus defines the ‘undocumented migrant worker’ as a person who fails to comply with the conditions provided for him or her to legally enter the receiving state and to stay legally for the duration of employment pursuant to the applicable laws, regulations and policies of the receiving state. This includes a migrant worker who was in employment but is no longer legally employed. This definition serves as a strong instrument of threat that is exploited by some employers. The threat of ‘becoming undocumented’ is imposed on migrant workers to coerce them into unfavourable working conditions, long working hours and unreasonable salaries. Often, migrant workers’ passports are withheld by employers who also threaten to get rid of the passports if complaints are made against them. There are many migrant workers in Southeast Asia who are compelled to make the transition from ‘documented’ to ‘undocumented’ because of their desperation to escape exploitative employers. They do not have the option of changing employers. This enables employers to have complete control over migrant workers’ fate in the receiving state. Another threat commonly used by employers is the refusal to renew migrant workers’ work permits. We cannot ignore the frequent occurrences of labour agents cheating migrant workers and leaving them stranded, without any documentation, in the receiving state.
‘Fair treatment’ is defined as just and reasonable treatment applied to migrant workers in the workplace with respect to working conditions, safety and access to recourse in the event of employment, subject to the prevailing national laws, regulations and policies of the receiving state. This is vague and there is no mention of a parameter governing whatever is deemed as just and reasonable. What are the regionally acceptable working hours? What is the regionally acceptable working condition? What is the regional benchmark for migrant worker remuneration, given the varying currency strengths? Are migrant workers paid the same salaries as citizens, for the same jobs done? Do migrant workers have easy access to health facilities in the receiving state and what type of medical attention are they entitled to? Do they have to pay an additional charge because they are non-citizens? Are there workplace safety measures in the receiving state compliant with universal humanitarian standards? What are the living conditions of migrant workers? Is there regular inspection by authorities in the receiving state to ensure that living conditions are not adverse? Answers to these questions need to be spelt out in the Consensus or any future document governing migrant workers. How would it be possible to ensure ‘fair treatment’ without detailing what it means?