Prominent features of Receiving States’ Obligations listed in Chapter 6 of the ASEAN Consensus on the Protection and Promotion of the Rights of Migrant Workers are as follow:
- Ensure fair treatment towards migrant workers and prevent abuses, exploitation and violence towards them.
- Undertake employer education programmes and take appropriate actions against employers who illegally detain migrant workers.
- Take appropriate actions against employers who willfully destroy, mutilate or confiscate a migrant worker’s passport and work permit, as well as illegally employ migrant workers.
- Prohibit the overcharging of recruitment fees and ensure information asymmetry.
- Promote social integration and provide migrant workers with the right to join trade unions and associations.
- Regulate the terms and conditions stated in employment contracts and provide adequate or reasonable accommodation and healthcare.
- Ensure occupational safety, as well as protection from violence and sexual harassment.
- Provide access to legal recourse when required.
The main migrant-receiving states in ASEAN are Brunei, Malaysia, Singapore and Thailand and they have different admissions entry paths for migrants of different skill levels. Data on migration in Brunei Darussalam is very limited. Singapore, Malaysia and Thailand have common priority areas for improvement such as the absence of a national migration plan, high recruitment costs, overly rigid employment terms, the difference in access to employment protection systems between migrants and locals, weak protection mechanisms for domestic workers, and the lack of proactive enforcement measures.
The absence of a national migration policy has not compromised Singapore’s management of migration. It has a comprehensive legislative framework to govern migration and one agency (Ministry of Manpower-MOM) to handle migrant matters. On the other hand, Malaysia’s legislation governing migration is fragmented. There is no comprehensive law regulating the issuance of employment permits. The focus is on the regulation of migrant inflow and recruitment, alongside the punishment of undocumented migrants. Policy implementation has been reversed, revised or delayed according to public sentiment. In Thailand, cabinet resolutions dictate policies and migration-related legislation has not been implemented to date. The 2008 Alien Employment Act has been unsuccessful in imposing foreign worker levy and authorising committees for reviewing the employment of migrants. The formalisation of irregular migrants from Cambodia, Lao PDR and Myanmar has been inconsistent in Thailand. These shortcomings hinder the regulation of employment contracts and fair treatment of migrant workers in both Malaysia and Thailand.
While Singapore does not have bilateral agreements governing migration, Thailand and Malaysia’s MOUs do not correspond to their respective economic needs. Moreover, negotiation processes are not transparent. Data collection, sharing of data, monitoring and assessment are also lacking. This directly challenges efforts to ensure information asymmetry. As a result, migrant entry processes are complicated and time-consuming. Misunderstanding and miscommunication are common occurrences between employers and migrants. This is inevitable as there is no dissemination of information contained in the MOUs and bilateral agreements.
Recruitment agencies are closely monitored in Singapore and the MOM maintains a regularly-updated directory of these agencies. Most of the low-skilled migrant worker movement to Malaysia has been via third-party recruiters. This could be either a private recruitment agency or an outsourcing agency. This strategy is problematic because the agency is responsible for a migrant worker’s employment contract and legal status. This puts an unsafe amount of power in agencies’ hands. It is a sound formula for exploitation. Similarly, in Thailand, there is a lack of regulation of private recruitment agencies. Often, brokers are sought by employers and migrants due to the complex nature of national regulation processes covered in the MOUs. In the presence of these inherent flaws, how is it possible to prevent the overcharging of recruitment fees? In all three countries, recruitment fee is high. This is also due to the high costs of recruitment in sending countries. Receiving states appear to be acting independently of sending states in this regard. There is no collaboration on setting common standards for recruitment fees, or at least to ensure that there is no overcharging. Yet again, it is unclear as to how this aspect of receiving states’ obligations will be fulfilled.
In Malaysia, Singapore and Thailand, migrant workers are allowed to be members of labour unions but they are prohibited from holding any official position. There is no proper explanation for this condition. The impact of this restriction on the representation of migrant workers’ rights could be negative. While all three states prohibit employers from confiscating migrant workers’ documents, research has shown that this situation prevails. This is also one of the main causes of the increase in undocumented migrants. Furthermore, minimum standards for accommodation are not specified and sometimes, non-existent. Unequal minimum wage between migrants and locals, non-payment of wages, lack of occupational safety, excessive working hours, illegal wage deductions and inferior or inaccessible protection, persist. The only way to make amends is to have a robust regional framework that ensures optimal collaboration and cooperation between receiving and sending states. Bilateral agreements and MOUs have been proven to be ineffective. The Consensus does not change the status quo in any way. How then will the obligations in the Consensus be fulfilled? Is a regional compact not possible, especially after the adoption of the Global Compact for Migration!