Migrant workers` rights to social security rights in Malaysia : a reform oriented analysis

Abstract

Social security is one of the vital human rights enunciated in the Universal Declaration of Human Rights of 1948. Despite having the principle of equality of treatment embodied in the Federal Constitution and become signatories to a few international social security related instruments, Malaysia who relies heavily on the migrant workers in various sectors, has yet to accord them the same level of social security protection enjoyed by the local workers. This can be seen from the fragmentation of employment injury schemes with different benefits under two different laws namely the Employees’ Social Security Act 1969 governing the local workers and the Workmen’s Compensation Act 1952 governing the migrant workers in which the latter is inferior to that of the former. Further, the non-mandatory contribution of the migrant workers for the old-age benefits in the Employees Provident Fund 1991 is exacerbated by the low amount of contribution on the part of the employer. With the lack of coordination of social security benefit between Malaysia and the labour-sending countries, portability of these benefits across border could not be affected. Another concern is regarding the responsibilities of several ministries to handle the migrant workers’ issues which could lead to unnecessary redundancy. Thus, this study will address these issues with the aim of reforming the current social security legislations by making new proposal to the laws and at the same time examines the proposals made by the government in respond to the ILO Committee observation. The method adopted in this study is by analysing the standards provided in the international legal framework and the legal provisions available in the local social security laws. Decided cases are also significant especially in analysing the English Common Law defences under tort system and the two concepts of claim available under the current employment injury compensation laws of fault-based principle under the Civil Law Act 1956 and the more recent no-fault rule provided in the Workmen’s Compensation Act 1952. Through a survey conducted amongst the migrant workers, it has been revealed that the level of awareness of the benefits available to them is below the satisfactory level. Based on the shortcomings identified, this study proposed to reform the present laws by revising the existing benefits for employment injury based on the methods adopted in the Singapore’s Work Injury Compensation Act 1975 and increasing the employer’s contribution for the retirement saving. The proper coordination with the labour-sending countries through bilateral and multilateral agreements, restructuring of the current administrative systems concerning the migrant workers and ratification of the core ILO social security convention are highly recommended.