Page 86 - BPAReport

dispute with the employers; the need to obtain a Special Pass to pursue claims in the Labour
Court or Civil Courts; inability to transfer employment in the event of dispute etc.).

10. Therefore it is imperative that the administrative and legal framework governing
foreign workers be reformed to remove the various obstacles that are barriers to FWs
accessing justice in Malaysia’s administrative and legal system.

11. Therefore the Independent Committee recommends as follows:-

1. That the Labour Department of MOHR be authorised to determine whether a Foreign
Worker be allowed to continue to reside and/or to transfer employment in the event of
a dispute between the foreign worker and the employer and /or related party to the
employment.
2. An appellate process be provided for the affected foreign worker in the event of an
adverse decision by the Labour Department of MOHR.
3. The decision of the Labour Department of MOHR should be implemented by Jabatan
Imigresen Malaysia (JIM) and JIM should issue the relevant Visa to the affected
foreign worker.
4. No employer shall terminate a work permit without the approval from the Labour
Department. Any purported termination done without such approvals shall be
ineffective.

12. The Independent Committee recommends the Legal Aid Bureau (Biro Bantuan
Guaman) and the Yayasan Bantuan Guaman Kebangsaan (YBGK) schemes be made
available to foreign workers. The opening of these schemes to FWs will help them to access
justice in the administrative and legal system available in Malaysia

6.7 Other issues

Applicable Laws

13. In Peninsular Malaysia, matters about the terms and conditions of work of FWs are
regulated by the Employment Act 1955 and the Workmen’s Compensation Act 1952, under
the administrative jurisdiction of the Labour Department (the equivalent processes applies
under Sarawak and Sabah ordinances). Issues regarding relations between employers and
foreign workers are covered by the Industrial Relations Act 1967, while labour unions are
regulated by the Trade Unions Act 1959. These laws are all overseen and implemented by the
Ministry of Human Resources.

Foreign workers right to hold office in trade unions

14. Although the Trade Unions Act 1959 provides that a foreign worker can be a member
of a trade union, under the law he/she is prohibited from holding an executive position in
trade unions. This prohibition is discriminatory and is in contravention of labour rights.

84