Definition of ‘forced labour’ excludes workers trafficked in informal sector
By Priya Sharma – September 5, 2022 @ 12:00am
For the second year in a row, Malaysia is ranked in the lowest tier of the Trafficking in Persons Report by the United States.
This is despite amendments to the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act (ATIPASMA) 2007 and the Employment Act (EA) 1955.
‘Forced labour’ as a specific offence is introduced in the Employment (Amendment) Act (EAA) 2022.
Section 90B states: “Any employer who threatens, deceives or forces an employee to do any activity, service or work and prevents that employee from proceeding beyond the place or area where such activity, service or work is done, commits an offence and shall, on conviction, be liable to a fine not exceeding RM100,000 or to imprisonment for a term not exceeding two years or to both.”
There are problems with this definition. Firstly, forced labour appears to be limited to a formal employment relationship.
The EA 1955 defines an ’employee’ as someone who has entered into a ‘contract of service’, an oral agreement or in writing, whether with implied or express conditions.
Nonetheless, limiting the definition of forced labour to a formal employer-employee relationship has the effect of excluding workers trafficked and trapped in the informal sector of the economy where work is untaxed and difficult for labour inspections to reach.
Secondly, the definition applies where the employer ‘threatens’, ‘deceives’ or ‘forces’ an employee to do any activity, service, or work and “prevents that employee from proceeding beyond the place or area where such activity, service or work is done”.
Such acts qualify as “menace of penalty” under which work, or service, is exacted, according to the definition by the International Labour Organisation (ILO) Forced Labour Convention.
However, it falls short of a comprehensive approach as the definition does not extend to work taking place without the informed consent of the worker.
Examples include overtime or on-call work not previously agreed upon with the employer; work in hazardous conditions that the worker has not consented to, with or without compensation or protective equipment; work with very low or no wages or in degrading living conditions.
Until recently, prosecuting a forced labour trafficking case under ATIPASMA 2007 was onerous as the prosecution not only had to prove exploitation but also that the labour or services of the victim were acquired or maintained through “coercion”.
However, the courts repeatedly interpreted coercion narrowly and required evidence of physical restraint of movement to prove forced labour.
This year, “trafficking in person” was expanded to include threat or use of force or other forms of coercion, abduction, fraud, and deception.
The amendment is welcomed. However, forced labour under the EAA 2022 requires the restraining of movement, which contradicts the amendment.
The definition also fails to include the 11 indicators of forced labour specified by the ILO.
Emphasis on freedom of movement, without considering other less obvious indicators, is likely to continue negatively influencing a finding of forced labour.
Moreover, a penalty not exceeding RM100,000 or a prison term not exceeding two years, or both, is grossly inadequate and non-aligned with the penalties under the latest amendments to ATIPASMA 2007.
While there are amendments to counter forced labour, they are insufficient to put local laws on a par with ILO standards.
It is recommended the ATIPASMA 2007 be amended to provide a proper definition of forced labour and include the 11 indicators which Malaysia has ratified. The EA 1955 could then be amended.
