รายงานวิจัย-Malaysia and Thailand Management - อ.อุษณีย์

RESEARH REPORT MALAYSIA’S AND THAILAND’S MANAGEMENT OF LOW-SKILLED MIGRATION AND SUSTAINABLE DEVELOPMENT GOALS Researchers Asst.Prof.Dr.Usanee Aimsiranun Dr.Saidatul Nadia Abd Aziz Faculty of Law, Chiang Mai Faculty of Law, National University University of Malaysia (UKM) 2019 Research funded by Faculty of Law, Chiang Mai University

TABLE OF CONTENT TABLE OF CONTENT ..................................................................................................... 2 LIST OF TABLES ............................................................................................................. 5 LIST OF FIGURES............................................................................................................ 6 INTRODUCTION.............................................................................................................. 7 Research significance ..................................................................................................... 7 Research objectives ........................................................................................................ 8 Literature review............................................................................................................. 8 Conceptual frameworks ................................................................................................ 11 Migration and Development ..................................................................................... 11 A rights-based approach to labour migration............................................................ 12 Interaction between national and international frameworks on regulation and protection of labour migration .................................................................................. 12 Research scope ............................................................................................................. 13 Methodology................................................................................................................. 14 Expected outcome......................................................................................................... 14 CHAPTER 1..................................................................................................................... 15 LABOUR MIGRATION SITUATION IN MALAYSIA AND THAILAND................. 15 CHAPTER 2..................................................................................................................... 18 MALAYSIA’S LAW AND POLICY ON EMPLOYMENT AND PROTECTION OF LOW-SKILLED MIGRANT WORKERS....................................................................... 18 2.1) Malaysia’s law and policy on entry and recruitment of low-skilled migrant workers ......................................................................................................................... 18 2.1.1) Development of Malaysian framework on entry and recruitment of low- skilled migrant workers............................................................................................. 18 2.1.2) Current system on entry and recruitment of foreign low-skilled labour ........ 21 2

2.2) Management of irregular migration ...................................................................... 27 2.3) Protection of low-skilled migrant workers’ rights ................................................ 29 CHAPTER 3..................................................................................................................... 33 THAILAND’S LAW AND POLICY ON EMPLOYMENT AND PROTECTION OF LOW-SKILLED MIGRANT WORKERS....................................................................... 33 3.1) Thailand’s law and policy on entry and recruitment of low-skilled migrant workers ......................................................................................................................... 33 3.1.1) Closed-door policy and ad hoc management of low-skilled migration through cabinet resolutions .................................................................................................... 33 3.1.2) Legal recruitment of foreign low-skill labour: MOUs on labour cooperation with labour sending countries ................................................................................... 36 3.1.3) Effort to develop a coherent and comprehensive framework on low-skilled labour ........................................................................................................................ 38 3.1.4) Recent development ....................................................................................... 45 3.2) Protection of low-skilled migrant workers’ rights ................................................ 48 CHAPTER 4 ................................................................................................................. 53 SUSTAINABLE DEVELOPMENT GOALS (SDG) .................................................. 53 CONCERNING MIGRANT WORKERS.................................................................... 53 4.1) SDG target 10.7..................................................................................................... 54 4.2) SDG Target 8.8 ..................................................................................................... 55 CHAPTER 5..................................................................................................................... 57 MALAYSIA’S AND THAILAND’S POLICY AND FRAMEWORK IN THE LIGHT OF LABOUR MIGRATION RELATED SDG TARGETS ............................................ 57 5.1) Malaysian and Thailand policy and framework as regards SDG target 10.7........ 57 5.1.1) A comprehensive, planned and well-managed migration policy.................... 57 5.1.2) Facilitation of a safe, orderly, regular migration ............................................ 61 5.2) Malaysian and Thailand policy and framework as regards SDG Target 8.8 ........ 64 5.2.1) Adoption of international labour standards in national law ........................... 64 Legislation and policy addressing women migrant workers..................................... 66 3

5.2.2) Effective enforcement of labour protection.................................................... 66 CONCLUSION ................................................................................................................ 69 REFERENCE ................................................................................................................... 71 4

LIST OF TABLES Table 1: Malaysia’s rates of levy, VP(TE) and process fee ............................................. 24 Table 2: Malaysia’s rates of visa and security bond based on nationality ...................... 24 Table 3: Thailand’s new list of prohibited occupations for foreigners as unofficially announced in June 2019. .................................................................................................. 39 Table 4: Centres for management for the employment of foreign workers in Thailand.. 43 Table 5: Statistics on migrant workers from Cambodia, Lao PDR, Myanmar and Vietnam in Thailand......................................................................................................... 45 Table 6: Malaysia’s and Thailand’s ratifications of ILO Fundamental Conventions on labour standards................................................................................................................ 65 5

LIST OF FIGURES Figure 1: Application process for recruitment of foreign low-skilled workers in Malaysia .......................................................................................................................................... 23 Figure 2: Most common subjects of complaints from migrant workers in Malaysia between 2011-2015 .......................................................................................................... 31 Figure 3 : Process of regularization and readmission via MOU ...................................... 44 Figure 4: Recruitment Process according to MOUs between Thailand and neighbouring countries ........................................................................................................................... 47 Figure 5: Most common subjects of complaints from migrant workers in Thailand between 2011-2015 .......................................................................................................... 50 6

INTRODUCTION Research significance In the period of two decades, Malaysia and Thailand have become the main regional migration hub in Southeast Asia. Thailand hosts 55% of ASEAN migrants while Malaysia hosts 22% of them 1 . Currently, there are up to 3.25 million labour from Myanmar, Lao PDR, and Cambodia in Thailand2, while Malaysia is the destination of about 3-4 million migrant workers including those from Indonesia, Myanmar, the Philippines, and Vietnam 3 . In both countries, migrant workers remediate the labour shortage in low-skilled and labour-intensive sectors where nationals prefer not to do, such as fisheries, agriculture, construction, manufacturing, and domestic work. They contribute to a substantial part of economic growth. Nevertheless, most intraregional migrant workers are irregular. Due to such status, they are vulnerable to abuses. In 2015, the United Nations’ Agenda for Sustainable Development was adopted, and the member countries have agreed to try to achieve the Sustainable Development Goals (SDGs), including 17 goals and 169 targets, by 2030. While recognizing the contribution of international migration for the development of both countries of destination and countries of origin as well as for migrants and their families, the Declaration of the 2030 Agenda also highlights the vulnerabilities facing migrants. The Declaration calls on member countries to “strengthen international cooperation to ensure safe, orderly and regular migration with full respect for human rights and for the humane treatment of migrants, regardless of their migration status”4. As UN member countries, Malaysia and Thailand are committed to work towards the sustainable development goals. As the main destinations of low-skilled migrant workers from the neighbouring countries, Malaysia and Thailand face the challenge in managing intraregional migration in accordance with UN migration-related development goals and targets, specifically SDG target 10.7 and 8.8 which concern the implementation 1 United Nations, Trends in International Migrant Stock: The 2015 Revision: United Nations, 2015 as cited in Mauro Testaverde, Harry Moroz, Claire H. Hollweg, et al., Migrating to Opportunity Overcoming Barriers to Labor Mobility in Southeast Asia: World Bank, 2017. 2 ILO, TRIANGLE in ASEAN Quarterly Briefing Note: Thailand (July - September 2017), 2017 3 ILO, Review of Labour Policy in Malaysia: ILO, 2016 4 United Nations, Transforming our world: the 2030 Agenda for Sustainable Development. Resolution adopted by the General Assembly on 25 September 2015. Document no. A/RES/70/1, 2015 7

of well-managed migration policies to facilitate orderly, safe, regular and responsible migration as well as the protection of migrant labour rights5. Research objectives 1 . To examine Malaysia’s and Thailand’s national policies and legal frameworks regarding employment and protection of low-skilled migrant workers. 2. To assess Malaysia’s and Thailand’s policies and legal frameworks in the light of two SDGs migration-related targets, specifically the SDG target 10.7 and 8.8. 3. To provide policy and legal development suggestions for both Governments in order to address the challenges of ensuring safe and regular migration as well as protection of migrant workers’ rights in accordance with the SDGs targets. Literature review The issue of the potential and limitation of the inclusion of international migration in the SDGs framework has been studied. Nicola Piper (2017)6 recognises the potential of the SDGs to promote migration from a rights perspective. She nevertheless highlights the need to surpass the present scope of the SDGs. She argues that the realization of the SDGs should not be limited to ensuring a “safe and orderly migration” but should also address the lack of decent work and promote participatory decision making from a worker’s right perspective. Nijenhuis and Leung (2017) 7 analyse the place of migration in the global development frameworks: the Millennium Development Goal (MDGs) and the 2030 Agenda for Sustainable Development (SDGs). The paper criticises the conceptualization of migration and development as enshrined in the SDGs framework specifically the perception of low-skilled labour migration as development failure of the country of origin and as a problem to be managed and controlled. The paper highlights the need of the 2030 Agenda to move towards a deterritorialized and a more dynamic conceptualization of development. 5 ibid. 6 Nicola Piper, \"Migration and the SDGs\", Global Social Policy, 2017, 17, 2, 231-238. 7 Gery Nijenhuis and Maggi Leung, \"Rethinking Migration in the 2030 Agenda: Towards a De- Territorialized Conceptualization of Development\", Forum for Development Studies, 2017, 44, 1, 51-68. 8

Gammage and Stevanovic (2019)8 argues that global commitments to the SDGs have the potential to be used to protect migrant worker rights in labour-importing countries. The paper argues that domestic social protection and labour market policy need to be modified to meet the commitments to the SDGs. The paper stresses the need to link the SDGs targets to core international norms and conventions on labour rights and to provide a mechanism of monitoring and accountability. The paper also stresses the need for national government to involve non-state actors into the accountability frameworks Significant literature, especially under the auspice of the ILO and IOM, addresses the issue of management of low-skilled labour migration in Malaysia and Thailand. As regard Malaysia’s management of labour migration, the relevant literature includes, for instance, Kanapathy (2008)9. This paper traces the evolution of migration trends into Malaysia and provides the overview of Malaysian policy on foreign labour from the late 19th century. It pointed out increased reliance on foreign labour as well as irregular migration. The work also highlights some inconsistency in policy implementation. The work proposes bilateral cooperation with large labour sending countries such as Indonesia to improve management of cross border flows. ILO (2016)10 provides the information on recent policy developments in Malaysia. It highlights that Malaysia’s labour migration policies focus on security concern rather than the protection of migrants’ rights despite their economic contribution to the country. It calls for a more coherent and equitable approach regarding recruitment and labour protection. It also insists on the importance to foster more positive public attitudes towards migrant workers. Concerning Thailand’s management of labour migration, the relevant literature includes, for instance, Muntarbhorn (2005)11. This work shows that Thailand has moved from closed-door towards more open-door policy, with the registration process as well as the cooperation with the sending countries. It analyses Thai law and policies in relation to employment and protection of migrant workers with regards to international standards of 8 Sarah Gammage and Natacha Stevanovic, \"Gender, migration and caredeficits: what role for the sustainable development goals?\", Journal of Ethnic and Migration Studies, 2019, 45, 14, 2600-2620. 9 Vijayakumari Kanapathy, Managing Cross Border Labour Mobility in Malaysia: Two Decades of Policy Experiments, semakan semula selepas konferens PECC-ABAC: Institute of Strategic and International Studies, 2008. 10 ILO, Review of Labour Policy in Malaysia, op.cit., 2016 11 Vitit Muntarbhorn, Employment and Protection of Migrant Workers in Thailand: National Laws/Practices versus International Labour Standards?: ILO, 2005 9

ILO and the UN. It calls for a more open-door policy towards migrant workers based upon an integrated, human rights-oriented approach. Vasuprasat (2010)12 suggests that to escape the middle-income-trap, Thailand needs to move from a low-cost resource-based manufacturing economy to a knowledge-based economy. However, Thai businesses prefer to depend on low paid migrant workers from neighbouring countries rather than investing in training and technology to raise labour productivity. Vasuprasat criticizes Thai system of recruitment of foreign labour as well as substandard working conditions and protection for migrant workers. The work highlights the need for Thailand to address the structural problem of labour shortages and the dependence on low-skilled workers, the failure of the formal recruitment system, the problem of irregular migrants and the conflicting legal and institutional frameworks for managing labour migration. Kerdmonkol (2014)13 traces the development of Thailand’s policies from 1992. It reflects that Thai management of foreign labour is based on capitalistic/economic and security concern. The issue of human rights of migrants is mainly the reaction to international pressure. The works highlights the deficiency of protection of migrant’s rights in practice such as abuses of rights, disrespect by employers of legal obligations, difficulty to access to health services. Testaverde et al. (2017)14 suggest areas for improvement in the migration system of ASEAN’s main receiving countries including Malaysia and Thailand. The priority areas for both countries include the development of national migration plan and MOUs which are responsive to economic needs, coordination of institutions, improvement of admission procedure, reduction of recruitment costs as well as weak protection for domestic workers, differentiation of protection between nationals and migrants. This research is built on these literatures on management and protection of the low- skilled labour migration in Malaysia and Thailand, with the inclusion of the recent policy and legal development. Taking into account the integration of migration into the global development framework, the research aims to assess the current policy and legal 12 Pracha Vasuprasat, Agenda for Labour Migration Policy in Thailand: Towards Long-Term Competitiveness: ILO, 2010 13 Adisorn Kerdmonkol, Migrant Workers in Thailand: Rights and Welfare (In Thai). Paper presented on 29 August 2014 at Center of Asian studies, Chiang Mai University 2014 14 Mauro Testaverde, et al., Migrating to Opportunity Overcoming Barriers to Labor Mobility in Southeast Asia, op.cit., 2017 10

frameworks on low-skilled migration of Malaysia and Thailand with regards to the migration-related SGD targets. It aims to provide for policy and legal development suggestions for both Governments in order to address the challenges of ensuring safe and regular migration as well as protection of migrant workers’ rights in accordance with the global development agenda. Conceptual frameworks The research is based on three main conceptual frameworks; the interrelation between migration and development as underlined the Sustainable Development Goals, the rights-based approach to migration and the interaction between national and international frameworks on regulation and protection of labour migration. Migration and Development This research is situated in the migration-development nexus as enshrined in the SDGs, where international migrant labour is considered driver of development in both sending and receiving countries. International labour migration is defined as “the movement of people from one country to another for the purpose of employment”15 while development is understood in a large sense; not limiting to the increase of the GDP but encompassing economic, social, and cultural aspects. The contribution of international labour migration to development has long been reflected on16. Nonetheless previously, the positive contribution of migrant workers to growth and development in the countries of employment was much less highlighted, compared with the impact of the international migration on the development of the countries of origin, through remittances or skills acquirement 17 . It appears to be insufficient insistence on the fact that international labour migration has two sided benefits for both countries of employment and of origin18. 15 IOM, Labour Migration, https://thailand.iom.int/labour-migration 16 The UN High Level Dialogue on International Migration and Development (New York, 14-15 September 2006) can be considered an important landmark. Piyasiri Wickramasekara, \"Globalization, international labour migration and rights of migrant workers\", Third World Quarterly, 2008 29, 7, 1247- 1264 17 Ryszard Cholewinski, \"Protection of the Human Rights of Migrant Workers and Members of their Families under the UN Migrant Workers Convention as a Tool to Enhance Development in the Country of Employment\", Keynote paper, Committee on Migrant Workers, 15 December 2005, Geneva, 2005 18 Piyasiri Wickramasekara, \"Globalization, international labour migration and rights of migrant workers\", 1247-1264. 11

The 2030 Agenda on Sustainable Development, the linkage between migration and development is again highlighted. Migrant labour is considered “development agent”. In the context where globalization has widened the incomes disparities among countries, migration is seen as one of the instruments to reduce inequality and to promote development both in countries of origin and destination19. To allow migrant workers to make their best contribution to both the sending and receiving countries, it is necessary to ensure respect of their rights. The challenges of international migration, for instance, irregular migration, exploitation of migrant workers and violation of their basic rights, and smuggling and trafficking of persons, especially of women and children should be addressed. A rights-based approach to labour migration This research is based on a rights-based approach to regulation of international migrant labour. According to such an approach, the regulation and the treatment of migrant labour is based on international labour standards and directed to the promotion and protection of international labour standards. Under a rights-based approach, the formulation, the implementation, the monitoring and the evaluation of policy and legal frameworks on migration should be guided by principles and standards derived from international labour standards20. Interaction between national and international frameworks on regulation and protection of labour migration The research is based on the premise that States remain the main actor, even if not exclusive, in determining legal and policy framework on labour migration and protection. The national (and sub-national) framework is nonetheless influenced by and interacted with the regional and international frameworks. The work of international organizations in the field of migration and labour, especially International Organization for Migration (IOM) and International Labour 19 The General Discussion on Migrant Workers at the 92nd session of the International Labour Conference in June 2004 OECD, Interrelations between Public Policies, Migration and Development, Paris: OECD Publishing, 2017 20 ILO, International labour migration. A rights-based approach, Geneva: ILO, 2010, Patrick A. Taran, The need for a rights-based approach to migration in the age of globalization, in Migration and Human Rights: The United Nations Convention on Migrant Workers' Rights. Ryszard Cholewinski, Paul de Guchteneire and Antoine Pecoud (eds.), Cambridge: Cambridge University Press, 2009, 150–168 12

Organization (ILO) provide an important framework regarding labour migration and protection of migrant labour rights. Cooperation between sending and receiving states regarding labour migration and protection has been established and regulated through the conclusion of bilateral agreements under international law. The regional framework under the ASEAN Economic Community has a limit impact on the issue of low-skilled migration. The project to establish an ASEAN single market and production based only concerns effort to liberalize, to a certain extent, movement of high-skilled professionals. The issue of low-skilled labour which represents most of the migration flow inside the region is excluded from the integration plan, very possibly due to the large disparities of migration flows inside the region. The regulation concerning admission, right to stay, and to work remain under the auspice of States21. As for the protection of migrant workers’ rights, the issue falls under the ASEAN Socio-Cultural Community which provides for a loose and non-binding framework. The 2007 Cebu Declaration on the Protection and Promotion of the Rights of Migrant Workers calls on countries of origin and employment to ensure the dignity of migrant workers. It remains nonetheless a non-binding instrument. Migrant workers’ rights are regulated and protected in accordance with the laws and policies of the member states. Research scope The research assesses Malaysia’s and Thailand’s policies and legal frameworks in according to two SDG targets which specifically address the issue of employment and protection of migrant workers o SDG target 10.7 concerns the implementation of well-managed migration policies to facilitate orderly, safe, regular, and responsible migration o SDG target 8.8 pertains to the protection of migrant labour rights At present, the indicators for measuring SDG targets are under development22. The assessment of Malaysia’s and Thailand’s labour policies and law will be conducted with reference to existing frameworks provided by IOM (IOM’s Migration Governance 21 Usanee Aimsiranun, \"Labor mobility in the European Union: what can ASEAN learn?\", International Journal of Monetary Economics and Finance, 2017, 10, 3/4, 366-378 22 Indicators 10.7.1 Number of countries that have implemented well-managed migration policies Indicator 10.7.2 Recruitment cost borne by employee as a proportion of yearly income earned in country of destination 13

Framework 2015)23 and UNESCAP (Global compact for safe, orderly, and regular migration 2017)24. Methodology This research is a qualitative research based on documentary research. The research focuses on primary and secondary sources concerning the SDGs and migration as well as Malaysia’s and Thailand’s policies and legal frameworks which address the issue of employment of low-skilled migrant workers and the protection of their rights. The documents include, for instance, UN Declarations, ILO and IOM documents, relevant national legislation, government’s policies, statistics on labour migration, academic articles, and news. Expected outcome The research will allow to assess Malaysia’s and Thailand’s policies and legal frameworks on low-skilled migration as regards SDG targets, to provide for policy and legal development suggestions for both Governments in order to address the challenges of ensuring safe and regular migration as well as protection of migrant workers’ rights in accordance with the global development agenda. As the main receiving countries of low-skilled workers from Southeast Asia, the study on Malaysia’s and Thailand’s policies and legal frameworks can present a lesson for other receiving countries. 23 IOM, Migration Governance Framework, Document C/106/RES/1310, 2015 24 ESCAP, International migration, the 2030 Agenda for Sustainable Development and the global compact for safe, orderly and regular migration: ESCAP, 2017 14

CHAPTER 1 LABOUR MIGRATION SITUATION IN MALAYSIA AND THAILAND In Southeast Asian region, temporary labour migration constitutes the largest migration flows. It was estimated that about 7 million ASEAN citizens migrate inside Southeast Asia, representing about two-thirds of the regional total international migration stocks 25 . Nonetheless, due to a large proportion of irregular migrants as well as to heterogeneous data collecting systems in both sending and receiving countries, the real number is certainly higher26. Low and semi-skilled labour (in the field of domestic work, agriculture, and construction) dominate intra-ASEAN migration 27 , and many of the migrants are irregular28. The flows of labour between ASEAN Member Countries are not symmetrical. Singapore, Thailand, Malaysia, and Brunei Darussalam are net receiver countries for labour, while Cambodia, Lao PDR, Myanmar, Indonesia, Vietnam and the Philippines are net senders. The first pattern of intra-ASEAN labour migration is the Mekong sub-regional corridor, in which Thailand receives migrants from Cambodia, Lao PDR, Myanmar, and Vietnam. The second one is the archipelagic ASEAN corridor where the labour from Indonesia and the Philippines migrate to Singapore, Malaysia, and Brunei Darussalam29. Filipino workers migrate mainly to other countries outside the region whereas the Indonesians and the Burmese migrate primarily to neighbouring countries within Southeast Asia30. Besides ethnic and linguistic affinities and geographical proximity, the large disparities of the level of development between Member Countries motivate the flow from the less developed to the more developed economies for the better opportunities and living conditions. In 2018, for instance, the four low-income Mekong River States have an average per capita income of USD 1,980, which is around thirty times lower than that of 25 UN DESA, International migrant stock: The 2017 revision, 2017. 26 Pradip Bhatnagar and Chris Manning, \"Regional arrangements for mode 4 in services trade: lesson from the ASEAN experience\", World trade review, 2005, 4, 2, 171-199 27 Gloria Pasadilla, \"Social security and labor migration in ASEAN\", Asian Development Bank Institute Research Policy Brief no.34, 2011, 4. 28 Ibid., 4. 29 Ibid., 4. 30 Pradip Bhatnagar and Chris Manning, \"Regional arrangements for mode 4 in services trade: lesson from the ASEAN experience\", 171-199, 12. 15

Singapore (USD 64,578), and, respectively, five and three times less than that of Malaysia (USD 11,072) and Thailand (USD 7,448)31. Due to higher education of nationals, Malaysia has relied on migrant workers for low-skilled works. According to the official data from the Immigration Department of Malaysia, about 1.75 million migrant workers are legally employed in Malaysia in 201832. Nevertheless, if we include irregular migrants, estimation suggests that there are currently 3-4 million migrant workers in Malaysia, constituting up to 30% of the country’s labour force33. Indonesians form the largest group of ASEAN migrant workers in Malaysia (704,548), followed by workers from Myanmar (103,926), the Philippines (54,982), Vietnam (23,275) and Thailand (15,553)34. Migrant workers make up about one-third of the workforce in agricultural, manufacturing and construction sectors, contributing about RM297 billion or 37.5% of GDP in 201435. Thai workers have migrated to work in the Middle East and other Asian countries since the beginning of the 1980s. Nonetheless, since the early 1990s, Thailand has shifted from the net labour sending country to the net receiver of foreign labour36. The economic boom in Thailand during 1987-1996 has resulted in an increase of wage differential between Thailand and its neighbouring countries and has made Thailand the main destination of low-skilled labour from Myanmar, Lao PDR, and Cambodia. After the recovery from the 1997-1998 financial crisis, the flow of low-skilled migrant workers from the neighbouring countries has resumed and increased37. In 2018, it is estimated that there are 3.9 million migrants from Myanmar, Lao PDR, Cambodia, and Vietnam working in Thailand38. Migrant workers from Myanmar constitute the largest group, about 80% of all migrant workers, followed by Cambodia and Lao PDR. They are predominately employed in low-skilled and labour-intensive jobs where Thais workers prefer not to do, especially in fisheries, agriculture, construction, manufacturing, and domestic work. The majority of low-skilled migrant workers from 31 International Monetary Fund, World Economic Outlook Database, 2018. 32 Ministry of Home Affairs Immigration Department, Malaysia, Migrants in Malaysia, 2018. 33 ILO, Review of Labour Policy in Malaysia, op.cit., 2016 34 Ministry of Home Affairs Immigration Department, Malaysia, Migrants in Malaysia, op.cit., 2018 35 Ministry of Finance of Malaysia, Gross Domestic Product by Sector, 2015 36 Philip Martin, The economic contribution of migrant workers to Thailand: Towards policy development: ILO, 2007 37 Ibid. 38 Benjamin Harkins, Thailand migration report 2019: United Nations Thematic Working Group on Migration in Thailand, 2019 16

Myanmar, Lao PDR and Cambodia in Thailand have been primarily irregular. Their entry into Thailand is facilitated by long and porous borders which complicate immigration control. 17

CHAPTER 2 MALAYSIA’S LAW AND POLICY ON EMPLOYMENT AND PROTECTION OF LOW-SKILLED MIGRANT WORKERS Malaysian legal framework and policy on foreign workers have three important dimensions; 1) to control and regulate the flows and the recruitment of foreign workers 2) to curb the expansion of/to eliminate illegal migrants and 3) to ensure adequate protection of migrants’ rights. This research addresses only the policy and legal framework concerning peninsular Malaysia (leaving aside Sabah and Sarawak where foreign workers management is governed by the State Government accordingly). 2.1) Malaysia’s law and policy on entry and recruitment of low-skilled migrant workers The key legislation on entry and recruitment of low-skilled foreign workers in Malaysia has been the Immigration Act 1957/63 and the Employment Restriction Act 1968, as well as bilateral agreements concluded with the sending countries. The policy and legal framework have been largely influenced by domestic policies as well as employers’ lobbying power39. 2.1.1) Development of Malaysian framework on entry and recruitment of low- skilled migrant workers Laissez-faire period (1970s-1980s) The first wave of immigration of low-skilled foreign workers to Malaysia started in the 1970s in relation to Malaysian rapid economic development under the New Economic Policy 40. Nonetheless, there was no specific legal framework or policy to regulate the entry or employment of low-skilled foreign workers. The Immigration Act 1957/63 and the Employment Restriction Act 1968 addressed only to the entry and recruitment of high-skilled labour (termed as Expatriates). 39 Amarjit Kaur, \"International Labor Migration in Southeast Asia: Governance of Migration and Women Domestic Workers\", Intersections: Gender, History and Culture in the Asian context, 2007, 15. 40 Vijayakumari Kanapathy, Controlling Irregular Migration: The Malaysian Experience, Bangkok: ILO, 2008. 18

Low-skilled foreign workers came mainly from Indonesia, the Philippines and, in a smaller number, from Thailand. They were recruited informally via middlemen or agents and employed without proper authorisation in the rural plantation, agriculture, construction as well as in the informal manufacturing and services sectors41. Due to their limited number and absence of competition with nationals, the authorities chose to ignore their presence in Malaysia despite their irregular status42. Initial attempt to regulate low-skilled foreign workers (1980’s -1997) Starting from 1980’s, labour and skill shortage in Malaysia had drawn a larger number of low-skilled foreign workers. Prior to the Asian financial crisis in 1997, the number of low-skilled migrant workers had increased to about 2 million, both regular and irregular43. As their number as well as their presence in the urban area increased, the local population started to develop resentment towards undocumented migrants due to the competition for jobs as well as for low-cost housing44. Malaysian migration and recruitment policy have evolved from laissez-faire into a policy based upon economic, social and security interests45. The foreign low-skilled labour has been considered as an interim solution to the problem of labour shortage in certain sectors. At the same time, the Government has shifted the focus to the development of a knowledge-based economy. The policy aims thus to regulate and control their flows as well as to discourage the long-term dependence on foreign labour46. Concerning the effort to regulate and control the flows of low-skilled migrant workers, a legal channel for recruitment of low-skilled labour was established. The Private Employment Agencies Act 1981 allowed the establishment of private employment agencies to recruit foreign workers. They facilitated recruitment process by dealing with 41 Vijayakumari Kanapathy, \"International Migration and Labour Market Developments in Asia: Economic Recovery, the Labour Market and Migrant Workers in Malaysia\", Paper presented at the 2004 Workshop on International Migration and Labour Markets in Asia 5-6 February 2004, 2004, 373-410, Mohd Na’eim Ajis, Mohamad Faisol Keling, Zaheruddin Othman, et al., \"The Dilemma of Managing Foreign Workers in Malaysia: Opportunities and Challenges\", Global Journal of Human-Social Science, 2014, 14, 4, 43-53 42 Vijayakumari Kanapathy, Controlling Irregular Migration: The Malaysian Experience, op.cit., 2008. 43 Vijayakumari Kanapathy, \"International Migration and Labour Market Developments in Asia: Economic Recovery, the Labour Market and Migrant Workers in Malaysia\", 373-410 44 Azizah Kassim, Recent trends in transnational population inflows into Malaysia: policy, issues and challenges, in Foreign labour in Malaysia: Selected works. Alice Suriati Mazlan, Zuraidah Abd Manaf, Ramlee Abd Rahman, et al. (eds.), Putrajaya: Ministry of Higher Education, 2017 45 Patrick Pillai, \"The Malaysian State's Response to Migration\", Journal of Social Issues in Southeast Asia, 1999, 14, 1, 178-197 46 Vijayakumari Kanapathy, \"International Migration and Labour Market Developments in Asia: Economic Recovery, the Labour Market and Migrant Workers in Malaysia\", 373-410 19

the recruitment agencies in the countries of origin, processing administrative paperwork and logistic arrangement47. The Malaysian Government also signed bilateral agreements with governments of sending countries to reduce unauthorized entry and to encourage legal recruitment of low- skilled labour. The Medan Agreement concluded with Indonesia in 1984 provided that Indonesian would be allowed to work in 6 sectors especially plantation and maids. Later similar agreements were concluded with the Philippines regarding maids, Thailand and Bangladesh concerning manufacturing and farming48. In 1991, the Malaysian Government tried to form a comprehensive policy on the recruitment of foreign workers, by issuing work permit to plantation and construction workers automatically. Employment of foreign workers in manufacturing and services sectors were subject to the evidence of difficulties to recruit local workers. The applications were examined by the Committee on Foreign Labour, Ministry of Human Resource prior to approval by the Immigration Department, Ministry of Home Affairs49. The employers were responsible for cost of recruitment and repatriation as well as for the security bond placed with the Immigration Department. They remained accountable for migrant workers during the period of employment. Work permits bound foreign workers to a specific location, employer and sector of employment and they were not allowed to change50. In order to limit the dependency on foreign low-skilled labour, the Government also implemented stringent policies 51 . In 1992, the Malaysian Government started imposing an annual levy on foreign workers to raise the cost of employment of foreign workers and to discourage employers from reliance on foreign workers. The levy varied depending on sector and skill level. It was reported that employers in small businesses generally passed on the levy to foreign workers52. 47 Siti Awanis Othman and Rohani Abdul Rahim, \"Migrant Workers in Malaysia: Protection of Employers\", Pertanika J. Soc. Sci. & Hum, 2014, 22, 271-282. 48 Amarjit Kaur, \"International Labor Migration in Southeast Asia: Governance of Migration and Women Domestic Workers\", Mohd Na’eim Ajis, et al., \"The Dilemma of Managing Foreign Workers in Malaysia: Opportunities and Challenges\", 43-53 49 Vijayakumari Kanapathy, \"International Migration and Labour Market Developments in Asia: Economic Recovery, the Labour Market and Migrant Workers in Malaysia\", 373-410. 50 Ibid. 51 Lin Mei, Indonesian Labour Migrants in Malaysia: A Study from China: Siri Kertas Kerja Institut pengajian China Universiti Malaya, 2006 52 Vijayakumari Kanapathy, Controlling Irregular Migration: The Malaysian Experience, op.cit., 2008 20

The Government’s policies had been fluctuant. Ban on recruitment of foreign low- skilled labour was imposed but then lifted for some sectors and then re-imposed. For instance, the general ban on recruitment was imposed in April 1993, then lifted for some sectors two months later, to be imposed again in 199453. Major review of legal framework and policy post-financial crisis During the Asian financial crisis in 1997, the numbers of foreign workers declined due to expiring work permits and the restriction of further intake of migrant workers by the government54. The Malaysian Government imposed a total ban on new recruitment of foreign workers but lifted the ban a month later for domestic workers and for other sectors in 199855. The Immigration Act was amended in 1997 to impose heavier fines for irregular workers, employers, and agents to control the unauthorised entry and employment. In 2002, the Malaysian Government undertook a major reform of foreign worker policies. The principal aims were to control the intake of foreign workers and to ensure more transparent and systematic recruitment. Non-exporting manufacturing with a paid- up capital of RM2 million were allowed to recruit 1 foreign worker to 1 national worker. The Government initiated the G to G recruitment procedure through the agreements with the labour sending countries56. Beyond the economic factor, the increased perception of foreign workers as presenting social and security threat had motivated the tightening of the policy, especially towards low-skilled irregular migrants57. 2.1.2) Current system on entry and recruitment of foreign low-skilled labour To regulate the recruitment processes and procedures, Malaysia has concluded the MOUs with Bangladesh, China, Sri Lanka, Thailand, Pakistan, Viet Nam, and Indonesia58. The key dispositions of the MOUs include requirement of ability to communicate in 53 Vijayakumari Kanapathy, \"International Migration and Labour Market Developments in Asia: Economic Recovery, the Labour Market and Migrant Workers in Malaysia\", 373-410 54 Rajah Rasiah, Economic Implications of ASEAN Integration for Malaysia’s Labour Market: ILO, 2014 55 Vijayakumari Kanapathy, \"International Migration and Labour Market Developments in Asia: Economic Recovery, the Labour Market and Migrant Workers in Malaysia\", 373-410 56 Ibid. 57 Vijayakumari Kanapathy, Controlling Irregular Migration: The Malaysian Experience, op.cit., 2008 58ILO, \"MOUs, BLAs and declarations related to migration, \"(online), 28 September 2019, https://www.ilo.org/asia/areas/labour-migration/WCMS_161105/lang--en/index.htm 21

English or Bahasa Malaysia, clean criminal record, responsibility of sending country for repatriation of migrant workers in case of violation of Malaysian law59. Malaysian system distinguishes between different categories of migrant workers and the separate divisions of the Immigration Department under the Ministry of Home Affairs are in charge of their entry and recruitment. Mid and high-skilled migrant workers earning between RM 2,500-5,000 per month are considered “expatriates”. They are administered by the Expatriate Service Division. They enter Malaysia through Employment Pass (divided into three categories)60. They receive preferential treatment in terms of admission, duration of stay and are allowed to be accompanied by dependents61. Low-skilled migrant workers earning less than RM 2,400 per month are considered “contract workers”. Their entry and recruitment are regulated by the Foreign Workers division. They enter Malaysia through Visit Pass (Temporary Employment) and are employed under Temporary Employment Pass issued by the Immigration Department62. As for their admission, Malaysia has established a detailed quota system based on many factors including sector, gender, nationality, and availability of national workers. The instrument to regulate the flows includes the duration of stay, levy, and administrative fees.63 The objective is to protect national workers as well as to limit the dependence on any specific population of foreign workers64. As of September 2019, the legal framework and policy on entry and recruitment of low-skilled migrant workers are as follow. The sectors permitted are manufacturing, construction, plantation, agriculture, and services. Migrant workers from Thailand, Cambodia, Nepal, Myanmar, Laos, Vietnam, Pakistan, Sri Lanka, Turkmenistan, Kazakhstan, Uzbekistan (both male and female) and from the Philippines (only male) are permitted to work in all authorized sectors. Indian, Indonesia workers are authorized to work only in certain sectors while workers from Bangladesh are permitted to work only in 59 Vijayakumari Kanapathy, \"International Migration and Labour Market Developments in Asia: Economic Recovery, the Labour Market and Migrant Workers in Malaysia\", 373-410 60 Mauro Testaverde, et al., Migrating to Opportunity Overcoming Barriers to Labor Mobility in Southeast Asia, op.cit., 2017 61 Amarjit Kaur, \"International Migration and Governance in Malaysia: Policy and Performance\", UNEAC Asia Papers, 2008, 22, 4-18 62 Malaysian Employers Federation, Practical guidelines for employers on the recruitment, placement, employment and repatriation of foreign workers in Malaysia, 2014 63 Vijayakumari Kanapathy, Controlling Irregular Migration: The Malaysian Experience, op.cit., 2008 64 ILO, Review of Labour Policy in Malaysia, op.cit., 2016 22

plantation via G to G agreement65. Migrant workers must age between 18-45 years at the time of application. They must be certified PASS for Immigration Security Clearance (ISC) at the source country, certified as fit and healthy by the approved medical centre in the source countries and must not be listed as foreign individuals who are prohibited from entering Malaysia under Section 8 (3) of the Immigration Act 1959/196366. Before employing foreign workers, employers or companies must obtain confirmation from the Department of Labour of Peninsular Malaysia of impossibility to secure local workers through Job Clearance System67. Employers must obtain the quota of foreign workers from Ministry of Home Affairs, One Stop Centre (OSC) and apply to the Immigration Department for a Visa with Reference (VDR) approval. Employers are responsible for levy and security bonds which vary depending on the source country and sector. Employers have to contribute to the Foreign Worker Compensation Scheme and Health Insurance Protection Scheme Foreign Workers (SPIKPA), except for the plantation sector68. Upon arrival, migrant workers must pass the FOMEMA medical examination within 30 days (FOMEMA is the sole agency responsible for screening medical health of low-skilled foreign workers in Malaysia). Then they can be issued Visit Pass (Temporary Employment) [VP(TE)] which is valid for a period of 12 months. Foreign contract workers are allowed to work in Malaysia on a yearly basis up to 10 years. Nonetheless, migrant workers registered under the 6P Program are entitled to work up to 3 years69. Figure 1: Application process for recruitment of foreign low-skilled workers in Malaysia 65 Ministry of Home Affairs Immigration Department, Malaysia, \"Foreign Worker\"(online), 28 September 2019, https://www.imi.gov.my/index.php/en/main-services/foreign-workers.html 66 Ibid. 67 Malaysian Employers Federation, Practical guidelines for employers on the recruitment, placement, employment and repatriation of foreign workers in Malaysia, op.cit., 2014 68 Ministry of Home Affairs Immigration Department, Malaysia, \"Foreign Worker\"(online), op.cit. 69 Ibid. 23

Source: Federation, Malaysian Employers. Practical Guidelines for Employers on the Recruitment, Placement, Employment and Repatriation of Foreign Workers in Malaysia. 2014. Table 1: Malaysia’s rates of levy, VP(TE) and process fee Sector Levy (RM) Visit Pass (RM) Process (RM) Manufacturing 1,850 60 125 Construction 1,850 60 125 640 60 125 Plantation Agriculture 640 60 125 Services 1,850 60 125 Services (island resort) 1,850 60 125 Source: Immigration Department, Ministry of Home Affairs, Malaysia. \"Foreign Worker.\" Accessed 28 September 2019. https://www.imi.gov.my/index.php/en/main- services/foreign-workers.html. Table 2: Malaysia’s rates of visa and security bond based on nationality 24

Nationality Visa (RM) Security Bond (RM) Indonesia Bangladesh 15 250 Pakistan Myanmar 20 500 India 20 750 Philippines Thailand 19.50 750 Cambodia 50 750 Nepal Vietnam 36 1,000 Sri Lanka Gratis 250 20 250 20 750 13 1,500 15 750 Source: Immigration Department, Ministry of Home Affairs, Malaysia. \"Foreign Worker.\" Accessed 28 September 2019. https://www.imi.gov.my/index.php/en/main- services/foreign-workers.html. Migrant workers, holders of the VP(TE) permit, are not allowed to be accompanied by family members and are prohibited to marry local and foreign citizens. Migrant workers’ right to remain in the country is linked to their employer, restricting, in consequence, their possibility to change of employer or employment sector70. After the completion or termination of employment, employers must ensure the return of migrant workers to their country of origin, after which employers can claim the security bond71. In case foreign workers leave the workplace with the intention to escape without notifying employers or do not return to the work after a trip to the country of origin, the 70 ILO, Review of Labour Policy in Malaysia, op.cit., 2016 71 Ministry of Home Affairs Immigration Department, Malaysia, \"Foreign Worker\"(online), op.cit. 25

foreign workers will be considered as absconded. They will be blacklisted, and their security bond will be confiscated72. The final cost to hire a foreign worker ranges approximately from RM6,000 to RM8,000, depending on the country of origin and job sector. All these requirements make the recruitment of an irregular migrant more time saving, easier, and cheaper for the employers and even for the workers themselves73. Since the foreign worker levy is lower for occupations and skills in shortage, employers often sponsor working visas for low-levy occupation, even the workers are to perform other sorts of work. When the workers realize that they perform a different and higher skill type of work, some leave the employers and with that becoming irregular migrants74. To address the labour shortage situations, the government allowed Malaysian labour contractors to recruit foreign workers. The Private Employment Agencies Act 2017 (entered into force since 1 February 2018) has introduced many changes to better regulate the private agencies and better protect workers from exploitation. For instance, a private employment agency has to be a company incorporated under the Companies Act 2016, with a minimum paid-up capital and money guarantee requirements (depending on the category of licence) and the majority of the shares must be held by Malaysian citizens. Private employment agencies must have a licence and non-compliance is subject to up to RM200,000 fines or up to 3-year imprisonments or both. Licence A concerns the recruitment of Malaysian job seekers within Malaysia. Licence B concerns the placement of Malaysian job seekers within and outside Malaysia as well as the placement of foreign domestic workers in Malaysia. Licence C covers recruitment of Malaysians within and outside Malaysia and foreigners within Malaysia75. It has been announced in October 2018 that the joint committee of the Ministry of Home Affairs and the Ministry of Human resource on the management of foreign workers to discontinue outsourcing the recruitment of foreign workers to private agencies. The recruitment will be handled by the Human Resources Ministry’s private employment agency76. 72 Ibid. 73 Vijayakumari Kanapathy, Managing Cross Border Labour Mobility in Malaysia: Two Decades of Policy Experiments, semakan semula selepas konferens PECC-ABAC, op.cit., 2008. 74 Ibid. 75 Donovan Cheah, Amendments to the Private Employment Agencies Act, 2 August 2018, https://dnh.com.my/amendments-to-the-private-employment-agencies-act/ 76 Emir Zainul, No more middlemen in hiring of foreign workers next year, in The Edge Financial Daily 25 October 2018 26

2.2) Management of irregular migration Irregular or undocumented workers can be defined as those who enter the country in violation of immigration law or who have entered the country legally but work in breach of immigration law or failed to renew their work permit77. Their management is under the responsibility of the Enforcement Division, the Immigration Department, Ministry of Home Affairs78. The Government’s effort to regularize irregular migrants in 1991 failed. Despite the stringent penalty that employers who employed irregular migrants would face, the procedure was inconvenient and represented a high cost for employers. Registration allowed migrant workers to stay for a period of 6 months but then migrants had to be sent back to their countries of origin to be afterwards recruited via the legal channel79. In response to a rapid increase of irregular migrant workers, the 1959 Immigration Act was amended in 2002. Migrants who violated Malaysian immigration policies relating to entry, stay and work were liable to be arrested by the authorities or by the People’s Volunteer Corps (RELA). The amendment increased the punishments for irregular migrants including a fine up to RM 10,000, imprisonment up to five years, up to 6 strokes whipping (only male) and fast-tracked deportation 80 . The employers were liable to RM10,000-50,000 fines per employee and a jail term up to one year. The penalty for employers who hired more than 5 irregular migrants was mandatory whipping and imprisonment up to 5 years81 In 2006, the government set up special courts for irregular migrants named “Mahkamah PATI” in several detention centres 82 . The aim was to rationalize the deportation process by centralizing detention, trial, and punishment of illegal migrants in the same place83. Nevertheless, the legal process before these courts did not sufficiently guarantee migrants’ fundamental rights such as the right to legal counsel or the right to be 77 Malaysian Employers Federation, Practical guidelines for employers on the recruitment, placement, employment and repatriation of foreign workers in Malaysia, op.cit., 2014 78 Azizah Kassim, Recent trends in transnational population inflows into Malaysia: policy, issues and challenges, in Foreign labour in Malaysia: Selected works, 79 Mohd Na’eim Ajis, et al., \"The Dilemma of Managing Foreign Workers in Malaysia: Opportunities and Challenges\", 43-53 80 Vijayakumari Kanapathy, Migrant Workers in Malaysia: An overview: Paper presented at the workshop on an East Asian Cooperation Framework for Migrant Labour. Kuala Lumpur, 2006 81 Vijayakumari Kanapathy, Controlling Irregular Migration: The Malaysian Experience, op.cit., 2008 82 Azizah Kassim and Ragayah Hj. Mat Zin, \"Irregular Migrants and the Law\", Philippine Journal of Development, 2011, XXXVIII, 1&2, 85-104 83 Ravi Neeko, Arrest, Detention and Prosecution of Migrant Workers, in Developing a comprehensive policy Framework for Migrant Labour: ILO, 2008 27

informed about the charge against them in their own language. Up to 20 migrants may be tried together at court hearings. If found guilty, the detainee had to bear the deportation cost which could result in prolonged detention for those who were unable to pay84. In 2010, the Government introduced the biometric identification system to verify migrant identity. The aims were to combat the use of fake identity document and to ensure that migrants who had violated the laws could not re-enter the territory under a different identity85. In 2011, the Malaysian Ministry of Home Affairs implemented the broadest amnesty policy called “6P” consisting of measures for amnesty, registration, legalization, supervision, enforcement, and deportation of migrants86. Under this program, a total of 2.3 million migrant workers were registered, including 1 million regular and 1.3 million irregular migrant workers87. However, due to ineffective communication with workers and employers, the number of irregular migrant workers in Malaysia was not significantly reduced. In January 2013, Malaysia introduced a legal minimum wage. The objective was to make low-skilled works more attractive to nationals in order to reduce dependency on foreign workers88. This policy increased the wages of migrant workers by about 16-78%89. However, it did not have a significant impact on attracting Malaysians for this type of work since they had already earned higher wages90. The target to limit the employment of migrant workers to 1.5 million as of 2015 was not achieved91. In 2007, the Anti-trafficking in Persons Act was adopted with the aim to punish human traffickers while at the same time granted immunity to the victims. Offenders were liable to up to 20-year jail term. The victims would not be prosecuted for illegal entry but would be rescued. They would not be sent to the detention centres (Ministry of Home Affair depot) but placed in a shelter awaiting repatriation. The shelters include “shelter homes for protection and rehabilitation” run by the Ministry of Women, Family and Community Development (for women and child victims) and by Ministry of Home Affair (for male victims)92. In 2010, the Act was amended and renamed into Anti-trafficking in 84 ILO, Review of Labour Policy in Malaysia, op.cit., 2016 85 Ibid. 86 Ibid. 87 ILMIA (Institute of Labour Market Information and Analysis), Immigration in Malaysia: Assessment of its Economic Effects, and a Review of the Policy and System: World Bank, 2013 88 ILO, Review of Labour Policy in Malaysia, op.cit., 2016 89 Manolo Abella and Philip Martin, Guide on Measuring Migration Policy Impacts in ASEAN: ILO, 2016 90 Department of Statistics Malaysia, Salaries and Wages survey Report 2014, 2015 91 ILO, TRIANGLE in ASEAN Quarterly Briefing Note: Malaysia (July - September 2017), 2017 92 Azizah Kassim and Ragayah Hj. Mat Zin, \"Irregular Migrants and the Law\", 85-104 28

Persons and Anti-Smuggling of Migrants Act, to also cover offenders and victims of human smuggling93. In practice, the study has revealed that some of the migrant workers who can be considered as victims of forced labour who should receive the protection under the Anti- trafficking in Persons and Anti-Smuggling of Migrants Act have been put instead in the Ministry of Home Affair depot. Such category includes for instance house workers who suffer physical abuses and non-payment who run away from employers94. The implementation of Malaysian policy on foreign workers since 1992 has led to an increase of number of legal low-skilled workers. Nonetheless, the Government has been less successful in reducing the inflows of irregular migrants95. The difficulties to control the flows are related to the long sea and land border, lack of enforcement personnel as well as the problem of corruption by authorities96. The study has revealed that irregular migrants failed to have work permits due to high cost of the levy as well as the complexity of the bureaucratic procedure. As for employers, legalised workers incurred the cost and reduced profit. Some have become irregular due to abuse of their work permit by changing employers or job sectors for better- paying jobs or by doing several jobs to earn more. Some leave their employers due to violation of their rights97. Moreover, the current system risks to put migrants into irregular status. Work permits issued to low-skilled migrant workers (contract workers) are tied to specific workplace and employer. As such the work permits become invalid if the migrant workers change employer or employment98. 2.3) Protection of low-skilled migrant workers’ rights Concerning medical benefits, the Ministry of Health of Malaysia has set up a compulsory scheme called Hospitalisation and Surgical Scheme for Foreign workers with 93 Vijayakumari Kanapathy, Controlling Irregular Migration: The Malaysian Experience, op.cit., 2008, Azizah Kassim, Recent trends in transnational population inflows into Malaysia: policy, issues and challenges, in Foreign labour in Malaysia: Selected works, 94 Azizah Kassim and Ragayah Hj. Mat Zin, \"Irregular Migrants and the Law\", 85-104 95 Azizah Kassim, Recent trends in transnational population inflows into Malaysia: policy, issues and challenges, in Foreign labour in Malaysia: Selected works, 96 Ibid. 97 Azizah Kassim and Ragayah Hj. Mat Zin, \"Irregular Migrants and the Law\", 85-104 98 Vijayakumari Kanapathy, Controlling Irregular Migration: The Malaysian Experience, op.cit., 2008 29

RM10,000 coverage. Starting from 1st January 2011, Foreign workers are required to participate in the scheme and responsible to pay an RM120 premium99. As far as the protection of low-skilled migrant workers’ rights is concerned, relevant legislations include the Employment Act 1955, Occupational Safety and Health Act 1994, Workmen’s Compensation Act 1952, Industrial Relations Act 1967, and Trade Union Act 1959. Under the Workmen’s Compensation Act 1952, administered by the Labour Department, foreign workers are entitled to benefits such as lump sum payment for injuries, disability or death, expenses on repatriation of the body in case of death to the country of origin. Employers are required to enrol the workers in an insurance scheme to cover employers’ liability under the Act100. The Trade Union Act does not prohibit foreign workers from joining trade unions, but they are not allowed to form their own unions or act as the member of the executive of a trade union. Nonetheless, the survey conducted by the Malaysian Employers Federation has revealed that many of the companies prohibit their foreign workers from joining a trade union101. In principle, Malaysian employment and labour laws provide equal treatment for regular migrant workers with nationals in terms of wages, work hours, holidays, terminations, freedom of association, access to the complaint mechanism and other protection. Moreover, MOUs between Malaysia and labour sending countries require employers to state in the contract the conditions on wages, work shifts, days off sick leave and medical leave102. Under Part XII of the Employment Act, Director-General has the competence to inquire on discrimination between a local and a foreigner employee by the employer in respect of the terms and conditions of his/her employment. Director-General can issue a directive to the employer and failure to solve the matter is considered an offence (article 60L). The issuance of the “Special pass” allowed foreign workers whose work has been 99 Malaysian Employers Federation, Practical guidelines for employers on the recruitment, placement, employment and repatriation of foreign workers in Malaysia, op.cit., 2014 100 Ibid. 101 Ibid. 102 Vijayakumari Kanapathy, \"International Migration and Labour Market Developments in Asia: Economic Recovery, the Labour Market and Migrant Workers in Malaysia\", 373-410 30

terminated to remain temporarily in the country awaiting the consideration of the complaint by the relevant authorities or by the courts in case of an appeal103 However, in practice labour laws are often ineffectively enforced towards migrant workers by the authorities 104 . Moreover, migrant workers’ access to a complaint mechanism is hindered by many factors such as lack of knowledge about their rights and about the complaint mechanism, inability to communicate in the local language and fear of being fired or repatriated due to disclosure of the violation. Irregular migrants and informal work arrangements are not guaranteed similar rights to redress, which makes it impossible for the migrant workers to uphold their rights and address their problems and grievances105. Figure 2: Most common subjects of complaints from migrant workers in Malaysia between 2011-2015 90 80 70 60 50 40 30 20 10 0 Withholding of Wages below No work leave Excessive work Contract substitution documents legal minimum hours Source: Harkins, Benjamin, and Meri Åhlberg. Access to Justice for Migrant Workers in South-East Asia. Bangkok: ILO, 2017. Employers may also unilaterally terminate migrant workers’ employment, which leads, in consequence, to the revocation of their visa and work permits. In case migrant workers want to seek legal redress against the employers, they must pay RM100 for a 103 Malaysian Employers Federation, Practical guidelines for employers on the recruitment, placement, employment and repatriation of foreign workers in Malaysia, op.cit., 2014 104 ILO, Review of Labour Policy in Malaysia, op.cit., 2016 105 Ibid. 31

special monthly pass to remain in the country. As holder of special passes, they are not allowed to work in Malaysia. This condition has made seeking legal redress very difficult for migrant workers in practice. Migrant workers cannot afford most of the time to cover the cost of living and legal fees106. According to the Employment Act 1955, domestic workers are excluded from basic labour rights such as maternity and termination benefits, annual or sick leave and days off107. Reports suggest exploitation and abuses of foreign domestic workers, including withholding passports, unpaid wages, and insufficient rest periods108. This situation led the main countries of origin including Indonesia, Cambodia, and the Philippines to suspend deployment of their nationals to Malaysia at some point. In order to address the issue, the Malaysian government concluded MOUs with the major sending countries. The MOUs aim to provide a regular channel for migration and to provide better protection of migrant domestic workers. However, the fixed recruitment fees have an adverse effect as they deter migrants from using regular migratory channel. For instance, in 2013 only 669 Indonesian domestic workers were reported to use regular channels 109 while the irregular flow continued. Moreover, improving protection via MOUs implies the possibility of segmented and differed protection based on the nationality of foreign workers. The better option is to ensure better protection to the sector through national legislation110. 106 Vijayakumari Kanapathy, Controlling Irregular Migration: The Malaysian Experience, op.cit., 2008 107 Philippa Smales, The Right to unite: A handbook on Domestic Worker Rights across Asia: Asia Pacific Forum on Women, Law and Development, 2010 108 Human Rights Watch, Indonesia, Malaysia: Overhaul Labor Agreement on Domestic Workers, 2007 109 No Changes to Existing Terms for New MoU, in The Star 27 December 2013 110 ILO, Review of Labour Policy in Malaysia, op.cit., 2016 32

CHAPTER 3 THAILAND’S LAW AND POLICY ON EMPLOYMENT AND PROTECTION OF LOW-SKILLED MIGRANT WORKERS 3.1) Thailand’s law and policy on entry and recruitment of low-skilled migrant workers Since the 1990’s Thailand’s economic growth and its export-oriented industries have created demand for low-skilled labour111. The economic and political situation in the neighbouring countries was also a push factor resulting in large flows of migrants from Myanmar, Lao PDR, and Cambodia to Thailand. Low-skilled workers from neighbouring countries have filled the chronic labour shortage in the labour- intensive sectors in construction, agriculture, fishery and marine products processing and household work112. Initially, Thailand’s legal framework and policy did not foresee legal recruitment of foreign low-skilled labour. To manage the flow or increasing irregular migrants, the Thai government had relied on ad hoc and temporary management. The formal channel of recruitment through MOUs with the neighbouring sending countries was later established in the 2000s. 3.1.1) Closed-door policy and ad hoc management of low-skilled migration through cabinet resolutions Thailand has been receiving low-skilled workers from mainland Southeast Asia since the beginning of the 1990’s. However, the legal framework on immigration and employment of foreign workers did not initially provide any formal channel of entry and recruitment for such category of migrants. The key legislation governing the immigration and recruitment of migrant workers to Thailand included (1) the Immigration Act 1979 (B.E. 2522), administered by the Immigration Bureau of the Royal Thai Police Department, Ministry of Interior and (2) the Foreign Employment Act 1978 (B.E. 2521), administered by the Ministry of Labour. 111 IOM, Flow monitoring surveys: Insights into the profiles and vulnerabilities of Myanmar migrants to Thailand, Bangkok: IOM, 2018. 112 Maki Aoki, Thailand’s Migrant Worker Management Policy as Regional Development Strategy, in Rethinking Migration Governance in the Mekong Region: From the Perspective of the Migrant Workers and Their Employers. N. Hatsukano (eds.), Jakarta: ERIA and IDE JETRO, 2019, 175-199. 33

Section 12 (3) of the 1979 Immigration Act excluded from entering Thailand “aliens who enter Thailand to earn a livelihood as a labourer or to be hired to do physical work and not skilled, or technical work, or to do other works in violation of alien working laws”. Section 7 of the 1978 Foreign Employment Act subjected the employment of foreign workers to the receipt of a work permit. It also prohibited foreigners from being employed in 39 professions reserved for the Thais, as specified by the 1979 Royal Decree, including labourer work, agriculture, animal husbandry, forestry, or fishery, shop attendance113. Work permits for specific sectors were mainly granted to skilled and professional migrants114. Many low-skilled migrant workers from Myanmar, Lao PDR, and Cambodia, as they entered Thailand irregularly, were in principle liable to be arrested, prosecuted, and repatriated to the country of origin. Moreover, they majorly worked without a work permit and in prohibited sectors in contrary to the Foreign Employment Act 1978. The combination of these legislations had rendered illegal the employment of foreign workers in low-skilled sectors. This closed-door policy and legal framework were nonetheless inconsistent with the reality since there was a concrete demand for foreign low-skilled workers. In practice, there was an increasing flow of irregular migrant workers to Thailand. In order to regulate the irregular migrants from neighbouring countries under such legal framework, the Thai Government initiated the “registration scheme”. The Government relied on Section 12 of the Foreign Employment Act 1978 which allowed the authorities to permit migrants who entered Thailand illegally to work temporarily in some sectors as stated in cabinet resolutions115, as well as on Section 17 of the Immigration Act 1979 which provided the possibility for Minister of Interior, under special circumstances, to grant exemption to irregular migrants to remain in Thailand116. 113 The 1979 Royal Decree prescribing occupations and professions prohibited for foreign workers 114 IOM, Flow monitoring surveys: Insights into the profiles and vulnerabilities of Myanmar migrants to Thailand, op.cit., 2018 115 Section 12 of the Foreign Employment Act 1978 allowed the following categories to foreigners to apply for work permits - “Foreigners under a deportation order under the law on deportation who have been permitted to engage in profession at a place in lieu of deportation or while awaiting deportation” - “Foreigners whose entries into the Kingdom have not been permitted under the law on immigration and are awaiting deportation” 116 Section 17 of the Immigration Act 1979 stated that “in a special case, the Minister of Interior, by the approval of the Council of Ministers, may permit any alien or any group of aliens to enter and remain in the Kingdom under certain conditions, or may grant exemption from complying with this Act in any case”. 34

Based on these two provisions, cabinet resolutions provided for a temporary amnesty for irregular migrant workers who, entering Thailand in violation of the immigration law, came forward and registered under the government scheme. Registered migrants were allowed to stay temporarily in Thailand (for a period of 1-2 years) to work in authorised sectors. They were considered regularized in terms of work permit. However, from the immigration law perspective, the registration did not imply legalization of migrant’s status but only postponed their deportation. Since they entered Thailand illegally or overstayed after expiration of their visa, they remained subject to deportation at the end of the amnesty period117. The first registration, organised in 1992, was limited to migrant workers from Myanmar. Starting from 1996, registrations were extended to cover migrants from all the 3 neighbouring countries (CLM). During 1992-2000, registrations were opened only in certain provinces and limited to migrant workers with employers. Registered migrants were allowed to work in the sectors and the provinces determined by the cabinet resolutions. The Cabinet resolution of August 2001 allowed registration of irregular migrants for work permit in every province and for every sector. Moreover, registration was opened to migrant workers who did not work with only one employer (such as seasonal worker in agricultural sector)118. The Cabinet resolution of April 2004 made an important reform. To obtain a more accurate number of migrant workers in Thailand, the authorities organised civil registration of migrants from Myanmar, Lao PDR and Cambodia and their dependent ageing one year or older. Registered migrants and their dependents were attributed with 13-digit identification number starting with 00. Migrant workers without an employer (including a daily job) could register by themselves. In addition, instead of specifying business sectors, the cabinet resolution of 2004 laid down two main sectors in which migrants were allowed to work; labourer work and domestic work and left to each province to define the authorised business sector. Migrant workers’ health check and health insurance were prerequisites for granting of temporary work permit119. 117 Rosalia Sciortino and Sureeporn Punpuing, International migration in Thailand: IOM, 2009 118 Kritaya Archavanitkul and Kulapa Vajanasara, Employment of Migrant Workers under the Working of Aliens Act 2008 and the List of Occupations Allowed to Foreigners, Bangkok: Institute for Population and Social Research, Mahidol University, 2009 119 Ibid. Adisorn Kerdmonkol, Migrant Workers in Thailand: Rights and Welfare (In Thai). Paper presented on 29 August 2014 at Center of Asian studies, Chiang Mai University op.cit., 2014 35

The cabinet resolutions between 2004-2007 maintained the principle consisting to limit the employment of migrant workers from Myanmar, Lao PDR and Cambodia to labourer work and domestic work. This legal framework was inconsistent with the market demand for labour. Employers employed in practice migrant workers from Myanmar, Lao PDR and Cambodia in the service sector as well as in clerk120. Thai management allowing registration of irregular migrants had resulted in a contradictory situation. Low-skilled migrant workers who had a valid passport or travel document who wished to work as a labourer would be excluded from entering Thailand and could not apply for appropriate work permit, except for labourer work in the fishing ships. Nevertheless, the foreigners who entered Thailand irregularly could apply for a work permit for every sector of labourer work authorised by law121. The Thai Government’s first attempt to manage the flows of low-skilled workers from the neighbouring countries was marked by the concern of controlling migrants. The registration did not imply the legalization of migrant’s immigration status. The main goal consisted of documentation and management to prevent settlement of workers in Thailand122. Nonetheless, the registration policy failed in reducing illegal migration from neighbouring countries which continued to flourish. 3.1.2) Legal recruitment of foreign low-skill labour: MOUs on labour cooperation with labour sending countries In 2002-2003, the Thai government signed memoranda of understanding (MOU) on labour cooperation with the governments of Lao PDR 123 , Cambodia 124 and Myanmar125. The objectives of the MOUs were to tackle illegal immigration and human trafficking by establishing a channel for regular labour migration to Thailand from these 120 Kritaya Archavanitkul and Kulapa Vajanasara, Employment of Migrant Workers under the Working of Aliens Act 2008 and the List of Occupations Allowed to Foreigners, op.cit., 2009. 121 Ministry of Labour, \"Right to work of foreign workers in Thailand (in Thai)\", Julaniti (จุลนิต)ิ , 2011, 175-184. 122 Inga Gruß, \"The Emergence of the Temporary Migrant: Bureaucracies, Legality and Myanmar Migrants in Thailand\", Journal of Social Issues in Southeast Asia, 2017, 32, 1, 1-35 123 Memorandum of Understanding between the Government of the Lao PDR and the Government of the Kingdom of Thailand on Labour Cooperation, signed on 18th October 2002. 124 Memorandum of Understanding between the Government of the Kingdom of Thailand and the Government of the Kingdom of Cambodia on Cooperation in the Employment of Workers, signed on 31th May 2003. 125Memorandum of Understanding between the Government of the Kingdom of Thailand and the Government of the Union of Myanmar on Cooperation in the Employment of Workers, signed on 21th June 2003. 36

neighbouring countries, as well as to ensure the repatriation of migrants to the countries of origin. Recently, Thailand has concluded the second version of MOUs with Cambodia (2015), Myanmar and Lao PDR (2016) 126 . It has also signed a memorandum of understanding (MOU) with Vietnam to allow regular migration from Vietnam127. The MOUs provide for two aspects of management of low-skilled labour. First, the MOUs establish a channel for regular labour migration from Lao PDR, Cambodia, and Myanmar to Thailand. Secondly, the MOUs call for the establishment of a procedure to regularise irregular migrants from Lao PDR, Cambodia and Myanmar who have already resided and worked in Thailand. 1. Establishment of a legal channel of migration and recruitment of low-skilled labour The MOUs foresee legal employment of migrant workers by authorized employment agencies of the respective countries. The MOUs also provide for the repatriation of workers after the completion of the contract. After the completion of a four- year contract, migrant workers need to take a three-year break (reduced to thirty days with the new MOUs signed in 2015-2016) before reapplication. The MOUs require the country of employment to set up and manage a savings fund, to which the migrant workers contribute equivalent to 15 per cent of his or her monthly wage. When the migrant workers leave the country of employment, they will receive the savings with interest after the end of their employment. In case of no return, the right to refund will be revoked128. 2. Regularization of irregular migrants residing in Thailand Beyond the establishment of a regular channel for recruitment, the MOUs provide for the development of procedures to integrate illegal workers who have already been in the receiving country129. In this regard, a regularization system, known as the nationality verification process, was set up as for irregular migrants already residing and working in Thailand. Such migrants have to go back to their countries of origin for nationality 126 ILO, Triangle II Quarterly Briefing Note. Thailand (October- December 2016): ILO, 2016 127The MOU scope is limited to employment in the fishing and construction sectors, where solely a small proportion of Vietnamese migrants are employed. ILO, Triangle II Quarterly Briefing Note. Vietnam (April-June 2019): ILO, 2019, 2019 128Srawooth Paitoonpong, \"Managing International Labor Migration in ASEAN: Thailand (Immigration)\", Philippine Journal of Development, 2011, XXXVIII, 70, 163-193 129 Section 3, para. 2 of the 2003 MOU between Thailand and Myanmar and of the 2003 MOU between Thailand and Cambodia. 37

verification. Once they are issued a passport or other identity document (temporary passport, certificate of identity or travel document), they can apply for Thai visa allowing them to stay legally in Thailand for the purpose of labourer work (Non-Immigrant L-A). The work permit is valid for two years and is renewable for another two years. After four years of employment, migrant workers have to return to their country of origin. Their readmission to Thailand for employment has to be implemented under the MOUs. The nationality verification process was implemented in 2006 for workers from Lao PDR and Cambodia, and only in 2009 for workers from Myanmar 130. The first centres for national verification were open in the border provinces in the neighbouring countries. However, the requirement for irregular migrants to return to their country of origin was impractical. Migrants were discouraged by the cost and time for long-distance travel as well as feared to be prevented from returning to Thailand afterwards by the authorities in their home country131. In 2010, the authorities opened the first nationality verification centre in Thailand in the city of Ranong, followed by other centres in other cities in Thailand132. 3.1.3) Effort to develop a coherent and comprehensive framework on low- skilled labour Taking into account the fact that the restrictive legal and policy framework did not correspond with the concrete situation of continuing need for foreign low-skilled labour, the Thai Government has tried to reform the legal framework on low-skilled labour management. The 2008 Employment of foreign workers Act The 2008 Employment of foreign workers provided for the recruitment through MOU channel as well as for the nationality verification procedure. Unlike the 1978 Act, the 2008 Employment of foreign workers Act changed the approach by specifying occupations/jobs open to migrant workers. The determination of such occupations was based on three guiding principles: 1) national security, 2) career opportunities for Thai nationals and 3) demand for migrant labour for Thailand’s growth and development. The list of jobs open to migrant workers could nevertheless be different for migrant workers 130 ILO, Regulating recruitment of migrant workers: an assessment of complaint mechanisms in Thailand, Bangkok: ILO, 2013. 131 Inga Gruß, \"The Emergence of the Temporary Migrant: Bureaucracies, Legality and Myanmar Migrants in Thailand\", 1-35. 132 Ibid. 38

who entered Thailand irregularly but had been authorised to remain for a limit period awaiting return in accordance with immigration law133. The 2008 Working of Aliens Act was later replaced by the 2017 Emergency Decree on Management of Employment of Migrant Workers. The 2017 and 2018 Emergency Decrees on Management of Employment of Migrant Workers The Emergency Decree on Management of Employment of Migrant Workers, in force since June 23rd, 2017 aims to regulate foreign employment systematically and efficiently. To streamline Thailand’s management of migrant workers, it combines and replaces the 2008 Working of Aliens Act and the 2016 Emergency Decree concerning rules on bringing foreigners to work with employers in the Kingdom. The new legal framework maintains the principle of prohibition of foreign workers from employment in certain occupations as well as the requirement of work permit (Section 7 and 8 of the 2017 Emergency Decree). Nonetheless, the progress has been made since that the list of occupations prohibited for foreigners has been reviewed. Awaiting the final ministerial regulation to be adopted, the modification regarding occupations prohibited for foreigners has been announced in June 2019134. Labourer work will be removed from the list of prohibited occupation and will be unconditionally authorized for foreigners who have entered Thailand in accordance with Thai immigration law. Table 3: Thailand’s new list of prohibited occupations for foreigners as unofficially announced in June 2019. Category No. of Jobs list jobs 1 Job open to foreigners who 1 - Labourer work have entered Thailand in accordance with Thai immigration law 133 Kritaya Archavanitkul and Kulapa Vajanasara, Employment of Migrant Workers under the Working of Aliens Act 2008 and the List of Occupations Allowed to Foreigners, op.cit., 2009 134 Foreign Workers Administration Office, \"Discussion on prohibited occupations for foreigners (แรงงาน ! หารือหน่วยงานทเี่ กี่ยวขอ้ ง กาํ หนดงานทหี่ ้ามคนต่างดา้ วทาํ )\"(online), 22 June 2018, https://www.doe.go.th/prd/alien/service/param/site/152/cat/23/sub/0/pull/detail/view/detail/object_id/4693 39

2 Jobs which can be 8 - Agriculture, animal husbandry, authorized, only as far as forestry, or fishery necessary, on the conditions - Bricklaying, carpentry, or other of construction work - labour shortage - Mat weaving - absence of impact on - Knifemaking - Shoemaking Thais’ job opportunity - Hat making - as employee only - Dressmaking - Pottery Jobs which can be 3 - Accounting authorized in accordance - Engineering with agreements under - Architect ASEAN, on the condition of having a professional licence in accordance with Thai legislation 3 Jobs strictly prohibited to 16 - Wood carving foreigners representing - Cloth weaving by hand Thai identity and culture - Mat weaving or utensil making from reeds, rattan, hemp, straw, or bamboo pellicle - Mulberry paper making by hand - Lacquerware making - Making Thai musical instruments - Nielloware making - Gold ornaments, silverware or pink gold making - Bronze ware making - Thai doll making - Alms bowl making - Hand making of silk products 40

- Buddha image-making - Paper or cloth umbrella making - Typesetting of Thai characters - Silk reeling and twisting by hand Jobs strictly prohibited to 11 - Driving motor vehicles, driving a foreigners for work non-mechanically propelled carrier, opportunity for Thais or driving a mechanically propelled carrier, except for piloting international aircraft - Shop/Outlet attendance - Auction - Cutting or polishing diamond or precious stones - Haircutting, hairdressing, or beauty treatment - Brokerage or agency work, except broker or agency work in international trade - Cigarette rolling by hand - Tour guide or sightseeing tour operation - Street vending - Clerical and secretarial work - Legal service or lawsuit work (except in relation to arbitration concerning foreign law) Jobs strictly prohibited to 1 - Thai massage foreigners representing Thai identity and culture and for work opportunity for Thais 41

The current management of migrant workers from Cambodia, Lao PDR, and Myanmar in Thailand concerns regularisation of irregular migrants, on the one hand, and organisation of the system of bringing migrants to work legally in Thailand, on the other hand. 1. Regularisation of irregular migrant workers The legalisation of irregular migrants consists of 1) Registration of irregular migrant workers to allow them to temporarily stay and work in Thailand and 2) Regularizing the immigration status of migrant workers after nationality verification process with the country of origin. - Registration of irregular migrant workers for temporary amnesties Concerning irregular migrants from CLM, who have registered under government scheme during the period authorized by cabinet resolution, they are granted a document called “Tor ror 38/1” or unofficially “pink card”. They are allowed to stay and work for a period of two years, but their irregular status is maintained. They can only work as domestic workers, construction workers, mechanic workers in the fishing boat and liaison in Myanmar, Laos, and Cambodian languages. These migrants are not allowed to travel outside the province (except permission granted). This category of migrants must go back to their country of origin for nationality verification. - Regularization through nationality verification procedure Irregular migrants who have registered under the Government scheme have to enter the nationality verification process. After the completion of the nationality verification, they will obtain a passport or other identity document (temporary passport, certificate of identity or travel document). They can apply for visa allowing them to stay legally in Thailand for the purpose of labourer work (Non-Immigrant L-A). They are now considered regular migrants and can apply for a work permit according to article 59 of the 2017 Emergency Decree on Management of Employment of Migrant Workers. The work permit is valid for two years and is renewable for another two years. After four years of employment, migrant workers must go back to country of origin. Their readmission to Thailand for employment must be under the MOU. The One-Stop Service (OSS) centres have been set up in Bangkok and each in every city of Thailand (altogether 80 OSS centres). The OSS centres provide services from all the authorities involved. 42

- Department of administration, Ministry of Interior: responsible for registration of personal information, issuance of 13-digit ID number, fingerprint scan and photograph - Department of Employment, Ministry of Labour: responsible for issuance of work permit - Immigration office, Ministry of Interior: responsible for issuance of visa - Social security office, Ministry of Health: responsible for enrolment in a social security scheme - Ministry of Health: responsible for migrants’ health check, health insurance for migrants who have not yet completed the nationality verification process and for migrants who await the social security right to take effect135. The nationality verification centres have been set up in Thailand, in collaboration with the authorities of Myanmar, Cambodia and Lao PDR, under the name Centre for management for the employment of foreign workers. These centres offer the same services as the OSS centres but in addition involve the authorities of the neighbouring countries. Table 4: Centres for management for the employment of foreign workers in Thailand Country of origin No. of Location centres Cambodia 3 Bangkok, Songkla, Rayong Lao PDR 1 Bangkok Myanmar 9 Samut sakorn (2), Samut Prakarn, Nakorn sawan, Tak, Chiang Mai, Chiang Rai, Ranong, Songkla Source: Ministry of Labour, Guideline for management of foreign workers according to Cabinet resolution of 16th January 2018. 2. Legal recruitment channel under the MOUs The 2017 Emergency Decree specifies two modalities of recruitment of migrant workers from Lao PDR, Cambodia, and Myanmar. The first consists of recruitment through permitted licensed recruiters (a limited company with a minimum capital of at 135 Ministry of Labour, Guideline for management of foreign workers according to Cabinet resolution of 16th January 2018, 2018. 43

least THB one million) who are required to pay a deposit of THB five million. The second modality is direct recruitment by employers, with the payment of a deposit to the Department of Employment, Ministry of Labour according to the official rate136. Migrant workers who enter Thailand under the MOU channel are considered legal migrants. They are in possession of a passport and an appropriate visa (Non-Immigrant L- A). They can apply for work permit in accordance with Section 59 of the Emergency Decree on Management of Employment of Migrant Workers 2017. After the completion of a four-year contract, migrant workers must leave Thailand for 30 days prior to re- application for employment137. Figure 3 : Process of regularization and readmission via MOU The 2017 Emergency Decree insists that recruitment processes cannot incur any fees on migrant workers (Section 42, 49 and 53). It also replaces the previous repatriation fund with the “management of employment of migrant workers’ fund” with a broader 136 IOM, Migrant Information Note #30, 2016 137 Adisorn Kerdmonkol, Migrant Workers in Thailand: Rights and Welfare (In Thai). Paper presented on 29 August 2014 at Center of Asian studies, Chiang Mai University op.cit., 2014 44

objective. In case migrant workers suffer prejudice from violation by employers or licensed recruiters of their obligations, migrant workers can file the request to Department of Employment to get the compensation deducted from the deposit made by employers or licensed recruiters138. Despite some progress, the 2017 Emergency Decree also contains provisions restrictive of migrants’ rights such as the restriction of freedom of movement through zoning of migrant residential area for the purpose of security and public safety (Section 15). 3.1.4) Recent development According to the statistics from the Office of Foreign Workers Administration, Department of Employment, Ministry of Labour, the number of migrants from Cambodia, Lao PDR, Myanmar, and Vietnam (since 2018) who have been recruited through MOU channel has increased steadily. Nonetheless, the number of MOU migrants still has not surpassed the number of irregular migrants who entered or overstayed in violation of immigration law and then participated in the regularization scheme (registration scheme or nationality verification process). Moreover, only part of irregular migrants has entered the nationality verification process. Table 5: Statistics on migrant workers from Cambodia, Lao PDR, Myanmar and Vietnam in Thailand Year completed recruited through registered at one- nationality MOU Channel stop service centres verification process 0 9,877 2005 1,681 14,150 17,059 2006 49,214 27,447 2007 72,096 2008 71,017 2009 77,914 138 IOM, Migrant Information Note #30, op.cit., 2016 45

2010 228,411 43,032 2011 505,238 72,356 2012 733,603 93,265 2013 847,130 174,042 2014 971,461 206,168 2015 989,374 279,311 2016 897,828 392,749 2017 1,248,611 582,726 1,178,678 2018 941,372 912,231 1,187,803 Source: Office of Foreign Workers Administration, Department of Employment, Ministry of Labour, Thailand, Statistics on documented migrant workers. One major obstacle for the use of regular channel has been that the MOUs’ procedure for recruitment of workers is quite complicated, lengthy, expensive, and requiring contact with many authorities or agencies. The regulations have changed constantly. Due to the lack of understanding of the regulations and the concrete steps to take, migrant workers need to rely on brokers to help them navigate through the procedure. This is true for both the MOU and the nationality verification process139. The use of brokers adds extra cost for migrants. Moreover, the limited validity of the documents and many formalities can discourage migrants who have been in irregularity for a long period to regularize their situation. For instance, regarding the nationality verification process, after reception of the temporary passport and Thai visa, migrants still need to verify their place of residence every 90 days. They need to maintain employment of all time140. In 2018, 1,187,803 migrants have entered Thailand irregularly and then registered at one-stop service centres. Among this number, 777,217 are Myanmar workers, 350,840 are Cambodians and 59,746 are from Lao PDR141. 139 Inga Gruß, \"The Emergence of the Temporary Migrant: Bureaucracies, Legality and Myanmar Migrants in Thailand\", 1-35 140 Ibid. 141 ILO, Triangle II Quarterly Briefing Note. Thailand (April-June 2019): ILO, 2019, 2019. 46

As of January 2018, approximately 800,000 migrants from Myanmar, Lao PDR, Cambodia had not yet completed the nationality verification process. Recognizing the limit capacity of the nationality verification centres, as well as the risk of a shortage of low skilled labour in case of deportation of irregular migrants to their country of origin, the Cabinet resolution of 16th January 2018 extended the possibility for irregular migrants to register under the Government scheme until 30th June 2018. Once they completed the nationality verification process and have obtained the temporary passport, they can apply for visa and work permit and are allowed to stay and work in Thailand until 31 March 2020142. The most recent cabinet resolution, dated 20th August 2019, extends the possibility to stay and work in Thailand for up to 2 years, for migrants and their dependents who have completed the nationality verification process and whose visa and work permit is still valid. Those whose work permit will expire before 31st March 2020 can work until 30th September 2021. For migrants, whose work permit will expire between 31st March and 30th June 2020, they can work until 31st March 2021. The Cabinet resolution exempts thus such migrants for having to leave Thailand and come back via MOU Channel. Figure 4: Recruitment Process according to MOUs between Thailand and neighbouring countries Employers can apply for quotas at all employment offices in Bangkok or provincial employment offices The employment offices forwards the request to the origin country within 6 days After approval by the origin country, employers can pick up documents to request for a visa within 7 days The application for a work permit takes 7 days 142 Ministry of Labour, Guideline for management of foreign workers according to Cabinet resolution of 16th January 2018, op.cit., 2018 47

Source: Ministry of Labour, \"Legal Foreign Worker Employment Through Convenient, Quick, Inexpensive and Worthy MOU System\", 2015. According to the Ministry of labour, the recruitment through MOU process will cost a total of 2,000 Baht. Application for a 1-year visa costs 1000 Baht, the visa stamp (valid for up to 2 years) costs 500 Baht and a health check-up costs 500 Baht. As for workers in fisheries, agriculture, livestock, and household work which do not require entering into the social security system, there will be an addition of 1,600 Baht for 1 year of health insurance (in total 3,600 Baht)143. The nationality verification process costs 2,350 Baht for Cambodian, 2000 Baht for Laos and 310 for migrants from Myanmar144. Nonetheless, the price that migrant workers have to pay to the brokers to complete the process can be up to 10 times the officially stated price145. At the OSS centre, update registration information costs 80 Baht. Visa stamp (validity up to 2 years) costs 500 Baht and work permit costs 1900 Baht (validity up to 2 years). Migrants who work in sectors covered by social security have to register for social security and pay 500 Baht for health insurance awaiting the social security right to be effective. Migrants who work in sectors not covered by social security have to buy health insurance which costs 3,200 Baht for a 2-year period146. 3.2) Protection of low-skilled migrant workers’ rights Keys legislation concerning labour protection in Thailand are 1) the 1998 Labour Protection Act (updated 2019) 2) the 1994 Workmen’s compensation Act 3) the 1975 Labour Relations Act. These legislations apply to all businesses with minimum one employee. The Labour Protection Act lays down minimum standard regarding treatment of employees such as minimum wages, working and resting periods, holidays, working conditions, equal treatment and remuneration between men and women in employment, 143 Ministry of Labour, \"Legal Foreign Worker Employment Through Convenient, Quick, Inexpensive and Worthy MOU System\"(online), 21 July 2015. 144 Ministry of Labour, Guideline for management of foreign workers according to Cabinet resolution of 16th January 2018, op.cit., 2018 145 Inga Gruß, \"The Emergence of the Temporary Migrant: Bureaucracies, Legality and Myanmar Migrants in Thailand\", 1-35 146 Ministry of Labour, Guideline for management of foreign workers according to Cabinet resolution of 16th January 2018, op.cit., 2018 48

the prohibition of child labour and prohibition of sexual harassment against women or children employees. The Labour Protection Act applies in principle to all migrant workers, irrespective of their nationality or their migration status. All employees, whether full or part-time, seasonal, casual, occasional or contract, are covered by the Labour Protection Act. Nonetheless, certain sectors, in which migrant workers are majorly employed, are not covered by its provisions. These sectors include agriculture, fisheries, transport, and domestic work. Seasonal migrant workers in the agricultural sector do not receive adequate protection, especially regarding low wages, unsafe working conditions as well as child labour.147 In practice, there remain difficulties concerning the implementation of the law. Migrant workers have not been sufficiently protected. Employers do not comply with the law especially concerning wages, working hours, extra payments, and other welfare. When the issues were raised, employers sometimes used the tactic to stop employing migrant workers148. The Workmen’s Compensation Act of 1994 states that the employer must provide the necessary compensation for their employees who suffer a work-related injury, sickness, loss of organs, invalidity or death caused by diseases incidental to the nature of or the condition of work, or by the work itself. The compensation covers indemnity during the period the employers cannot work, medical expense, rehabilitation expense and funeral expense at the rates prescribed by law. The Act obliges employers to pay annual contributions at the rates of 0.2-1% of wage depending on risk levels of the work to the compensation fund. The compensation is critical since many migrant workers work in a risky sector. However, the employers fail to contribute to the compensation fund which deprives migrant workers of the benefit of the compensation. 147 ILO, Triangle II Quarterly Briefing Note. Thailand (April-June 2019): ILO, 2019, op.cit., 2019 148 Adisorn Kerdmonkol, Migrant Workers in Thailand: Rights and Welfare (In Thai). Paper presented on 29 August 2014 at Center of Asian studies, Chiang Mai University op.cit., 2014. 49

Figure 5: Most common subjects of complaints from migrant workers in Thailand between 2011-2015 70 60 50 40 30 20 10 0 Non-payment of Wages below Workers’ Disciplinary Occupational wages legal minimum compensation action/termination safety and health Source: Harkins, Benjamin, and Meri Åhlberg. Access to Justice for Migrant Workers in South-East Asia. Bangkok: ILO, 2017. The Labour Relations Act 1975 distinguishes between Thai and foreign workers. Article 88 of the Act reserves the right to set up a trade union to Thai workers since membership of the board of the trade union is only open to Thai nationals. Even if migrant workers are not prohibited from becoming members of Thai trade unions, it is difficult and only a small number of migrant workers has been accepted in practice149. As far as access to healthcare is concerned, since 2013, the Ministry of Health organized the health insurance for migrant workers who registered under the government scheme as well as for their dependents. There remain nevertheless difficulties regarding access to health insurance. Many hospitals refuse to sell health insurance to migrant workers, to children under the age of seven or to migrants who are not in possession of identity document, notwithstanding the fact that such practices are inconsistent with the underlining logic of the government policy150. 149 Pracha Vasuprasat, Agenda for Labour Migration Policy in Thailand: Towards Long-Term Competitiveness, op.cit., 2010 150 Adisorn Kerdmonkol, Migrant Workers in Thailand: Rights and Welfare (In Thai). Paper presented on 29 August 2014 at Center of Asian studies, Chiang Mai University op.cit., 2014. 50