รายงานวิจัย-Malaysia and Thailand Management - อ.อุษณีย์

In April 2015, Thailand received a formal notice (the yellow card) from the European Union (EU) as a result of Thailand’s shortcomings in its fisheries monitoring, control and sanctioning systems, including the problem of forced labour, in contrary to the IUU regulations (Illegal, Unreported, and Unregulated (IUU) fishing). Unless Thailand had taken satisfactory to resolve the problem, Thai fisheries products risked being banned by the EU. Thailand has since adopted legislative reform which has a positive impact on migrant labour’s rights, especially in the fishery sector. Recently, the Thai Government has ratified the Protocol to the Forced Labour Convention, 1930 (No. 29) in June 2018. The Protocol requires an appropriate and effective compensation for “all victims of forced or compulsory labour, irrespective of their presence or legal status in the national territory”. In April 2019, Thailand has adopted the Emergency Decree on Prevention and Elimination of Human Trafficking to conform with the Protocol to the Forced Labour Convention (P29). The Emergency Decree modifies the Prevention and Elimination of Human Trafficking Act by penalising specifically the practice of forced labour. The offence of forcing labour or service is defined as forcing other persons against their will to do labourer work or deliver service by using one of the following means (1) threatening to harm life, body, liberty, reputation or assets of such persons or of others (2) threatening others (3) using force to harm (4) withholding of the identity documents (5) debt bondage (6) other acts similar to the above mentioned if the others are put into the position that cannot resist. Employers who use forced labour is punishable by imprisonment from 6 months to 4 years or 50,000-400,000 THB fines. In case forced labour leads to death of the victim, the employer is punishable by life imprisonment or the death penalty. The Emergency Decree grants to victim of forced labour the same rights and protection as victims of human trafficking as well as provides for the competence of Human trafficking court. Thailand has also adopted the Protection of workers in fishery sector Act in May 2019 to be in line with the Work in Fishing Convention (C188). If effectively implemented, such change is an important progress towards improving the working conditions for migrants in every sector151. 151 ILO, Triangle II Quarterly Briefing Note. Thailand (April-June 2019): ILO, 2019, op.cit., 2019 51

The Ministry of Foreign Affairs has announced Thailand’s intention to ratify the Right to Organize and Collective Bargaining Convention (C98). The amendment of Labour Relations Act as a foundation of the ratification was scheduled for the end of 2018 but has not yet been finalized. Against this background, Thai management of low skilled migrant workers was criticised as having been dominated by two concerns; a capitalistic concern to have cheap labour for Thai businesses in labour-intensive sectors and security concern from the government side who consider migrants as a threat. The issue protection of migrants’ human rights was raised rather in reaction to international critics152. 152 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 52

CHAPTER 4 SUSTAINABLE DEVELOPMENT GOALS (SDG) CONCERNING MIGRANT WORKERS The Millennium Development Goals which covered the period 1990-2015 did not integrate international migration as a distinct feature in the goals, targets, or indicators153. International migration has nonetheless been a phenomenon that impacts millions of people. It is estimated that 3 per cent of the world population are international migrants and they contribute to more than 9 per cent of global GDP154. Migrant workers benefit the countries of destination by filling labour demand, contributing to economic growth as well as in the form of skills. They also contribute to the development and improvement of their countries of origin through the transfer of skills and financial resources155. The 2030 Agenda for Sustainable Development recognizes international migration as an integral part of global sustainable development. According to the Agenda’s core principle to “leave no one behind”, the Sustainable Development Goals are aimed to be achieved for all people and all segments of the society, especially those who face vulnerabilities and are prevented from participating in the mainstream development process156. The Agenda recognizes that international migration contributes significantly to the development of both countries of destination and countries of origin as well as for migrants and their families, while highlighting at the same time the vulnerabilities facing migrants. In this regard, the Agenda calls on UN 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”157. 153 ESCAP, International migration, the 2030 Agenda for Sustainable Development and the global compact for safe, orderly and regular migration, op.cit., 2017 154 IOM, Migration and the 2030 Agenda: A Guide for Practitioners, Geneva: IOM, 2018 155 Ibid. 156 ESCAP, International migration, the 2030 Agenda for Sustainable Development and the global compact for safe, orderly and regular migration, op.cit., 2017 157 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, op.cit., 2015 53

Migration is a cross-cutting issue and 11 out of 17 goals contain targets and indicators which concern migration. The research focuses the analysis on two SDG targets central to the issue of migration and protection of low skilled workers which are targets 10.7 and 8.8. Under Goal 10 to reduce inequality within and among countries, target 10.7 calls on countries to “facilitate orderly, safe, regular and responsible migration and mobility of people, including through the implementation of planned and well-managed migration policies”158. Target 10.7 is complemented by target 8.8 which seeks “to protect labour rights and promote safe and secure working environments of all workers, including migrant workers, particularly women migrants, and those in precarious employment”, under Goal 8 to promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all159. 4.1) SDG target 10.7 Target 10.7 is placed under Goal 10 “Reduce inequality within and among countries” as international migration is seen as an important enabler of positive development for migrants and their families as well as for both countries of origin and countries of destination. An effective migration governance is essential to allow migration to be beneficial to the migrants and their communities. There is a need for a comprehensive and effective framework to manage labour migration as well as an adequate protection for migrant workers. The 2030 Agenda emphasises on the need to allow migration in conditions of safety and in respect of their fundamental rights160 SDG target 10.7 calls on countries to “facilitate orderly, safe, regular and responsible migration and mobility of people, including through the implementation of planned and well-managed migration policies”161. In order to assist the member countries in attaining the objective defined by the SDG target 10.7, the International Organisation for Migration (IOM) has developed a Migration Governance Framework162. The framework is developed based on the premise 158 Ibid., p.21 159 Ibid., p.20 160 ESCAP, International migration, the 2030 Agenda for Sustainable Development and the global compact for safe, orderly and regular migration, op.cit., 2017 161 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, op.cit., 2015 162 IOM, Migration Governance Framework, Document C/106/RES/1310, op.cit., 2015 54

that States remain the primary actor who has the sovereign right to define the conditions of entry and stay in its territory in accordance with international law. Other actors, such as citizens, migrants, intergovernmental and non-governmental organizations whose mandates involve the issue of migration and humanitarian action, also interact with States and each other and influence the migration governance163. The IOM’s Migration Governance Framework lays down three principles which are considered essential for planned and well-managed migration. The aim is to ensure that migration is humane, orderly, and benefits migrants and society. The first principle concerns “adherence to international standards on migration and fulfilment of migrants’ rights”. The adherence and compliance with international law ensure the respect of the rights of individuals regardless of nationality or migration status, with the aim to ensure their safety and dignity164. The second principle requires that “migration and related policies are formulated using evidence and whole-of-government approaches”. This principle implies that migration policy should be formulated based on facts and well-founded analysis of the benefits and risks of migration for the State165. The third principle concerns engagement with partners to address migration and related issues. Migration concerns many actors. Beyond the authorities of the countries of destination, the countries of transit and the countries of origin, both at national and sub- national levels, are also involved many intergovernmental and non-governmental organizations whose mandates concern the issue of migration and humanitarian action. The partnership allows the broadening of the understanding of migration issues and the development of a comprehensive and effective policy166. 4.2) SDG Target 8.8 Target 8.8 seeks to “protect labour rights and promote a safe and secure working environment of all workers, including migrant workers, in particular women migrants and those in precarious employment”. 163 Ibid. 164 Ibid. 165 Ibid. 166 Ibid. 55

This target aims to ensure the respect and the protection of the rights of all types of migrant workers. The rights-based approach relies on adherence and compliance with international labour standards, including for instance those relating to working conditions, minimum wages, occupational safety, eligibility to social protection and access to healthcare service167. Moreover, the protection of these rights depends on their effective enforcement by the authorities and requires complaint mechanisms in the case of violations168. According to Migration Policy Organisation 169, relevant indicators for the 8.8 target include 1) Adoption of international labour standards in national law and application of such standards to all workers including non-national, regardless of employment or immigration status or existence/nature of contract 2) Adoption and application of gender- specific legislation, policy and practice addressing women migrant workers170. 167 ESCAP, International migration, the 2030 Agenda for Sustainable Development and the global compact for safe, orderly and regular migration, op.cit., 2017 168 Mauro Testaverde, et al., Migrating to Opportunity Overcoming Barriers to Labor Mobility in Southeast Asia, op.cit., 2017 169 GMP, \"The Sustainable Development Goals and Migrants/Migration\"(online), 2016, https://www.un.org/en/development/desa/population/migration/.../GMPA_14CM.pdf 170 Ibid. 56

CHAPTER 5 MALAYSIA’S AND THAILAND’S POLICY AND FRAMEWORK IN THE LIGHT OF LABOUR MIGRATION RELATED SDG TARGETS 5.1) Malaysian and Thailand policy and framework as regards SDG target 10.7 This research proposes to assess national policies and legal frameworks in the light of SDG target 10.7 in two main aspects. The first aspect pertains to the development of a comprehensive, planned, and well-managed migration policy. The second aspect concerns facilitation of a safe, orderly, regular migration. 5.1.1) A comprehensive, planned, and well-managed migration policy Good migration governance calls for the development of clear, comprehensive, and coherent migration policy and legal framework. The IOM Migration Governance Framework 171 proposes that the development of a comprehensive, planned and well- managed migration policy should rely on three principles; adherence to international standards on migration; development of migration policy and legal framework based on evidence and a whole-of-government approach; and engagement with partners and stakeholders. Adherence to international standards on migration As far as international standards on migration are concerned, relevant international instruments include UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1990, ILO Migration for Employment Convention 1949 (Revised) (No. 97) and ILO Migrant Workers (Supplementary Provisions) Convention 1975 (No. 143)172. Nonetheless, as of September 2019, Malaysia and Thailand have not ratified any of these three conventions. 171 IOM, Migration Governance Framework, Document C/106/RES/1310, op.cit., 2015 172 GMP, \"The Sustainable Development Goals and Migrants/Migration\"(online), op.cit. 57

Formulation of comprehensive and coherent migration policy and legal framework Migration governance is composed by applicable legislation, bilateral agreements as well as institutional responsibilities173. The research has revealed a certain inconsistency regarding policy on foreign low-skilled workers in Malaysia and Thailand. Such inconsistency has been mainly related to the mismatch between the Government’s vision on foreign workers and the market demand. Malaysia and Thailand both aim to escape the middle-income trap and to become developed countries by upgrading their industries. The Governments have set the goal to reduce reliance on foreign low-skilled workers. This vision is reflected in the Eleventh Malaysia plan 2016-2020, as well as in Thai cabinet’s Strategies on management of foreign migrant workers 2017-2021174. Malaysia’s and Thailand’s policies toward low-skilled migrant workers have been based on the vision that reliance on foreign workers would only be an “interim solution”. However, the need for foreign low-skilled labour to fill substantial shortages in key economic sectors has persisted and even increased in both countries. This has resulted in a contradictory situation where a supposed to be short-term policy has been constantly extended for almost two decades. The management of low-skilled migrant workers has not reflected a long-term strategy and has been ad hoc. Until recently, the Thai Government repeatedly renewed the registration of irregular migrants and extended amnesty period, notwithstanding the existence of MOU channel. Such renewals of registration, under the pretext of insufficient cheap low-skilled labour, did not let the MOUs process function properly. The possibility of registration indirectly encouraged the hiring as well as the coming of new irregular migrants175. In Malaysia, there has been a gap in policy intent to progressively phase out the use of low-skilled foreign labour while upgrading the skills for the knowledge economy. The emphasis has been mainly put on regulating the flows of foreign workers rather than on up-skilling of national workers176. 173 Mauro Testaverde, et al., Migrating to Opportunity Overcoming Barriers to Labor Mobility in Southeast Asia, op.cit., 2017 174 Department of Employment Thailand, Operational meeting on Strategy on management of foreign migrant workers 2017-2021, 2016 175 Sripong Laddawan na Ayuddhaya, \"Thailand’s Management of Three Nationalities Illegal Entry Transnational Migrant Workers: Survey in Law, Policy and Alternative (in Thai)\", Political Science and Public Administration journal, 2016, 7, 1, 49-74 176 Vijayakumari Kanapathy, Controlling Irregular Migration: The Malaysian Experience, op.cit., 2008 58

Moreover, in both countries, policies and legal framework on migrant workers are often based on the perception of foreign workers as a security threat. In Malaysia, this perception is reflected in the predominant role of the Ministry of Home Affairs, to the detriment of the Ministry of Human resource, in the management of low-skilled foreign workers. The primary concern of the government has been to increase or reduce the number of migrant workers as well as to combat irregular migrants. The protection of migrant workers’ rights has received less attention177. The recent approach of Malaysian Government regarding low-skilled labour management as formulated under the Eleventh Malaysian Plan appears to give more emphasis on national development goal as well as on the protection of migrant workers’ rights. The government plans to formulate “a comprehensive immigration and employment policy for foreign workers…taking into account the requirements of industry and the welfare of foreign workers.” 178 . The government strategy is to improve the management of migrant workers in the country by streamlining the recruitment process for migrant workers179. In Thailand, the recent revision of the legal framework concerning the list of occupations prohibited for foreigners, as unofficially announced in June 2019, even if not yet sufficient, has been a progress. Thai legislation and policy framework had fitted awkwardly with the constant need for foreign workers to fill low-skilled jobs where Thais did not wish to do. This revision which will result in the possibility for foreigners who have entered Thailand in accordance with Thai immigration law to legally work as labourer corresponds more to the reality. Formulation of policy using a whole government approach and engagement with partners and stakeholders In Thailand, in order to address the lack of coordination among various authorities in charge of management of foreign labour, the Emergency Decree on Management of Employment of Migrant Workers 2017 sets up a commission called the “Management of Employment of Migrant Workers’ Policy Commission” with the aim to ensure better coordination among different authorities related to migration issue. Besides Minister of Labour and Permanent Secretaries from Ministries of Defence, Finance, Foreign Affairs, 177 Ibid. 178 Rajah Riah, Implement 11th Malaysia Plan Policies on Labour Migration, in Malaysia Kini 19 December 2016 179 Economy Planning Unit, Rancangan Malaysia ke 11, 2016 59

Social Development and Human Security, Interior, Public Health, and Industry, the Secretary-General of the National Economic and Social Development Board is also part of the commission. This inclusion will facilitate the integration of labour migration issue into National Economic and Social Development Plan. Beyond government authorities, the formulation of policy will also involve other partners since up to two representatives of employees’ organisations and four experts in labour, industry, law and human rights are appointed by the Minister of Labour. The formation of the tripartite committee allows a greater contribution of social partners to the formulation of policy on foreign workers. Moreover, the establishment of the nationality verification centres in the major provinces where migrant workers are employed in Thailand, in collaboration with the authorities from Myanmar, Cambodia and Lao PDR, has demonstrated important cooperation between Thailand and the labour sending countries. This also has demonstrated a certain transnational bureaucracy among the ASEAN member states. In Malaysia, the policy of foreign low-skilled labour is determined by the Cabinet Committee on Foreign Workers and Illegal Immigrants. The Ministry of Home Affairs is the secretary of the Committee. The Committee is chaired by the Deputy Prime Minister and included representatives from 13 Ministries180. According to the Eleventh Malaysian Plan, the Ministry of Human Resource (MOHR) will be entrusted with leading role in policymaking. The process of recruitment of migrant workers will be placed under the Ministry of Human Resource with the system of One Stop Centre (OSC) which will be responsible for determining the number of migrant workers needed in each sector; approving the application for recruitment; monitoring the welfare of migrant; and ensuring that migrant workers are working at the designated sector and company181. Conferring main responsibility on recruitment and management of foreign low-skilled workers to the Ministry of Human Resource, instead of the Ministry of Home Affairs corresponds with the demand of Human rights organisation as well as of the Federation of Malaysian Manufacturers182. The Ministry of Human Resource is considered as better placed to understand migrant workers’ needs. The change will also reflect the view that migrants do not necessarily represent a security threat to public safety and peace. 180 Malaysian Employers Federation, Practical guidelines for employers on the recruitment, placement, employment and repatriation of foreign workers in Malaysia, op.cit., 2014 181 Economy Planning Unit, Rancangan Malaysia ke 11, op.cit., 2016 182 Soo Wern Jun, Let HR ministry take charge of foreign worker recruitment, in Free Malaysia Today 13 July 2018 60

Currently, the management of foreign low-skilled foreign workers is handled by both the Ministry of Home Affairs and the Ministry of Human Resource. According to Malaysian authority, the Ministry of Human Resource is responsible for drafting the policy on Malaysian manpower by considering the industries’ needs. The Labour Department under the Ministry of Human Resource is responsible for examining employers’ application to hire foreign workers, by controlling failure to hire local workers as well as employers’ compliance with labour laws. The Ministry of Home Affairs oversees coordination of foreign workers’ applications via the One-Stop Centre (OSC) and manages immigration affairs183. The recent debate has shown nonetheless the entangled responsibility between the two ministries. Concerning the recent debate on the surplus of Bangladeshi workers in Malaysia, the Ministry of Home Affairs has affirmed the shared responsibilities of the two ministries. On the contrary, the Ministry of Human Resource has denied all the responsibility, alleging that the decision to permit foreign workers is under the responsibility of the Ministry of Home Affairs, not the Ministry of Human Resource184. 5.1.2) Facilitation of a safe, orderly, regular migration Target 10.7 calls for policy intervention to ensure safe, regular, and orderly migration and recruitment of migrant workers. This includes access to the regular channel of migration, well-administered entry scheme, limited wait time and reasonable fee for regular migration procedure as well as the prohibition of illegal cross border activities185. As regards migration channels, after the first period of laissez-faire, the Malaysian government set up a formal channel for recruitment of foreign low-skilled workers in the 1990s. Thailand, on the contrary, did not provide a legal channel for recruitment of low- skilled migrant workers until recently. The government had relied on registration system and temporary amnesties to exempt irregular migrants from deportation and to allow them to work for a determined period. Only with the conclusion of MOUs with Cambodia, Lao PDR, and Myanmar in 2002-2004, low-skilled migrants from these countries could enter Thailand via legal admission process. 183 The Star, Home and Human Resource ministries both responsible for managing foreign workers, in The Star 10 July 2019 184 Ibid. 185 ESCAP, International migration, the 2030 Agenda for Sustainable Development and the global compact for safe, orderly and regular migration, op.cit., 2017 61

Migration through legal channels to Malaysia and Thailand, nonetheless, is not without difficulties. For instance, obtaining the Visitor Pass in Malaysia may take from three to twelve months while recruitment under the MOU process requires 25 steps and involvement of various agencies both in Thailand and in the sending countries186. In general, migrant workers have to bear the costs of recruitment and employment, often through salary deduction when the costs are paid by the employers. The lengthy, costly, and complicated formal migration processes set up by both countries provide, unintendedly and paradoxically, incentives for migrants to opt for irregular channels. Since 1st August 2015, the Malaysian Government has set up the Foreign Worker One-Stop Approval Agency administered by the Foreign Worker Management Division of the Ministry of Home Affairs. The OSS deals with employers’ application for foreign workers after having established the impossibility to hire local workers. The objective is to expedite and simplify the recruitment application process, by reducing bureaucracy. The OSS comprises 4 units: Application and processing unit, Policy and bilateral negotiation unit, Inspection, complaint and outsourcing unit and Information system and administration units187. Thailand has also established 80 One-Stop Service (OSS) centres in Bangkok and each in every province of Thailand to streamline the services (registration of personal information, visa, work permit, health check and enrolment in social security scheme). The establishment of the nationality verification centres (Centre for management for the employment of foreign workers) in Thai provinces where migrant workers are largely employed has simplified the procedure importantly. The collaboration with the authorities from Myanmar, Cambodia and Lao PDR allows the completion of the process in Thailand without requiring the return to origin country. The challenges remain to create a greater incentive to use the regular channel of migration through procedural simplification and cost reduction, as well as to reduce abuses. Even though brokerage service is not compulsory in both countries, complexity of the procedure for migrants, lack of knowledge on concrete steps as well as frequently changing regulations lead to reliance on intermediate. In this regards Malaysia has recently reformed the Private Employment Agencies Act 2017188 to better regulate the private 186 Mauro Testaverde, et al., Migrating to Opportunity Overcoming Barriers to Labor Mobility in Southeast Asia, op.cit., 2017 187 Ministry of Home Affairs, \"Foreign workers management division\"(online), 8 October 2018, http://www.moha.gov.my/index.php/en/maklumat-perkhidmatan/pengenalan-pa 188 entered into force since 1st February 2018 62

agencies and better protect workers from exploitation. It is also imperative to ensure strict enforcement of the migration law to protect migrants in entry and recruitment process. Under the Malaysian Eleventh Plan, the government will introduce a strict liability concept of which the migrant workers recruited under a certain company are fully liable on the recruitment process as well the migrant’s welfare. On top of that, the government will curb the problem of irregular migrant by having a stricter management and enforcement of the law189. In Thailand, to combat the recruitment of irregular migrant workers as well as human trafficking, the 2017 Emergency Decree on Management of Employment of Migrant Workers imposed very severe penalties. According to its article 102, employers who hired irregular migrants could be fined a maximum of THB800,000 (US$23,800) for each of them. As for migrants working in prohibited occupations for foreigners or working without a work permit, they could face up to five years of imprisonment or up to THB100,000 (US$3000) fine, or both, according to article 101. The abrupt change in policy created, however, chaos. It was reported that in the first week of its entry into force, almost 60,000 migrants left Thailand. Some employers also laid off and abandoned at least 500 irregular migrants to avoid penalties 190 . Due to the unintended impact of the Emergency Decree on businesses, Thai government enacted an order postponing the implementation of the 2017 Emergency Decree to 1st January 2018, allowing an adjusting period for employers and migrants to comply with the new regulation. The new Emergency Decree on Management of Employment of Migrant Workers 2018 adjusts the national legal framework to make it consistent with Thailand’s human rights’ obligation. The use of notification system, instead of the permission system, will allow documented migrant workers to change employers, workplaces, types of work, and, allow employers to hire documented foreign workers, without having to request for permissions from the authority concerned. The new law also lifts restrictions on the residential zoning of migrant workers. As for the punishment, it is adjusted to be reasonable: the penalties for irregular migrants according to article 101 are reduced to maximum THB50,000 fine and the imprisonment term is removed; fine for employers hiring irregular migrants according to article 102 is limited to maximum THB100,000 per migrant while recidivist employers can face up to one year of imprisonment. In addition, the new law prohibits employers from collecting fees from foreign workers, except for 189 Economy Planning Unit, Rancangan Malaysia ke 11, op.cit., 2016 190 Ruji Auethavornpipat, Thailand’s New Migrant Worker Policy Is a Step onto Uncertain Ground, 2017 63

passport, health check-up, and work permit fees which are determined by the Government. Awaiting their effective implementation, all these improvements in line with SDG target 10.7 are to be welcomed. 5.2) Malaysian and Thailand policy and framework as regards SDG Target 8.8 Target 8.8 seeks to “protect labour rights and promote a safe and secure working environment of all workers, including migrant workers, in particular women migrants and those in precarious employment”. This research assesses Malaysian Thai policy and legal framework on two aspects. The first aspect concerns the adoption of international labour standards in national law. The particular focus is on the extension of such standards to include all workers, regardless of nationality, employment or immigration status or existence/nature of contract, as well as the adoption of gender-specific legislation, policy and practice addressing women migrant workers191. The second aspect focuses on effective enforcement of such standards in practice by governments. 5.2.1) Adoption of international labour standards in national law Adherence to international labour standards Regarding the ratification international standards on migrant workers, as of September 2019, Malaysia and Thailand have ratified 6 of 8 ILO fundamental conventions on labour standards. Recently ratified Convention no.111 on discrimination in respect of employment and occupation entered into force for Thailand on 13 June 2018. Malaysia has not yet ratified Convention no. 87 on freedom of association and no.111 on discrimination in respect of employment and occupation while Thailand has not yet ratified Conventions no. 87 on freedom of association and no. 98 on collective bargaining192. The ratification of the remaining fundamental conventions is the next step Malaysia and Thailand should consider. 191 GMP, \"The Sustainable Development Goals and Migrants/Migration\"(online), op.cit. 192 ILO, \"Ratifications for Malaysia\"(online), 2019, http://www.ilo.org/dyn/normlex/en/f?p=1000:11200:0::NO:11200:P11200_COUNTRY_ID:102960, ILO, \"Ratifications for Thailand\"(online), 2019, http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11200:0::NO::P11200_COUNTRY_ID:102843 64

Table 6: Malaysia’s and Thailand’s ratifications of ILO Fundamental Conventions on labour standards ILO Fundamental Conventions Malaysia Thailand In force Ratification In force Ratification Forced Labour Convention, 1930 Yes (Nov 1957) Yes (Feb 1969) (No. 29) No (Feb 1999) Freedom of Association and No (Jun 1961) No (Dec 1969) Protection of the Right to Organise (Jun 2017) Convention, 1948 (No. 87) (Sep 1997) Yes (May 2004) Denounced Yes (Feb 2001) Right to Organise and Collective Yes on 10 Jan Bargaining Convention, 1949 (No. 1990 98) Yes Equal Remuneration Convention, Yes 1951 (No. 100) (Sep 1997) Yes (Nov 2000) Yes Abolition of Forced Labour Yes Convention, 1957 (No. 105) Discrimination (Employment and No Occupation) Convention, 1958 (No. 111) Minimum Age Convention, 1973 Yes (No. 138) Worst Forms of Child Labour Yes Convention, 1999 (No. 182) Source: ILO. Ratifications for Malaysia. 2019. http://www.ilo.org/dyn/normlex/en/f?p=1000:11200:0::NO:11200:P11200_COUNTRY_ ID:102960; (ILO 2019, ILO 2019)ILO. Ratifications for Thailand. 2019. http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11200:0::NO::P11200_COUN TRY_ID:102843. 65

As part of Thai legal reform following European Union’s issuance of yellow card regarding Illegal, Unreported and Unregulated (IUU) Fishing, Thailand has ratified the Convention no.188 on Work in Fishing. The Convention will enter into force for Thailand in January 2020193. The international pressure has incited Thailand to leverage its international commitment and contributed thus to improve the living and working conditions of migrant workers on board vessels. Equal treatment independent of nationality, all categories of workers Regarding the application of international labour standards to all workers, Malaysia’s and Thailand’s challenges include guaranteeing labour rights to all categories of workers, regardless of employment or immigration status or existence/nature of the contract. The recent legislation regarding protection of labour rights does not cover certain sectors, in which migrant workers are majorly employed such as agriculture, fisheries, transport and domestic work. There also remains a difference of treatment toward nationals and foreign workers as demonstrated by the Thai Labour Relations Act 1975 which reserves the right to set up a trade union to only Thai workers. Legislation and policy addressing women migrant workers As for the adoption and application of gender-specific legislation, policy and practice addressing women migrant workers, both countries’ labour laws do not cover domestic workers who are majorly migrant women. All these differential treatments between nationals and migrant workers as well as between male and female workers are inconsistent with the SDG target 8.8 which emphasises on non-discriminated protection of labour rights to all workers. 5.2.2) Effective enforcement of labour protection Beyond the adoption of national law in compliance with the international labour standard, the challenging difficulties also lie in the effective enforcement of the law towards migrant workers, especially irregular migrants. Even if in law, migrant workers are included in the scope of labour laws, they are often excluded, in practice, from effective protection. Even though Malaysian and Thai labour laws apply in principle to all migrant workers, irrespective of their nationality or their migration status, there exists in practice 193 ILO, \"Ratifications for Thailand\"(online), op.cit. 66

a certain gap between the text of the law and its implementation. “As many employers view migrant workers as easier candidates for exploitation”194, there has been frequently witnessed violations of their rights for instance, “noncompliance in accordance with the minimum wage and overtime regulations, uncompensated extended working hours, the use of child labour, practices tantamount to forced labour in the factory and in fishing industries, and the termination of contracts of pregnant migrants” 195 . Many factors constrain systematic enforcement of labour legislation for migrant workers, including insufficiency of resource and shortage of labour inspectors as well as the corruption of officials in enforcing the laws, allowing employment of irregular migrants in exchange of bribery196. Moreover, migrants’ illegal status under national law prevents them most of the time from claiming their rights or from reporting abuses of their rights, fearing that employers will stop hiring them or report them to the authorities. 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 grievances197. In principle, migrant workers have equal access to legal mechanism in case of breaches of employment’s terms and conditions or unlawful dismissal. However, the number of cases pursued on the negligence of migrant workers are far greater than the numbers of violations committed against them in Malaysia198. A recent ruling of a High Court in Malaysia in July 2019 has confirmed the right of undocumented foreign domestic workers to pursue the claim for unpaid wages, despite not having a work permit. After the dismissal of the case by the Government’s Labour Department and by a Labour Court, the High Court has ordered the case to be heard, disagreeing with the authorities for the case to be dismissed due to the sole work permit status. This ruling constitutes an important step towards ensuring migrant workers’ right to redress independent of their irregular status199. 194 Vitit Muntarbhorn, Employment and Protection of Migrant Workers in Thailand: National Laws/Practices versus International Labour Standards?, op.cit., 2005 195 Srawooth Paitoonpong, \"Managing International Labor Migration in ASEAN: Thailand (Immigration)\", 163-193 196 Yongyuth Chalamwong, \"Management of Cross-border Low-Skilled Workers in Thailand: An Update\", TDRI Quarterly Review, 2011, 26, 4, 12-20 197 ILO, Review of Labour Policy in Malaysia, op.cit., 2016 198 Anni Santhiago, Access to Justice for Migrant Workers in Malaysia. Exit and Integration Strategies for Labour Migration in South East Asia: Putting Principles in Practices (unpublished) Monash University, 2011 199 Beh Lih Yi, Malaysian court sides with forced labor victims over unpaid wages, in Reuters 30 July 2019. 67

In Thailand, the establishment of Migrant Worker Assistance Centres (MWACs) in 10 pilot provinces also presents a positive development. The Centres are entrusted with the mission to provide migrants with information and assistance, especially regarding labour rights violations. These centres are expected to improve migrants’ access to complaint and redress mechanism as well as to provide them with adequate legal assistance. 68

CONCLUSION To allow migrant workers to make their best contribution to the development of both countries of employment and countries of origin, well-regulated foreign labour policies and laws as well as protection and respect of migrants’ rights are crucial. The study of Malaysian and Thai policies and legal frameworks on low-skilled migrant workers has revealed the effort of both Governments in the good direction. Nonetheless, many challenges remain to be addressed to ensure compliance of both countries with the SDG targets 10.7 and 8.8. In this regards, certain recommendations can be made to enable efficient labour migration in a safe and certain manner while upholding migrants’ labour rights. First, Malaysia and Thailand should take the commitment to better regulate and protect migrant workers in accordance with the SDGs targets seriously. The ratification of the core international standards on migration and the remaining ILO fundamental conventions on labour standards will be a significant step to confirm Malaysia and Thailand’s commitments on the issue. Second, the formulation of laws and policies on migrant labour should reflect a more coherent and long-term plan, balancing the effort to upgrade the economy and the real demand for low-skilled migrant labour. The positive contribution of foreign migrant labour to the development of the host countries should be acknowledged and taken into account when determining their rights and protection. A more active involvement of migrant representatives, international organizations and non-states actors will broaden the understanding of the issue and allow the formulation of policies which better reflect and respond to migrants’ reality. Third, closer coordination and cooperation between Malaysia/Thailand and the sending neighbour countries through the MOUs will allow effective management and protection of migrant labour. A better coordination among the national authorities both regarding the formulation and the implementation of the policies is also needed. Fourth, to combat irregular migration, the challenges for Malaysia and Thailand lie mainly in rendering the regular channels for low-skilled labour migration and recruitment attractive and effective, by simplifying the process and reducing its costs. It is also necessary to allow migrant workers a greater flexibility to change employment or employers. Otherwise, it will be difficult for migrant workers who have entered the 69

country legally to retain their regular status. Moreover, it is important to strictly enforce the laws on migration and employment to discourage irregular migration. Finally, in terms of migrant workers’ rights, both countries have in place policies and legal frameworks to provide them with protection essentially similar to nationals. Further efforts should focus on extending the current legal coverage to sectors in which migrant workers are majorly employed, especially agriculture, fisheries, transport, and domestic work. The most challenging aspect is to ensure that protection available to migrant workers are effectively enforced in practice, despite their informal or irregular status. It is crucial to address legal and practical obstacles to migrants’ legal redress against employers violating their rights, including for instance the removal of the linkage between migrant’s legal status and access to justice. 70

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