A Comparative Study on Laws on Migrant Workers in Malaysia and South Korea

Abstract

Ⅰ. Purpose and Scope of Research □ Assessment of the prevailing issues governing migrant workers in Malaysia and South Korea are provided, along with introduction of important recent changes on legislation. □ Analysis of legal framework and administration of foreign labor policy is conducted. □ Suggestions for law and policy changes to strengthen labor migrant governance are stated.

Ⅱ. Contents □ Laws on Migrant Workers in Malaysia ○ Malaysia is a top destination country for migrant workers in Southeast Asia with more than 3 million migrant worker population, while a half remain as undocumented. Widespread labor rights violations across various industries are reported. ○ Policies and legislation have generally remained ad hoc responding to immediate needs of labor. ○ Major issues of terms and conditions of work are regulated by the Employment Act and the Workman Compensation’s Act, overseen by the Labor Department. Issues regarding relations between employers and workers are covered by the Industrial Relations Act, while labor unions are regulated by the Trade Union Act. No Foreign Workers Act or other similar law that unifies regulation of migrant worker issues in one law exists. ○ Labor laws generally apply to migrant workers without discrimination (except for domestic workers), including the right to join trade unions, yet the enforcement of employers’ obligations may be pursued through lengthy court process that migrant workers may not utilize fully. ○ Memorandum of Understanding executed between countries control protections for foreign domestic workers. ○ Although Malaysian and International laws guarantee equal rights and treatments for migrant workers, findings show widespread abuse and exploitation of migrant workers. □ Laws on Migrant Workers in Korea ○ Demographic of migrant worker population has changed to show larger population from Southeast Asia, as compared to the Korean- Chinese workers taking the majority in the previous years. ○ Not having ratified major international conventions for migrant workers, South Korea started to show homophobic tendencies towards migrant workers. Need for domestic law guaranteeing equal protection and effective enforcement of the same arise. ○ The Act on the Employment, Etc. of Foreign Workers, the Immigration Control Act, the Nationality Act, and the Framework Act on Treatment of Foreigners Residing in the Republic of Korea are most relevant immigration laws for migrant workers, besides general labor laws that apply to migrant workers equally. ○ Starting from the definition of status and period of stay for foreigners, the Immigration Control Act is the basic, overarching law that governs foreigners in South Korea. ○ The Act on the Employment, Etc. of Foreign Workers provides procedure for recruiting, hiring, and management of migrant workers, and the law specifically prohibits discrimination against foreign workers. ○ Migration workers, when following the law, cannot meet the residency requirement for naturalization under the Nationality Law. ○ The Labor Standard Act, the Trade Union and Labor Relations Adjustment Act, and the Employment Insurance Act relates to migrant workers in their labor law aspects, generally providing equal rights as workers and guaranteeing protections of their rights with some exceptions, although protections and privileges granted by the law are not effectively enforced in their favor nor even explained to them. ○ Employment permit system builds unequal bargaining power between migrant workers and employers, not enabling workers to change employment freely, furnishing too much room for the employers. □ Comparison and Conclusion ○ In Malaysia, fragmentation and lack of coordination, lack of regulation, and frequent policy changes are pointed as causes for failure in fair treatment of migrant workers. ○ In Korea, laws on migrant workers are centering on the notion of handling migrant workers as helping hands from foreign countries, not perceiving them as potential constituents of the society who would reside in the country. Policy makers should also realize that a holistic and appropriate migration policy and program and effective management of the migrant workers are an economic asset instead of a liability.

Ⅲ. Expected Effects □ Understanding of legal system on migrant workers in both countries and of shortfalls of the policies and laws may lay foundation for the amendment and policy changes on migrant workers. □ Possible suggestions for changes on laws and policies for both Malaysia and South Korea.