Labour Migration in the ASEAN Region

To gain a clearer view, below is the record on Convention ratifications of ASEAN countries in relation to migration.

Governments, workers, and advocates need to contemplate the current state of these instruments. More and more people are migrating without enough protection and will continue to be at risk of unequal treatment, violence, and exploitation. Member states have been using international instruments in drafting the Framework Instrument, but its development has not been transparent. There is a lack of clarity as to the process for member states to adopt the Instrument.

Key issues in labour migration

1. Irregular migration

Irregular migration is when there are no proper documents or when people are working in informal sectors. Irregular migration also takes place when migrants and/or employers access irregular channels.[2] Those who go through these channels are more likely to be at risk of violence inside the workplace and suffer the worst work conditions as well as experience harassment, abuse, and exploitation. This is alarming, as these occurrences happen mainly due to migrants’ lack of access to the necessary information on laws and services, most especially pre-departure training, which pushes people towards the option of looking for low-skilled work.

Irregular migration can be interpreted as an expression of the right to mobility. However, the paradox is that international law supports the right to leave a country but not the right to enter another. The disparity between economic needs and political considerations is visible because there is openness for the flow of goods and capital, but barriers are put up when it comes to the flow of people.[3]

People are often exploited in the private economy by individuals or enterprises; are victims of forced sexual exploitation; and/or are victims of forced labour exploitation in economic activities such as agriculture, construction, domestic work, or manufacturing. Others are in state-imposed forms of forced labour. The mixed flows are focussed on irregular populations that include refugees, migrant workers, asylum-seekers, victims of trafficking, smuggled migrants, and unaccompanied minors. This is a big issue, considering the possibility of not fully documenting all refugees and stateless persons and annually increasing population sizes. Unfortunately, ASEAN has been silent on this or has done very little to address this issue.

Women

Migrant women are particularly vulnerable to labour abuses due to their reliance on employers to issue visas, accommodation, and pay. Further, they have limited access to information and encounter language barriers, which hinder them from identifying or reporting poor treatment and/or conditions. Labour inspections are useful but do not necessarily cover the informal sector, despite having a higher risk of abuse and exploitation. In the ASEAN region, manufacturing is one of the major sectors in which women migrant workers experience unexplained wage deductions for their medical fees, food, and transport costs, despite living within the vicinity of the factories.

Below is an illustration of the women’s labour migration flow in the ASEAN region. It is taken from the Policy Brief Series of ILO, UN Women, with the support of the Australian government.

Despite all member countries ratifying the Committee on the Elimination of Discrimination against Women and the Committee on the Rights of the Child, issues of migrant women and children have not been fully addressed, particularly in the AIMW. Thus, other avenues to address the issues of migrant women and children have been considered.

On 12–13 November 2014, the ASEAN Regional Conference of Senior Officials on Strengthening the Protection and Empowerment of Women Migrant Workers was held in Manila, the Philippines. It gave ample attention to the protection and empowerment of women migrant workers, including capacity-building of gender-responsive policies relevant to migration. The regional conference aimed to contribute towards the ongoing process of crafting the AIMW. However, as mentioned, there has been very little progress on the actual implementation of the Instrument.

With regard to health and maternity, countries of destination must have facilities such as private areas for women to help deter the harassment and sexual assault of migrant women. Facilities for pregnant and breastfeeding women must also be included, since women lose their jobs if impregnated. In ILO Convention 183, the Maternal Protection Convention, it states that women should not be obliged to work while pregnant. Unfortunately, no ASEAN state has ratified this convention.

1. Domestic Workers

Labour laws tend to exclude domestic workers or fail to offer effective protection due to a lack of enforcement. According to Martin and Abella,[4] no member country – except the Philippines – has specific laws for domestic workers. Moreover, Malaysia and Singapore have exclusion clauses for foreign domestic workers. This is quite alarming, as domestic work is the most prevalent field of work for migrant workers from the ASEAN region. Domestic workers also have a higher risk of experiencing exploitation and extensive working hours. To a certain extent, they are seen as modern-day slaves with their unscrupulous contracts. Domestic workers have mentioned stories of paying exorbitant recruitment fees before being deployed and having their wages deducted monthly, which often results in debt bondage with the employers and/or recruiters. Due to these deplorable realities, domestic workers often opt to run away from their current employers and/or find new employers. There are cases in which employers hold the domestic workers’ travel documents, which makes it difficult for domestic workers to find jobs or return home, even after the end of their contract. As a result they are considered to be undocumented.

To recognise domestic workers in the mainstream labour force, the ILO initiated the Convention on Domestic Work, which made use of the ILO Tripartite Framework. It brings together representatives of employers, workers, and governments in negotiating efforts to prepare and provide minimum standards in protecting the rights and welfare of migrant workers.

1. Children

Thailand’s Department of Employment has estimated that there are an additional 1.3 to 2 million undocumented immigrant workers in Thailand. In the Mae Sot province, 313 Burmese children were interviewed: the youngest interviewee was 12 years old, operating a machine in a factory for eight hours a day, seven days a week. All these Burmese children face excessive working hours, lack time off and unhealthy proximity to dangerous machines and chemicals, and even endure the practice of debt bondage.

On 21 October 2015, there was a media statement by Dr Ong Kian Ming, MP for Serdang, about 1,918 children currently being detained at detention centres for immigrants, out of 71,362 total detainees. In fact, there are children in each of the 13 detention centres, with the highest number being in Bekenu, Sarawak (299) and the lowest in Semuja, Sarawak (9).

Recommendations

The ILO’s framework does not have the leverage that other international economic institutions are able to exercise. The ILO’s resolution, then, is to create a rights-based approach to international migration, to let countries make their own policies, and for the ILO to assist countries guided by the principles of the relevant ILO conventions.

Having sex-disaggregated data is crucial, as it helps in understanding the jobs women are doing and how they are being recruited. There should be data available to provide evidence or be used by policy-makers and advocates to evaluate and monitor whether policies are effective, and whether migrant workers matter-of-factly have access to support services.

In 2012, the ASEAN Agreement on the Promotion and Protection of the Rights of Workers was adopted as an initiative by the Law Reform Commission of Thailand. Its vision is broader in the sense that it is applicable to all workers and recognises the equal status of migrant workers, particularly those in the care-giving and domestic work sectors. Negotiations have focussed around building consensus among the ASEAN member countries on each article of the draft. The ASEAN Agreement on the Rights of All Workers was finalised during the AFML 2015, which was held 26–28 October 2015.

Attention should be given to the review of policies, the practices of the migration industry and intermediaries, and the accountability of employers. The guiding principles of approaching migration issues should be the use of dialogue, responsibility-sharing – by countries of destination and countries of origin as well as employers, recruiters, and migrant workers – the promotion of human rights, and a commitment to narrowing gaps in equality. As reiterated by Asis (2004), there must be a degree of tolerance for irregular migration, as eradicating irregular migration is quite unrealistic and, thus, should not be the end goal. Instead, attention should be given to achieving equilibrium – at the end of the day, there is the question of the human rights of migrant workers in irregular situations.

Data is essential, as it could help in understanding the significant gender gaps, which are evident inside and outside the workplace. On the national level, the administration needs to make more effort to actually publish data in a timely manner, as this would help guide research and awareness on migration trends. Combining administrative records and surveys of member countries could be vital in addressing key ongoing knowledge gaps concerning irregular migration.

There is a need for better coordination among provincial offices and for national laws and services to trickle down to the grassroots level. With regard to creating or sustaining data, countries should make use of information system technologies to modernise or digitalise data instead of keeping hard copies of data available. In relation to that, they could make use of modern technology to have campaigns about raising awareness of the possible risks in migration.

Abbreviations

• ACMW - ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers
• AEC - ASEAN Economic Community
• AFLM - ASEAN Forum on Migrant Labour
• AIMW - ASEAN Instrument on the Protection and Promotion of the Rights of Migrant Workers
• ASCC - ASEAN Socio-Cultural Community
• ASCC 2025 - ASEAN Socio-Cultural Community 2025 document
• ASEAN - Association of Southeast Asian Nations
• CSO - Civil Society Organisation
• DPPMW - ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers
• GDP - gross domestic product

Additional literature

• Federation of Trade Unions – Burma, migrants section. (2006). The Mekong challenge: Working day and night the plight of migrant child workers in Mae Sot, Thailand (ed. P. Robertson, Jr.). Retrieved from http://www.ilo.org/wcmsp5/groups/public/---asia/---ro-bangkok/documents/publication/wcms_bk_pb_64_en.pdf  (October 29, 2015).
• Hall, A. (2011). International and ASEAN standards on social protection for migrant workers. In: International and ASEAN standards on social protection for migrant workers (pp. 24–25). Las Piñas City: M-Plus Print Graphics.
• Human Rights Watch. (2015). Burma: Election fundamentally flawed. November 4. Retrieved from https://www.hrw.org/news/2015/11/04/burma-election-fundamentally-flawed (accessed November 10, 2015).
• International Labour Organization. (n.d.). Forced labour, human trafficking and slavery. Retrieved from http://www.ilo.org/global/topics/forced-labour/lang--en/index.htm (accessed October 29, 2015).
• International Labour Organization. (2012). 21 million people are now victims of forced labour, ILO says. June 1. Retrieved from http://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_181961/lang--en/index.htm (accessed November 10, 2015).
• International Labour Organization. (2015). Analytical report on the international labour migration statistics database in ASEAN: Improving data collection for evidence-based policy-making (pp. 1–2, 16–17, 58–60). Geneva: ILO.
• International Labour Organization. (2015). Progress of the implementation of Recommendations adopted at the 3rd-6th ASEAN Forum on Migrant Labour meetings: Background paper to the 7th AFML (p. 52). Geneva: International Labour Organization.
• International Labour Organization, and UN Women. (2015). Facts and figures: Women migrant workers in ASEAN. In: Women’s labour migration in ASEAN.
• International Labour Organization, and UN Women. (2015). Labour inspection: Women migrant workers in ASEAN. In: Women’s Labour Migration in ASEAN.
• International Labour Organization, and UN Women. (2015). Valuing the contributions of women migrant workers in ASEAN. In: Women’s Labour Migration in ASEAN.
• Robertson, P., Jr., and S. Samydorai (eds.). (2009). General principles. In: Civil society proposal: ASEAN framework instrument on the protection and promotion of the rights of migrant workers (pp. 17–18). Singapore: Task Force on ASEAN Migrant Workers.
• Rosewarne, S. (2012). Temporary international labor migration and development in South and Southeast Asia. In: Feminist economics (pp. 63–90). Sydney: Routledge.
• Rosewarne, S. (2013). The ILO’s Domestic Worker Convention (C189): Challenging the gendered disadvantages of Asia’s foreign domestic workers? Global Labour Journal 4(1): 1–25. Retrieved from http://digitalcommons.mcmaster.ca/globallabour/vol4/iss1/1 (accessed October 1, 2015).
• UNHCR. (2014, September 1). UNHCR Regional Office for South-East Asia Factsheet. Retrieved November 9, 2015, from http://www.unhcr.org/519f67fc9.html.