24 Regional Office for Asia and the

24 Regional Office for Asia and the Pacific


ASEAN leaders in 2007 (in Cebu, Philippines) adopted a Declaration on the Protection and Promotion of
the Rights of Migrant Workers, which obliges member States to draw up charters to ensure decent working
conditions, protect workers from all forms of abuse and establish a minimum wage for intra-ASEAN
migrant workers. The Cebu Declaration calls on member States to protect the fundamental rights of
migrants and their families, cooperate to deal with irregular workers and promote the full potential and
dignity of migrants. However, the Cebu Declaration is not legally binding and does not require governments
to change their labour laws.

The Cebu Declaration calls on migrant-sending countries to ensure access to decent work for all citizens
while facilitating orderly international labour migration by regulating recruitment practices and ensuring
that migrant workers have valid contracts. The Cebu Declaration is a reminder that migrant-receiving
countries should protect the rights, welfare and dignity of migrant workers, including employment
protections and access to systems to resolve complaints.

There is not yet a binding treaty requiring ASEAN member States to uphold the principles contained in the
2007 Cebu Declaration. Concrete steps were taken in 2008, when the ASEAN foreign ministers met in
Singapore and created a Committee on the Implementation of the ASEAN Declaration to develop an
ASEAN Instrument on the Protection and Promotion of the Rights of Migrant Workers. The Committee
has not yet produced a draft ASEAN instrument, however.

It is hard to determine the optimal migrant worker protections. Researchers who examined labour migration
practices in six ASEAN countries emphasized the need to integrate labour migration into bilateral and
regional development efforts and labour agreements, to increase administrative capacity and cooperation at
the national and regional levels to manage regular migration and reduce irregular migration and to talk to
migrant workers about their desired level of “protection”. But they also concluded that migrant workers
may not want all the protections that governments enact, citing the examples of Filipino domestic workers
willing to pay (banned) recruitment fees or agreeing to work abroad for less than the US$400 a month
minimum wage set by the Philippine Government, and Cambodians preferring to use brokers to enter
Thailand rather than legal recruitment agencies because the brokers are cheaper (Orbeta and Gonzales,
2013, p. 14). Orbeta and Gonzales (2013, p. 15) concluded that “stringent [migrant protection] rules can
drive migrants into informal modes of employment if the migrant finds them too restrictive”.

4.1 Irregular migrants in ASEAN

There are a large number of irregular migrants in some ASEAN countries, including Malaysia and Thailand,
which are fast-growing economies with large informal sectors and porous borders. Of the more than four
million intra-ASEAN migrant workers, at least a third are irregular. Irregular workers typically have little
leverage to bargain for fair wages, suffer the worst working conditions, often have no recourse to legal


Regional Office for Asia and the Pacific 25


remedies in cases of abuse and exploitation and may experience frequent harassment even from the
authorities.

Both Thailand and Malaysia have taken measures to address irregular migration but with very mixed results.
In Thailand, four amnesty and registration programmes have been implemented since 2001 (2001, 2004,
2009 and 2011), and some 1.85 million migrants were reported to have registered by August 2011. The
Thai Government also sought the cooperation of origin countries (Cambodia, the Lao People’s Democratic
Republic and Myanmar) by entering into bilateral agreements (in the form of memoranda of understanding)
that laid out procedures for establishing the nationality of the irregular migrants and for acquiring regular
work visas and permits. Unfortunately, the confusing, cumbersome and expensive procedures on both sides
greatly undermined the effectiveness of registration and admissions under the MOUs.

According to a recent report (Hall, 2012), some 1.24 million migrant workers (or 68 per cent of all registered
foreign workers) remained registered but irregular due to problems with verification of their nationality. In
February 2012, for example, the Thai Ministry of Labour reported that 905,573 migrants from Myanmar
were “registered to work” but were still waiting for nationality verification and thus remained barred from
social security, compensation in case of accidents and had no right to travel freely within Thailand. Even
after having their nationalities verified, there is still no guarantee that the workers will be issued passports
by their governments. Because Thai work permits are only valid for one year, many migrants revert back
to an irregular status unless they or their employers apply for an extension.

In Malaysia, legal channels for the entry for migrant workers have been progressively widened over the
past decades in response to labour shortages experienced in many sectors of the economy. Kanapathy
(2008) reported that at the end of 2006, there were 1.9 million foreign workers with valid work permits, up
from 242,000 in 1990. Despite this apparent success in routing migration into regular channels, an estimated
700,000 migrants in Peninsular Malaysia plus another 200,000 in the state of Sabah were reported to be in
an irregular situation at the end of 2006.

There are many reasons for the continued presence of irregular migrants in Malaysia, including porous
borders with Indonesia and Thailand and historical links with these source countries. However, incoherent
policies have contributed to irregular migration. Kanapathy noted that the foreign worker levy is lower for
occupations and skills considered to be in short supply, which encouraged employers who needed foreign
workers to sponsor them for work visas for low-levy occupations even if they actually intended to have the
workers perform other types of work. 29 Once migrant workers learned that they were performing higher-
skill work, there were disputes, and some workers left their employers, making them irregular.

Another factor contributing to irregular migration was the decision, later reversed, to allow Malaysian
labour contractors to recruit foreign workers for enterprises with labour shortage situations. Envisaged as a good way to insure that migrant workers, once admitted, will have some work despite the volatile economic
conditions, the outsourcing policy quickly turned into a scam in which foreign workers paid to come to
Malaysia even if the contractors had no jobs for them.

Kết quả (Việt) 1:

Văn phòng khu vực 24 cho Châu á và Thái Bình Dương Nhà lãnh đạo ASEAN năm 2007 (ở Cebu, Philippines) thông qua một tuyên bố về bảo vệ và phát huy các quyền của nhập cư người lao động, mà các tài khoản của các tiểu bang để xây dựng điều lệ để bảo đảm Phong Nha obliges làm việc điều kiện, bảo vệ người lao động từ tất cả các hình thức lạm dụng và thiết lập một mức lương tối thiểu cho intra-ASEAN công nhân nhập cư. Tuyên bố Cebu kêu gọi các thành viên các tiểu bang để bảo vệ các quyền cơ bản của di dân và gia đình của họ, hợp tác để đối phó với người lao động bất thường và phát huy hết tiềm năng và nhân phẩm của người nhập cư. Tuy nhiên, tuyên bố Cebu không hợp pháp ràng buộc và không yêu cầu chính phủ để thay đổi của pháp luật lao động. Tuyên bố Cebu kêu gọi gửi nhập cư nước để đảm bảo quyền truy cập vào các công việc Phong Nha cho mọi công dân trong khi tạo điều kiện cho có trật tự di trú quốc tế lao động theo quy định tuyển dụng thực tiễn và đảm bảo rằng công nhân nhập cư có hợp đồng hợp lệ. Tuyên bố Cebu là một lời nhắc nhở rằng nhận nhập cư nước nên bảo vệ quyền lợi, phúc lợi xã hội và nhân phẩm của công nhân nhập cư, trong đó có việc làm bảo vệ và quyền truy cập vào hệ thống để giải quyết khiếu nại. Hiện không phải là được một hiệp ước ràng buộc đòi hỏi phải có thành viên ASEAN để duy trì các nguyên tắc chứa trong các Tuyên bố Cebu năm 2007. Bước cụ thể đã được thực hiện trong năm 2008, khi bộ trưởng ngoại giao ASEAN gặp năm Singapore và tạo ra một ủy ban thực hiện tuyên bố ASEAN để phát triển một ASEAN Instrument on the Protection and Promotion of the Rights of Migrant Workers. The Committee has not yet produced a draft ASEAN instrument, however. It is hard to determine the optimal migrant worker protections. Researchers who examined labour migration practices in six ASEAN countries emphasized the need to integrate labour migration into bilateral and regional development efforts and labour agreements, to increase administrative capacity and cooperation at the national and regional levels to manage regular migration and reduce irregular migration and to talk to migrant workers about their desired level of “protection”. But they also concluded that migrant workers may not want all the protections that governments enact, citing the examples of Filipino domestic workers willing to pay (banned) recruitment fees or agreeing to work abroad for less than the US$400 a month minimum wage set by the Philippine Government, and Cambodians preferring to use brokers to enter Thailand rather than legal recruitment agencies because the brokers are cheaper (Orbeta and Gonzales, 2013, p. 14). Orbeta and Gonzales (2013, p. 15) concluded that “stringent [migrant protection] rules can drive migrants into informal modes of employment if the migrant finds them too restrictive”. 4.1 Irregular migrants in ASEAN There are a large number of irregular migrants in some ASEAN countries, including Malaysia and Thailand, which are fast-growing economies with large informal sectors and porous borders. Of the more than four million intra-ASEAN migrant workers, at least a third are irregular. Irregular workers typically have little leverage to bargain for fair wages, suffer the worst working conditions, often have no recourse to legal Regional Office for Asia and the Pacific 25 remedies in cases of abuse and exploitation and may experience frequent harassment even from the authorities. Both Thailand and Malaysia have taken measures to address irregular migration but with very mixed results. In Thailand, four amnesty and registration programmes have been implemented since 2001 (2001, 2004, 2009 and 2011), and some 1.85 million migrants were reported to have registered by August 2011. The Thai Government also sought the cooperation of origin countries (Cambodia, the Lao People’s Democratic Republic and Myanmar) by entering into bilateral agreements (in the form of memoranda of understanding) that laid out procedures for establishing the nationality of the irregular migrants and for acquiring regular work visas and permits. Unfortunately, the confusing, cumbersome and expensive procedures on both sides greatly undermined the effectiveness of registration and admissions under the MOUs. According to a recent report (Hall, 2012), some 1.24 million migrant workers (or 68 per cent of all registered foreign workers) remained registered but irregular due to problems with verification of their nationality. In February 2012, for example, the Thai Ministry of Labour reported that 905,573 migrants from Myanmar were “registered to work” but were still waiting for nationality verification and thus remained barred from social security, compensation in case of accidents and had no right to travel freely within Thailand. Even after having their nationalities verified, there is still no guarantee that the workers will be issued passports by their governments. Because Thai work permits are only valid for one year, many migrants revert back to an irregular status unless they or their employers apply for an extension. In Malaysia, legal channels for the entry for migrant workers have been progressively widened over the past decades in response to labour shortages experienced in many sectors of the economy. Kanapathy (2008) reported that at the end of 2006, there were 1.9 million foreign workers with valid work permits, up from 242,000 in 1990. Despite this apparent success in routing migration into regular channels, an estimated 700,000 migrants in Peninsular Malaysia plus another 200,000 in the state of Sabah were reported to be in an irregular situation at the end of 2006. There are many reasons for the continued presence of irregular migrants in Malaysia, including porous borders with Indonesia and Thailand and historical links with these source countries. However, incoherent policies have contributed to irregular migration. Kanapathy noted that the foreign worker levy is lower for occupations and skills considered to be in short supply, which encouraged employers who needed foreign
workers to sponsor them for work visas for low-levy occupations even if they actually intended to have the
workers perform other types of work. 29 Once migrant workers learned that they were performing higher-
skill work, there were disputes, and some workers left their employers, making them irregular.

Another factor contributing to irregular migration was the decision, later reversed, to allow Malaysian
labour contractors to recruit foreign workers for enterprises with labour shortage situations. Envisaged as a good way to insure that migrant workers, once admitted, will have some work despite the volatile economic
conditions, the outsourcing policy quickly turned into a scam in which foreign workers paid to come to
Malaysia even if the contractors had no jobs for them.