In a recent interview, the Indonesian ambassador to Malaysia claimed that Indonesian domestic workers are subjected to “modern-day slavery” and “forced labour” in Malaysia.[1] As an example, he cited a case jointly handled by the Malaysian Labour Department and the Indonesian Embassy involving a domestic worker who had worked for around 10 years without being paid her salary. In an attempt to validate his action, the employer reasoned that this was justified since the domestic worker was provided food, drinks and accommodation. In such circumstances, what recourse is available to domestic workers in Malaysia?

Status of domestic workers in Malaysia

In most countries, domestic workers are still viewed as informal “help” instead of “workers” and are thus excluded from national labour legislations. In Malaysia, the Employment Act 1955 (EA 1955) classifies domestic workers as “domestic servants”, defining them as:

“… a person employed in connection with the work of a private dwelling-house and not in connection with any trade, business, or profession carried on by the employer in such dwelling-house and includes a cook, house-servant, butler, child’s nurse, valet, footman, gardener, washerman or washerwoman, watchman, groom and driver or cleaner of any vehicle licensed for private use”.[2]

Whether a domestic worker is an employee under a contract of

service would depend on whether he or she fits into the categories set out in the First Schedule of the EA 1955. Although the EA 1955 recognises a domestic worker as an “employee” within the meaning of the Act, much is left to be desired in relation to the protections offered to such workers. This is because the Act expressly excludes domestic workers from, among others, the statutory rights of paid leave, rest days, working hours, break hours and maternity protection.[3]

In view of this exclusion from the statutory rights afforded to other categories of workers, women’s aid organisations started a campaign in 2021 to change laws that exempt domestic workers from protection under the EA 1955, leaving them classified as “servants” and ineligible to claim basic rights such as rest days, sick leave and maternity benefits.[4] Nonetheless, given that the EA 1955 recognises domestic workers as employees, they may seek recourse through the Labour Court should there be disputes on payment or non-payment of any wages or any payment due under their respective employment contracts and the provisions of the EA 1955.

Functions of ‘Labour Court’

In respect of such disputes, the Director General of Labour (DG) is empowered under s 69 of the EA 1955 to inquire into and make an order in the prescribed form for the payment by the employer of such sum of money as he deems just without limitation of the amount.[5] Although such inquiries are before the DG at the Labour Department, they are often referred to as “Labour Court” proceedings.

The DG is also conferred with the power to hear claims made by an employee who falls outside the EA 1955 definition and whose salary exceeds RM2,000 but is not more than RM5,000.[6] At the Labour Court, the DG generally has the power to inquire into and decide on the following claims by:

(a) an employee for wages and payments due under an employment contract,[7] the EA 1955[8] or the National Wages Consultative Act 2010;[9]

(b) an employee against any person liable under s 33 of the EA 1955;[10]

(c) a contractor for labour against a contractor or sub- contractor for any sum which the contractor for labour claims to be due to him in respect of any labour provided by him under his contract with the contractor or sub- contractor;[11] or

(d) an employer against his employee in respect of indemnity due under s 13(1) of the EA 1955.[12]

Labour Court procedure

The procedure of an inquiry before the DG is set out under s 70 of the EA 1955 as follows:

(a) The complainant shall present to the DG a statement of his complaint and of the remedy sought, either in writing or in person.

(b) The DG shall examine the complainant on oath or affirmation and record the substance of the complainant’s statement in his case book as soon as practicable.

(c) The DG may make such inquiry as he deems necessary to satisfy himself/herself that the complaint discloses matters which warrant an inquiry.

(d) If the DG is satisfied that the complainant warrants an inquiry, then he/she may summon the respondent, unless the respondent appears before him in person.

(e) When issuing a summons to the respondent, the DG shall give notice to the respondent:

i. of the nature of the complaint made against him;

ii. of the name of the complainant;

iii. of the date, time and place of the inquiry;

iv. that the respondent may call any witnesses on his behalf during the inquiry; and

v. that the respondent may apply to the DG for summonses of the required witnesses to appear on his behalf during the inquiry.

(f) When issuing a summons to the respondent, the DG shall also inform the complainant:

i. of the date, time and place mentioned in the summons;