MOUs must have 'kiss of life' to become enforceable

MOUs must have 'kiss of life' to become enforceable
MOUs must have 'kiss of life' to become enforceable

Memoranda of understanding (MOUs) must be given the “kiss of life” in Parliament before they can hold up in court, an expert on the Federal Constitution, Professor Shad Saleem Faruqi, said.

“Any international treaty, MOU, memorandum of agreement (MOA), or even trade agreement cannot automatically have a place in our corpus juris, which is the body of law of our country,” he explained.

Sought out for clarification over the contentious fee breakdown in the MOU between Malaysia and Bangladesh for the placement and repatriation of migrant workers, Shad (above) told Malaysiakini that the agreements signed by the government signified good faith between the two nations and the clauses therein reflected the good intention to create something legally binding later.

Early this month, the online news portal Free Malaysia Today reported SME Association of Malaysia, secretary-general Chin Chee Seong as saying that the association members would not pay for the airfares and documentation costs which, according to the MOU, is mandatory to be borne by employers.

To enforce the passages in the MOU, Shad explained that they needed to be converted to tally with the laws of the land, such as the Employment Act 1955, the Industrial Relations Act 1967, the EPF Act 1991 or the Socso Act 1969.

“In the form of amendment bills, these clauses can be brought to Parliament for the kiss of life.

“Until then, private parties are not bound by the MOU,” he confirmed.

Recruitment agreement

A closed-door signing ceremony was held on Dec 19 last year between Human Resources Minister M Saravanan and Bangladesh’s Expatriates’ and Overseas Welfare Minister Imran Ahmed and it was announced that they had signed a new five-year labour recruitment agreement.

M Saravanan
M Saravanan

At the event, Saravanan told reporters that the old agreement had expired on Feb 17, 2020, while the new terms would be enforced until December 2026.

Meanwhile, Plantation Industries and Commodities Minister Zuraida Kamaruddin announced yesterday that Malaysia was currently holding government-to-government (G-to-G) talks with India, Thailand and Bangladesh, which were keen to sign MOUs that covered employment in the industry and would allow their citizens to come to Malaysia once the MOUs were ratified.

By signing separate MOUs with respective governments, Shad said Malaysia was pacifying these nations whose citizens came here to work, but they do not have rights against employers or rights that can hold up in court unless the MOUs are ratified by the Executive and incorporated by Parliament into the law.

“I wish migrant workers had better rights because it is their human right.

“Migrant workers are necessary for our economy. In more recent years, they have become crucial to many economies and countries that respect and treat their migrant workers well are doing very well, economically,” Shad said.

He explained that while in some countries international treaties signed took effect automatically, in others they would need to be incorporated into domestic law.

“Germany, for example, was monist and international treaties were incorporated automatically into national and domestic law.

“However, in Malaysia’s dualist system an international treaty has no effect until an Act of Parliament is passed to give it effect,” he explained.

In full support of G-to-G agreements

Malaysian Palm Oil Association (MPOA) chief executive officer Mohamad Nageeb Wahab said the association was in full support of G-to-G agreements as these reflected the assurances of both governments.

Nageeb hoped that all relevant MOU negotiations would conclude by mid-February as MPOA members were hoping to recruit at least 45,000 workers by end of February this year to fill the labour shortage.

“The plantation sector will abide by the MOU undertakings and are committed to facing out forced labour elements.

“Workers will not have to pay a single sen. Employers will pay for everything, including the food they have along their journey to Malaysia,” he assured, adding that those who were not willing to undertake the necessary fees may not receive workers.

Nageeb said while all MPOA members were already in compliance with sustainable palm oil certifying standards - Roundtable on Sustainable Palm Oil (RSPO) and Malaysian Sustainable Palm Oil (MSPO), the association was committed to the eradication of forced labour in the industry.

MPOA, whose members include Sime Darby Plantations and FGV Holdings, launched a Responsible Employment Charter in December last year and in a press statement, MPOA chairperson Lee Yeow Chor said the charter was designed to complement the country’s National Action Plan on Forced Labour 2021–2025.

Lee said the charter marked MPOA members’ commitment toward the elimination of all forms of forced or compulsory labour, the abolition of child labour, the elimination of discrimination in respect of employment and occupation and the freedom of association and recognition of the right to collective bargaining.

“Our commitment to all workers with specific consideration to migrant workers is to respect the principles of the International Recruitment Integrity System (IRIS), for which the key principles include the prohibition of recruitment fee to jobseekers and respect for Freedom of Movement without the retention of personal documents,” Lee said.

Nageeb explained that while the charter was non-binding upon its 120 members representing about 1.8 million hectares of planted land in Malaysia, its spirit was in accordance with the various laws that governed the industry and non-compliance surmounted to flouting the law.

“However, the onus is on the authorities to take action,” he said.