Ex Plo It Ed Il Le Gal Ised

EX PLO IT ED and IL LE GAL ISED The Lives of Palm Oil Migrant Workers in Sabah

EXPLOITED AND ILLEGALISED: The Lives of Palm Oil Migrant Workers in Sabah

Author:

Asia Monitor Resources Centre Exploited and Illegalised: The Lives of Palm Oil Migrant Workers in Sabah. Authors: Asia Monitor Resource Centre

ISBN 978-962-7145-52-3 EAN : 9789627145523

Asia Monitor Resource Centre The Asia Monitor Resource Centre is an independent non-governmental organization focusing on Asian labour concerns. The Centre provides information, research, publications, training, labour networking and related services to trade unions, labour groups, and other development NGOs in the region. The Centre’s main goal is to support democratic and independent labour movements in Asia.

Flat 7, 9/F, Block A Fuk Keung Industrial Building 66-68, Tong Mi Road Kowloon Hong Kong Tel: (852) 2332-1346, Fax: (852) 2835-5319 Email: [email protected] Website: www.amrc.org.hk

We would like to give special thanks to Solidar Suisse who has supported and fully financed this important study on the lives of palm oil migrant workers in Sabah. Acknowledgements

This research has been made possible through the incred- ible support of numerous people, especially in Sabah, who provided the information and assisted the field research. This research has enjoyed the collective support of many friends in Sabah who helped us gain access to crucial loca- tions and lent support in developing the research project. Also, some friends and colleagues in Hong Kong, Indonesia, and Switzerland, who provided vital comments on the draft.

Special thanks to Sedane Labour Resource Centre, Indo- nesia, and to Solidar Suisse, who were of enormous help in reading, commenting, and critiquing this work. We also would like to give special thanks to Solidar Suisse who has fully financed this research.

Finally, we thank to all the workers living inside the palm oil plantation who have shared their stories, experiences and perspectives with us. We dedicated this research to them.

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iv The Lives of Palm Oil Migrant Workers in Sabah Preface

The Palm Oil System is broken – Can it be fixed?

While the rainforest is burning and people living close to palm-growing regions, suffering from severe air pollution as a result of this deforestation, as well as consumers around the world are becoming increasingly conscious about the negative effects of the palm oil industry on the biodiversity and the global climate, little is known about the working conditions in the palm oil plantations.

This excellent report contributes to filling this knowledge gap. It does not only describe in detail the extremely harsh working and living conditions of migrant workers in palm oil plantations in Sabah (East-Malaysia) but it also analyses the root causes and the history leading to these unacceptable conditions. The situation is intolerable because many fun- damental human-rights are being violated: There is wide- spread child labour; children are being refused their right to education; women, men and children are exposed to severe health risks (e.g. through highly hazardous pesticides) v Exploited and Illegalised while at the same time not having proper access to minimal health services; migrant workers and their families are living under constant fear of being deported; workers are not paid the legal minimum wages, much less living-wages, while women and children are often not paid at all. In short: migrant workers in Sabah are to a large extent working and living under conditions which fulfil the indicators set by the ILO for ‘forced labour’.

The precarious situation of migrant workers in Sabah, the report clearly shows, is not random. What we see here is actually a deliberate, exploitative system partly installed and partly tolerated by the Malaysian Government, which is destined at improving the competitiveness of the Malaysian palm oil industry by lowering the costs of production on the backs of the poorest – the migrant workers from Indonesia and other countries. The entire value-chain – from the plantation owners to the mills, the global traders, oil refineries, the global food industry and ultimately the consumers – is profiting from this exploitation at the expense of the workers (and not to forget the environment and the climate). The global food brands using this palm oil in their consumer products are actually aware of the situation, as shown by their own publications, but still they are mostly closing their eyes on the root causes. Profit first is still their main concern.

This report goes beyond just describing the terrible situation; it also gives clear recommendations. These recommendations must now be seriously considered and implemented by ALL parties involved in the global palm oil system; they may no longer just ‘pass on the buck’.

vi The Lives of Palm Oil Migrant Workers in Sabah The Palm Oil System is broken – Can it be fixed?

The newest UN Sustainable Development Goal Report1 explains that the solutions to poverty, inequality, climate change and other global challenges are interlinked and that tackling climate change requires not only a shift to clean en- ergy and reversing the trend in forest loss but also changing our production and consumption patterns (SDG 12). We are still far away from attaining this goal. Palm oil is only one problem in this context, but a particularly drastic example. So far all ‘sustainability schemes’ in the palm oil sector have miserably failed when it comes down to the treatment of the workers and protecting the rainforest. As long as workers and their families are being exploited and discriminated ‘sustainable palm oil’ will remain a deception and palm oil will continue to lose consumer trust.

Felix Gnehm

Director of Solidar Suisse

1 https://unstats.un.org/sdgs/report/2019/The-Sustainable-Develop- ment-Goals-Report-2019.pdf Asia Monitor Resource Centre vii Exploited and Illegalised

viii The Lives of Palm Oil Migrant Workers in Sabah Contents

Acknowledgement iii Preface iv The Palm Oil System is broken - Can it be fixed? Contents ix List of Figures xi List of Tables xi List of Boxes xii List of Pictures xii List of Abbreviations xiii Glossary xiv

1 Introduction 1 2 Methodology 5 3 How the Development of Palm Oil in 13 Sabah Attracts Migrant Workers

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4 How the Migration Happens 26 Decades of Traditional Migration 26 Establishment Mediating the Migration: The Rise of Migration 31 Regime Defining the Illegality: Review on the Current 38 Immigration Policy and Regulation 5 Living as Migrant Workers in Sabah, 45 Malaysia Profiling Palm Oil Plantation Company 47 An Isolated, Exclusive and Illegalised 50 Community inside Palm Oil Plantation Palm Oil Plantation Regime and the Working 56 Conditions Migration Regime and the Illegalised Workers 83 The Lives of Irregular Children 99 6 Generating Profit from Irregularity 125 7 Efforts to Organize Migrant Workers 131 8 Recommendation in Addressing 137 Irregularity Recommendations for the Different Actors in 139 the Palm Oil Supply Chain

Reference 153

x The Lives of Palm Oil Migrant Workers in Sabah Contents

List of Figures Figure 1 Area Planted with Industrial Crops 16 in Malaysia 1980 – 1998 Figure 2 Distribution of Oil Palm Area by 20 State (hectares) 1980 – 1999 Figure 3 Number of Sabah’s Population by 21 Census 1970-2010 Figure 4 Stock of Migrant Workers against 22 Export, Sabah 1997-2011 Figure 5 Employment Scheme 82 Figure 6 Cycle of Irregularity 127

List of Tables Table 1 List of Interviews 9 Table 2 Area Developed by State and Crop – 18 July 1994 Table 3 Levy charged for employment of 35 migrant workers by sector and location Table 4 Fees Applied to Employment of 36 Indonesian Migrants in Plantation Sector Table 5 Types of Irregular Migrants 42 Table 6 Estimation of Average Piece-Rate 60 Based Wage in a Group of Workers Table 7 Deduction for Working Tools 63 Table 8 Health Effect on Paraquat Ingestion 72

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Table 9 Measures to regularize 89 undocumented workers in Sabah

List of Boxes Box 1 RSPO and MSPO 10 Box 2 Community Learning Center 11 Box 3 Recruitment Terms and Conditions 39 of Foreign Workers Box 4 Paraquat Fact Sheet 71

List of Pictures Picture 1 Main Divisions of Sabah Palm 14 Oil Plantations Picture 2 Borderland Area between 28 Indonesia and Sabah Picture 3 Illustration of One Palm Oil 48 Estate Divided Into 9 Divisions Picture 4 One of Herbicides used in 67 Mojokuto Picture 5 Medical Treatment List of 69 Fees for Foreigner in Tawau General Hospital Picture 6 A Sample of Working Identity 73 Card Picture 7 Unofficial Check Roll Book for 76 a Group of Sprayers in Suluk xii The Lives of Palm Oil Migrant Workers in Sabah Contents

Picture 8 An 11 years old Boy Carrying 113 a Sack of Fruitlets Picture 9 The Young Generations in 115 Mojokuto

List of Abbreviations

CLC : Community Learning Centers FELDA : Federal Land Development Agency FGV : Felda Global Venture FOMEMA : Foreign Workers Medical Examination Monitoring Agency MSPO : Malaysia Sustainable Palm Oil MYR : Malaysian Ringgit NEP : National Economic Policy RSPO : Roundtable on Sustainable Palm Oil SPIEU : Sabah Plantation Industry Employee Union VP (TE) : Visit Pass (Temporary Employment)

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Glossary Bandar Tawau : Port city and administrative center of Tawau Division of Sabah Batu : Drugs or narcotics Betapo : Hiding or runaway Mandor : Foreman or supervisor Menumpang gaji : Hitchhiking/conjoined salary Mojokuto estate : Name of estate first sites of observation Pekan : Small township (sub-district) within a division of Sabah Perkampungan : A village-like community Rat trail : Unofficial traditional routes of crossing border area Suluk estate : Name of estate second sites of observation

xiv The Lives of Palm Oil Migrant Workers in Sabah Introduction

ver the past 5 years, the palm oil industry has been reported for workplace abuse across plantations, with typical low-wages, hard-toiling tasks, lacking Oof health and safety, and child labor amongst the prominent labor violations. Palm oil plantations have long been ac- cused for the practice of forced labor and, even, trafficking in the workplace. However, the situation is much worse in Sabah with the fact majority of the workers are migrants mainly from Indonesia and few from the Philippines.

Migrant workers are responsible for Malaysia’s success as one of the world’s largest palm oil producers. Palm oil development began in the 1970s, thus beginning the industry’s heavy reliance on migrant workers. Sabah, the second-largest palm oil producer amongst Malaysian states, harbors a significant number of workers, accounting for 50% of Sabah workforce and 39.5% of the total migrant work force in Ma- laysia in 2010.2

2 Syed Abdul Razak, Indonesian Labour Migration to Sabah: Changes, Trends and Impact (Doctoral dissertation), School of Social Sciences, The University of Adelaide, 2014, retrieved from https://digital.library.adelaide.edu.au/dspace/bitstream/2440/84693/8/02whole.pdf, 1 Exploited and Illegalised

However, the story of migrant workers is not as nice as the fruitful profit generated by the palm oil industry. In tandem with the exploitation they experience in the workplace, migrant workers also live under perpetual fear of punishment due to their situation, defined as ‘illegal’. It is commonly reported for that workers hide within the depths of the palm oil plantation during raid operations, afraid of not holding any proper documentation.3 Painful caning punishment awaits for the irregular migrant.

There have been some reports detailing the precarious living conditions of migrant workers, including the presence of ‘stateless children’ in Sabah. However, the existing reports provide unsatisfactory explanation, in particular, about why the presence of ‘illegal’—or rather, ‘irregular’—migrants persists in Sabah. Others have tried to reveal the working conditions, yet have not taken migration policy into account.

In our view, irregular migrants are not an isolated phenomenon related to the movement of people itself. Rather, the existence of the so-called ‘illegal’ migrant is the result of the development of palm oil industry in correspondence with tightening regulations on the migration. These two ‘regimes’ have made the borderline between legal and illegal, documented or undocumented— fluid, culminating to con- struct the idea of the ‘illegalised migrants’.

As will be described in this report, the expansion of palm oil plantations in Sabah corresponds with the growing number

pp. 19. 3 For example see Anis Hidayah, “Berlindung di Hutan,” Media Indo- nesia 06 July 2017, http://mediaindonesia.com/read/detail/111636-berlindung-di-hutan, accessed in 21 May 2018. 2 The Lives of Palm Oil Migrant Workers in Sabah Introduction of migrant workers between the 1980s and 1990s. Between these periods, there has been persistence policy changes— both in terms of relaxation and restriction—regarding the presence of migrant workers. Within this context, the debates of ‘borderland’ become main issues and the news reports on deportation become daily occurrences.

This situation gives workers no other option than to stay inside the plantation. The isolated nature of palm oil plantations allows the possibility of harboring irregular migrant workers and sustaining the supply of labor by raising the stateless, or to be precise ‘irregular’4 children—who begin work at school age. On the other side, this situation helps to lower the cost of palm oil production at the expense of migrant workers’ livelihoods. As argued by Pye, et. al, the true ‘illegality’ is being exploited by the palm oil industry.5

On the one hand, the government’s approach remains vague towards irregularity. On another, Sabah’s government may provide an opportunity for the migrants to be regularized. Meanwhile, raid on irregularity and deportation are experienced by migrants on a daily basis. There are some inconsistencies in terms of regulatory frameworks, in particular, related to the presence of children. Despite the on-going effort to tackle the statelessness of the children, migrants’ children continue to fluctuate between conditions of illegality and recognition.

4 Rather than ‘stateless’, ‘irregular’ is more appropriate term to define the migrant’s children living in Sabah, or specifically in the palm oil plantation in this research. In most of the case, the statelessness is not only the case faced by the children. More explanation about this will be discussed in the last sections. 5 Oliver Pye, et al, “Workers in the Palm Oil Industry: Exploitation, Re- sistance and Transnational Solidarity,” Stiftung Asienhaus, 2016. Asia Monitor Resource Centre 3 Exploited and Illegalised

4 The Lives of Palm Oil Migrant Workers in Sabah Methodology

his research tries to assess the working condition of palm oil migrant workers in Sabah. The situation in Sabah demands more attention in this regard. Gen- erally,T Malaysia is the major receiving country of migrant labour in Southeast Asia, accounting for 2.36 million migrants in 2010. More specifically, Sabah is the destination for more than half of migrant workers seeking work in plantations since the early development of palm oil in 1970s.

The border area between Sabah, Indonesia and the Philip- pines is highly porous. This geographical setting has shaped dozens of ‘rat trails’ or unofficial routes, which have been used for decades before the creation of metaphoric borders of the nation-state. It also implies that traditional migration had established a network which connects between migrant receiving and sending countries. This specific geographical setting contributes to the fluidity of ‘legal’ and ‘illegal’ defi- nitions.

This study will focus more on Indonesian migrant workers, though it does not necessarily undermine the situation of

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Filipino migrants. However, Indonesian migrant workers are chosen as the focus because they constitute the largest percentage of migrant workers in Sabah, representing more than half of a work force comprised of millions of foreign workers in total in Sabah. This number also gives insight to the existence of irregular children in Sabah.

Migrant workers or foreign workers (interchangeably) presented here refer to the so called contractual low skilled labor, in particular those who are being employed in the palm oil plantation sector. The Malaysian government uses the term “low-skilled” to distinguish between those who are defined as ‘expatriate’, which has come to be associated with professionals or high skilled.6 Migrant workers in this research also refers to irregular workers, thus encompass- ing both the legal and illegal migrant.7

This research was carried out between February and De- cember 2018, utilizing a combination of desk research and

6 Majority of expatriates are being employed in the service, petroleum and information technology sectors. Although in principle both migrant workers and expatriates is temporary migrants, the latter receiving preferential treatment in terms of admission, duration of stay and allowing accompanying dependents. See Malaysian Employers Federation, Practical Guidelines for Employers on the Recruitment, Place- ment, Employment and Repatriation of Foreign Workers in Malaysia, De- cember 2014, pp. 9 and International Labor Organization, Review of Labour Migration Policy in Malaysia, ILO Regional Office for Asia and the Pacific. Bangkok: ILO, 2016, pp. 7-8 7 Following with the discourse of international migration, this report use ‘irregular’ as a term to define the situation of migrant workers, instead of use ‘illegal’. The ‘irregular’ migrant workers term defined by The UN General Assembly refer to a person that illegally or sur- reptitiously enter another country to obtain work. See International Council on Human Rights Policy, Irregular Migration, Migrant Smug- gling and Human Rights: Towards Coherence, Geneva, Switzerland, 2010. 6 The Lives of Palm Oil Migrant Workers in Sabah Methodology field observation methods. Desk research was applied to understand the history of migration, the legal framework of migration and to collect pre-existing quantitative data regarding the number of migrant workers and palm oil plantations in the area in question. A considerable number of studies were also reviewed for the purpose of this research.

This research was conducted by using qualitative research approach. Therefore, this research did not seek for the whole pictures of all palm oil plantations across Sabah, but the detailed view in a specific case. The data and story elaborated in this research were mainly based on the cases in two different palm oil plantations. Both plantations are located in the Tawau division of Sabah. The two sites were chosen due to their accessibility in sites and to informants.

Despite of specific case study, this research tries to not limit the story of the irregular migrants. In order to have a nu- ance in broader situation, other stories from different companies were also corroborated. It was mainly done to enrich the story and to give some insight to the broader situation in different plantations across Sabah. The companies are TSH Resources, Felda Global Venture, Benta Wawasan and Sabah Softwood. Contexts in terms of policy, economic development and trends in migration were also provided.

As we can find throughout the narrative, the irregularity and exploitation are the common experience shared by the migrants under plantation and migration regime. The problems of, for example, passport retainment, heavy workload and meagre wage, work-related accident and illness, statelessness of the children and child labor, can be found else-

Asia Monitor Resource Centre 7 Exploited and Illegalised where in palm oil plantation in Sabah. This situation show that the measures to tackle the irregularity should review the Malaysian regulations related to palm oil industry and migration thoroughly.

Field observations were conducted three times during the course of this research. Observation in February was done to gain an understanding of the plantation landscape in Sabah and the migration routes from Nunukan to Tawau. This first observation was also intended to identify potential interviewees. The second observation was conducted in July and involved traveling within and staying in the workers’ compound, located on an estate in one of Tawau’s sub- districts. The observation was followed by another trip in November.

For safety reasons, any details related to 1) name of field informants and 2) name and specific location of the observation sites will remain anonymous. The first sites will be named as ‘Mojokuto’ estate, and another site will be referred to as ‘Suluk’ estate. This research was conducted in a clandestine manner without prior notification to the company. In other words, any details related to site observation may put our informants under risk of threat, intimidation or dismissal. Data is (interview recordings and footages) well documented by the researcher.

8 The Lives of Palm Oil Migrant Workers in Sabah Methodology

Table 1. List of Interview8

No Name Sex Category 1 Asman M Children 2 Katherine F Children 3 Andre M Circular trader 4 Anita F CLC Teacher 5 Ita F CLC Teacher 6 Ivo F CLC Teacher 7 Risma F CLC Teacher 8 Vero F CLC Teacher 9 Warsinah F CLC Teacher 10 Dian Ratri F Ex-Indonesian Consulate Officer 11 Ridwan M Indonesian Consulate Officer 12 Anisa F Plantation workers 13 Erni F Plantation workers 14 Gina F Plantation workers 15 Ibrahim M Plantation workers 16 Ikhsan M Plantation workers 17 Martin M Plantation workers 18 Ola M Plantation workers 19 Opik M Plantation workers 20 Peter M Plantation workers 21 Rahmat M Plantation workers 22 Saiful M Plantation workers 23 Yati F Plantation workers 24 A F Health practitioner 25 M F Health practitioner

8 Except the resource person from Indonesian Consulate officer (No. 10 and 11), all names have been changed. Asia Monitor Resource Centre 9 Exploited and Illegalised

It should be noted that this research intentionally avoided interviewing the employers and management. This was mainly to anticipate the employers’ attempt at intimidating or ‘preparing’ the workers to respond normatively regarding their working conditions. Such avoidance is justified, where various cases have noted attempts of employers to prepare workers to answer untruthfully prior to an RSPO or MSPO certification audit.9

Box 1. RSPO and MSPO The Roundtable on Sustainable Palm Oil (RSPO) was created in 2004 to set up criteria for sustainable palm oil, and to move palm oil companies to produce such sustainable palm oil. It is a multi-stakeholder initiative with 3,000 participants, ranging from companies in every section of the palm oil supply chain to investors, to NGOs with a social or environmental focus.

The Malaysian Sustainable Palm Oil (MSPO) Certification Scheme is the national scheme in Malaysia for oil palm plantations, independent and organised smallholdings, and palm oil processing facilities to be certified against the requirements of the MSPO Standards.

Source: RSPO (2019) and Intertek (2019)

The field data was collected by interviewing workers and collecting necessary visual evidence. Most interviews were done in an informal manner, though with the consent of in-

9 See Rizal Assalam and Hotler “Zidane” Parsaoran, Profit Over Peo- ple: Working Conditions in Sinar Mas Palm Oil Supply Chain, Ed. Abu Mufakhir, Asia Monitor Resource Centre and Sawit Watch, 2018, Am- nesty International, The Great Palm Oil Scandal: labour abuses behind big brand names, 2016, and Vincent Kiezebrink, Palming Off Responsibility: Labour rights violations in the Indonesian palm oil sector, CNV Interna- tional and SOMO Joint Research, 2017. 10 The Lives of Palm Oil Migrant Workers in Sabah Methodology formants. Visual evidence was taken during this time as well. In addition to the workers, this research also interviewed teachers of Indonesian schools in Sabah, called Community Learning Center (CLC). The CLCs are mostly located in palm oil estates.

Box 2. Community Learning Center Community Learning Center is an Indonesia formal school specifically designed to provide primary and secondary (until 9th grade) education services for Indonesian citizen who lives in palm oil plantations in Sabah and Sarawak.

In Sabah, CLC operates under auspices of ‘Sekolah Indonesia Kota Kinabalu (SIKK) or Indonesian Expatriate School in Kota Kinabalu and directly managed and funded by Indonesian Min- istry of Education and Culture in cooperation with Indonesian Ministry of Foreign Affairs.

While SIKK has already been operating in 2008, it has limited coverage to only Indonesian citizen who lives around the Kota Kinabalu area. In order to broaden the education service coverage, Indonesian and Malaysian government made a formal agreement in 2015 that allows the expansions of CLCs across Sabah and Sarawak.

Source: Indonesian Embassy in Kuala Lumpur (2016

This research also approached the Indonesian Consulate in Tawau to better understand the migration policies applied in Sabah. In addition, the officers of Sabah Plantation Indus- try Employees Union (SPIEU) were also interviewed. In this case, SPIEU’s greatest percentage of members are documented migrant workers, as it is allowed by Malaysian Trade Union Act 1957, mostly in the plantations owned by Sime Darby and some other plantations.

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The research narrative will first highlight the economic policy and development of palm oil in Sabah to show how the development attracts migrant workers to find employment in hopes of poverty alleviation. The next part will discuss migration aspects to see what constitutes the movement of the Indonesian workers to Sabah. As we will see, this aspect of migration defines the ‘legal’ and ‘illegal’ status which in turn determines the provision of basic human rights.

Based on the fieldwork, the discussion will continue with description of migrant workers’ working conditions in the palm oil plantations. This description will be followed by a story about a worker who left their home country and who is now forced to ‘live on the run’. The fieldwork section will also draw particular attention to the children of migrant workers as they are the most vulnerable subgroup of migrant workers along with women workers.

The fieldwork section will be followed by an analysis of how the unfortunate situation of migrant workers happens to benefit the palm oil industry. The analysis will assess the interplay between the plantation and migration regimes, which creates a cycle of irregularity which maintain the irregular status of the migrants itself. The final part will provides some recommendations, with the hope of better addressing the complex problem of irregularity in Sabah.

Throughout the narrative, the monetary amount uses Ma- laysian Ringgit currency (MYR), for example, in showing the amount of wages, allowances, etc. Readers may convert the amount to US Dollar (USD) or Indonesian Rupiah (IDR) in average currency at the time of the research was on the course: 1 MYR : 0.24 USD and 1 MYR : 3,450 IDR.

12 The Lives of Palm Oil Migrant Workers in Sabah How the Development of Palm Oil in Sabah Attracts Migrant Workers

abah has always been largely sustained by a resource based economy. The main contributors to economic growth are the agricultural and manufacturing sec- Stors. The manufacturing sector mostly emphasises the natu- ral resources-based industry, which encompasses palm oil products.10 In 2011, for example, the primary sector contributed 40% to GDP. In this resource-based economy, the increase in commodity prices of palm oil provided a positive impact to Sabah during the 1997 economic crisis and global economic slowdown in 2009.11

Among the 13 states of Malaysia, Sabah is a key palm oil producer due to its ownership of 9% of the global crude palm oil supply. In 2016, palm oil plantations in Sabah accounted for 1,551,714 hectares or 89% of agricultural land.12 Palm oil cultivation in Sabah is undertaken mainly in

10 Razak, op. cit., pp. 93. 11 See ibid., pp. 95 and Keith Sutton, “Agribusiness on a Grand Scale – Felda’s Sahabat Complex in East Malaysia,” Singapore Journal of Tropi- cal Geography, 22(1), 2001, pp 12 Department of Agriculture, “Industrial Crops Statistics,” Putrajaya, 13 Exploited and Illegalised the east coast; specifically, Kinabatangan, Sandakan, Tawau and Lahad Datu. About 73% of the total 1.4 million hectares of palm oil are planted in these divisions.13

Picture 1. Main Divisions of Sabah Palm Oil Plantation.

Source: Google, 2018.

Several giant corporations control a large share of plantations in Sabah. Though not exhaustive, they are Felda Global Venture14, Sawit Kinabalu15, IOI Group, Carotino/JC Chang Group16, Sabah Softwoods Berhad17, Kretam Hold- ings Berhad18, TSH Resources Berhad19, Kuala Lumpur Ke- pong20, and Sime Darby21. In 2018, of the 1,246,448 hect-

Malaysia, 2016, pp. 165 13 Department of Industrial Development & Research, “Sectoral Devel- opment and Investment Opportunities,” 2011, www.didr.sabah.gov. my/pdf/SYCID-Sectoral2.pdf 14 Felda Global Ventures, http://www.fgvholdings.com/ 15 Sawit Kinabalu, http://www.sawitkinabalu.com.my/ 16 Carotino/ JC Chang Group, http://www.carotino.com/ 17 Sabah Softwood Berhad, http://www.softwoods.com.my/ 18 Kretam Holdings Berhad, http://www.kretam.com 19 TSH Resources Berhad, https://www.tsh.com.my/ 20 Kuala Lumpur Kepong, https://www.klk.com.my/ 21 Sime Darby, http://www.simedarby.com/ 14 The Lives of Palm Oil Migrant Workers in Sabah How the Development of Palm Oil in Sabah Attracts Migrant Workers ares of MSPO certified land, 344,400 are located in Sabah and owned by these giant corporations.22

In the first development, palm oil cultivation was facilitated by the Malaysian government through its land agency, Federal Land Development Agency (FELDA).23 FELDA was established in 1956 as a land settlement agency to advice, finance, and coordinate a disparate state land settlement schemes.24

At the same time, the land settlement also conformed to the shifting of agriculture crops in favor of palm oil, meant to reduce dependency on rubber. Within this development, the large scale cultivation of palm oil in Malaysia began shortly after in 1960 and has expanded significantly, especially since 1990.25

Land development under the settlement scheme was mainly intended for the advancement of palm oil plantations. In all Malaysian states, the area designated for palm oil production consisted of 648,618 ha out of a total of 826,463 ha under the FELDA scheme in 1993.26 This area of palm oil cultivation gradually displaced rubber trees, which led to FELDA becoming responsible for 32 percent of all land area allocated to Malaysian palm oil production. In other words, FELDA is significant producer and exporter of palm oil.

22 See the lists in MSPO Areas Certified, “Oil Palm Area in Malaysia Cer- tified as of 31st October 2018,” https://www.mpocc.org.my/certified- areas. 23 More on FELDA refer to Keith Sutton and Amriah Buang, “A New Role for Malaysia’s FELDA: From Land Settlement Agency to Planta- tion Company,” Geography, Vol. 80, No.2, April 1995. 24 Ibid., pp. 126 25 See Razak, op. cit., pp. 98. 26 Keith Sutton and Amriah Buang, op. cit., pp. 130 Asia Monitor Resource Centre 15 Exploited and Illegalised

Figure 1. Area Planted with Industrial Crops in Malaysia 1980 – 1998.

Source: Ministry of Primary Industries, cited in Teoh (2000).

Initially, the land settlement extension in Sabah was intended to make up for the land in Peninsula states which was scarce and no longer fit for development. The extension of the land settlement scheme to Sabah also corresponded with the expansion of palm oil plantations from Peninsular to Sabah.27

However, Sabah’s situation is contextually distinct, related to land settlement which affects the modes of palm oil development. The land settlement in Peninsular successfully brought in settler’s families, such as in Pahang and Johor, whereas the number of settlers in Sabah is relatively low (see Table 2 below).

27 Razak, op. cit., pp. 99. 16 The Lives of Palm Oil Migrant Workers in Sabah How the Development of Palm Oil in Sabah Attracts Migrant Workers

The main difficulty in Sabah was the recruitment -of set tlers due to the low population density, relative shortage of potential rural recruits and lack of ‘land hunger’.28 With the total of 64 schemes planned in the1980s, it required 11,000 settlers. However, the number of Sabah’s population in 1985 was 1.28 million, of which a growing propor- tion were urban, therefore making them ineligible to meet criteria for settler recruitment.29

Given this disadvantageous situation, FELDA undertook a new approach by employing workers instead of settler families to maintain the cultivation of undeveloped tracts of land. This also happened in accordance with the Sixth Malaysia Plan 1991-95, which lead to a dramatic change of the land settlement itself. Under this new policy, FELDA was permitted to manage 100 per cent of non-settler schemes by employing workers than recruiting settlers.30 This period also marked the shift of FELDA to a commercial plantation approach.

28 Keith Sutton and Amriah Buang, op. cit., pp. 134. 29 Keith Sutton,op. cit., pp. 96. 30 Keith Sutton and Amriah Buang, op. cit., pp. 133. Asia Monitor Resource Centre 17 Exploited and Illegalised

Table 2. Area Developed by State and Crop – July 1994.

State Area in % total Settlers Plantation in Plan- estates (ha) estates (ha) tation estates Pahang 194,263 131,958 40.4 Johor 126,245 27,886 18.1 Sabah 11,125 106,035 90.5 Negeri Sembilan 75.511 1.263 12.9 Terengganu 33,203 11,632 25.9 Perak 27,355 14,380 34.4 Kelantan 16,359 24,818 60.3 Kedah 13,758 1,376 9.1 Selangor 11,228 1,712 13.2 Perlis 5,358 0 0 Melaka 5,078 0 0 Sarawak 0 8,344 100 TOTAL 519,482 339,394 39.5 Source: Buletin FELDA (1993), cited in Sutton and Buang (1995).

The commercialization of FELDA was supported by the re- organization of FELDA’s structure in 1993. Within the new structure, there are two divisions: FELDA Plantation Sdn. Bhd (Ltd.) and the Manufacturing and Trading division.31 The first division was formed to manage non-settlers’ estate in accordance with the Sixth Malaysia Plan land policy. Meanwhile, FELDA started to focus on joint ventures and the private sector, which has been given more of a role in developing new land since 1991.

31 Ibid., pp. 129. 18 The Lives of Palm Oil Migrant Workers in Sabah How the Development of Palm Oil in Sabah Attracts Migrant Workers

Within this situation, foreign workers have been continuously recruited to fill in the needs of labour for commercial plantation estates. Combined with the difficulty in recruiting settlers, hiring foreign workers is the only available option. This limited option is a result of the reluctance of local Ma- laysians to work in the plantation, which eventually creates labor shortage. Plantation work is considered as one of the low paying 3D (dirty, difficult and dangerous) jobs for the locals.

The reluctance among local Malaysians is the result of the implementation of the New Economic Policy (NEP). In this regard, the central government launched NEP in 1971 to eradicate poverty and to abolish the identification of particular ethnic (Malays) with economic function and geographical location. As a result, the NEP was in favor of ethnic Malays, who at the time were largely concentrated in rural areas and economic disadvantaged.32

The NEP had indeed brought significant changes to ethnic Malays. Many Malay youths aspire for upward social mobility. This aspiration was supported by the increasing of job opportunities in the city undergoing industrialization and increasing number of Malays’ seeking a higher educational level. The NEP’s results also affected workforce structure. Rural Malays, specifically younger Sabahans, tended to migrate to the city for work, thus leaving their home regions lacking in manpower.33

32 Azizah Kassim, “Illegal alien labour in Malaysia: Its influx, utilization, and ramifications,” Indonesia and the Malay World, No. 71, 1997, pp. 52. 33 See Razak, op. cit., pp. 38-50 and Keith Sutton,op. cit., pp. 96. Asia Monitor Resource Centre 19 Exploited and Illegalised

Given the situation, it could be said that palm oil plantations in Sabah has relied on migrant workers since the beginning of their development. In this regard, there is correlation between the increasing land area utilized for palm oil plantation and the influx of migrant workers.34

Figure 2. Distribution of Oil Palm Area by State (hectares) 1980 – 1999.

Source: Overview of the Malaysian Oil Palm Industry (2010).

34 The same trends is also happening in Peninsula, in which the expansion of palm oil area followed up with the increasing of migrant workers. See Azizah Kassim, op. cit 20 The Lives of Palm Oil Migrant Workers in Sabah How the Development of Palm Oil in Sabah Attracts Migrant Workers

Figure 3. Number of Sabah’s Population by Census 1970-2010.

Source: Adapted from Department of Statistics, Sabah (2011) cited in Razak (2016).

The movement of migrant workers, as indicated by two figures above, corresponds with the expansion of palm oil plantation areas. During the initial years of development, the significant increase of palm oil plantations was in 1991- 2000 (289,054 ha to 1,000,777 ha). This increase was also related to the commercial approach of FELDA under the Sixth Malaysia Plan.35

As Figure 3 shows, this expansion was also followed by the increasing number of non-citizens in Sabah, which mainly consists of Filipinos and Indonesians, from 424,997 in 1991 to 614,422 in 2000. In addition, in 1970-2000, the per-

35 In his research, Razak also argue that the growth of non-citizen population was associated with rapid economic growth due to expansion in palm oil plantations. See Razak, op. cit., pp. 243 Asia Monitor Resource Centre 21 Exploited and Illegalised centage increase in population in Sabah was higher than Sarawak and Peninsula.36 Such growth was believed to be attributed to the numbers of migrant workers.37 In a closer look, Figure 4 below shows the relation between the Sa- bah’s export outputs with the number of migrant workers.

Figure 4. Stock of Migrant Workers against Export, Sabah 1997-2011

Source: Razak (2016).

In this regard, Razak argue that “... the changes in the number of foreign workers consistent with the growth of exports.”38 In his writing, he notes that the highest export during 2008 gave rise to employment and the stock of foreign workers in

36 Sabah recorded an increase of 390.2%, while Peninsular and Sarawak were 149.5% and 146.8% respectively. See ibid., pp. 124 37 Kamal Sadiq, “When States Prefer Non-Citizens over Citizens: Con- flict over Illegal Immigration into Malaysia,” International Studies Quarterly. Vol. 49, No. 1, 2005, pp. 110. 38 Razak, op. cit., pp. 111 22 The Lives of Palm Oil Migrant Workers in Sabah How the Development of Palm Oil in Sabah Attracts Migrant Workers the following year. As exports dropped in 2009, the demand for foreign workers also declined in 2010.39 Given the figure, it is likely that in the future, the palm oil industry will continue to rely on the migrant workers.

Aside from the specific situation in Sabah regarding its economic status, the influx of migrant workers has been made possible by the migration infrastructure. The actors involved in the migration infrastructure consist of both state and non- state actors. This migration infrastructure, which has established for decades, facilitates—to the degree of trafficking— the movement of the migrant workers itself. In short, the migration infrastructure connecting Indonesia with Sabah attempts to fill labour shortages across palm oil plantations.

39 For more details refer to ibid. Asia Monitor Resource Centre 23 Exploited and Illegalised

24 The Lives of Palm Oil Migrant Workers in Sabah How The Migration Happens

he notion of a migration infrastructure sees migration as a social process that involves different interacting dimensions, rather than mobility per se. TheT notion systematically interlinks technologies, institutions, and actors that facilitate and constitute the mobility.40 The connection between different interacting dimensions of migration infrastructure could overlap and contradict each other.

Migration infrastructure serves as a framework for this section to better understand migrant workers’, in particular the persistence of irregular workers in palm oil plantations in Sabah. This section will draw on the development of the migration infrastructure in Sabah which, using Xiao and Lindquist’s argument, “turned migration into an object of intensive regulation, commodification and intervention.” 41

40 Biao Xiang and Johan Lindquist, “Migration Infrastructure,” Interna- tional Migration Review Vol. 48 No. S1, 2014, pp. 122 41 Ibid., pp. 125. 25 Exploited and Illegalised

Decades of Traditional Migration Establishment

The existence of migrant workers in Sabah is related to traditional migration, which can be traced back to the pre- colonialism era. One of the long history of migration comes from Sulawesi; Eastern part of Indonesia to Sabah. This traditional migration was associated with the ‘Bugis’ of seafaring tribes in South Sulawesi. Bugis tribe is well known for their outward mobility in search for a better life—a main part of their cultural trait. The long interaction between Sa- bahans and seafaring Bugis resulted in a transnational marriage.

The most salient feature resulting from traditional migration is the creation of a kinship-based social network that later helps to establish social infrastructure, facilitating the workers’ mobility. The important role of this social infrastructure is that it connects between migrant sending and receiving countries.42 In a more specific role, this infrastructure also plays a recruitment role, assisting and facilitating the migration, such as what happened with the ‘Tungku’ system.43

Nascent migrant workers usually do not migrate indepen- dently without having any social relationship in the desti-

42 For reference, see Razak, op. cit., pp 196 43 There is a well-known traditional recruitment system called ‘Tung- ku’. It mostly refer to a network of Bulukumba Bugis facilitating the migration. Given the consistent influx of migrant from Bulukumba in Southeast Sulawesi, Tungku eventually became a village name in Lahad Datu region in Sabah. More detail story of Tungku system and how it associate with indentured trafficked labor benefitted by palm oil plantation will be described in the field findings section. For reference, see Oliver Pye, et al, “Precarious lives: Transnational biogra- phies of migrant oil palm workers,” Asia Pacific Viewpoint, Vol. 53, No. 3, December 2012, pp. 338. 26 The Lives of Palm Oil Migrant Workers in Sabah How the Migration Happens nation country. As noted by Razak in his writing, migrants tend to be accompanied by their family on their first journey to Sabah.44 Furthermore, Razak also found that the kinship linkages contribute significantly in terms of recruiting new migrant workers, where the recruiters—who is generally a long-settled migrant in Sabah—recruit new migrants from their hometowns.

This finding is consistent with the story of women migrant workers. There is a well-known term among Bugis people, makkunrai passimokolo’, which refers to undocumented women workers who enter Malaysia by boat in the middle of the night through an unofficial route.45 They are usually accompanied by or follow their relative in a marital migration in search for a future spouse.46

It should be noted that the history of migration to Sabah is not solely owned by Bugis tribe. Migration from Sulu Archi- pelago in the Philippines to Sabah for example, has existed since the barter trade era, as early as the ninth century.47 During British colonization, Chinese and Javanese laborers were also brought to Sabah to work in rubber and tobacco plantations. As noted by Razak, Sabah has been exposed to external influences over a long period.48

44 Razak, op. cit., pp. 181. 45 Nurul Ilmi Idrus, “Makkunrai passimokolo’ Bugis migrant women workers in Malaysia,” in Michele Ford and Lyn Parker (Ed), Women and Work in Indonesia, London and New York: Routledge, 2008, pp. 155. 46 Ibid., pp. 158. 47 Kamal Sadiq, op. cit., pp. 106. 48 Razak, op. cit., 87. Asia Monitor Resource Centre 27 Exploited and Illegalised

Picture 2. Borderland Area between Indonesia and Sabah.

Source: Google, 2018

In other part, people who are living in the borderland area between Indonesia and Sabah have a particular kinship relations. The inhabitants of Nunukan (Indonesian side) and Sebatik Island49 have a traditional kin relation with the inhabitants of Tawau (Sabah side).50 As they are living in the borderland, the inhabitants of Nunukan can enter Tawau without passports for a maximum of one month by using only a special border pass.51

49 Sebatik is an island in northeast part of Kalimantan region that is shared by Indonesia and Malaysia. 50 Riwanto Tirtosudarmo, “In The Margin of a Borderland: The Floren- ese Community Between Nunukan and Tawau,” in Alexander Horst- mann and Reed L. Wadley, Centering the Margin: Agency and Narrative in Southeast Asian Borderlands, Asian Anthropologies, Berghahn Books: 2009, pp. 140. 51 Indonesia and Malaysia signed a Border Trade Agreement (BTA) in 1970. The agreement facilitates social visit or economy trade activity between residents of both countries. Kastam Diraja Malaysia, Tawau, “The Border Trade Agreement (BTA) between Malaysia and Indone- 28 The Lives of Palm Oil Migrant Workers in Sabah How the Migration Happens

The social infrastructure has impacted the composition of Sabah’s demographic. In a closer look, 633,264 of the 889,689 foreigners in Sabah (Figure 3) are staying in the Eastern region of Sabah which consists of seven divisions: Tawau, Lahad Datu, Semporna, Sandakan, Kinabatangan, Beluran and Kunak.52

Given its location in the porous area, these divisions—except Beluran—are known as the main entry point for migrants from Indonesia and the Philippines. Interestingly, major palm oil processing facilities, such as Palm Oil Indus- trial Cluster Lahad Datu and Sandakan, are concentrated53 in these areas of porous land.

The various communities involved are deeply engrained, thus helping turn migration from a social infrastructure into a commercial one. The transformation from social to commercial infrastructure turn the migration as a commodity. As noted before, recruiters are often former migrant workers who have settled in Sabah. The recruiter plays a role as calo or broker—which can be found in the case of makkunrai passimokolo’. This broker takes care of the travel across the porous border and negotiates with border officers.54

Nunukan Island of Indonesia has a particularly important role within the commercial infrastructure. Given its location in the borderland, Nunukan is the transit town for migrant workers. The population of Nunukan consists of Bugis, Flo-

sia,” http://www.etawau.com/Government/Kastam.htm. Accessed in 30 May 2018. See also Razak, op. cit., pp. 179. 52 Ibid., pp. 300. 53 Ibid., pp. 100-101. 54 Idrus, op. cit., pp. 156 Asia Monitor Resource Centre 29 Exploited and Illegalised renese, Javanese, Torajans and Tidungs migrants, painting a diverse picture of the migrant community in Sabah.55

Some residents in Nunukan play a role as recruiter. Similar to the experience of makkunrai passimokolo’, members of the Florenese community who are settling in Nunukan, operate a labor recruitment agency. In Tirtosudarmo’s writing, the recruiter in Nunukan has a connection with Malaysian immigration officials in Tawau in Sabah and access to the plantation business network in Sabah.56 As noted by Ford, agents simply have to telephone the immigration department to produce hundreds of passports within a few days.57

Commercial infrastructure greatly benefits from the established social network. In his interview with the workers’ recruiter, Razak found that it is preferable to recruit migrants from the same village or family of the recruiter as “... it is easier to handle the workers whose sense of obligation and respect towards the mandor (foreman).”58 This mode of recruitment is possible given that most migrants maintain their relation with their hometown.

The commercial infrastructure was developing and becoming dominant with the increasing demand of migrant workers. Xiang and Lindquist in this case found that the number of licensed recruitment companies and informal brokers in Indonesia has grown significantly since the 1997 Asian

55 Tirtosudarmo, op. cit., pp. 145. 56 Ibid., pp. 147. 57 Michele Ford, “After Nunukan: The Regulation of Indonesian Migra- tion to Malaysia,” in Amarjit Kaur and Ian Metcalf (Eds.), Divided We Move: Mobility, Labour Migration and Border Controls in Asia, New York: Palgrave Macmillan, 2006, pp. 234. 58 Razak, op. cit., pp. 196 30 The Lives of Palm Oil Migrant Workers in Sabah How the Migration Happens economic crisis.59 This expansion corresponded with the increasing number of workers being sent abroad, from 200,000 workers in 1995 to 700,000 workers in 2007.60

Given the historical context of traditional migration and its evolution, migrant workers have become integral to the Malaysian economy, especially with the palm oil industry. However, the presence and the demand on migrant workers has been increasingly subjected to state regulations. The process of migration has been becoming more complicated with the growing number of regulations and procedures. As we will see, this is not only affecting to the process of migration itself, but also to the precarious living conditions of the migrant workers.

Mediating the Migration: The Rise of Migration Regime

The problem of legal status are constituted and regimented by the law.61 In other words, illegality is not ahistorical, but constructed by the idea of the nation state in which it affirms the jurisdictional boundaries and citizenship identity by its immigration and citizenship law. In the context of this study, it emerged from the history of cross border society that has been interacting without regard to jurisdictional boundaries for decades.

59 Biao Xiang and Lindquist, op. cit., pp. 123. 60 Ibid. 61 Catherine Allerton, “Impossible Children: Illegality and excluded belonging among children of migrants in Sabah, East Malaysia,” Journal of Ethnic and Migration Studies, 2017, pp. 3. Asia Monitor Resource Centre 31 Exploited and Illegalised

Compared to the long history of migration, it was only recently that migration became subject to regulations. The current regulation on immigration was first enacted in 1957 and updated in 1959.62 The historical context of the enactment of law—including its series of revisions—was related to the ‘unregulated’ flow of migrants from neighboring countries that emerged from traditional migration practices. This enactment also signified the beginning of the affirma- tion of the migration legality.63

Despite migration regulation’s enactment in 1957, it was only until the 1970s that the Malaysian government focused more attention on the flow of migrant workers. As observed by Avila, the evolution of Malaysia’s immigration policy began in 1970 and was closely related to the country’s economic development. To be more precise, immigration policy has historically corresponded with the demand for a cheap labor supply.

The first period of the migration regime in 1970-1980 was accommodating to the migrant, as argued by Avila.64 Dur- ing that period, the recruitment of migrant workers was arranged directly by the employer and private agency. The employer autonomously determined the hiring requirements and recruitment was arranged by a private recruiting

62 Michelle B. Avila, The Evolution of Malaysia’s Immigration Pol- icy Since 1970 (Master Thesis), retrieved from https://calhoun. nps.edu/bitstream/handle/10945/45158/15Mar_Avila_Michelle. pdf?sequence=1&isAllowed=y. 63 For instance, Immigration Act 1959 defined how to legally enter Ma- laysia, who was authorized to legally enter and who would be prohibited. The state also has been given capacity to cancel passes or permits without warning and prohibited entry to Malaysia. See ibid., pp. 19. 64 Ibid., pp. 17 32 The Lives of Palm Oil Migrant Workers in Sabah How the Migration Happens agency. There was no regulation made by the government to regulate entry requirements of migrant workers at that point.

In the 1980s, the large influx of migrant workers started to be perceived by the local population, leading to social problems, particularly drugs, violence, murder, disease, rape and prostitution.65 Migrant workers were also perceived as a threat by the Malaysian working class. Whilst the un- employment rate was increasing due to 1980s economic downturn, the Malaysian working class began to experience resentful toward the migrant workers as they saw them as a job-competitor.66

The situation above reflects the emerging tension between the state, Malaysian community, and palm oil industry. The government needed to address the public concern on the perceived job competition while at the same time maintaining the supply of cheap labor for the growing economy, particularly for palm oil industry. Although the Immigration Act of 1959 had determined the legality of immigration, the first period of the migration regime almost did little to acknowledge the existence of irregular migrants.

Given the context, the government introduced a series of measures to control and regulate migration. In 1982, For- mation of the Committee for the Recruitment of Foreign Workers was established.67 This measure was followed by Supply of Workers Agreement (or “the Medan Agreement”) signed by the Malaysian and Indonesian government in 65 Michele Ford, op. cit., pp. 235. 66 Ibid. See also Avila, op. cit., pp. 24 67 Ibid., pp. 19. Asia Monitor Resource Centre 33 Exploited and Illegalised

1984, which specifically addressed the needs of agricultural and domestic workers.68 These series of measures reflect how the state has been steadily strengthening its position to mediate migration flows.

In 1989, Malaysian government became more restrictive in their decision-making regarding the legality of immigrants. This was marked by the immigration regularization program which aimed to curb the influx of migrant workers. The requirement of migrants to gain legal entry into Malaysia and the guideline for employers to legally hire foreign workers were imposed in the late 1980s and updated in 1991 by the implementation of Comprehensive Policy on the Recruit- ment of Foreign Workers.69

The evolution of immigration regulation in the following years tended to discourage the recruitment of legal migrant workers. Since the government started to play a bigger part in immigration policy, the recruitment of foreign workers has become increasingly lengthy and costly. The recruitment process is now streamlined under government policy, which forces employers to meet the requirements and follow the application procedures for recruiting a migrant worker.70

68 Michele Ford, op. cit., pp. 235. 69 Ibid., pp. 236. 70 For example, employers should submit an application for foreign workers to Foreign Worker One-Stop Approval Agency under the Ministry of Home Affair, applying for Visa with Reference, paying for specified levy and setting up medical check-up for the recruited foreign workers. For references, see Malaysian Employers Federation, op. cit., pp. 16-17 and World Bank, Immigration in Malaysia: Assessment of its Economic Effects, and a Review of the Policy and System, Collabora- tion Report with ILMIA—Ministry of Human Resources of Malaysia, 2013. 34 The Lives of Palm Oil Migrant Workers in Sabah How the Migration Happens

One of the requirements that has to be fulfilled by employers is paying annual levy for every recruited foreign worker. This requirement was first implemented in 1992 and the amount has been gradually increasing from 300 MYR in 1995 to 540 MYR in 2005. It was considered as an effort to reduce over-reliance on foreign workers by attracting the local workforce.71 Initially it was payable by migrant workers, then shifted to employers in 2009 and shifted back again to the migrant in 2013.72 In January 2018, the annual levy is now borne by the employer.73

Table 3. Levy charged for employment of migrant workers by sector and location.

Sector Levy Peninsular Sabah/Sarawak Manufacturing 1,250 1,010 Construction 1,250 1,010 Plantation 590 590 Agriculture 410 410 Service 1,850 1,490 Service (Island 1,250 1,010 resort Source: MOHA (2015), cited in ILO (2016).

It was initially argued that the levy charge back to the workers was to assist employers in reducing the financial cost of

71 Razak, op. cit., pp. 57 72 ILO, op. cit., pp. 19. 73 Statement Letter issued by Corporate Communication Unit, Malay- sian Ministry of Human Resource on December 20, 2017 Asia Monitor Resource Centre 35 Exploited and Illegalised hiring foreign workers.74 In a study conducted by Malaysian Palm Oil Board (MPOB), the total initial cost in 2010 for recruiting one foreign worker amounted to 1,835 MYR per workers.75 There are at least eight government fees charged for employing foreign workers—not including agent fee and other unofficial fee.

Table 4. Fees Applied to Employment of Indonesian Mi- grants in Plantation Sector

Fee Components Amount (MYR) Levy 590 Visit Pass 60 Visa 15 Processing fee 125 Security bond 250 Foreign Worker Compensation 86+5% service charge Scheme Health Insurance Premium 120 Medical Examination 180-190 (determined by gender) Source: ILO (2016) and Malaysia Employers Federation (2014).

The legality of migration was increasingly asserted as the migration regime became more restrictive in the years following the 1990s. Unlike in the accommodative period,

74 Malaysian Employers Federation, op. cit., pp. 40 75 The cost is consist of Levy, Security Bond, Medical, Passport, Insur- ance, Calling Visa Verification, Others Fee, and Agent Fee. See Ramli Abdullah, Azman Ismail, and Ayatollah Khomeini, “Labour Require- ments in the Malaysian Oil Palm Industry in 2010,” Malaysian Palm Oil Board, Malaysia, Oil Palm Industry Economic Journal, Vol. 11 (2) 2011, pp. 10-11. 36 The Lives of Palm Oil Migrant Workers in Sabah How the Migration Happens since the 1990s up until the present, there has been a series of measures to regularize (in terms of amnesty and registration) and to enforce (in terms of detention and deportation) irregular migrant workers.76 In line with this, there was a humanitarian crisis Nunukan resulting from mass deportation in 2002.77

Despite the effort to discourage foreign workers, the influx of irregular workers has been persistent in this case. As shown by Figure 3, the number of migrants has actually increased over the years. In between 1997-1998, attempts were made to impose strict control over migration, including the increase of levies, but the number of migrant workers rebounded in 1999, eventually returning to two-thirds the 1996-1997 levels.78 Over time, the number of foreign workers in Malaysia has grown significantly since the 1984 Medan Agreement.79

The most prominent effect of the evolution of the migration regime has been the extremely precarious situation of migrants. As migration become increasingly mediated by the state, migrant workers legal status was subordinate to the control of the state. Accordingly, the migration regime continuously reproduces irregularity.

76 See the chronology of migration policies, implementation and issues in Malaysia in 1968-2011 in Razak, op. cit., pp. 290-295. 77 Ford, op. cit., pp. 228. See also Riwanto Tirtosudarmo, “Cross-border Migration in Indonesia and the Nunukan Tragedy,” in Aris Ananta and Evi Nurvidya Arifin (Ed.), International Migration in Southeast Asia, Singapore: Institute of Southeast Asian Studies, 2004. 78 Ford, op. cit., pp. 9. 79 Razak, op. cit., pp. 17 Asia Monitor Resource Centre 37 Exploited and Illegalised

Defining the Illegality: Review on the Current Immigration Policy and Regulation

In order to understand the problem of legal status of irregular migrants, we should start by reviewing current immigration policy and regulation. The Immigration Act 1959/1963 demands that non-Malaysian workers are required to have a Visit Pass (Temporary Employment). This kind of work permit is issued by the Department of Immigration for entering, remaining and working in Malaysia after the completion of the recruitment procedure.80

Within this legal framework, the legal status of the migrant workers is determined and limited. Those employed through formal procedures are considered as ‘legal’, ‘regular’ or ‘documented’ migrant workers. Meanwhile, those employed without formal procedures are considered as ‘illegal’, ‘irregular’ or ‘undocumented’ migrant workers. Those irregular migrant workers are also subject to the penalties and immigration offences.

Irregular migrants are those who (a) are unable to show that they have definite employment waiting for them; (b) are suffering from a contagious or infectious disease; (c) refuse to submit to a medical examination after being required to do so; (d) are not in possession of valid travel documents or in possession of forged or altered travel documents or in possession of travel documents that do not fully comply

80 See the complete recruitment procedure in Verite, “Forced Labor in the Production of Electronic Goods in Malaysia”, 2014, pp. 55-58, Ma- laysian Employers Federation, op. cit., 12-18 and on Immigration De- partment of Malaysia, “Foreign Workers,” http://www.imi.gov.my/ index.php/en/foreign-worker.html, accessed on 26 October 2018. 38 The Lives of Palm Oil Migrant Workers in Sabah How the Migration Happens with law; or (e) are family and dependents of a prohibited immigrant, among others.81

Box 3. Recruitment Terms and Conditions of Foreign Workers Only permitted to work in these sectors - Manufacturing, Construction, Plantation, Agriculture and Services;

• Quota of foreign workers must be obtained by employers / companies from Ministry of Home Affairs, One Stop Centre (OSC); • Age of not less than 18 years and not more than 45 years at the time of application; Certified PASS for Immigration Security Clearance (ISC) at the source country; • Certified as fit and healthy by the approved medical center in the source countries; • Not listed as foreign individuals who are prohibited from entering this country under Section 8 (3) of the Immigration Act 1959/1963; • Foreign workers who hold the Visit Pass (Temporary Employment) or VP (TE) permit must adhere to these conditions : - Family members are not allowed to accompany or live in this country; - Must not work as front liner; - Change of employers or employment sectors is not allowed; and - Marriage is prohibited with local or foreign citizens.

81 Verite, op. cit., pp. 45. Asia Monitor Resource Centre 39 Exploited and Illegalised

EXTENSION OF VP(TE) VP (TE) is valid for a period of 12 months. Employers can apply for VP (TE) extension 3 months before the expiry date.

• Employers must ensure the extension application is made before the VP (TE) expires. Any application submitted after the expiry date will be referred to the Immigration Enforcement Division for consideration. • Application of VP (TE) extension must adhere to this checklist: - Passport of the foreign worker is still valid for 12 months and above - Application letter to extend the VP (TE) - Identification document of employee/ company representative (SSM company / Form 49 / Form B & D / Card Company Representative / Form Company representatives have endorsed / copy of the employer ‘s identity card) - Security bond in a form of bank guarantee / insurance guarantee / deposit (validity period of bank guarantee / insurance guarantee is at least 18 months) - Insurance policy of Health Insurance Protection Scheme Foreign Workers (SPIKPA) – except for plantation sector - Slip of Foreign Workers Compensation Scheme (FWCS) - Foreign workers must undergo medical examination and certified fit by the clinic/ medical center registered with FOMEMA (for 2nd and 3rd year extension only

40 The Lives of Palm Oil Migrant Workers in Sabah How the Migration Happens

EMPLOYMENT PERIOD AND REPATRIATION

Foreign workers are allowed to work in this country on a yearly basis up to 10 years. However, those registered under the 6P Program is allowed to work up to 3 years only.

- Upon completion or termination of employment, the employers must ensure that foreign workers are deported to their origin countries by using Check Out Memo. Security bond can be claimed provided the repatriation process is done accordingly through Check Out Memo.

Source: Immigration Department of Malaysia (July 2018)

Asia Monitor Resource Centre 41 Exploited and Illegalised

Based on the applicable rules above, there are six types of irregular migrants which are relevant with to this study.

Table 5. Types of Irregular Migrants.

Types Description Undocumented illegal Foreign nationals who arrive clan- entrants destinely through areas outside the sanctioned port of entry. Those involved are usually without formal personal/ travel documents Contract defaulters Foreign workers who arrive legally but leave their predetermined employers and work in other job sectors before their contract ends

Unregistered children Dependents of immigrants who do of immigrants not hold a birth certificate or are not registered when entering Malaysia Visa/ pass abusers Foreign nationals who use student or tourist visas to enter and work in Malaysia Contract workers who Legal foreign workers or their em- failed to renew their ployers must renew work permits work permits annually Holders of counterfeit These forged documents could be documents or forged Malaysian birth certificates, identity endorsement in official cards, passports, visas, employment documents passes or IMM13 passes Source: Razak (2014).

42 The Lives of Palm Oil Migrant Workers in Sabah How the Migration Happens

The labor migration has increasingly been mediated by the emerging migration regime with the increasing numbers of regulations. The important feature of this regime is that it can determine the legal status of those who migrate. At the same time, this determination of legal status also creates a casualization of employment with a permanent feature of temporary residency. In other words, this permanent feature at the same time creates a constant supply of cheap labor.

Given the limited validity of work permits, the employment of foreign workers is exclusively under contractual basis. In other words, the existence of migrant workers remains as an ‘interim solution’ to fill labor shortages. In reality, however, the palm oil industry is under constant dependency—if not permanently—on the migrant workers as a result of the structure of Sabah workforce.

The concept of ‘foreign workers’ is contrary itself, given the nature of labor migration in Sabah which is constituted by kinship based migration networks and transnational marriages. The fact there have been migrant communities inside palm oil plantations for decades proves that migrant workers are an inseparable part of Sabah. However, despite their significance to the local economy, the presence of migrant workers, is continuously defined as being ‘alien’ under the current migration regime.

This migration regime in turn gives the employer greater control—if not absolute control—on the migrant workers. It is common practice for the employer to retain the workers’ passport.40 Meanwhile, the recruitment system also

40 Malaysian Employers Federation, op. cit., pp. 47. Asia Monitor Resource Centre 43 Exploited and Illegalised limits the possibility of workers to find another workplace as workers would need to start over the lengthy and costly recruitment procedure. Absconding, even from an abusive employer, would characterise the migrants as ‘contract defaulters’, an immigration offence (see Table 5 above). The next session will depict how migrant workers live their lives as ‘aliens’ and are forced to live a life on the run in a foreign country. The following narrative will focus on the working and living conditions of migrant workers employed in the palm oil plantation who are bounded by the migration regime. This section will also draw particular attention to the lives of migrant children, who are nearly all characterized as irregular.

44 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia

he majority of migrant workers in Sabah are employed in the palm oil plantation. In 2010, it was estimated that 172,630 (39%) workers out of 446,368 workersT in the Malaysian palm oil plantations are in Sa- bah.83 Among this number, 125,432 workers are originally Indonesian, while only 11,520 workers are from the Philip- pines.84 Across Malaysia, 253,108 (83.8%) of the total migrant worker population working in the sector are Indone- sian, according to 2012 government data.85

The official data itself is obviously undercounted, with dif- fering ranges of estimates of the number of migrants in Sa- bah.86 During the 6P program87 under a ‘Comprehensive

83 Ramli Abdullah, Azman Ismail, Ayatollah Khomeini, op. cit., pp. 4. 84 Ibid., p. 6. 85 Immigration Department of Malaysia, 2012. Cited from Razak, op. cit., pp. 17. 86 Graeme Hugo, “Indonesian Labour Migration to Malaysia: Trends and Policy Implications,” Southeast Asian Journal of Social Science, Vol. 21, No. 1, 1993, pp. 44. 87 6P stands for “Pendaftaran, Pemutihan, Pengampunan, Pemantauan, Penguatkuasaan dan Pengusiran,” or registration, legalization, am- 45 Exploited and Illegalised

Legalization Program’ in 2011, for example, there were 1.3 million undocumented workers registered across Malaysia. Meanwhile, the Minister of Human Resources stated that there were 4.6 million undocumented workers in 2014.88

Needless to say, there is really no accurate picture of migrant workers, especially in Sabah. The irregular migrant population is difficult to ascertain, given that many are not registered by the appropriate authority. This difficulty is ex- acerbated by the irregular turnover of migrants’ legal status, where those who are documented may become undocumented and vice versa.

Despite uncertainty, it can still be said that most of irregular migrants stay in Sabah compared to other Malaysian states. There is an established trend where migrants tend to bring family members and dependents to Sabah.89 The registered workers usually account for only workers employed by the company. Meanwhile, it is common to find, as we will discuss later, that workers’ family members are also employed without contract.

In a 2010 survey on labor requirements in the Malaysian palm oil industry, there is an indication of the significant presence of migrant workers in Sabah.90 The survey sug- gests that Peninsular has the most substantial labor short-

nesty, monitoring, enforcement, and deportation. See Information Department of Malaysia, Program 6P, http://pmr.penerangan.gov.my/ index.php/penafian/11359-program-6p.html. 88 Lee Hwok-Aun and Khor Yu Leng, “Counting Migrant Workers in Malaysia: a Needlessly Persisting Conundrum,” Perspective No. 25, ISEAS- Yusof Ishak Institute, 2018. 89 Razak, op. cit., pp. 76. 90 Ramli Abdullah, Azman Ismail, Ayatollah Khomeini, op. cit., pp. 6-9. 46 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia age of 20,295 workers, while those of Sabah and Sarawak experienced a much smaller shortage of 12,197 and 10,215 workers respectively. Assessing the labor to land ratio, Sa- bah had the lowest ratio of 1 worker per 5.95 ha, while Pen- insular and Sarawak had 1:11 hectares and 1:8 hectares respectively.

This survey’s results indicate that Sabah has more secure numbers of labor compared to Peninsular and Sarawak. As we could see in the following section, though the labor turnover indeed affects production, palm oil plantations in Sa- bah experience little—if not nothing at all, regarding labor shortages. This is mainly due to the nature of migration and the significant existence of irregular migrants.

Profiling Palm Oil Plantation Company

A ‘plantation’ usually refers to the name of a company or a group of companies that cultivates palm oil trees, such Sime Darby, Sawit Kinabalu, Felda Global Ventures (FGV), Kre- tam Holdings, TSH Resource and others. A plantation covers several palm oil estates, culminating into a sizeable cultivation area of palm oil trees. Each of the estates are located in different places where an estate can be located next to another or distributed to different divisions of Sabah.

One estate can be divided into several divisions, on average of 100 hectares of each, depending on the total size of an estate. A set of hundreds of workers are recruited to manage one estate, who are then dispersed into several smaller groups of ten or so workers who will all work in different

Asia Monitor Resource Centre 47 Exploited and Illegalised divisions to manage different blocks. As illustrated below, there are nine divisions of each nine blocks (little squares) in an estate.

Picture 3. Illustration of One Palm Oil Estate Divided Into 9 Divisions.

‘Mojokuto’ in this case, have several estates located separately in Sungai Burung, Sook, Labau, Gading, Kudat and Brantian. In one of these estates,91 there are five divisions, named according to the numbering (Division 1, Division 2, and so on) in a total size of about 1,500 ha with an estimated 200 workers in total. Meanwhile, ‘Suluk’ Berhad 92has two estates somewhere in the Kalabakan sub-district, named Bulu 1 and Bulu 2. In Bulu 1 in particular, there are

91 There is only one estate we managed to identify and observe. There is no public information available regarding the company of ‘Mojokuto’. The company most likely is not registered under RSPO membership as there is no information that can be found on RSPO website. Most of the information regarding Mojokuto are based on the interviews with the workers. 92 This company has already registered as RSPO members. For security reason, any reference related to the company is not published. 48 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia three divisions of around 4,000 ha with an estimated total of 500 workers.

According to the workers, fruits from ‘Mojokuto’ are supplied to one of the palm oil mills owned by Felda Global Venture and another mill owned by Teck Guan Perdana.93 In 2013, FGV mill received 52% of fruits, equal to 157,477 tons, from outside crop producers. There is no specific information regarding Felda’s supply chain that is traceable up to estate level.94 Meanwhile, Teck Guan Perdana has no sustainability report, nor any information regarding its supply base in its 2017 Directors’ Report and Audited Financial Statements.95

On the other hand, ‘Suluk’ Berhad has several palm oil estates located in Tawau, Lahad Datu and Sandakan divisions of Sabah. The company has its own palm oil mill in Kala- bakan and Sandakan, supplied by its own estates. There is no detailed information regarding whether ‘Suluk’ Berhad is also supplied by non-subsidiary producers in its annual report. According to the workers, the company was supply- ing its fruits to the mill owned by Borneo Samudra and FGV prior to 2013.

93 RSPO Membership, Teck Guan Holdings Sdn. Bhd, https://www.rspo. org/members/3019/TECK-GUAN-HOLDINGS-SDN.-BHD/group- member. 94 In 2017, FGV has only completed the Phase 1 of the mill traceability. The company puts target on the completion of the traceability in 2025. See Felda Global Ventures, Sustainability Report 2016/2017, http:// www.fgvholdings.com/wp-content/uploads/2018/06/FGV-Sustaina- bility-Report-2016_2017.pdf. 95 Teck Guan Perdana Berhad, Directors’ Report and Audited Financial Statements 2017, http://www.teckguan.com/tgp/pdf/Audited_Finan- cial_Statements_2017.pdf. Asia Monitor Resource Centre 49 Exploited and Illegalised

An Isolated, Exclusive and Illegalised Community inside Palm Oil Plantation

Corporate palm oil plantations are characterized by their massive scale of cultivated area. In one estate, the size of land can span thousands of hectares. Given the nature of production, where ripe fruits must be harvested and delivered to the mill within 24 hours,96 workers need to be placed near to the work site. Hence, it is typical to find workers’ compounds inside the plantation.

Across different estates, each compound can have a different situation, depending on the geographical settings of the estate and how tight the company imposes control. One such compound is ‘Mojokuto’ estate, located next to the main road of Tawau-Keningau. Another compound, Tana Torajan community, is separately located in remote area inside the estate. An outsider who is unfamiliar with the area might find it difficult to reach the compound.

The further away the estate area is from the main road and public facilities, the more remote the compound. This is the second case of Bulu estates, owned by Suluk Berhad, which is located somewhere in Kalabakan sub-district, about 128 km from bandar Tawau, or about 45 minutes from the nearest pekan Kalabakan. Bulu estates are surrounded by hills with broken road infrastructure and no street lighting along the way to the area.

96 For reference, see Accenture and Humanity United, Exploitative Labor Practices in the Global Palm Oil Industry, 2013, http://humanityunited. org/pdfs/Modern_Slavery_in_the_Palm_Oil_Industry.pdf. 50 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia

The third case can be found in one of Usahawan Borneo’s estate. This estate is located next to Bulu estates, but further from the main road. Access to the estate is more difficult, with much worse road infrastructure, where most of the track ground is muddy and slippery. Given its remoteness, the atmosphere inside the estate is jungle-like, with less exposure to the sun beneath the palm oil trees and is not well-maintained estate appearance.

Combined with poor road infrastructure, workers’ mobility tends to be limited as there is no public transportation for accessing estate area or nearest pekan. The most common modes of transportation for workers are their own motorcy- cle or company’s ‘lori’ truck, whereas the management use double cab trucks. Occasionally, workers may ride kerong- kerong, a private small car run by an individual—most commonly used by Malaysian citizens—with fare ranging from 15-25 MYR.

Even though the geographical setting might vary in across estates, palm oil plantations have a defining characteristic: tight access control. Most plantations feature a gate meant to control access to the estate area and compound. Out- siders are required to state their purpose clearly—to whom they want to meet and where they want to go to—to the security guard at the entry gate.

Mojokuto, in this case has a lesser degree of access control and remoteness. The entry gate to the compound next to the main road is guarded by one of the plantation workers who are paid a daily rate of 35 MYR. It is relatively easier to access the compound area, especially workers who wish to

Asia Monitor Resource Centre 51 Exploited and Illegalised travel as they can wait for kerong-kerong on the side of the main road.

Although each estate might have a different degree of access control and remoteness, another defining characteristic of palm oil plantations are the isolation. This means the workers and their family tend to be isolated from the outside world. As we will discuss in detail later, the major factor that contributes to isolation are the component parts of the migration regime.

Workers almost cannot, by any means, travel outside the estate if they do not hold proper documents. Most stories of arrestment of irregular migrants occurs on their travel to the bandar Tawau or nearest pekan. Workers are afraid of a regular road block, meant to inspect the driver’s license or working permit. Irregular migrants can be arrested and taken to the Temporary Detention Center—popularly known as ‘the Red House’—waiting for deportation that might not occur for months.

Most of the daily necessities are fulfilled within the estate. Usually, there is a grocery store (kedai) near the compound area. In Mojokuto, there is a medium size grocery store run by an individual owner, while in other estates it is common to find a grocery store provided by the company such as in Suluk Bhd or Usahawan Borneo. Occasionally, there will be a circular trader going inside the compound to sell food or clothing or a monthly bazaar in the nearest pekan during pay day.

The isolation of the workers’ community inside the plantation can be understood by looking at their history and pres-

52 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia ence as irregular migrants. As presented earlier, the nature of labor migration in Sabah is constituted by a kinship based network. As the network has expanded for decades, it eventually created a commercial infrastructure that consists of a set of middlemen—the boat owner, recruiter, broker/agency, and the transporter. This set of middlemen mainly operates in the border area in Nunukan, known as the transit island (see Picture 2).

There are three common migration routes to Sabah.97 First, legal/ procedural recruitment involves a series of formal procedures which consist of a number of required applications, examinations, and administrative costs. Second, non- procedural/illegal entry is characterized where an individual or a group of migrants enter Sabah by using either a Visit Pass or clandestinely crossing through ‘rat trails’. As for non- procedural, a migrant usually holds a travel document to get Visit Pass, while the latter option tend not to carry a passport.

In the second route, a migrant usually starts to work in any kind of employment through his or her familiar network. After being employed, a migrant does not necessarily hold a work permit or VP (TE). During the extent of their working period, a migrant may eventually—or not—be formally employed if the employer submits a work permit application to and is approved by Malaysian Immigration authorities.

Another route to becoming a migrant in Sabah is by being trafficked. The mode of trafficking involves a labor contractor that play roles as a recruiter and/or a labor guard to

97 For reference, see Razak, op. cit, pp. 190-200 Asia Monitor Resource Centre 53 Exploited and Illegalised supervise and discipline the workers. A group of workers is subsequently smuggled by the contractor through their access to the rat trail. A transporter awaits their arrival so that they may take them to the work site. Such trafficking is known among the migrants as ‘sistem kontrak’ (contract system, literally refers to a labor contractor).

In most cases, the last two routes place workers in an irregular situation. For the first time, migrant workers fall into either type of undocumented illegal entrants or visit/ pass abusers (See Table 5 above). Migrant workers in Sabah are subject to persecution due to their perceived illegality, thereby leading to workers’ feelings of vulnerability.

As the migrants start to settle and work at the plantation, they begin to feel isolated, as they are made aware of the risks of arrestment if they choose to venture from the estate area. Such situation becomes much worse in the context of trafficking, where the labor contractor has absolute control over workers’ bodies.

However, irregularity is not only an individual problem with regard to their legal status. Rather, it is reinforced as the workers tend to have or bring their family,98 which are prohibited under the recruitment policy (See Box 3).99 This way,

98 According to a study done in Tawau, Sabah, there are almost 60% of Indonesian women migrant workers who were married and living with their spouses in Sabah. See Helen Benedict Lasimbang, et al., “Migrant workers in Sabah, East Malaysia: The importance of legislation and policy to uphold equity on sexual and reproductive health and rights,” Best Practice & Research Clinical Obstetrics and Gynaecology, 32, 2016, pp. 113-123 99 Dependent Pass is allowed only for those who falls under the category of ‘Expatriate’ who holds Employment Pass. There are three catego- 54 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia irregularity persists and extends to beyond the individual to include their family members. While the first generation became irregular because of their non-procedural entry or being trafficked, the irregularity of the second generation (migrants’ children) arises from their very existence, as merely being born in Sabah.

In the context of engrained migrant community, workers’ compound becomes not just as a settlement per se. Rather, it turns into a village-like (‘perkampungan’) community inside the palm oil plantation. Ethnic origin establishes boundaries, which leads to the creation of a social system within the community.

Membership within the community tends to be exclusive, in a sense that the marriage tend to happens between migrants. This situation, in turn, gives birth to illegalised and irregular children. In the end, the irregularity is constantly being reproduced which exacerbates the isolation much further.

Documented migrants are not automatically excluded from the potential to be irregular, despite their documentation. As they are required to have a work permit with temporary residency, workers are easily thrown out of their legal status.

ries who are eligible to holds Employment Pass, Expatriates I who earns at least 10,000 RM/ month (2390 USD), Expatriate II who earns 5,000 RM – 9,999RM, and Knowledge/ Skilled Workers who earn at least 3,000RM. In short, palm oil migrant workers who falls under the category of Foreign Workers, are not eligible for Dependent Pass. See Immigration Department of Malaysia, “Employment Pass Reclassifi- cation (Category I, II and III), 1 April 2017”, https://esd.imi.gov.my/ portal/latest-news/announcement/employment-pass-reclassification- category-i-ii-and-iii/, accessed on 11 August 2019 Asia Monitor Resource Centre 55 Exploited and Illegalised

As we will see in the next section, workers’ permits may be revoked when workers run away from their employers. The work permit may also not be extended if workers fail—or thwarted by the employer—to pass the medical examination with the FOMEMA (Foreign Workers Medical Examination Monitoring Agency).

In short, a migrant community in the palm oil plantation is defined by its isolation, exclusiveness and illegality. These three situations work together to reproduce irregularity for generations. The plantation industry is given a great means of control over the workers by such situations. At the same time, irregularity also helps the industry to secure a cheap labor supply in a situation of labor shortage.

Palm Oil Plantation Regime and the Working Conditions

Formally, migrant workers are protected under Employment Act 1955 Labor Ordinance (Sabah Cap. 67). Such protection includes provisions on minimum wage, length of working hours (i.e. eight hours), overtime, incentives, benefits and allowances, paid leaves, lay-offs and retrenchment compensation. Within the formal recruitment process, a work agreement shall be signed by the employer, the employee, the recruitment agency, and Consulate of the Republic of Indonesia.

However, workers’ rights are just a symbolic representation on paper. First and the foremost, palm oil workers in Sa- bah are basically under contractual/temporary employment

56 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia arrangement, whether they are documented or undocumented. This arrangement is automatically determined by their migrant status, with temporary residency and which the tenure follows the validity period of the work permit. There is no job security for migrants and the only pension fund they have is their own savings—if they manage to save some earnings.

Under Order 3 of the Minimum Wages Order 2016, all plantation workers (field or general workers and harvesters) in Sabah shall be paid minimum 35.38 MYR per day or equal to 920 MYR a month for the normal 8-working hours or spread-over a period of 10 hours. However, migrant workers under contractual arrangement do casual work with piece-rate based wages.100 Such a wage system has a typical feature of the uncertain amount of the monthly wage, despite how each Malaysian state has a statutory minimum wage applied for any worker.

Uncertain Piece Rate Based Wages and Working Hours

Within the overall division of labour, most migrant workers engage in four types of work: fruit harvesting, loose fruitlet collecting, weeding (spraying chemicals and manual slashing), and fertilizer application. Given the seasonal nature

100 According to ILO, casual work is the engagement of workers on a very short term or on an occasional and intermittent basis, often for a specific number of hours, days or weeks, in return for a wage set by the terms of the daily or periodic work agreement. See International Labor Organization, “What is temporary employment?” https://www. ilo.org/global/topics/non-standard-employment/WCMS_534826/ lang--en/index.htm. Asia Monitor Resource Centre 57 Exploited and Illegalised of palm oil trees, the amount of harvested/collected fruits varies monthly, while spraying and fertilizing depends on the maintenance cycle managed by the management per- sonnel.

Workers are paid based on how many tons of fruit bunches are harvested or sacks of fruitlets are collected and how much land is maintained. Because there is no fixed amount of work in every month, workers’ wage also become uncertain and may be below the statutory minimum wage. Even more, wages for each worker can vary from one another, in particular for the women workers, which creates conflict among the workers.

In general practice, fruit harvesting is done by men working in a group of 7-15 harvesters. There are mostly two tasks in one group: one person prunes the leaves and reaps the fruits, and another person stacks the palm fronds around the tree and carries the reaped fruit bunches to the side of the truck lane. In Mojokuto, 27 RM per ton of harvested fruit is paid to the group of workers. The total amount earned is then divided amongst the group of workers.

With piece-rates, harvest workers’ wage depends on their strength and endurance to harvest as many fruits during the harvest season. Depending on the season, a group of harvesters in Mojokuto can harvest 12-15 tons a day or 2-3 tons on average for each worker, while it can be as low as only 5 tons of fruit. The level of difficulty also affects their wages. As the yield starts to gradually decrease and the tree becomes taller as it ages and grows, the harvesting task becomes much more difficult and thus more laborious.

58 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia

Harvest workers in Suluk earn more wages, compared to Mojokuto, because the palm oil trees are more productive. On average, each worker in a group of 15 harvesters can harvest 2-4 tons a day regularly, with approximately the same rate per ton of fruit bunches in Mojokuto. Other than that, workers can occasionally get overtime payment of 4.8 MYR/ hour after eight hours of working.

While for women workers, most of them work collecting loose fruitlets, applying fertilizers (manuring), spraying chemicals and slashing weeds—the last three tasks are categorized as field work. Women workers tend to be more casual as they do not work as regular as men harvest workers. Spraying chemicals, for example, is only needed for an average of 12 days per month. As for the remainder of working days in a month, the other tasks, such as the field work mentioned above, are allocated depending on management decisions.

Asia Monitor Resource Centre 59 Exploited and Illegalised MYR 1003 Monthly 300 MYR 442 MYR 390 MYR 364 MYR Daily 39 MYR 25 MYR 37 MYR 33 MYR 30 MYR Individual Earning Daily Pieces 10 tons 2.5 tons 17 hectares 15 hectares 14 hectares 27 MYR 60 MYR 13 MYR 13 MYR 13 MYR Salary Rate Group Based 26 days 12 days 12 days 12 days 12 days Days of Working Group Member 7 workers 6 workers 6 workers 6 workers 6 workers Estimation of Average Piece-Rate Based Wage in a Group of Workers. Piece-Rate Based Wage Estimation of Average Table 6 Table Job Category Harvesting Fruits Collecting Fruitlets Maintenance Applying Fertilizers Spraying Chemicals Slashing Weeds Mojokuto

60 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia MYR 1352 Monthly 360 MYR 475 MYR 576 MYR 425 MYR Daily 52 MYR 30 MYR 40 MYR 48 MYR 35 MYR Individual Earning 1 day Daily Pieces 30 tons 300 sacks 220 sacks 40 hectares 1 MYR 2 MYR 26 MYR 12 MYR 35 MYR Salary Rate Group Based 26 days 12 days 12 days 12 days 12 days Days of Working Group Member 15 workers 10 workers 10 workers 10 workers 10 workers Job Category Harvesting Fruits Collecting Fruitlets Maintenance Applying Fertilizers Spraying Chemicals Slashing Weeds Suluk Interview. Source:

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Actual monthly earnings for each worker varies, ranging from as low as 400 MYR (97.7 USD) to occasionally as high as 1,500 MYR (366.3 USD). Gina, one of Mojokuto women workers, only earned 442 MYR in the past month as she was only given the task of spraying chemicals. A group of women workers in Suluk were only given tasks to collect loose fruitlets in the past month as there was no task of spraying chemicals given to them. In the Suluk case, a woman worker only earns an average salary of 850 MYR with different types of task in a month.

In one day of field observation, a group of harvesters in Mojokuto were able to harvest a total of 12 tons of fruit bunches, which earned them 324 MYR in total but 46.3 MYR after being divided among each of the 7 workers. While in the past month, the same group was only able to harvest 5 tons of fruit bunches that equal to 19.3 MYR for each worker. Meanwhile, in another day of observation, a group of 6 women workers were able to collect 102 sacks of loose fruitlets weighing of 2,550 kilos worth 153 MYR or 25.5 MYR for each worker in a group.

The actual cash in hand can be smaller from what they can earn in a month as it does not include the deduction. In Mojokuto, there is almost nothing provided by the company. Workers have to pay 30-50 MYR for 24 hours electricity. As for working tools, workers have to pay 16-220 MYR for each of the different tools they use, deducted from their own wages. Meanwhile, for workers in Suluk, it was only since early 2018 that they did not have to pay for their working tools anymore as the company started to register their estates to RSPO and MSPO.

62 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia

Table 7. Deduction for Working Tools.

Working Durabil- Cost Tools ity Mojokuto Suluk (2017) Machete 2 months MYR 26.00 MYR 13.00 Loading Spike 6 months MYR 16.00 MYR 20.00 Wheelbarrow 12 months MYR 130.00 MYR 80.00 Knapsack 12 months MYR 130.00 MYR - Sprayer Galvanized 6 months MYR 220.00 MYR 180.00 Pipe Harvesting 3 months MYR 60.00 MYR 45.00 Sickle Shoes 2 months MYR 20.00 MYR - Source: Interview.

Under contractual arrangement with piece-rate wage, minimum wage and standard working hour provisions are practically irrelevant. Workers may only work for six hours if there are less fruits or limited tasks, or they may work for longer time, as much as ten hours during the peak harvest season. “If there are no more tasks available, we will just stay at home. The thing is how many we can achieve in one day,” said Erni. Moreover, “the manager often tells us to work even on Sunday, while we want to go to church,” added Martin one of harvest workers.

The actual wage is practically insufficient to provide decent living. Erni has to spend at least 600 MYR in a month for food for herself, her husband (who are not physically able to work) and two children. Meanwhile, the family living wage

Asia Monitor Resource Centre 63 Exploited and Illegalised standard in Malaysia for Erni’s case, according to Wage Indicator in 2018, supposed to be around 2,070 – 3,140 MYR/ month.101 In order to sustain their basic living, Erni, as with the other families, has to both owe to the grocery store and do more casual work to get more income.

High Risk, Unsafe Laborious Work

In addition to the uncertain wages, none of the tasks in the field are not laborious in nature and detrimental to workers’ body.102 One of the contributing factors to the cheap price of the palm oil fruit is the low level of technology. Most tasks in the field are done manually with simple working tools. A long-galvanized pipe with a harvesting sickle on top can weigh at least 10 kilos with a length of up to 20 meters. After falling to the ground, a bunch of fruit weighing from 10-40 kilos have to be carried to the side of truck lane for at least 100 meters.

101 Wage Indicator is a non-profit foundation that surveys cost of living in 125 countries and calculate the living wage for 68 countries. The Living Wage is based on the concept that work should provide an adequate income to cover the necessary living costs of a family. WageIn- dicator uses prices from the Cost of Living Survey to calculate Living Wage in more than 60 countries. The concept of ‘Living Wage’ is an approximate income needed to meet a family’s basic needs including food, housing, transport, health, education, tax deductions and other necessities. See Wage Indicator, “Living Wage Series - Malaysia - Jan- uary 2018,” https://wageindicator.org/salary/living-wage/malaysia- living-wage-series-january-2018, accessed on 8 June 2019. 102 For reference, see Nur Syazwani Mohd Nawi, et al, “Malaysian Oil Palm Workers Are in Pain: Hazards Identification and Ergonomics Related Problems,” Malaysian Journal of Public Health Medicine Vol. 16, 2016. 64 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia

Due to the nature of work, most work-related accidents for harvest workers are physical wounds. Improper standing positions can cause workers to be hit by falling fruit bunches weighing tens of kilos or punctured by their thorny leaves. Even though the company provides a safety helmet for harvest workers, workers believe that a fallen fruit bunch to the head may result in instant death. Another common injury is related to feet, as a loading spike or machete may impale or slash workers who lose their concentration due to fatigue and heat.

Recently, one of Suluk harvest workers nearly experienced death caused by a work accident. The worker’s back was stabbed by a galvanized pipe and the sickle fell towards him. Covered with blood, the worker was immediately taken to the General Hospital in Tawau, two hours away, by a company’s car, to be treated. After a few months of treatment, the worker has returned to work.

The task of collecting loose fruitlets, most commonly done by women workers, does not mean it is easy. A worker has to squat from one tree to another to collect scattered fruitlets on the ground around the tree and pick them up, with her bare hands, placing them into a bucket before then moving them into a sack.

After a sack is filled, the worker has to carry the sack, weighing 25-35 kilo, on top of her shoulder to the side of truck lane. In addition, workers may smell the stench of decaying fruits on the ground, often full of maggots, chemicals and fertilizers, which sometimes causes nausea. “My back and shoulder feels like tearing apart,” said Erni, one of women workers in Mojokuto.

Asia Monitor Resource Centre 65 Exploited and Illegalised

Women workers often feel itchy on their body after returning to their home. Because their bare hands are exposed to the soil full of chemicals and fertilizers, some women suf- fer severe skin irritation. Harvesting fruit bunches, squatting whilst collecting loose fruitlets and applying fertilizers tend to cause back pain, resulting from repetitive heavy work load.

While harvesting fruit bunches and collecting loose fruitlets mostly causes physical wounds, spraying chemicals may cause health ailments over long period of exposure. In Mo- jokuto and Suluk, both plantations are using an herbicide brand called Roundup (Glyphosate), Ally (Metsulfuron meth- yl), and Gramoxone (Paraquat).103 Most of the worker do not aware of the risks of being exposed to these kinds of chemicals as there is not proper explanation from the company.

The risks become more apparent as the workers are not well protected by the equipment provided. In both cases, women workers are not provided a standard respiratory mask, but only a piece of cloth to cover their nose and mouth. This kind of protective equipment does nothing to prevent the chemicals being inhaled.

Women workers are not provided and therefore do not wear any safety goggles or rubber gloves during their work spraying chemicals. Though it is provided as in the Suluk case,

103 Some of studies have reported the dangerous health effect to the application of those kinds of chemicals. For reference see CAUSE-DS/ PAN Philippines, Preliminary Investigation on the Health Effects of Paraquat in Mindanao, Philippines, 2012 and M. Rutherford, J. Flood and S. S. Sastroutomo, “Integrated Weed Management Strategies for Oil Palm,” Roundtable for Sustainable Palm Oil (RSPO) and CAB In- ternational, 2009. 66 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia women workers feel that the protective equipment make them clumsy and slow to meet the target. “In the humid environment, we sweat a lot by wearing the goggles. It is really hot if we wear rubber gloves during our work too,” said Saiful a foreman in Suluk. This may reflects the company’s inadequate assessment in providing proper equipment that suitable to the work environment.

Picture 4. One of Herbicides used in Mojokuto.

Source: Personal Documentation

Both companies also deny workers’ the right to health care. In Mojokuto, there is no health facility provided by the company, but only a 200 MYR medical allowance for one year. Meanwhile, in Suluk, the company provides both health clinic (covering two estates) and a 2,000 MYR yearly medical allowance (equal to 166 MYR/ month). According to the Mojokuto worker, the allowance covers only the registered workers (most but not all documented) while the unregis-

Asia Monitor Resource Centre 67 Exploited and Illegalised tered/ casual workers (mostly women spouse and children) are not covered.104

Such little coverage, needless to say, is insufficient. As experienced by a Mojokuto worker, a treatment in the nearest private clinic for slash wounds cost him 234 MYR. As the company only provides 200 MYR medical allowance, the remaining cost was covered by his own money. There is nothing left for future treatment—unless the worker pays for himself and for his family, should they also need treatment. Most likely such case also happens in Suluk, as the foreigners are required by Malaysian policy to pay almost double the amount for treatment.105

It is extremely difficult to assess the health conditions of workers, especially women. According to a foreman in Su- luk, although it is required for every women to undergo a medical check-up within three months, they never really know the actual result of their examination. “They only tell if any of us has a ‘dirty blood’. We were never really sure what was meant by ‘dirty blood’ besides that it would cause us to fail to pass the FOMEMA medical examination,” said Saiful.

104 There is a common manipulative employment practice. As we will discuss later, in both two cases, the company has an employee list record for every employed worker, whether they are documented or undocumented. There are two kind of employment categories within the record, one is for registered workers in which workers have their payment roll and another is unregistered/ casual workers in which workers do not have any payment roll. 105 Human Rights Commission of Malaysia, “The Status of Women’s Right in Malaysia,” Human Rights Commission of Malaysia (SU- HAKAM), 2010. See also, The Star Online, “Foreign Residents to Pay Higher Fees,” The Star Online 8 April 2017, https://www.malaymail. com/s/1351929/health-ministry-hikes-up-hospital-fees-for-foreigners- up-to-230pc 68 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia

Picture 5. Medical Treatment List of Fees for Foreigner in Tawau General Hospital.

Source: Personal Documentation (2018)

Asia Monitor Resource Centre 69 Exploited and Illegalised

According to the Sime Darby’s clinic staff, constant exposure to chemical spraying over the years may cause a various diseases, like cancer to the kidney, liver and lung. One worker in one of Sime Darby plantation had one of these diseases and eventually died because of the accumulated chemical effect when he was working for Borneo Abaca Limited. Meanwhile, a similar case also occurred in Suluk where several women workers, according to Saiful, died of breast cancer.

Although these statements cannot be substantiated with medical evidence of the workers, the accuracy of the assumption is evident. For example, Paraquat and Glyphosate which were found on the plantations used as the chemical herbicide, is proven to be severe poisoning with fatal con- sequences and on the PAN international list of Highly Haz- ardous Pesticides (HHP).106 Despite Malaysian government has recently announced the total ban on Paraquat starting January 1, 2020,107 the uses of that herbicide still can be found in both of case studies.

106 PAN Asia Pacific, Pesticide Action Network UK and Public Eye, “Ad- verse health effects caused by paraquat,” February 2017, https://www. publiceye.ch/fileadmin/doc/Pestizide/2017_PublicEye_Adverse_ Health_Effects_Paraquat_Bibliography.pdf.. See also Pesticide Action Network International, “PAN International List of Highly Hazardous Pesticides,” PAN International, December 2016, http://www.panna. org/sites/default/files/PAN_HHP_List%202016.pdf. 107 PAN Asia Pacific, “PANAP Welcomes Immediate Ban On Glyphosate Imports In Vietnam, Paraquat Total Ban In Malaysia In 2020,” PAN Asia Pacific 28 March 2019, https://panap.net/2019/03/panap-welcomes-immediate-ban-on-glyphosate-imports-in-vietnam-paraquat- total-ban-in-malaysia-in-2020/ 70 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia

Box 4. Paraquat Fact Sheet Paraquat: a toxic chemical that is widely used as an herbicide (plant killer), primarily for weed and grass control. Used for broad-leaved weeds and grasses in more than 100 crops, especially oil palm, banana and tea plantations

Health Effect: A. Poisonings, highly acutely toxic by swallowing, absorp- tion through damaged skin, or by inhalation. A teaspoon of paraquat concentrate can cause death.

B. Acute toxicity, symptoms include acute respiratory distress, shortness of breath and rapid heartbeat; loss of appetite, abdominal pain, thirst, nausea, vomiting, and diarrhoea; giddiness, headache, fever, muscle pain, and lethargy; burns to the mouth, nosebleeds, skin fissures, peeling, burns and blistering; eye injuries; and nail damage including dis- colouration and temporary nail loss.

C. Chronic toxicity and cancer. Source: PAN Asia Pacific (2012).

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Table 8. Health Effect on Paraquat Ingestion.

Small/ medium amounts Large amounts of ingestion of ingestion effect in effect in few hours to days several days to weeks of small Hearth failure Acute kidney Liver failure failure Kidney failure Coma Lung scarring Liver failure Confusion Muscle weak- ness Lung scarring Fast heart rate Pulmonary edema Injury to the heart Respiratory Source: Centers for Disease Control and Prevention (2013).

Irregular Recruitment Practice and Casualization

However strict the official policy regarding the recruitment is, it does not guarantee that the recruitment practice follows the procedure itself. There are many manipulations and violations which occur in terms of actual recruitment practice. To a certain degree, the actual recruitment practice makes the official procedure become irrelevant.

As it found in Mojokuto, there is no clear evidence that workers are being formally employed. Procedurally, a working agreement shall be signed between the parties during the formal recruitment. Upon the agreement, the Immigration Department will issue an ’i-KAD’ or a working identity card. However, most workers interviewed do not hold any written working agreement as the company did not give them a copy, hence no identity card.

72 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia

Picture 6. A Sample of Working Identity Card.

Source: Personal Documentation (2018).

There is a common recruitment practice, in both cases, in hiring casual workers informally. Casual workers in this sense are the same as irregular workers, namely those who are recruited without going through the formal procedures. This kind of casual worker can either be newcomers, spouses, or grown-up children. Generally, this informal recruitment practice is closely related to the seasonal nature of palm oil production and workers’ turnover rate.

During the peak harvesting season and/or high exit rate of workers, the company may ask their trusted workers (mostly foreman/ supervisor) to recruit a new worker. According to one senior foremen in Suluk, called Rahmat, he was ordered to find a worker to employ. “I asked to our manager, documented or undocumented, sir? Then he replied, it does not matter, we will take care of his permit later,” said Rahmat.

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Within this informal recruitment practice, a foreman then will instruct one of the workers under his group who is returning to hometown to find and recruit potential workers. Rahmat also finds workers by waiting for someone to ask him to get a job. This method is also used in Mojokuto, where a foreman from Tana Toraja only need to wait for someone (usually those who have a family relation) to ask him. “I will get a call from kampung (hometown), then I will proceed if there is a need of new workers,” said Peter, a foreman in Mojokuto.

A worker may also be informally recruited from an individual network. This is especially the case for circular migrants, who occasionally move from one place to another. There are various reasons for circular migrants, such as absconding from previous employers, moving after being hired on a seasonal basis, or for personal reasons. “Workers may have heard of another workplace with better conditions, especially in terms of wages,” said Opik, a Mojokuto harvest worker.

Workers in both Mojokuto and Suluk are aware of such turn overs. In Suluk, workers may be recruited from different plantations such as Felda, Borneo Samudera, Sabah Soft- wood or J. C Chang—to name a few companies. Meanwhile in Mojokuto, workers often called some of their co-workers an ‘orang pelarian’ (runaway people), namely those who moved in from different workplace.

One of the stories of becoming ‘orang pelarian’ is repre- sented by Markus’ experience. He is originally from one region in East Nusa Tenggara, who had twice moved to a different workplace. The first time, he was hired in one of the

74 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia plantations owned by Tamaco Group in Lahad Datu and he has since been in Mojokuto for four years. Another story is based on Haripin experience. He recently moved to Mojo- kuto, for less than three months, from Kalabakan because of a personal problem with his co-workers.

The company has arrangement where monthly records of piece of work are done by the employees in a check roll book. In Suluk—and most likely in Mojokuto as well, there are two kinds of check roll book: an official book is kept in the management office and an unofficial book is kept by a foreman or head of group of workers. The first book records only formal workers, while the second encompasses all actual workers employed, including the casual. These two kinds of check roll books are used as a basis for calculation and payment of salaries.

Workers who are employed under informal contract may not find themselves included in the company’s list of formal employees, but in the second check roll book. As their presence does not officially exist, they are paid by conjoining salaries to their co-workers. Such payment method is well-known among the migrant workers in both Suluk and Mojokuto as ‘menumpang gaji’ (literally referring to ‘hitchhiking salary’). With this method, the amount of salary in one payslip con- joins the wages of two different employees.

Asia Monitor Resource Centre 75 Exploited and Illegalised

Picture 7. Unofficial Check Roll Book for a Group of Sprayers in Suluk.

Source: Personal Documentation (2018).

Casual women workers tend to be paid based on this method. Most employed women, who live with their husbands, usually have their salaries conjoined to their husband’s. However, any worker can be paid in this method—it is not exclusive to spouses. A Mojokuto women worker named Gina, for example, had her wage ‘hitchhiked’ to her co- worker’s payslip. Gina receives the money from her co- worker in accordance with her piece of works recorded in the unofficial check roll.

76 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia

Example of Conjoined Salary: Andi (formal) : 1,000 MYR Gina (casual) : 500 MYR

Conjoined Salary (under Andi’s payslip): 1,500 MYR

This arrangement has obscured the actual recruitment practice. Practically speaking, companies in both cases intentionally recruit workers non-procedurally, thus reinforcing the practice’s existence. It is certainly difficult—if not impossible—to determine how many workers are actually employed in one estate and the extent to which the company faces labor shortage given the irregularity.

This violation becomes obvious when you consider the location of some workers’ compounds, which are oftentimes hidden in an out of reach area within the estate. A compound of Tana Torajan in Mojokuto, for example, is located quite remotely, making them undetectable by Immigration authorities. Meanwhile in Suluk, there are at least six wooden-built compounds in different places, separated by the main compounds that close the management office. Almost all workers living in these compounds are casual workers, the ‘undocumented workers’.

By separating formal workers and casual workers, both in terms of working arrangement and compound placement, the company has hidden the illegal practice. As occurring in Suluk, the company can easily present an ‘official’ list of employees, while hiding the unofficial list if there is an audit by RSPO or MSPO.

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Moreover, the company controls what the auditing body can see, generally only showing the main compound, while concealing the compound of undocumented workers from the monitoring. “The auditor team found nothing about the wooden-built compounds when they were visiting our estate,” said Rahmat.

Control over Workers’ Body

There are various kinds of instruments employer’s implement to control and discipline workers. One of the common ways is to ‘outsource’ the control exercise to the recruiter— mostly known as foremen or labor contractor. This kind of control is typical in the case of the informally recruited workers which involves the labor recruiter as an intermediary.

A labor contractor may serve not only as a labor provider but as a labor supervisor as well. Such role is played by Pe- ter, a foreman in Mojokuto. He is responsible for arranging and monitoring daily tasks of each worker in his group. Oc- casionally, he goes around the estate to supervise his workers doing their tasks.

In return for giving a job opportunity to the workers, he de- ducts 2-5 MYR from each tonnage/ hectare piece-rate payment of his group. Workers called such foreman as ‘getting paid from home’ (digaji dari rumah), as he only needs to wait for deducting the piece-rate results. “They do not have to get their hands dirty,” said Rahmat.

In a more extreme case, workers may be physically abused

78 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia by the recruiter if they do not work according to what they are told or do not achieve the working target. According to Rahmat, in one of the estates owned by Felda in Tungku village in Lahad Datu, there is a group of security guards who supervise the workers. “Even though workers may feel un- well, the guard will force them to keep working. Otherwise, the workers may be beaten.” Rahmat continued

Within this recruitment process, it is common practice for the labor recruiter to arrange the necessary documents for travel and transportation at their own expense until workers arrive to the plantation from their home towns. Later on, the recruiter provides accommodation and daily necessities. “Everything is all prepared,” Rahmat explained.

With almost everything arranged and provided for by the recruiter, the workers become indebted without knowing how much their debt exactly is. “Workers are told to keep on working to pay their debt to the recruiter,” said Rahmat. “Some workers have never even received a salary, like what happened to Markus before he moved to Mojokuto,” Opik added.

Absconding is the only option for the workers who are hired by a labor contractor. Opik had once saved nine workers who were absconding from their workplace in Belian estate owned by Benta Wawasan108 located somewhere in Tawau. Four days after Opik took them to his house, the recruiter along with his several guards came to Opik and asked to return those nine workers. They told Opik that those workers still needed to pay their debt.

108 Benta Wawasan, “Estates,” https://www.bentawawasan.com.my/ business/estates/. Asia Monitor Resource Centre 79 Exploited and Illegalised

As a compromise, Opik agreed to return the workers to their recruiter on the condition that the recruiter will release them after one day of working. “I threatened to call the police to investigate the estate if they did not return the workers at night after they worked,” said Opik. The recruiter fulfilled his promise and took the workers to Opik’s house. After a few months, Opik then helped the workers returned to their hometown in Indonesia.

Such absconding is not an unusual story. There were seven Bulukumba workers who escaped from a labor recruiter in an estates owned by Usahawan Borneo. They managed to escape with the help of a circular trader named Andre who met them inside the estate. Andre came to see the recruiter and asked to release the workers by paying him 4,000 MYR of two workers’ debt. “Just take them! They are all lazy workers,” said Andre imitating the words of the recruiter. Andre then managed to sneak in five other workers into his car and took all the seven to go out.

However, using absconding as a survival strategy and escape from abusive working conditions does not come without risk. This is especially true for the case of documented workers, where leaving an employer within valid work terms can turn them into irregular. Workers’ permit to stay in Sa- bah will be revoked as they are not allowed, under the recruitment policy, to leave workplace without notifying the employers. Moreover, as it occurs often, workers may have lost their passport as it was confiscated by the employer.

These formal rules serve as a mechanism of control for the employer to prevent workers from running away, even if the

80 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia workplace is extremely abusive. As for workers who stay with their family, absconding will leave them with a dilem- ma. Not only does the company confiscate their passport, but there is no guarantee that workers will be able to get a new work permit. “If I move to another workplace with better working conditions, I will lose my work permit and passport. I have a wife and children. I cannot leave without taking them with me,” said Opik.

Whether or not the control exercise is being outsourced, the employers still have the power to discipline workers by using their very nature as an employer: firing the workers. For the migrant workers, being fired is the same as being expelled from the community where they lived for years. As they are not allowed to change employers freely, absconding can expose migrants to arrestment and deportation as ‘illegal’ migrants without a valid work permit.

Under the recruitment policy, the foreign workers are required to undergo and pass the compulsory FOMEMA medical examination for the approval or extension of a work permit. Within this policy context, one Mojokuto workers was sabotaged by his employer and subsequently failed to pass the examination despite his good health. This event happened because the worker often complained about his wages. “He was suddenly told that he got ‘dirty blood’, which meant he failed the examination,” said Ibrahim another Mojokuto workers.

With the threat of being fired, workers must lie about their working conditions. One day, Gina went to the Indonesian consulate office in Tawau to process her work permit. The

Asia Monitor Resource Centre 81 Exploited and Illegalised employer then told her to lie if any of the officers ask about her wage. “I was told to say that I receive 35 MYR of daily wages, even though I actually only get less than 20 MYR,” said Gina. “I was afraid that the employer would expel me from the community.”

Figure 5. Employment Scheme

Source: Data processing (2018).

The regime of palm oil plantation operates with its own log- ic of power relations. The fact that there are extraordinary irregularities inside the plantation is a strong evidence of the alleged impunity of the employer from law enforcement. With the creation of an isolated, exclusive and illegalised community, the palm oil industry in Sabah has succeeded in securing the profits over the cheap and docile labor force. Moreover, the migration regime helps the industry make profit by maintaining and reinforcing irregularity.

82 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia

Migration Regime and the Illegalised Workers

As mentioned earlier, one major problem that has contributed to the persistence of irregularity is the complexity and rigidity of formal recruitment procedures. At the policy level, a set of recruitment procedures undermines the needs of the palm oil industry, who require a stable workforce for the continuation of production. For employers, a loss of one worker means losing an experienced laborer, while a new intake will show a drop in productivity.109

The process of hiring migrant workers formally requires the employer to obtain a license from the State Labor Depart- ment.110 Following this license, it is a requirement to obtain a recruitment quota from the Committee for Foreign Workers in Sabah and Labuan, attached with the Immigra- tion Department. Recruitment quotas, or in other words, the number of workers allowed to be recruited, is calculated by a ratio of workers to hectares, 1:8.111

Employers applying for work permits often experience de- lays in obtaining permits—which also affects migrant workers’ presence.112 Obtaining a work permit may take one month or forever. Anisa, a woman worker in Mojokuto for

109 Ramli Abdullah, Azman Ismail, and Ayatollah Khomeini, op. cit., pp. 3 110 World Bank, op. cit., pp. 99. 111 Azman Ismail, Mashani Ahmad, and Zuraihan Sharudin, “Labour Productivity in the Malaysian Oil Palm Plantation Sector,” Malaysian Palm Oil Board, Malaysia, Oil Palm Industry Economic Journal, Vol. 15 (2) 2015. 112 Delay in obtaining permit is one of the employers’ complain in a survey on foreign workers recruitment regarding the recruitment procedures. See Malaysian Employers Federation, op. cit., pp. 27. Asia Monitor Resource Centre 83 Exploited and Illegalised example, has been waiting for more than a year for her permit renewal. “I have submitted my passport to employer. But there is nothing until now,” said Anisa. Meanwhile in Suluk during field observation, Rahmat was still taking care of his 300 members’ work permit for months.

In addition, the approved number of workers may not be in accordance with how much labor the employers requested. In 2016, there were around 783,000 foreigners in Sabah’s workforce, but the Immigration Department had only registered 137,676 foreigners with work passes.113 In short, there is a discrepancy between the needs of labor and the approved numbers of requested labor.

The approval from the Immigration Department depends on the company record. “Malaysian authorities will examine the company, such as whether or not the workers abscond, or had labor disputes, including financial capacity for hiring foreign workers,” said Ridwan the Indonesian Consulate officer.

The new recruitment policy regarding women workers in the plantation sector makes it even more difficult to obtain a work permit. According to Ridwan, since 2016, women workers are not allowed to work other than by taking care of the palm oil nursery area.114 Within the ratio of labor to

113 The Star Online, “Group wants all-round plan to resolve Sabah labour shortage,” The Star Online 29 June 2018, https://www.thestar.com. my/news/nation/2018/06/29/group-wants-allround-plan-to-resolve- sabah-labour-shortage/#KvWIEmsHEfWObMGU.99. 114 Nursery area is a small plot for stage of growing palm oil seedling up to one year old palm oil young tree. The task of taking care seedlings include soil filing, planting, watering, manuring, weeding, control of pests and diseases, selection, culling, loading and unloading of seed- 84 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia land nursery area, a women worker can only cover 0.65 ha. Meanwhile in 2014, the size of a palm oil nursery in Sabah on average was 10.07 ha. By using this labor to land ratio, thus the numbers of permitted women workers would be small.

Such policy was originally intended to protect women workers from heavy tasks. According to a health practitioner, women are not supposed to perform a heavy workload, such as carrying sacks of fertilizers, loose fruitlets, or a knapsack sprayer. However, as it was found elsewhere, many women workers still perform such tasks. In Mojokuto for example, some women were holding work permits as nursery workers, “even though they are actually working as field workers,” said Martin, whose wife does not have work permit.

As discussed in the previous section, actual employment practices are more often than not in contrary with the formal procedure. As we will discuss in the next section, there are various ways to circumvent the terms of recruitment. Employers tend to be pragmatic towards irregular migrants. However, despite how these practices are under the consent of the company, migrants are often persecuted for these violations.

lings to main nurseries. For reference see, Azman Ismail and Zuraihan Sharudin, “Workforce in the Malaysian Oil Palm Nursery,” Malay- sian Palm Oil Board, Malaysia, Oil Palm Industry Economic Journal, Vol. 14 (2), 2014. Asia Monitor Resource Centre 85 Exploited and Illegalised

The Persistence of (Being) Irregularity

Foreign workers in the plantation sector are allowed to work on a yearly basis for up to 10 years. There is a 3-month ‘cooling-off period’ if an employer and foreign worker wish to extend the period of service beyond 10 years.115 Recently, the Malaysian government announced the VP (TE) holders may extend their employment duration for another maximum of three years.116 Upon completion, employers must ensure that foreign workers are deported to their origin countries.117

At least in 2002-2014 prior to this policy, a work permit was only valid for a maximum of five years. During that time, in order to ensure the continuity of employment, workers had to change identities on their passport. Opik, for example, changed his name three times. In 2004, Opik used his original name ‘Opik’ when he had his passport for the first time—after working for several years without any proper documentation. After five years of employment, he had to change his name to ‘Amar’ and ‘Shawaludin’ for the third time, which is presently valid.

Changing identity is a common practice among migrants. Not only Opik, Anita (an ex-woman worker) also changed her identity several times, “My identity in my current pass-

115 Malaysian Employers Federation, op. cit., pp. 12. 116 Emir Zainul, “Foreign worker: Extension for PLKS holders with 10 years’ employment,” The Edge Market 3 October 2018, http://www. theedgemarkets.com/article/foreign-worker-extension-plks-holders- 10-years-employment. 117 Immigration Department of Malaysia, “Foreign Workers,” http:// www.imi.gov.my/index.php/en/foreign-worker.html, accessed on 26 October 2018. 86 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia port is different than the identity on my Indonesian ID Card,” said Anita. Ridwan acknowledged this practice. According to him, the Indonesian consulate in Tawau had not implemented ‘Biometric Scanning’ prior to 2013. “We were not really strict on issuing a new passport at that time,” said Ridwan. Before Biometric Scanning, it is possible for the fake passport to be undetected.

This practice is pretty much related to the problem of civil registration. Being undocumented literally means there is almost no record on the existence of the migrants in Sabah. It is not hard to find workers who do not have any documents to show their identity, even Indonesian identity card. The broker or private agency in this case plays role in taking care of the passport registration. According to one of the workers, the broker will ask payment ranging from 1,000 MYR to 2,000 MYR for taking care a new valid passport with the renewed work permit.

The recruitment policy imposes strict limits on the employment conditions. Meanwhile, the migrants have an interest in maintaining their lives by earning income in Sabah. This leaves migrants with no choice but to remain in Sabah even if they have to change their identity. “Many of those who have getting too old to work decide not to return to their hometown. They have their families here, and there is nothing they can earn to live in Indonesia,” said Vero a migrant from Flores.

Another way to circumvent the recruitment policy is by ma- nipulating the annual compulsory medical examination for work permit renewal. With various factors, a worker may fail

Asia Monitor Resource Centre 87 Exploited and Illegalised to pass the examination if they are found to have a certain disease—such as tuberculosis, HIV, or hepatitis. In this situation, employers may facilitate workers to ‘clean up’ their ‘dirty blood’ by changing examination results with another healthy worker.

According to Saiful, a healthy worker will be chosen to replace the worker who is found to have a disease, and they will thus undergo an examination. “Changing the ‘dirty blood’ often involve bribing clinical staff,” said Saiful. “It is common practice here to ensure the workers pass the medical examination.” As in the case of changing identity and work permit renewal, such practice allegedly involves a syn- dicate in Sabah and Nunukan to falsify documents.118

Despite violating the recruitment policy, employers continue to hire the same worker beyond the contract’s duration, thereby making it evident that this practice is under the consent of the employer. Employers may easily manipulate the FOMEMA medical examination as well. Opik had the kind of experience when his work permit had expired for months. “After I returned from hometown, employer still wanted me to return. I submitted my passport and the employer took care of my work permit even without I had to undergo the FOMEMA,” said Opik.

Several times, the plantation employers have been prompt- ed by the Malaysian government to regularize their employees. Since irregularity started to become a serious issue, particularly in Sabah, there have been a series of measures to legalize or regularize workers and their families. Inter-

118 Razak, op. cit., 274. 88 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia estingly, the measures, as will be described below, indicate that the state actually allows the workers’ dependents to be present, while the recruitment policy prohibits them.

Table 9. Measures to regularize undocumented workers in Sabah.

Year Measure 1988 Registration and Amnesty 480,500 undocumented workers were registered 1997 Registration and Regularization 294,704 Indonesian migrants were registered (42% were dependents) 2008-2009 Integrated Operations Illegal workers who wished to stay in Sabah were absorbed into formal sectors. 312,837 workers and their families were recorded. Workers’ family (spouse and children) were granted a permit as ‘dependent’ 2011 5P Program (registration, amnesty, monitoring, enforcement and deportation). 253,054 workers were registered and their families (92,289) were granted permit as dependent. 2017 Rehiring and Relocation Providing legal work permits to illegals, extension of the age limit to 60 years for new applications, extension of service period of foreign workers, from maximum of 10 years to 15 years. 2,738 individuals had been arrested for committing various offences, 60 employers were arrested, 1,088 foreign workers registered by their employers Source: Razak (2014), Kassim and Mat Zin (2011), World Bank (2013), and Malay Mail (2017)

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These measures taken to address the irregularity are prob- lematic at some degree. While it is important to lawfully acknowledge the workers’ families, as Razak argued, there is no clear policy in relation to the dependents’ rights, in particular children, to access basic education and health service.119 It is as if the measures were aimed at migrants, but the employers actually took benefit with the fact that workers and their families are actually being informally employed as casual workers.

Moreover, Razak added in his analysis that the Integrated Operation was launched in 2008-2009 to protect the in- terests of the plantation sector in Sabah by reducing the amount of foreign levy to half.120 This beneficial facility for the employers is recognized by Ridwan during the interview. “The employers had benefited from the program because they only needed to pay 50% of levy to regularize their employees,” said Ridwan.

While actually benefiting employers, the measures remained ad hoc to the migrants. According to Ridwan, those who were granted permits as dependent are only allowed in the country for a maximum of ten years, with yearly renewal. “As the Integrated Operations launched in 2008 and extended until 2012, another problem of undocumented migrants will emerge in the following few years after 10 years of maximum permit renewal,” said Ridwan.

The irregular migrants will, nevertheless, always be under persecution so long as irregular employment practices are

119 Ibid., pp. 254. 120 Ibid., pp. 159. 90 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia still occurring. The Malaysian government, or rather Sabah, tend to be dualistic towards irregular migrants: strict and hostile at regulatory level, yet practically compromising. Such dualism becomes more apparent by looking at the practice of control exercise: the raid on irregular migrants.

Raid on Irregular Migrants and Story of Living on the Run

Hostility towards irregular migrants is expressed by the occasional raid to arrest and deport irregular migrants. There have been a series of operations in Sabah, especially since the 1990s. Crackdown on irregular migrant, as a part of enforcement and deportation, often arises after registration, legalization and amnesty program. Those who are subjected to crackdown are migrants who failed to participate in the prior program and remains in Sabah.

One of the well-known events was the ‘Nunukan crisis’ where over 60,000 Indonesian were deported to Nunukan in 2002. Within the year, the Malaysian government also introduced a new revised Immigration Act which called for increased fines, 5-year prison sentences, and up to six strokes of the cane for only male workers.121 Authors have noted that Nunukan crisis marked the tighter Malaysian government approach to deter irregular migrants.122

The recent raid operation in Malaysia is ‘Ops Mega 3.0’, which commenced on July 1, 2018 with no time limit carried by the Malaysian Immigration Department. This opera-

121 Avila, op. cit., pp. 45 122 For example see ibid, Michele Ford, op. cit., and Razak, op. cit., Asia Monitor Resource Centre 91 Exploited and Illegalised tion is the follow-up, after the recent rehiring and relocation program began on February 15, 2016 and ended on June 30, 2018.123 As of August 2018, Sabah Immigration De- partment has done a total of 1,010 operations124 and there have been 3,309 irregular migrants and 44 employers arrested as of September.125

Palm oil plantations, however, remain almost as an untouchable workplace harboring significant numbers of irregular migrants. Since 1988 Ikhsan has been working in the plantation currently owned by Mojokuto, he and his family had only experienced two times of raid operations—before the following operation happened in August this year—even though the estate was located just next to the main road.

The first experience for most of the Mojokuto workers was in 2008 during Integrated Operations. It was almost midnight when immigration officers came inside to the workers compound in Division 2 of Mojokuto. According to Ikhsan, all workers and their families in Division 2 were gathered in the assembly field while officers were inspecting their work permit. There were about 10 workers arrested for not having proper documents, while many others managed to escape the operation.

123 The Borneo Post, “Ops Mega 3.0 to flush out illegal immigrants will commence on July 1,” Borneo Post 2 June 2018, http://www.theborneopost.com/2018/06/02/ops-mega-3-0-to-flush-out-illegal-immigrants- will-commence-on-july-1/. 124 Sherell Jeffrey, “Foreigners make up one-third,” Daily Express 28 September 2018, http://www.dailyexpress.com.my/news. cfm?NewsID=127532. 125 Sitti Nor Azizah Talata, “OP Mega 3.0: 3,309 PTI dan 44 Majikan Ditangkap Setakat Ini Di Sabah,” Sabah News Today, 4 September 2018, https://www.sabahnewstoday.com/op-mega-3-0-3309-pti-dan- 44-majikan-ditangkap-setakat-ini-di-sabah/. 92 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia

Most of the irregular workers have themselves prepared prior to the operation. Some workers have their own camp- ing tent, while others have already built semi-permanent shelters in the worksite inside the estate. “That night around 7 pm, we were already informed of an operation,” Opik added. Soon after that, many workers and their families were ‘betapo’ in the worksite.

Betapo, or literally translated as ‘hiding’, is a common terms among migrant workers. Interestingly, workers have an information network among themselves to share information about ongoing operations. “We may get information from our friends who have heard or seen that the authority will come to our place,” said Opik. “During the operation in 2008, I was informed by my friend who works as RELA (People’s Volunteer Corp).”

Despite the prior notification he got, Opik chose not to run away. “I and my wife had our document, which were under renewal for only four days,” said Opik. Nevertheless, many of the migrants were still afraid because they did not have their passport and permit in their possession. According to Opik, the officers would not believe and continue to arrest if workers could not present their documents. “That was why many others chose to betapo anyway,” he added.

Opik’s mother was one of the migrants who ran away and hid in the worksite. After the operation was over and the officers left, Opik searched for his mother who was hiding in the worksite. Sadly, her mother then died in the morning after. “That night was raining. She was sick and old but forced to run away as she did not have any documents. She could not remain calm and died in shock.”

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The second time workers experienced the raid operation was in 2017. During the Rehiring and Relocation program, Malaysian government were allowing the undocumented workers to be regularized if their work permits have already expired or changed to new employer. However, at the time, Ikhsan and his family chose to run away. “Our permit were not issued yet,” said Ikhsan. Other workers who were properly documented also chose to run away. “They were afraid if the officers asked them why this compound is so quiet. Where the other migrants are.”

Recently, the third raid operation in Mojokuto was in August this year. Workers were not aware of the operation. At the time, few workers were casually chatting in the security gate next to the main road. Suddenly, a regular car came inside the compound and then Opik and Ola were both hand- cuffed by officers who got out of the car. Other workers who were in the gate jumped off in panic, while the rest ran away when the other immigration officers and their vehicle came inside. At least four migrants were arrested during the operation.

It was a terrible experience for Asman, an 11 year old boy. On the day before operation, Asman had just been circum- cised. “I could not bear the pain when I ran away with a ‘sa- rong’ I was wearing,” said Asman. He added, “I could hear the adults were shouting in panic run! The officers is coming.” Meanwhile, Opik’s wife Ina parted ways with her children when she managed to escape through the back door of the house. Luckily, none of Opik’s family was arrested.

No one expected the operation. At the time, there were

94 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia many immigration vehicles passing through the road on the way to pekan Kalabakan. In one day of observation in Mo- jokuto, there were at least five to six vehicles were passing through. “We have become accustomed to seeing the officers’ vehicle passing through,” said Ola a harvest workers in Mojokuto. “We did not expect they would actually stop by our place that day.”

In a different place, Suluk workers had almost no experience of escaping from the raid operation. “We often hear of an operation going to our place, usually in April and Au- gust every year we have to be on our guard. But they never really went inside,” said Rahmat. The only experience they had was when some of police officers came to investigate a murder case which happened in Kalabakan. “Workers ran away to betapo when they heard the officers were coming,” Saiful added.

It takes around 20 minutes to reach the compound area from the entry gate. Thus, workers have more time and chance to escape. “Usually, we will be informed by the security guard if there is any officer coming inside,” said Saiful. However, according to Rahmat, whether the workers have to escape or not depends on what the company instructed them. “If the manager tell us it is not necessary to escape, we will stay,” said Rahmat.

The raid operation will unlikely happen in a remote compound. In an estates owned by TSH Resources in Balung sub-district, there are two gates along the main access to the workers’ compound. “It takes about 20 minutes to reach the second gate, and another 10 minutes to the workers’ com-

Asia Monitor Resource Centre 95 Exploited and Illegalised pound,” said Ivo an Indonesian teacher who had served in a Community Learning Center (CLC) in Balung before moving to Mojokuto. “As soon as they are notified, the workers will disperse and hide in the semi-permanent shelter they built in the worksite,” said Ivo.

Remoteness and the opportunity to escape are factors which have contributed to the small numbers of plantation workers arrested. There is no precise number, but according to Ridwan, most of the migrants are arrested outside the estate. “Mostly those who are on their way out of the estate or around the city working in the service sectors,” said Ridwan. “There has never been an operation that really wiped out undocumented workers in the palm oil plantation.”

It is true that irregular workers in the plantation are almost untouchable and the fact the workers are mostly able to escape. However, this is odd at the same time if the Malaysian government or Sabah Immigration Department does not aware with the presence of significant numbers of irregular migrants in the plantation. It is fair to say that the authority should be able to anticipate workers from escaping or being notified and could easily wipe off all irregular migrants.

On the other hand, there have been no reports of giant plantation owners being arrested for harboring irregular migrants. This is despite the fact that migrants are largely concentrated in the same area with the palm oil plantation in Sabah (See Picture 1). This is also the case where Felda Global Ventures in 2015 was reported for allowing forced labor and being sanctioned by RSPO in 2018.126 Such fact

126 See Syed Zain Al-Mahmood, “Palm Oil Migrant Workers Tell of 96 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia has reinforced the tentative conclusion that the authority does not prioritize enforcement towards the employers, especially in the case of palm oil plantations.127

For the migrant workers, nonetheless, the raid operations and the threat of being arrested and deported have created a terrorizing atmosphere among the migrants. Rahmat told of his experience coincidentally meeting a Malaysian officer when he was in Tawau. “I sub-consciously bowed down in respect to the officer to greet him, good evening sir. I knew it was unnecessary,” said Rahmat. “I was so nervous. My hands and voice were shaking, afraid of being arrested because of my work permit renewal was still under the process.”

Such mentality have been constructed over the years by being an ‘alien’ and humiliated by the officers. In a conversa- tion with a group of Mojokuto workers, they testified about the officers’ treatment during an operation. “Sometimes the officers would bang or even kick at our door. Some of us also found our valuables lost,” said some of the workers. “They may slap our face, hit our head or kick our butt,” Rah- mat added in different place.

Abuses on Malaysian Plantations,” The Wall Street Journal 26 July 2015, https://www.wsj.com/articles/palm-oil-migrant-workers-tell-of-abuses-on-malaysian-plantations-1437933321 and RSPO Decision Letter to Felda Global Ventures Berhad 28 November 2018, https://askrspo. force.com/Complaint/s/case/50090000028Es0aAAC/detail. 127 For reference, see Choo Chin Low and Khairiah Salwa Mokhtar, “Mi- gration Control in Malaysia: Shifting toward Internal Enforcement,” Asia-Pacific Social Science Review – 16 (3) March 2017, pp. 46-63. The authors noted that, “criminalizing employers who hired undocumented migrants are written in the 1959/63 Immigration Act, but its enforcement has not been prioritized.” Asia Monitor Resource Centre 97 Exploited and Illegalised

Rahmat himself had his very own experience of being humiliated several times at different places on his way to Tawau in 2002. Different groups of officers extorted Rahmat and his friends’ money every time they were caught. “The first time we were caught in Kunak and paid for 100 MYR. Upon arriving in Simpang Samporna, we met with another group of officers. They flicked our ear and nose, hit our butt using a rifle then asked for 50 MYR from each of us,” Rahmat told his story.

It was really unfortunate day for Rahmat and his friends. At the time, they were caught again very soon after having just been released. “We did not have any choice but to spend another 100 MYR. There were so many road blocks at that time.” From Simpang Samporna, Rahmat and his friends had to pass through two more group of officers before they finally reached the bus terminus in Tawau, just to be extorted again for the last time.

“We met with the ‘Bearded Guy’, an officer who always arrest migrants on the border.” According to him, that officer ordered them to stand on their knee and asked questions. “Do you want to be safe? You have to pay 5,000 MYR for each of you,” said the officer. “As we answered, he hit our lips by using a rolled paper and said how dare you speak! We were really confused,” Rahmat added. “I was really an- gry. We had no choice but paid him 200 MYR.”

Such hostility towards migrant workers is ironic, given that the Malaysian government and Sabah state highly depend on migrant workers’ labor. The migrant workers are at the blame for their presence—or rather, contribution to Sabah

98 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia resource-based economy, while the employers are constantly being facilitated. What remains for the migrants is the clear boundary between the ‘locals’ and the ‘foreigners.

The Lives of Irregular Children

In this section, context on the existence of irregular children born from a migrant couple will be provided. Their history can be traced back as far as British colonialization in Sabah in the 1950s. As discussed before, irregular children constitute the very foundation of irregular migrant communities as they are born and grow up in the plantation, thus being one factor in a cycle which reproduces irregularity. They have existed and been characterised as irregular migrants for generations, yet are recognized by the Malaysian government to some degree.

(The Debates) on the Number and the Existence

There is no precise estimate on the number of irregular chi- dren in Sabah. While here have been attempts at formally recording the data, the disparity between estimations are far too wide. The irregular children accounted for as low

Asia Monitor Resource Centre 99 Exploited and Illegalised as 8,000,128 as conservative as 50,000,129 and as high as 200,000.130

However, one cannot understand the size of the population of irregular children by looking at just a number. The crucial question that cannot be answered by the number is: of the population of adult migrant workers in Sabah, how many began their journey in the plantation community as irregular children since the very beginning?

As mentioned before, Sabah has been exposed to external influence, even prior to the colonization era. In particular, during British colonialization, it was documented that the first pioneering migrants from Flores arrived in Tawau in the early 1950s and started to work in British rubber plantations.131 In the 1970s, in the context of the first period of palm oil cultivation in Sabah, another wave of migrants from Flores came for reunions with family members living in Tawau.

128 Chok Sim Yee, “8,000 children in Sabah facing citizenship problem,” The Borneo Post 18 October 2018, http://www.theborneopost. com/2018/10/18/8000-children-in-sabah-facing-citizenship-problem/. 129 The Forest Trust, “Children in The Plantations of Sabah: Stakeholder Consultation Workshop Report,” http://www.tft-earth.org/resources/ children-in-plantations/, and Chan Tau Chou and Liz Gooch, “Ma- laysia’s Invisible Children,” Al Jazeera 5 July 2016, https://www. aljazeera.com/indepth/features/2015/04/malaysia-invisible-children-150429064406390.html. 130 Sofian Baharom,” Kementerian Sumber Manusia siasat isu buruh kanak-kanak,” Utusan 21 June 2018, http://m.utusan.com.my/berita/ nasional/kementerian-sumber-manusia-siasat-isu-buruh-kanak- kanak-1.694071 131 Tirtosudarmo, op. cit., pp. 143 100 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia

This story is clearly told by Opik and Vero whom both are migrants from Flores. Their history of becoming a migrant in Sabah were closely related to their family who have existed in Sabah since between the 1950s-1980s. “Our predeces- sors have stayed in Sabah as rubber plantation workers,” said Vero who is also serving as a CLC teacher. In short, even for a newcomers like Opik and Vero, who arrived in Tawau in the late 90s, are coming from a background of migrant workers’ families.

From British colonialization until present, there are at least three generations of migrant workers living in Sabah.132 In an estate owned by Sime Darby, there are workers who used to work for Borneo Abaca Limited between the 1950s- 1960s before it was acquired by Sime Darby. Some of them are already retired and replaced by their grown up children as the current workers. Those workers have also married and had their own children.

Similar stories can be found elsewhere. In Suluk for example, “some of the first generation of workers have either already died or returned to their hometown to retire,” said Saiful. According to Risma, a CLC teacher in Mojokuto, there are cemeteries for migrant workers around the plantation area or in the village. One of the cemeteries is located close by the Mojokuto estate, a place where Opik’s mother was buried.

132 Generation shifting in this research refers to groups of people born over a 20-30 year span. The span is counted by a rough estimates of a person to get married in the context of migrant workers living in an isolated community in the palm oil plantation. There is no precise data about the average year of a migrant get married, but only based on the field observation Asia Monitor Resource Centre 101 Exploited and Illegalised

This has come to serve as evidence that irregular workers may grow up and live in the plantation for the entirety of their lives. If the workers are able to save some money, they may return to their original land and spend their old age. Otherwise, for those who are too old to work as plantation workers, they may keep on staying inside the plantation by being employed as office caretakers. This is the case of Erni’s father who used to be a harvest worker in Mojokuto.

It is difficult to identify which children were born in Sabah with those who were brought along with their parents, who may be a newcomer or a returnee. Martin, for example, brought his 8 month-old baby along with him when he returned to Sabah after spending his annual leave in his hometown. There is Izat, (18 years old), who also came to Sabah to reunite with his parents but is now currently undocumented. On the other hand, there is Us (21 years old), who was born in Telupit in Sabah and moved to Mojokuto along with his parents when he was younger.

According to an ex-Indonesian consulate officer Dian Ratri, those who were born in Sabah are called as ‘Sabah Foreign Inlander’. “Those who fall into such category are the ones who could become stateless,” said Dian. Precisely, the so called Sabah Foreign Inlander are those who 1) were born in Sabah and 2) from a migrant couple. In the context of Sabah Foreign Inlander, being prohibited under the Recruit- ment Policy is the same as being unrecognized as a citizen— thus, stateless.

It should be noted that, in the present situation, statelessness is not the main case for the children born in Sabah. It is true that being born from a migrant couple means that the 102 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia children cannot get a Malaysian birth certificate, and therefore cannot be recognized as a Malaysian citizen. However, they do not necessarily become stateless. “We do not consider children born from Indonesian parents as ‘stateless’. They will become stateless if they are not handled,” Dian added.

What is meant by ‘handled’, in this regard, is registering the children to the Indonesian consulate, which will then issue a birth registration letter. In other words, children will not become stateless if their parents are truly able to register them, but they will be registered as Indonesian citizens. Currently, any child born from Indonesian migrants theoretically has an opportunity to get a birth registration letter issued by the Indonesian consulate.

In addition to this, the National Registration Department of Malaysia (Jawatan Pendaftaran Negara) may also issue a birth certificate (Sijil Lahir), which regards children as ‘foreigners’. Under National Registration Act 1959, it is stipulated that every person within Malaysia shall be registered under and in accordance with this act. Nevertheless, despite the ability to obtain a birth certificate, children of foreigners remain unable to claim Malaysian citizenship.133 This ‘Sijil Lahir’ can be used later on for applying Indonesian birth certificate as well.

133 For reference, see Harian Metro, “Wajib Daftar Anak Lahir di Malay- sia,” Harian Metro 4 July 2017, https://www.hmetro.com.my/mutakhir/2017/07/242109/wajib-daftar-anak-lahir-di-malaysia, and Astro Awani, “Sijil Lahir Bukan Pengesahan Warganegara Bagi Anak Warga Asing,” Astro Awani 21 February 2013, http://www.astroawani.com/ berita-malaysia/sijil-lahir-bukan-pengesahan-warganegara-bagi- anak-warga-asing-8113. Asia Monitor Resource Centre 103 Exploited and Illegalised

This ‘Sijil Lahir’, at least, serves the person as recognition of their Indonesian citizenship and is presented by the state representative. According to Ridwan, the Indonesian consulate is currently attempting to get an authority to deliver a civil registration service granted by the Indonesian Ministry of Internal Affairs. “With such a function, [the] Indonesian consulate in Sabah will be able to formally issue a birth certificate,” said Ridwan.

However, despite the opportunity, the problem regarding citizenship emerges from difficulties with registering a birth itself. The main factor that hinders parents from registering their children is their own irregularities. An issuance of a ‘Sijil Lahir’ requires a mother to give birth in a public clinic, which means they have to travel outside the plantation. In addition, giving birth in clinic is only allowed for a woman who has undergone periodical pregnancy checks.

According to A, another health practitioner in one of the plantation clinics in Tawau, the clinic will refuse assistance throughout the maternity process. “They cannot take [on] the risk of a mother who has never been examined,” said A. Moreover, clinical births will only be allowed if the womb is healthy and safe enough to undergo the process. “Oth- erwise, they will suggest the mother gives birth in Tawau General Hospital. The facilities there are more adequate to anticipate the risks,” A added.

It is true that public clinics and hospitals in Sabah allows any person regardless of their status to be treated. How- ever, such treatment is too costly for migrant workers whose wages are not sufficient. “The fee for a foreigner for normal

104 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia giving birth in a clinic is 2500 MYR and 100 MYR for one time pregnancy check,” said A. There are many cases where a migrant can only afford 2-3 pregnancy checks. “At the end, they will eventually give birth in their house.”

It is difficult to ascertain the number, but there are many childbirth processes that occur within the workers’ compound. In Mojokuto, Yati the wife of Ikhsan, is often asked to help as a midwife. “I am not supposed to help as I do not have any permit or license. What else can I do but help in giving birth?” asked Yati. Seven of Opik’s children were home born with the help of Yati. At times, even the husband may become the midwife if Yati is not around, like what Martin did for his daughter’s birth.

Giving birth improperly without any professional help is very risky. The maternal mortality rate in Sabah was the second highest (42.1/100,000 live births) in the country in 2012,134 with migrants largely contributing to the maternal death rate.135 There is no precise data found in this research, but according to A who work as health practitioner in plantation, Tawau is recorded for having a high rates of maternal and child mortality, and migrants contribute greatly to the death rate.

Even if mothers are able to give birth safely without any professional help, issuing a birth registration letter by the Indonesian consulate requires a migrant couple to prove

134 Helen Benedict Lasimbang, et al., op. cit., pp. 117. 135 Borneo Post, “Illegal Immigrants Largest Contributors to Maternal Deaths,” The Borneo Post 7 June 2012, http://www.theborneopost. com/2012/06/07/illegal-immigrants-largest-contributors-to-maternal- deaths/ Asia Monitor Resource Centre 105 Exploited and Illegalised their nationality and validity of marriage.136 Providing evidence of their nationality in this case is relatively facilitated by the consulate, such as showing an Indonesian ID Card, an expired passport or in few cases, even by only showing that they can speak Indonesian language if the parents do not have any documents.

However, providing a marriage certificate is much harder. As it has been found, most marriages of migrant workers were performed through customary or religious rites and solemnized by people in their community.137 Meanwhile, “the birth registration letters can only be issued to an Indo- nesian couple who are officially married,” said Ridwan.

There is an effort to register a marriage by Indonesian consulate. However, such effort is limited by the current budget allocated to hold the program of a collective wedding. Usu- ally, there will be two or three collective weddings in a year. “Between 2012 and 2018, there were 2,020 Indonesian couples working in the area of the Indonesian Consulate in Tawau who participated in this program,” Ridwan added.

Given the difficulties, it is unlikely that most migrant workers would be able to register their children born in Sabah. The situation becomes more complicated if the migrants are irregular. The legal status of the parents determines the citizenship status of their children. It is easier for children to gain Indonesian citizenship only if their parents have proper

136 In the Presidential Regulation number 25 of 2008 on Requirements and Procedures for Population and Civil Registration, a birth registration requires, among other, a marriage certificate of the parents 137 Helen Benedict Lasimbang, et al, op. cit. 106 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia documentation—a situation that is quite difficult in the context of the ingrained, irregular migrants community.

Even if a children can escape statelessness, it does not guarantee they can escape irregularity. Another situation emerged precisely because of the requirement of having a legal permit to stay in Sabah. The only situation where a children can be granted an ad hoc ‘Dependent Pass’ is when the regularization program takes place or if their parents have a monthly earning of 5,000 MYR—which also means they are expatriates with Employment Pass instead of VP (TE) or Foreign Workers Pass.138

In short, the main problem of migrants’ children is the irregularity. Statelessness in this case, resulted from the irregularity and exacerbates the irregularity itself as it robs the chance to be regularized. “Even if we issue a passport for the children, it will not prevent them of being deported,” said Dian. In other words, whether or not the children is stateless, or born in the clinic, they will be under constant threat of deportation. What remains as a fact is that these children will most likely become part of the future generations of irregular workers.

Growing Up in the Plantation as Reserve Army of Labor

Following the concentration of irregular migrants within the plantation area, most migrants’ children grow up in the plantation. In other words, the social setting in which the children live lies within the isolated, exclusive and illegal-

138 The Forest Trust, op. cit., pp. 3. Asia Monitor Resource Centre 107 Exploited and Illegalised ised community. Therefore, their lived experiences are pretty similar to what their parents have endured as irregular migrants. More specific in this regard, children have difficulty accessing education and prone to become child labor.

Living in a community of irregular migrants has shaped a specific childhood experience limited by legal boundary. Born as Sabah Foreign Inlander, the first time Ismail (10 years) went out to bandar Tawau was when he participated in a pantomime performance held by the Indonesian consulate in early this year. “It was his first time seeing another world beyond plantations,” said Risma who accompanied Ismail along the way.

Ismail is not alone. As their parents’ mobility was limited by irregularity, it is a rare occasion for most children to travel to the town. “There are only 2 or 3 kids in Balung who have ever been to Tawau, while the rest are mostly only able to pekan Balung at the most, with their parents to buy necessities during pay day,” said Ivo telling another story of childhood in Balung. “If going to Tawau is already difficult, then going to Indonesia is almost impossible,” she added.

Parents’ experience as irregular migrants has been internalized by their children. Such consciousness leads children to feel as though they do not belong to/in Sabah. A testimony from Katherine (12 years) speaks to this feeling: “There is a nice public school. I do not have a Malaysian Identity Card so I cannot attend there,” said Katherine whose parents are Tana Torajan. “My father forbade me playing around the river. He told me that I could be caught by the officers,” Katherine added.

108 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia

The children have also internalized the fear of living as irregular migrants. One day at Indonesian school, I asked a few children about their dreams. Some of them replied they wanted to be a policeman or in the military so their parents no longer need to be afraid of being arrested. Meanwhile, Asman told me he did not want to become policeman. He said it is because “they are so mean. We were not wrong, but they still arrested us. I do not want to hurt my parents.”

Despite self-consciousness and internalization as an ‘alien’, the children, especially Sabah Foreign Inlander, believe they actually belong to the soil of Sabah. Allerton has precisely pointed out that children have forms of (excluded) belonging to Sabah. Migrant workers’ children have a deep connection with the soil they were born, the language they use, and the place where they can survive.139 In other words, the children have already acquired a completely new identity.

The very hometown that the children know is the place in Sabah where they born, although their parents are Indone- sian. “The fact is, many children have never been to their parents’ original place in Indonesia,” said Ivo. Katherine once replied to my question about her hometown. “My parents came from Bone in South Sulawesi. But I have not been there. I really want to,” said Katherine.

A large degree of children have never acquired Indonesian identity, and this can be seen by how well they know Indo- nesia as a nation. According to Risma, almost all children whom he met in several different plantations, “did not know the Indonesian national anthem and even the right color

139 See Catherine Allerton, op. cit., pp. 12-13. Asia Monitor Resource Centre 109 Exploited and Illegalised of the national flag.” On a different occasion, Yati added “many children here do not know where the Java Island is.” Meanwhile, Erni said of her son Asman, “he cannot even speak Bugis language, although our family is Bugis.”

The irregular migrant community is not an ideal place to grow up. Many cases of smuggling activities, including drugs, have been reported in Sabah.140 It was just recently the Narcotics Criminal Investigation Department (NCID) seized 104.3 kg of crystal meth smuggled through Tawau and another 167 kg in Tawau, 52 kg in Lahad Datu, and 11 kg in Semporna in the last two months.141 The palm oil estate, especially the remote one, is part of the drugs market.

Both the workers and CLC teachers in Mojokuto and Suluk reported the drugs abuse occurring on the estate. ‘Batu’ refers to crystal meth and is a popular term among migrants. “There were a lots of adults and teenagers who used to be drug users,” said Warsinah a CLC teacher in Suluk. Ac- cording to Martin, a worker in Mojokuto, those workers who are already addicted would spend most of their earnings on consuming meth. “How can they save money to go to Indonesia if their money has gone for buying batu,” he said.

140 See Karen Bong, “Cops to destroy seized drugs worth RM 137,662,” The Borneo Post 7 February 2018, Lagatah Toyos, “North Kalim- antan acts to stop the drugs flow,” Daily Express 8 December 2018, http://www.dailyexpress.com.my/beta/news.cfm?NewsID=129315, and Julia Chan, “How smuggling, cross-border crimes taint Sabah’s centuries-old barter trade,” Malay Mail 28 March 2016, https://www. malaymail.com/s/1088309/how-smuggling-cross-border-crimes-are- tainting-sabahs-centuries-old-barter. 141 Muguntan Vanar, “Four nabbed, RM5.2mil in syabu seized in Tawau,” The Star 12 November 2018, https://www.thestar.com.my/news/nation/2018/11/12/four-nabbed-rm52mil-in-syabu-seizedin-tawau/. 110 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia

Moreover, there have been cases of underage marriage and pregnancy. In Mojokuto, there was a 15 year old teenage couple who performed a customary marriage. “When the girl was about to give birth, she could not deliver, and the baby then died,” said Ita another CLC teacher in Mojokuto. Another case in Benta Wawasan, a junior high school student was pregnant without anyone knowing. “Nobody no- ticed she was pregnant, even her teacher. The girl eventually died, along with her baby,” Ita added.

Growing up and living in the palm oil estate will greatly affect the future of children. The most predictable future is becoming the next generation of plantation workers. This has become evident with a survey that reported 60% of the children working on palm oil plantations in Malaysia are 6 to 10 years old.142 Another report by The Forest Trust found that children and young person engage in the tasks of collecting loose fruitlets, filling poly bags and weeding at nursery, harvesting, spraying chemicals, stacking palm fronds, fruits loading and slashing.143

The assumption above is pretty much evident given the fact that palm oil industry, especially in Indonesia and Malaysia, has been reported elsewhere for engaging child labor.144 Among the reports, the typical finding is the existence of

142 Accenture and Humanity United, op. cit., pp. 38. 143 The Forest Trust, op. cit., pp. 21. 144 For example, see Amnesty International, “Palm Oil: Global brands profiting from child and forced labour,” Amnesty International 30 November 2016, https://www.amnesty.org/en/latest/news/2016/11/ palm-oil-global-brands-profting-from-child-and-forced-labour/, and UNICEF, “Palm Oil and Children in Indonesia,” UNICEF October 2016, https://www.unicef.org/indonesia/Palm_Oil_and_Children_in_ Indonesia.pdf Asia Monitor Resource Centre 111 Exploited and Illegalised child labor closely related to the forced labor and low family income. Children become part of collective family strategies for income generation especially in the context of the combination of piece-rate payment and quota-target practiced in most of palm oil plantations.

Child labor may be formed as unpaid family workers (or ‘helper’) or paid workers. In this research, child labor tend to take the form of unpaid family workers. Children may work to help out their parents for many reasons, but mainly to increase the family income by getting more piece of work results. Child labor in this case does not virtually exist as the company may be using excuse that they do not employ under age person.

A report by Fair Labor Association suggest that there are fewer instances of child labor in Malaysia compared to In- donesia.145 However, one cannot be really certain of the numbers of child labor. This is precisely because the children who become laborer are born from the family of irregular migrants whose birth are not registered. An isolated plantations where the family of illegalised migrants lives in remote area is the proper place to harbor child labor. In short, the real numbers of child labor in Malaysia is overshadowed by the documentation issue.

In one day of observations in Mojokuto, Asman, with her sis- ter Jessica (14 years), helped their mother Erni collect loose

145 Fair Labor Association, “Assessing Forced Labor Risks in the Palm Oil Sector in Indonesia and Malaysia,” Fair Labor Association Novem- ber 2018, https://www.theconsumergoodsforum.com/wp-content/ uploads/2018/11/201811-CGF-FLA-Palm-Oil-Report-Malaysia-and- Indonesia_web.pdf. 112 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia fruitlets. Despite their child-like bodies, Asman and Jessica had to carry sacks of fruitlets each weighing between 15-20 kilos on top of their shoulders. Surprisingly, Asman had already learned the technique of carrying heavy sacks on his shoulder. “You have to lift the sack first, lean it on the side of the palm oil tree then place it on top of your shoulder,” Asman taught me the technique.

Picture 8. An 11 years old Boy Carrying a Sack of Fruitlets.

Source: Personal Documentation (2018)

For Jessica, the reason why she was willing ‘to help’ is because she wanted her mother to go back home early. “If I help mother, she could accomplished her work sooner. We could go home together,” said Jessica. On that day, Erni and her children Asman and Jessica were able to finish their work collecting 17 sacks of fruitlets at 1 pm. The three of them then waited outside the estate for a truck passing by to return to their house at Division 2.

Asia Monitor Resource Centre 113 Exploited and Illegalised

Asman and Jessica are two among the uncertain numbers of children we were able to reach directly in the worksite. The stories from both may not representative to the whole pictures of children in Sabah. However, according to the tes- timonies from CLC teachers who are interacting with children on a daily basis, such stories are quite common.

This is especially in a company who does not allow the CLC to provide education for the migrants’ children. “In Mojoku- to especially in the Division 1 and Division 3, there are lots of school-age children who help their parents,” said Ita and Risma. “We think that is because our CLC is located in Divi- sion 2 and it is quite far from other divisions,” they added. Furthermore, Ita also described that many of the adults in other divisions of Mojokuto estate who are illiterate.

There is no accurate estimate of how young the age of child labor is. However, “in a place where I used to be teaching, I found a children as little as 6 years old that has already been working to help her mother,” said Ivo. According to her, the children tend to work by following, especially, their mother. Women are seen as the one who responsible in taking care of the children. Thereby, if the women go to work then their child will be brought along with her.

With this practice, it can be assumed that most of the children tend to engage in field work (manuring, applying fertilizer, or slashing weeds) or other seasonal work similar to women workers. “It depends on the task given to us,” said Erni whose two children work along with her. “One of our students helps her mother filling fertilizers into a polybag when she does not go to school or during holiday,” said Ita.

114 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia

“Some students may ask permission for not attending class. Their mother wanted them to help work collecting loose fruitlets,” she added.

Picture 9. the Young Generations in Mojokuto

Source: Personal Documentation (2018).

As a ‘helper’ or unpaid family workers, Asman and Jessica, like many other child labor, they do not get their own salary. Their labor results are combined with their parents. “Chil- dren are not paid by employer. Instead, their parents will give them some money on payday,” Risma explained. “With more fruit collected, the income of one family will increase.”

Children who have spent their lives within the plantation and grown to be adults, like Us (21 years), may work as

Asia Monitor Resource Centre 115 Exploited and Illegalised a full timer. After his father died from being crushed by a panicked elephant, Us had to support his remaining family members by working as harvest workers. There is also Ka- lis (17 years) who works as a field worker spraying chemicals. Imran (20 years) follows his father Ibrahim as a harvest worker and so does Opik’s son, who has married and had a kid. None of these grown up children have a valid permit.

Poverty and the lack of education in this case have been rightly placed in many reports as the main roots of the existence of child labor. However, both two causes are the results of the impoverishment under plantation and migration regime. Uncertain piece-rate based wage forces workers to work harder with the help from their family members. Meanwhile, the boundaries between the so called ‘locals’ and ’foreigners’ has resulted in the discrimination towards the migrant workers and their family.

The main case for children is the same as their parents: irregularity. Children may escape statelessness and the opportunity to get Indonesian citizenship is, as mentioned above, theoretically there. However, as they remain with their parents in Sabah, in a particular social environment within the estate, children will also inherit irregularity. The substandard working conditions in the palm oil plantation have created a situation where the children are forced to work. The children grow up as the reserve army of labor, trained ever since their childhood.

116 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia

Battling the Irregularity of the Children: the Role of Commu- nity Learning Center

Before 1997, all children were entitled to attend Malaysian primary schools, regardless of nationality, provided they held a birth certificate. But from that year onwards, ‘foreigner’ has been written on birth certificates of children of non-Ma- laysian parentage. Since 2002, schools have systematically excluded ‘foreign’ and undocumented children.146 Risma who was born in 1992 in Sabah testified that she had at- tended Malaysian primary school. “I continued my school in my hometown in 1997,” said Risma.

Subsequently, ‘Sekolah Indonesia Kota Kinabalu’, (SIKK/ In- donesian School of Kota Kinabalu) formally operated in 1 December 2008.147 In the following time, both Indonesian and Malaysian government and other stakeholders, including Humana Child Aid Society made an agreement in an attempt to expand the education services coverage. Howev- er, both SIKK and schools managed by Humana could only reach a small numbers of children in the plantation.

Interestingly, there were several initiatives among the migrants themselves to provide informal education. In 2003, Vero formed an informal learning group for children living around her place in Keningau, teaching 18 children. A few years ago in the 1990s, Thomas also formed the similar group in his place in Tawau. Meanwhile in Mojokuto, Ita has

146 United Nations Human Rights Council, 2009, cited in Allerton, op. cit., pp. 10 147 Indonesian Embassy in Kuala Lumpur, Educational Services for Indone- sian Children in Malaysia, 2016. Asia Monitor Resource Centre 117 Exploited and Illegalised been teaching a few children since 2013. “At first, I taught them at least how to read and write,” Ita said.

In 2011 when the Indonesian and Malaysian governments signed a new agreement, CLC was then allowed to be established in plantations in Sabah.148 This decision was taken as an important measure especially to reach illiterate children in remote and isolated area in the palm oil plantations. Furthermore in 2015, the issue regarding the establishment and operating permit of CLC was discussed again in a bilat- eral meetings between the two governments.149

In that context, Warsinah was able to formalize his initiative to educate children in Suluk estate since 2015. In the same year, Risma also registered a CLC in Mojokuto and has been providing education there along with Ita—and later on with Ivo as well when she joined in the early 2018. Across Sabah, there are 47 CLCs at the junior high school degree and 90 CLCs at primary school degree, affiliated with SIKK and providing education for 13,755 students as of July 2016. The number of students has increased to 23,000 as of 2018.150

However, it is quite obvious that there are still many more children who have yet to be reached. Before Risma came to Mojokuto, he had visited several other plantations and

148 Consulate of The Republic of Indonesia Tawau, Tugas Pokok dan Fungsi Konsulat Republik Indonesia Tawau, 2014, pp. 34. 149 Aditya Panji, “Jokowi Bikin Kesepakatan soal TKI dengan Malaysia,” CNN Indonesia 10 February 2015, https://www.cnnindonesia.com/nasional/20150210051323-32-30841/jokowi-bikin-kesepakatan-soal-tki- dengan-malaysia. 150 Dian Ratri, “Potret Pendidikan Anak Pekerja Migran di Malaysia,” Kumparan 8 July 2018, https://kumparan.com/dian-ra/kembalilah-ke- indonesia-kita-27431110790540858. 118 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia requested the establishment of the CLC to the plantation manager. According to Risma, in one remote TSH Resource estate, there were about 400 illiterate children. Unfortu- nately, the manager refused because, “the manager did not want the children to be educated. He worried they would not replace their parents as the workers,” said Risma.

In one of Sabah Softwood estates, Risma surveyed a total of 91 school-age children. Most of them were born in Sabah, such as in Sandakan, Kapilit, Tawau, Sandakan, Kunak, La- had Datu and other divisions. However, Risma was not permitted to establish a CLC there. Meanwhile in Mojokuto, there are only 28 children across all five divisions of the estate who have participated in school. “The total students here are 104 children. Most of the children are from four other companies such Fu Yee, Teck Guan, Sabah Softwood, and Yayasan Sabah.”

Regardless of its reach, the presence of the CLC has brought significant changes within the community of irregular migrants. One of the indirect outcomes of having a school in the estate is that it keeps children away from drugs. Such effect is being acknowledge by the Mojokuto workers, “Be- fore school was established, there were quite a number of teenagers who became drugs user,” said Opik. “It is quite rare now to find any teenagers using drugs,” Risma added.

In addition, the presence of CLC has greatly improved the aspirations of children to live beyond the palm oil plantation. Asman and Jessica are some students who are willing to be educated. In the morning, they would help their mother with work and go to school afterwards. “They are so

Asia Monitor Resource Centre 119 Exploited and Illegalised diligent. In the night, they always study and do their home- work, even until they fall asleep,” said Erni, their mother. Jessica, in particular, is one of the brightest students and has been winning several competitions held by Indonesian consulate.

In other words, the provision of educational services through CLC as a means to battle irregularity equally means to the eradication of child labor. There has been some evidences about this. “One day, I asked my students, don’t you help mom collecting fruitlets? She replied, I don’t, because I have to go to school,” said Ivo. This ongoing result needs to be supported by getting more children educated.

To some extent, being a student of CLC may provide the children ‘a protection’ from the persecution of authority. As long as the children are not caught along with their parents, the children may escape arrestment and deportation. “If any students were caught and arrested, the CLC teachers and Indonesian consulate would able to ask the officer to release them,” said Dian. “However, such condition does not apply if there is an operation coming inside the estate.”

Yet, despite the obvious benefits of education, CLC teachers continue to struggle with convincing parents to send their children to school. According to Ivo, some workers would think that education is not necessary and only relevant in order to read, write and count. “Many times I have to ne- gotiate with the parents, like 3 days of school and 3 days of working. I also need to do home visit door to door,” said Ivo. It is not easy to keep children in school. Soraya (14 years) almost quit school because her parents divorced and she had to help her mother.

120 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia

Teaching is also pretty challenging for the teachers. “There are numerous children who enter the school system late.” One of the CLC Mojokuto students, for example, was already 10 years old when he started the first degree of primary school. “We have to accelerate them, but nevertheless it is pretty hard,” Ivo added. In terms of learning capacity, most of the students are quite backwards. “Supposedly, a sixth grade student should have been able to do multiplica- tions of three digits of number. But most of them still cannot,” said Ivo.

A challenge that has yet to be addressed is the number of teaching staff and school facilities, which also attributable to the slow learning capacity of the students. In Mojokuto, there are only three teachers per one hundred students. One teacher has to handle three to four classes simultane- ously. “Our friends in other CLCs are also having difficulties in teaching so many students,” said Risma. Practically speaking, the teaching—including the education curriculum itself—is not delivered well due to supply side constraints, i.e. there are not enough teachers.

In addition to this, there are few CLCs which are lucky enough to have proper facility. In Mojokuto, it was only a few months since the electricity in the workers compound, where the CLCs is located, has been operating in 24 hours. “Prior to that, students have to study in a humid, dark and overcrowded classroom. Sometimes we do the teaching outside the school building if it is too hot to study,” said Risma.

While teachers and students in Mojokuto are lucky to have the company provide a permanent building, the CLC Pila-

Asia Monitor Resource Centre 121 Exploited and Illegalised jau in Sawit Kinabalu estate operates in a semi-permanent wooden-built house on stilts. There is only one big classroom within the school providing education for around 80 students. “I have been asking for a proper building to the company, but not granted yet,” said Anita who have established three CLCs around Beaufort sub-district.

Despite the difficulties, Risma and other CLC teachers have already done so much in battling irregularity. Not only providing an education, those teachers also deliver a civil service for the migrants by facilitating them to do pursue the Indonesian consulate for passport applications, marriage ceremonies, and birth registration. “We often times remind the parents of the importance of registering their children,” Risma added. With such important roles, the Indonesian consulate acknowledged them as ‘The Field Diplomats’.

One essential role as a Field Diplomat is to endorse students for a scholarship so they may continue to study in Indonesia. The scholarship is a part of repatriation program held by the Indonesian consulate. The teachers have a strong perspective for repatriating children. “I am trying my best for eleven of my students to get a scholarship,” said Risma. In August 2016, through the hard work of the teachers, there were 123 migrant children got scholarships to public uni- versities in Indonesia from ‘Affirmative Scholarship of Higher Education’.151

Within this regard, statelessness needs to be addressed, yet at present, there are no appropriate institutions to solve the irregularity. Irregularity is bound to be a never-ending cycle,

151 Ibid. 122 The Lives of Palm Oil Migrant Workers in Sabah Living as Migrant Workers in Sabah, Malaysia so long as migrants remain in an isolated, exclusive and illegalised community. While it is true that the Malaysian government should stop persecuting irregular migrants, at the same time, the children have to be educated so that they can one day live a better life outside of the plantation.

There are many challenges that need to be accounted for when battling irregularity through education. One of the important things is to challenge the domination of the plantation regime and to question their reliance on a reserve army of labor. The crucial question in this regard is also to what extent is the Indonesian government willing to expand the reach of schools for irregular children, especially in the palm oil plantations?

Asia Monitor Resource Centre 123 Exploited and Illegalised

124 The Lives of Palm Oil Migrant Workers in Sabah Generating Profit from Irregularity

he existence of irregular migrants is bounded by ‘static labour flexibility’, practiced in the palm oil plantation. In this regard, static flexibility refers to a methodT of short-term adaptability and cost-cutting, in pre- dominantly labour-intensive export sectors, with the use of subcontracting “casualisation” and contract labour.152 Such flexibility is reflected by the fluctuating numbers of recruited foreign workers in accordance with the economic situation.

Between 1997 and 1998, during the Asian financial crisis, the overall number of official placements of overseas labour migrants dropped 55 per cent all across Malaysia. As the economy gradually recovered, the Malaysian government allowed employers to renew their foreign workers’ permits and some 50,000 new workers were recruited to Sabah. In 2002, following the deportation of 200,000 migrants, the government of Sabah allowed the deported foreign workers to return and work as the effort to fill the labor shortage.

152 Johan Saravanamutu, “The Political Economy of Migration and Flex- ible Labour Regimes: the case of the oil palm industry in Malaysia,” in Oliver Pye and Jayati Bhattacharya (Ed),The Palm Oil Controversy in Southeast Asia, ISEAS–Yusof Ishak Institute, 2012, pp. 120-139. 125 Exploited and Illegalised

Given the flexibility, the general population of irregular migrants in Sabah constitutes a reserve army of labor that can be regularized anytime the industry needs them. Razak argued that the regularization program in 2008 was in accordance with the needs of workforce for realizing 38% of palm oil contribution to Sabah export. In this context, the number of registered foreign workers in the plantation sector alone increased by 58% from 97,904 in 2008 to 165,104 in 2009.

The reserve army of labor is closely related with the labor shortage. “Oil palm is one of our key revenue earners. We have to immediately assist them in overcoming the shortages,” said Sabah Chief Ministry Datuk Seri Mohd Shafie Apdal.153 The export earnings could shrink as much as 10 billion MYR if the number of migrant workers was reduced by 30%.154 “Without the Indonesian labour, what is going to happen to the more than three million acres of oil palm and economy of Sabah?” asked former Chief Ministry Tan Sri Harris Mohd Salleh.155

Despite the concern, the palm oil industry in Sabah actually continues to generate a considerable profit. In the period of 2002-2008, the export revenue, mainly generated from primary sector, showed remarkable growth with an increase

153 Muguntan Vanar, “Shafie: Address severe worker shortage in Sabah’s oil palm estates,” The Star 27 June 2018, https://www.thestar.com.my/ news/nation/2018/06/27/shafie-address-severe-worker-shortage-in- sabahs-oil-palm-estates/#tBs86P9dIxTWt8M0.99. 154 Ramli Abdullah, Azman Ismail, and Ayatollah Khomeini, op. cit., pp. 4. 155 Mary Chin and James Sarda, “Major blow if Indonesian workers return home,” Daily Express 26 December 2016, http://www.dailyexpress.com.my/read.cfm?NewsID=2357 126 The Lives of Palm Oil Migrant Workers in Sabah Generating Profit from Irregularity of 36.2 billion MYR in total exports.156 Despite the decline in 2009, Sabah was able to recover export revenue a total of 43.6 billion MYR in 2010. The agricultural sector has been targeted to increase the sector’s economic contribution to 17 billion of GDP and 60 billion of total value of export by 2025.157

Figure 6. Cycle of Irregularity.

As indicated in this research, it is quite dubious to say that the Sabah palm oil industry is actually facing labor shortage. Rather, the existence of communities of irregular migrants in the plantations serve as evidence that the industry has a labor supply. This is strongly indicated by the cycle of irregularity, where the Sabah Foreign Inlander becomes part of the reserve army of labor for palm oil plantations.

156 Razak, op. cit., pp. 95. 157 Institute for Development Studies, Sabah Development Corridor: Socio- Economic Blueprint 2008-2025, State Government of Sabah, 2007, pp. 20. Asia Monitor Resource Centre 127 Exploited and Illegalised

The irregularity can allegedly be deliberately maintained by those who profit from the palm oil industry—the state, the employers, and the middlemen. The allegation is indicated by the contradicting research findings, whereas at the regulatory level the state remains strict on the foreign workers, at practical level allowing irregular migrants to remain. This is especially for the true in the case of the regularization program and the acknowledgement of Sabah Foreign Inlander.

Different authors have raised this allegation. In Razak’s account, the employers in need of a stable labour supply allegedly often violates policy guidelines on employment of foreign workers. This has done by allowing migrant workers to stay with their families in the houses provided, especially in rural plantations.158 Meanwhile, there is a mutual, illegal collaboration that involves the recruiter, employers and state apparatus in protecting the irregularity.159

In other words, the underlying process of the creation of the reserve army of labor is the cycle of irregularity. Irregularity is the result of the correspondence between the plantation and migration regimes that takes place in an isolated, exclusive and illegalised community. The palm oil plantation is a suitable place for harboring irregular migrants with its labor control. In this regard, the migration regime helps in preserving the irregularity with its sets of rules. The interplay between these regimes has created a cycle that reproduces the irregularity.

158 Razak, op. cit., pp. 162. 159 Nurul Ilmi Idrus, op. cit., pp. 156. 128 The Lives of Palm Oil Migrant Workers in Sabah Generating Profit from Irregularity

The palm oil plantation is known for its substandard working conditions and place for child labor.160 Combined with migration regime, the plantation workers are facing a mul- titude of economic, social and political forms of precarity. 161In the workplace, the workers are being exploited by the employers, while at same time, being persecuted by state authority outside the estate. Moreover, irregular children are being excluded as they are not meant to exist.

160 Various research have reported the cases of abusive working conditions in palm oil plantation. For reference see Amnesty International, Trapped the Exploitation of Migrant Workers in Malaysia, 2010, and Rizal Assalam and Hotler “Zidane” Parsaoran, op. cit. 161 Oliver Pye, et al., op. cit., 2012, pp. 331. Asia Monitor Resource Centre 129 Exploited and Illegalised

130 The Lives of Palm Oil Migrant Workers in Sabah Efforts to Organize Migrant Workers

ormatively speaking, migrant workers should have understood their rights only if they were formally recruited. According to Dian Ratri, Indonesian NConsulate take part by socializing workers’ rights during the first departure by circulating a ‘Buku Saku TKI’ (migrant workers’ booklet). However, workers during our interview were expressing their lacking knowledge on labor rights, even regarding the statutory minimum wage of 920 MYR/ month.162 Such case is true given the pervasive irregularity in Sabah.

The fact that the exploitation rate in palm oil plantation is so high contributed by the absence of trade union for both educating and representing the workers. There is a union called SPIEU in Sabah, however, mostly covers only plantations owned by Sime Darby. SPIEU managed to organize workers in Borneo Abaca Limited (BAL) Plantation in 1970s. As when Sime Darby acquired the ownership of BAL planta-

162 In January 1st, 2019, the minimum wage has increased to 1,100RM 131 Exploited and Illegalised tion, the union required Sime Darby to include company’s estates as SPIEU members.

After the establishment, the union had tried several attempts to expand the membership. Nevertheless, such attempts has not yet been successful in organizing the migrants. Most of the challenges SPIEU facing in this regards are related with the irregularity of the migrants itself, constrained by the interplay result of plantation regime and migration regime. The fact that majority of the migrants are remained unorganized, is in contrast with the RSPO requirements on having workers’ representative in the workplace.

Trade Union Act 1959 allows foreign workers to be a member of trade union. However, only those migrants who are ‘officially’ documented entitle to the membership, as the presence of the irregular are considered as illegal. This stip- ulation already excludes majority of the migrants who are irregular which equally means they are remained unpro- tected from abuse in the workplace.

Moreover, the Trade Union Act does not allow foreigners to become part of union stewardship or holding any execu- tive positions. This has left only Sabahan activist as labor organizer. As expressed by SPIEU organizer, there are difficulty in reaching the unorganized migrants due to language barrier. Even though Indonesia and Malaysia share some of similar vocabularies, most of the migrants only understand basic Sabah-Malay language while many of them still use mother-language based on their ethnic originality.

If irregularity and language barrier can be somehow han-

132 The Lives of Palm Oil Migrant Workers in Sabah Efforts to Organize Migrant Workers dled, another challenge emerges from the very nature of the migrants’ communities in the plantation. Organizing migrants means the unionist has to actively engage with the workers in the workplace on a daily basis. Such engagement, among the important, is educating the migrants with labor rights prior the unionizing attempt.

Any attempt to educate and organize migrant workers means the unionist has to circumvent the plantation regime. A gathering to discuss labor rights is something unusual in an isolated community, whereas any unionist who come to meet the workers in the compound can be easily identified in an exclusive community. This two potentials have already given ability for the company to discover and prevent any attempt to organize the workers.

Such case is happening in the SPIEU current effort to organize one estate in Tawau. The first meeting organized by the union had successfully managed to gather some of the plantation workers. On that occasion, the union had delivered some basic knowledge on labor rights and union rights. However, the follow up meeting later on was discovered by the management. Apparently, one of the workers handed a pamphlet circulated in the second meeting containing information about union to one of staff in the estate.

Such phenomenon can be understood given the sense of obligation of the workers towards the employers or estate management. In this regard, workers feels obligated as they are allowed to work and stay in the community. This kind of feeling are stronger in the case where the workers were recruited by their relatives who usually become a foreman

Asia Monitor Resource Centre 133 Exploited and Illegalised in the estate and most likely act as labor supervisor for the management. To be short, the relation between the workers and the recruiter (either the direct employer or the labor broker) characterized by patronage.

The patronage relation is revolved around the ability for the employer to protect the irregularity of the migrants. During meetings with the authors of this report, workers expressed their worries that they might be laid off for attempting to form a union. In this regard, being laid off equally means the workers visa will be revoked and they will expelled from the place where they are living. This situation has caused the workers to be divided, as expressed by one of the workers, “some of them tend to ‘play safe’ by securing their own self.”

The reason why the SPIEU was able to gather some workers, even though it was discovered by the company and any follow up effort will be much harder, was because the estate location is more accessible and the compound are less-monitored by the company. Meanwhile in a more remote and tightly controlled estate, it is almost impossible to ‘sneak in’ a union organizer to the estate. Even if the organizer can somehow escape the gate security, another challenge is to circumvent the management’s monitor in the workplace.

Such difficulty has not yet mentioned the requirement for the union to be officially recognized and for requesting a collective bargaining negotiations to the employers. As stipulated in the Industrial Relation Act 1967, a union is required to proof the majority of the membership in a company. This

134 The Lives of Palm Oil Migrant Workers in Sabah Efforts to Organize Migrant Workers means the union has to present in each of estates of one company. If a company has four estates in different areas, that means the union has to organize in all estates and handled all of the difficulties. This makes the establishment of a new union practically impossible.

This challenge is reflected in other SPIEU experiences in unionizing the migrant workers. In the past several years, SPIEU had successfully organized migrant workers in the estates owned by Sabah Softwood, Kuala Lumpur Kepong, and few other companies. After the new union branches had been registered in the Department of Labour Sabah, SPIEU had to proceed to the process of union recognition. The process is through a secret vote among the union members to proof the majority representation of the union at the workplace.

With the massive scale of one palm oil company with a numbers of palm oil estates, it is a hard task for the union to win the battle of vote against the company. As the union tried to win the vote, the company tried to thwart their effort by intimidating the union members and somehow prevent- ing workers to cast their vote. As the union failed to get a recognition from the company, the union could not be able to move forward after the official registration. Furthermore, the union could not request for negotiation of collective agreement.

Both the plantation regime and migration regime have limited the SPIEU ability to expand the membership. In other words, the interplay of both of the regimes have situated the irregular migrants to be unorganized and unable to im-

Asia Monitor Resource Centre 135 Exploited and Illegalised prove the working conditions. Workers become ignorant as they remain unaware of their rights. On the other hand, the employers are equipped not only with the ability to lay off any critical workers, but also to turn a regular migrant to become irregular.

136 The Lives of Palm Oil Migrant Workers in Sabah Recommendation in Addressing Irregulalarity

iven the complexity of the problem, irregularity cannot be solved by only addressing issues regarding the document-related matters, i.e. passports, work Gpermits, or birth certificates. One of the necessary measures for the Malaysian government should be to ease the restric- tions imposed on immigration policies, especially in terms of family migration. This also means the acknowledgement of the existence of the children and granting basic rights to education, health, and mobility. The children shall by no means be excluded from any kinds of basic rights.

It is further recommended that there is a relaxation on immigration policies also in a sense of eliminating any form of discrimination towards migrant workers. This is especially in terms of provision of health care for the migrants and their families. Health indicators are currently poor, and women children in plantations should be tackled by providing universal rights of health. Malaysian health clinics and hospitals should provide good treatment for the migrants and their families without putting any financial burden.

137 Exploited and Illegalised

With regards to the children specifically, permitting the presence of CLC in an estate does not only provide education to the children, but it may also serves to expose the irregularity of the workers. The CLC could be more strategically useful if the teachers are equipped with the perspective of repatriating the children to Indonesia. In other words, there is significant need to expand the reach of CLC, especially in the context of remote plantation areas.

On the other hand, rather than persecuting irregular migrants, the Malaysian government should put more effort into tackling the networks of labor recruiters who mostly operate human trafficking. Tackling this problem will also include an investigation in which plantations allow the practice of trafficking in the various forms of sub-labor con- tracting. In other words, there should be more resources for Labor Department of Sabah to monitor the employment practice in plantations.

The needs regarding the Labor Department are crucial to address the working conditions in many palm oil plantations. Such substandard working conditions are made possible in the absence of state monitoring. Despite efforts to regularize the migrant workers, irregularity will persist, with workers continuing to abscond, as long as the working conditions hinder the improvement of the workers’ livelihood.

This also means that the Malaysian government should stop persecuting irregular migrants. As it has been proved for decades, irregularity cannot be solved by persecuting the individual migrant who does is not properly documented. Rather, irregularity can only be tackled by addressing the

138 The Lives of Palm Oil Migrant Workers in Sabah Recommendation in Addressing Irregularity network of traffickers who collaborate with palm oil industry to supply the needs of the labor force. In addition, the Malaysian government should also reinforce regulations regarding labor rights to improve working conditions.

Recommendations for the Different Actors in the Palm Oil Supply Chain

1. Malaysian Government/Sabah State Government

Reform the current migration regime to facilitate regular migration and eliminate any form of discrimination towards migrant workers and their families in line with international human rights standards outlined in the In- ternational Convention on the Protection of the Rights of All Migrant Workers and Members of their Families 2003.

Important steps thereby are: - Intensify efforts to regularize migrant workers and stop persecuting irregular migrants only for their lack of documentation. - Acknowledge the existence of the migrants’ children and grant basic rights to education, health, and mobility.

- Simplify the documentation process of migrant workers.

Asia Monitor Resource Centre 139 Exploited and Illegalised

- Request plantation owners to document all workers; monitor the process and in case of violation punish the plantation owner not the workers. - Establish access to temporary documentation for migrant workers currently not working on a plantation until they find a new position. - Enable family reunion for documented migrant workers. - Provide universal health care for the migrants and their families; Malaysian health clinics and hospitals should provide good treatment for the migrants and their families without putting any financial burden. - Stop criminalizing marriage and birth of migrant workers within the borders of Malaysia. - Provide meaningful regulation of recruitment agencies; not merely through the passing of laws and regulations, but effective monitoring and enforcement, including sanctions for non-compliance. - Collect transparent data on the situation of undocumented migrants and their children without negative impact for them.

Guarantee decent working conditions and workers’ well-being outlined in the International Bill of Human Rights and the International Labour Organisation (ILO) Core Labour Standards as well as all relevant ILO Con- ventions and Recommendations

140 The Lives of Palm Oil Migrant Workers in Sabah Recommendation in Addressing Irregularity

Important steps thereby are: - Increase resources for the Labor Department to address and monitor the working conditions in palm oil plantations and the labor rights’ violation by the employers. - Reinforce regulations regarding labor rights to improve working conditions; there should be no more casualisation of employment. - Implement policies to secure health and safety for plantation workers. Workers have their rights to properly understand the results of the medical examination without undermining the rights to work. - Implement policies to secure fair remuneration; the minimum wage should be in accordance with the decent living standard. - Revise the trade union law in accordance with international human rights and labour law to facilitate the foundation of worker-driven trade unions, instead of management-driven unions. - Provide clear guidance on child labor in accordance with international children’s rights. - Facilitate access to health checks for plantation workers, specifically undocumented migrant workers and their families. - Raise awareness for the adverse impacts of child labor amongst workers, communities and families and the importance of schooling and value

Asia Monitor Resource Centre 141 Exploited and Illegalised

of education. - Implement law enforcement, especially towards the employers who practice forced and child labor and direct or indirect sourcing of labor from the labor traffickers.

Facilitate the access to education for all migrant children documented and undocumented in accordance with the human right to education stipulated in the Uni- versal Declaration of Human Rights Article 26 and the International Covenant on Economic, Social and Cul- tural Rights (Article 13 and 14).

Important steps thereby are: - Revise of the registration policy to provide access for undocumented migrant children to Malaysian schools. - Revise the regulations regarding tuition fees having similar amounts for migrants and Malaysian citizens. - Provide assistance to community learning centers—or other alternative education facilities—by handing out permits for centers and teachers. - Provide good quality education for all children by supporting teacher trainings, paying teachers’ salaries and other benefits, providing monthly school materials, accreditation certification and infrastructure not only for regular Malaysian schools but also for alternative and community learning centers.

142 The Lives of Palm Oil Migrant Workers in Sabah Recommendation in Addressing Irregularity

- Provide good quality education for all children by making sure that also remote plantation areas have transport systems and/or school facilities in place. - Establish strategic partnerships with the Indone- sian state, independent trade unions, CSOs and plantation owners to achieve this goal.

2. Indonesian Government/State Representatives in Sabah

Advocate for the improvement of migrant workers’ situation in accordance with the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families 2003. Address the issue of statelessness of Indonesian migrant children on palm oil plantations in accordance with the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.

Important steps thereby are: - Institute migration mechanisms through which prospective migrants can obtain necessary documents for migration in their hometowns without excessive bureaucracy, cost, or travel. - Make greater efforts to disseminate information on safe migration, migration options, alternatives to migration throughout the country, and the rights to join trade unions. - Provide meaningful regulation of recruitment agen- Asia Monitor Resource Centre 143 Exploited and Illegalised

cies; not merely through the passing of laws and regulations, but effective monitoring and enforcement, including sanctions for non-compliance. - Establish effective complaint mechanisms which are accessible to all migrants both in destination countries and upon return, and facilitate the use of local complaint mechanisms where appropriate. - Engage with the Malaysian/ Sabah state and independent trade unions to address the problem of undocumented migration and stateless children and advocate for a change in the migration regime. - Acknowledge the existence of the migrants’ children and support basic rights to education, health, mobility, and to join union. - Improve the assistance to Indonesian migrant workers by ensuring the access to documentation for migrant children, in particular no need of marriage certificate, facilitate access to birth certificate.

Support decent working conditions and worker well- being outlined in the International Bill of Human Rights and the International Labour Organisation (ILO) Core Labour Standards as well as all relevant ILO Conven- tions and Recommendations.

Important steps thereby are: - Assist migrant workers with complaints of violations against human rights, core labor standards

144 The Lives of Palm Oil Migrant Workers in Sabah Recommendation in Addressing Irregularity

and the labour law and help them to get access to remediation. - Engage with the Malaysian state and independent trade unions to address the implementation of labor standards. - Engage with the Malaysian state and independent trade unions to advocate for a revision of the trade union law. - Establish trustworthy grievance channels for workers and discuss issues with the relevant stakeholders, especially channeling between CLC and independent trade unions. - Provide a basic labor rights and trade unions knowledge to the CLC teachers. This measure will help to foster the improvement of working conditions

Important steps thereby are: - Providing good quality education for all children by support teacher trainings, pay teacher’s salary and other benefits, provide monthly school materials, accreditation certification and infrastructure

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for alternative and community learning centers. - Establish strategic partnerships with the Malaysian state, plantations and independent trade unions to achieve this goal.

3. Companies Owning Plantations/ Estates

Address the issue of trafficking, undocumented migrant workers and stateless children in the palm oil estates in accordance with international human rights and children’s rights.

Important steps thereby are: - Officially register all migrant workers immediately when starting their work to provide them with the necessary documents and renew the documents regularly. - Prohibit trafficking and monitor the recruitment of new migrant workers with all necessary means. - Stop sourcing labour from labor traffickers or brokers. Workers should be properly recruited with consent and under the written employment contract. - Increase documentation of migrant children by supporting access of migrant woman to health institutions paying their hospital fees upfront or provide medical assistance on the plantations with the official authority to get access to birth certificates.

Guarantee decent working conditions and worker well-

146 The Lives of Palm Oil Migrant Workers in Sabah Recommendation in Addressing Irregularity

being as well as freedom of association outlined in The International Bill of Human Rights and the International Labour Organisation (ILO) Core Labour Standards, especially regarding to the freedom of association (Con- vention 87) and the rights to organise and collective bargaining (Convention 98), as well as all relevant ILO Conventions and Recommendations.

Important steps thereby are: - Fair remuneration: e.g. a living wage.162 All workers should receive a daily minimum even if they cannot work due to factors out of their control (heavy rain, faulty equipment, sickness etc.). Bonuses are additional remuneration and do not replace overtime pay. - Revise target and piece rates to feasible quotas, which can be reached without additional help by family members specifically children. - Ensure that every worker employed with regular contract ensuring minimum and maximum hours of work, instead of casual employment, including ret- rospective payments of benefits (health insurance, social security schemes). - Free, sufficient and adequate PPE for all workers.

162 A ‘living wage’ is the remuneration received for a standard work- week by a worker in a particular place sufficient to afford a decent standard of living for the worker and her or his family. Elements of a decent standard of living include food, water, housing, education, health care, transportation, clothing, and other essential needs including provision for unexpected events. (Definition of the Global Living Wage Coalition https://www.globallivingwage.org/about/what-is-a- living-wage/) Asia Monitor Resource Centre 147 Exploited and Illegalised

The PPE should be suitable to the working environment and not undermining the ability to work. Or if so, the working load has to be adjusted accordingly to provide more time to rest without reducing salary - Providing decent housing for each of workers’ family with free and good water and electricity and healthy environment. - No hazardous chemicals. Free health monitoring for workers in hazardous working positions and addressing any negative health effects. - Immediate stop of forced labor: No withholding of passports or other relevant documentations, no penalties, and ensuring legal documentation for workers. - Stop direct and indirect discrimination against woman. - Immediately stop child labor and make education for all children of plantation workers possible. - Provide remedy for harms suffered and take action to prevent further harm. - Enable the establishment of independent trade unions or any other form of free and democratic workers representation with the rights to collective bargaining.

148 The Lives of Palm Oil Migrant Workers in Sabah Recommendation in Addressing Irregularity

International Covenant on Economic, Social and Cul- tural Rights (Article 13 and 14).

Important steps thereby are: - Support access to education: Provide basic infrastructure and/or transport, school fees and collaborate where necessary with other estates. - Support access to education: Provide an annual budget for school materials of the worker’s children - Raise awareness for the adverse impacts of child labor within workers, communities and families and the importance of schooling and value of education. - Advocate the relevant government agency’s (Min- istry of Education etc.) to provide access for documented and undocumented migrant children to regular Malaysian schools.

4. International Palm Oil Purchasers

Address the issue of trafficking, labor conditions, undocumented migrant workers and stateless children in the palm oil supply chain in accordance with Interna- tional Human Rights, Children’s Rights, ILO Core La- bour Standards and the UN Guiding Principles on Busi- ness and Human Rights.

Important steps thereby are: - Establish human rights due diligence which takes a broad approach to identify human rights risk, involves workers in the process and provides

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transparency for all stakeholders. - Use your leverage to push for access to documentation for migrant workers

• On the state level by engaging with the relevant government agencies advocating for reformation of the migration regime and install regulations against labor trafficking • On the plantation level by requesting to officially register all migrant workers immediately when starting their work to provide them with the necessary documents and renew the documents regularly.

- Use your leverage to improve working standards on plantations

• On the state level by engaging with the relevant government agencies to advocate reinforcement of regulations regarding labor rights, including implementing policies to secure health and safety for plantation workers and policies to secure fair remuneration and increase resources to monitor the implementation. • On the palm oil plantation level by pushing the supplier to eliminate any kind of forced and child labor, and to act in compliance with the international human rights standards and children’s rights.

150 The Lives of Palm Oil Migrant Workers in Sabah Recommendation in Addressing Irregularity

- Use your leverage to allow for the establishment independent workers representations on plantations level. - Provide independent grievance channels for workers. - Strictly ban worst forms of child labor and make access to schools for children a priority. - Use your leverage to end child labor and provide access to education. - Engage with plantation owners to improve working conditions and access to school for children. - Use your leverage to engage with the Malaysian state to improve working conditions and access to school for children. - Provide incentives for plantations to improve working conditions and access to schools e.g. by adopt- ing your sourcing policies (i.e. by paying higher prices) and / or by providing funding. - Stop sourcing palm oil from companies or plantations that fail to establish due diligence or have proven to be violating human rights.

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5. Palm Oil Certification Body and Business Associa- tion

Review the effectiveness of a) the current certification and audit system, and b) the grievance mechanism/ complaint system to better ensure the sustainability of palm oil industry.

Important steps thereby are: - Address the issue of undocumented workers and stateless children within the certification and audit system and grievance mechanism/ complaint system. - Request the documentation of all workers within the certified plantations, especially, owned by the companies who have already become members. - Address not only child labor but also schooling within the certification and audit system and grievance mechanism/ complaint system. - Review and address the genuine workers’ represen- tativeness during the certification and audit process. - Establish a sanction mechanism to the members that fail to establish due diligence or proven to be violating human rights.

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Amnesty International. The Great Palm Oil Scandal: labour abuses behind big brand names. 2016. ______. Trapped the Exploitation of Migrant Workers in Malaysia. 2010. ______. “Palm Oil: Global brands profting from child and forced labour.” Amnesty International 30 November 2016. https://www.amnesty.org/en/ latest/news/2016/11/palm-oil-global-brands-profting-from-child-and-forced-labour/. Ananta, Aris and Evi Nurvidya Arifin (Ed.). International Migration in Southeast Asia, Singapore: Institute of Southeast Asian Studies, 2004. Assalam, Rizal and Hotler “Zidane” Parsaoran. Profit Over People: Working Conditions in Sinar Mas Palm Oil Supply Chain. Ed. Abu Mufakhir. Asia Monitor Re- source Centre and Sawit Watch, 2018 Avila, Michelle B. The Evolution of Malaysia’s Immi- gration Policy Since 1970 (Master Thesis). Secu- rity Affairs, Naval Postgraduate School, 2015. Re- trieved from https://calhoun.nps.edu/bitstream/ handle/10945/45158/15Mar_Avila_Michelle. pdf?sequence=1&isAllowed=y. CAUSE-DS/ PAN Philippines, Preliminary Investigation on the Health Effects of Paraquat in Mindanao, Philip- pines, 2012. Fair Labor Association, “Assessing Forced Labor Risks in the Palm Oil Sector in Indonesia and Malaysia,” Fair Labor Association November 2018, https:// www.theconsumergoodsforum.com/wp-content/ uploads/2018/11/201811-CGF-FLA-Palm-Oil-Re- port-Malaysia-and-Indonesia_web.pdf.

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Ford, Michele and Lyn Parker (Ed). Women and Work in Indonesia. London and New York: Routledge, 2008. Ford, Michele. “After Nunukan: The Regulation of Indone- sian Migration to Malaysia.” in Amarjit Kaur and Ian Metcalf (Eds.), Divided We Move: Mobility, Labour Mi- gration and Border Controls in Asia, New York: Pal- grave Macmillan, 2006. Horstmann, Alexander and Reed L. Wadley, Centering the Margin: Agency and Narrative in Southeast Asian Borderlands. Asian Anthropologies, Berghahn Books: 2009. Hugo, Graeme. “Indonesian Labour Migration to Malay- sia: Trends and Policy Implications.” Southeast Asian Journal of Social Science, Vol. 21, No. 1, 1993. Human Rights Commission of Malaysia, “The Status of Women’s Right in Malaysia,” Human Rights Commis- sion of Malaysia (SUHAKAM), 2010. Hwok-Aun, Lee and Khor Yu Leng. “Counting Migrant Workers in Malaysia: a Needlessly Persisting Conun- drum.” Perspective No. 25, ISEAS- Yusof Ishak Insti- tute, 2018. Ismail, Azman, and Zuraihan Sharudin. “Workforce in the Malaysian Oil Palm Nursery.” Malaysian Palm Oil Board, Malaysia, Oil Palm Industry Economic Jour- nal, Vol. 14 (2), 2014. Ismail, Azman, Mashani Ahmad, and Zuraihan Sharudin. “Labour Productivity in the Malaysian Oil Palm Plan- tation Sector.” Malaysian Palm Oil Board, Malaysia, Oil Palm Industry Economic Journal, Vol. 15 (2) 2015. Saravanamutu, Johan. “The Political Economy of Migration and Flexible Labour Regimes: the case of the oil palm

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industry in Malaysia.” in Oliver Pye and Jayati Bhat- tacharya (Ed). The Palm Oil Controversy in Southeast Asia. ISEAS–Yusof Ishak Institute, 2012. Kassim, Azizah. “Illegal alien labour in Malaysia: Its influx, utilization, and ramifications.” Indonesia and the Malay World, No. 71, 1997. Kiezebrink, Vincent. Palming Off Responsibility: Labour rights violations in the Indonesian palm oil sector. CNV International and SOMO Joint Research, 2017 Lasimbang, Helen Benedict, et al. “Migrant workers in Sa- bah, East Malaysia: The importance of legislation and policy to uphold equity on sexual and reproductive health and rights.” Best Practice & Research Clinical Obstetrics and Gynaecology, 32, 2016. Low, Choo Chin and Khairiah Salwa Mokhtar. “Migration Control in Malaysia: Shifting Toward Internal En- forcement.” Asia-Pacific Social Science Review – 16 (3) March 2017. Nawi, Nur Syazwani Mohd, et al. “Malaysian Oil Palm Workers Are in Pain: Hazards Identification and Er- gonomics Related Problems.” Malaysian Journal of Public Health Medicine Vol. 16, 2016. Pye, Oliver, et al. “Precarious lives: Transnational biogra- phies of migrant oil palm workers.” Asia Pacific View- point, Vol. 53, No. 3, December 2012. ______. “Workers in the Palm Oil Industry: Exploi- tation, Resistance and Transnational Solidarity.” Stif- tung Asienhaus, 2016. Ratri, Dian. “Potret Pendidikan Anak Pekerja Migran di Malaysia.” Kumparan 8 July 2018, https://kumparan.com/dian-ra/kembalilah-ke-indonesia-kita-27431110790540858. 156 The Lives of Palm Oil Migrant Workers in Sabah Preference

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Company Profile and Report Benta Wawasan. Estates. https://www.bentawawasan. com.my/business/estates/. Carotino/ JC Chang Group, http://www.carotino.com/. Felda Global Ventures, http://www.fgvholdings.com/. Felda Global Ventures. Sustainability Report 2016/2017. http://www.fgvholdings.com/wp- content/uploads/2018/06/FGV-Sustainability-Re- port-2016_2017.pdf. Kretam Holdings Berhad, http://www.kretam.com. Kuala Lumpur Kepong, https://www.klk.com.my/. RSPO Membership. Teck Guan Holdings Sdn. Bhd. https:// www.rspo.org/members/3019/TECK-GUAN-HOLD- INGS-SDN.-BHD/group-member. RSPO. “Decision Letter to Felda Global Ventures Berhad.” 28 November 2018, https://askrspo.force.com/ Complaint/s/case/50090000028Es0aAAC/detail. Sabah Softwood Berhad, http://www.softwoods.com.my/. Sawit Kinabalu, http://www.sawitkinabalu.com.my/. Sime Darby, http://www.simedarby.com/. Teck Guan Perdana Berhad. Directors’ Report and Audited Financial Statements 2017. http://www.teckguan. com/tgp/pdf/Audited_Financial_Statements_2017. pdf. TSH Resources Berhad, https://www.tsh.com.my/.

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Official Data Department of Agriculture. Industrial Crops Statistics. Pu- trajaya, Malaysia, 2016. Department of Industrial Development & Research. Sec- toral Development and Investment Opportunities. Malaysia, 2011, www.didr.sabah.gov.my/pdf/SYCID- Sectoral2.pdf MSPO Areas Certified. Oil Palm Area in Malaysia Certified as of 31st October 2018. Malaysian Palm Oil Certifi- cation Council. https://www.mpocc.org.my/certified- areas. Institute for Development Studies. Sabah Development Corridor: Socio-Economic Blueprint 2008-2025. State Government of Sabah. 2007. Intertek, “Malaysian Sustainable Palm Oil (MSPO),” http:// www.intertek.com/food/traceability/malaysian-sustainable-palm-oil-mspo/. RSPO. “About us”, http://www.rspo.org/about.

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Harian Metro. “Wajib Daftar Anak Lahir di Malaysia.” Ha- rian Metro 4 July 2017. https://www.hmetro.com. my/mutakhir/2017/07/242109/wajib-daftar-anak- lahir-di-malaysia. Hidayah, Anis. “Berlindung di Hutan.” Media Indonesia 06 July 2017. http://mediaindonesia.com/read/ detail/111636-berlindung-di-hutan. Jeffrey, Sherell. “Foreigners make up one-third.” Daily Ex- press 28 September 2018. http://www.dailyexpress. com.my/news.cfm?NewsID=127532. Talata, Sitti Nor Azizah. “OP Mega 3.0: 3,309 PTI dan 44 Majikan Ditangkap Setakat Ini Di Sabah.” Sa- bah News Today 4 September 2018. https://www. sabahnewstoday.com/op-mega-3-0-3309-pti-dan- 44-majikan-ditangkap-setakat-ini-di-sabah/. The Borneo Post. “Ops Mega 3.0 to flush out illegal immigrants will commence on July 1.” Borneo Post 2 June 2018. http://www.theborneopost.com/2018/06/02/ ops-mega-3-0-to-flush-out-illegal-immigrants-will- commence-on-july-1/. The Star Online. “Foreign Residents to Pay Higher Fees.” The Star Online 8 April 2017. https://www.malaymail.com/s/1351929/health-ministry-hikes-up-hospital-fees-for-foreigners-up-to-230pc. The Star Online. “Group wants all-round plan to resolve Sabah labour shortage.” The Star On- line 29 June 2018, https://www.thestar.com. my/news/nation/2018/06/29/group-wants- allround-plan-to-resolve-sabah-labour- shortage/#KvWIEmsHEfWObMGU.99.

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Toyos, Lagatah. “North Kalimantan acts to stop the drugs flow.” Daily Express 8 December 2018. http://www.dailyexpress.com.my/beta/news. cfm?NewsID=129315. Vanar, Muguntan. “Four nabbed, RM5.2mil in syabu seized in Tawau.” The Star 12 November 2018. https:// www.thestar.com.my/news/nation/2018/11/12/ four-nabbed-rm52mil-in-syabu-seizedin-tawau/. ______. “Shafie: Address severe -work er shortage in Sabah’s oil palm estates.” The Star 27 June 2018. https://www.thestar.com. my/news/nation/2018/06/27/shafie-address- severe-worker-shortage-in-sabahs-oil-palm- estates/#tBs86P9dIxTWt8M0.99. Yee, Chok Sim. “8,000 children in Sabah facing citizenship problem.” The Borneo Post 18 October 2018. http://www.theborneopost.com/2018/10/18/8000- children-in-sabah-facing-citizenship-problem/. Zainul, Emir. “Foreign worker: Extension for PLKS holders with 10 years’ employment.” The Edge Mar- ket 3 October 2018. http://www.theedgemarkets. com/article/foreign-worker-extension-plks-holders- 10-years-employment

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