“Is your star employee on leave today?” I asked the boss of the mamak shop at the checkout.
“The authorities are making their rounds this week, so he won’t be coming in.” The boss replied nonchalantly as he rang up my bill.
It is not unusual to hear that some foreign workers do not possess valid passports and/or work permits, yet they work at local establishments and nobody bats an eyelid. When these foreign workers are caught by the Immigration Department, they can face charges for their unlawful entry/presence in Malaysia, which could result in a fine of not less than RM10,000.00, imprisonment for up to 5 years or both [1].
But what about the employers who hire these illegal foreign workers – could they also get into trouble with the law?
Under the Immigration Act 1959/63, any person caught employing a foreigner who is not in possession of a valid work permit faces a fine ranging from RM10,000.00 to RM50,000.00, imprisonment for up to 12 months or both [2]. The court has ruled that an employer of illegal workers need not be the registered owner or occupier of the premise where the business operates to be found guilty of the offence; what is required to be proven is that the employer knowingly hired the illegal workers who did not have valid immigration documentation [3].
Further, if an employer hires more than 5 illegal foreign workers, the employer face not only imprisonment ranging from 6 months to 5 years but also the possibility of being whipped with no more than 6 strokes [4].
If the employer is a company, the Immigration Act 1959/63 provides that anyone in a managerial position—such as a director, manager, or secretary—can be held accountable and subjected to the same punishment as the company itself [5]. This means that in addition to the company facing fines, an individual in one of these roles could be fined, imprisoned, or even whipped as well!
Considering the serious risks an employer faces for hiring illegal foreign workers, one ought to weigh carefully whether the benefits truly outweigh the potential trouble.
These thoughts crossed my mind as I paid my bill, but I figured that was a conversation I needed to have with the boss of the mamak shop on another day.
[1] Section 15 of the Immigration Act 1959/63
[2] Section 55B(1) of the Immigration Act 1959/63
[3] Public Prosecutor (Immigration) v Ana ak Ekang & Anor [2013] 5 MLJ 278, paragraphs 17 and 23
[4] Section 55B(3) of the Immigration Act 1959/63
[5] Section 55B(5) of the Immigration Act 1959/63
About the Author
Poon Wei Ying is a Senior Associate of XK Law who graduated with First Class Honours from the Cardiff University, United Kingdom. She believes in giving back to the society and that education can change a person’s life.
Disclaimer: This post is not intended as a solicitation, is not legal advice, and is not a substitute for obtaining legal advice. You should not act upon any such information without first seeking qualified professional counsel on your specific matter.
Credit of the photo goes to: Jabatan Imigresen Malaysia
Original image link: https://icf.newscdn.net/publisher-c1a3f893382d2b2f8a9aa22a654d9c97/2020/05/38c8af9e985f2f0b26b79cf9fb28960b.jpg
