Accessing Justice? It’s Not Just About the Law

July 28, 2021
Category: Commentary
Jakarta City Skyline (Photo: Vian Kadal, via Wikimedia Commons)

Why do migrant domestic workers (MDWs) still face illegal agency fees and debt bondage when there are laws to protect them? 

Prior to Covid-19, Indonesia saw a total of 4077 overcharging cases reported in 2019, and 2600 in 2018. The numbers are staggering, and they only account for reported cases. 

Indonesian law sets a cap on how much employment agencies can charge in placement fees. Similar laws exist in Hong Kong and Singapore. Yet Indonesian MDWs still find themselves overcharged by Rp 33,000,000 on average. What keeps the laws protecting workers from being effective?

Lack of evidence: a circular problem

Workers need enough evidence before they can file a claim against their abusers. Yet many do not possess the necessary documents like employment contracts, placement agreements and transaction receipts. They either do not receive copies of signed documents, or they fail to keep them. 

Oftentimes, employment agents force workers to sign multiple documents without giving them time to fully read or understand them. Even when workers sense that something is amiss, they have little bargaining power to question terms or ask for copies of loan agreement receipts from agencies. 

Employment agencies and loan companies further complicate the evidence-collection process. They hide inflated agency fees and interest rates under categories like document printing and health certificates that they are allowed to charge for. This makes illegal fees and loans harder to track. 

To make matters worse, loan companies in Indonesia sometimes make use of their licensed partners in Hong Kong to charge workers with high interest rates without getting penalised. Hong Kong law requires moneylenders to be licensed in order to protect customers borrowing money. Loan companies in Indonesia take advantage of the licensed status of their Hong Kong partners by charging high interest rates that are illegal in Indonesia, but permissible in Hong Kong. They task their Hong Kong partners to collect loans from workers on their behalf. Unfortunately, these cross-border transactions are undocumented or hard to trace.

Workers thus find themselves in a difficult spot: To file a claim, they need evidence, yet the evidence they need is either missing or well hidden.  

In this uneven playing field, the rules of the game are not only hijacked by exploitative agencies –– it is literally difficult for the players to call out foul play.

Waiting for months on end: Is the cost of seeking justice too high?

Challenges persist even when workers have collected enough evidence. Those pursuing criminal complaints against agencies usually have to stay abroad in their host country. They can wait for months, even years for a trial to conclude. Sometimes, workers are not even notified when their cases close. Finding an employer who will hire someone pursuing a criminal case can be difficult. Many employers may view these potential hires as troublemakers. Although staying in their host country allows them to pursue their case, many have to put their lives on pause to wait for their case to close. 

Covid-19 and movement restrictions

Covid-19’s restriction on movement has added another layer of difficulty in preparing and collecting documents for workers’ claims. Some workers have to travel to print or collect their client statements, affidavits and evidence. With parts of Indonesia under lockdown or otherwise unsafe to travel, just getting out of the home can be a challenge.

One positive note is that workers can now more easily attend court trials via video link. Recently, JWB helped a client get from East Java to Jakarta to attend a court trial in Singapore via video link. Beyond securing transport and accommodation, our team ensured the Jakarta facility fulfilled the court’s criteria, and arranged translation services so that the client could follow her case. The ease of video conferencing was balanced against the long trip and risk of exposure to Covid-19. Safe accommodations, PCR tests, and other social distancing measures were needed to ensure the client’s safety.

Partnerships and capacity-building remain key 

Our frontline partners and lawyers are key to helping workers secure victory when pursuing cross-border claims.

Frontline organisations support the evidence-collection process, recovering documents from government officials and agencies, so that workers can file a claim against their abusers. To develop the evidence-collection capacity of frontline organisations, we conduct paralegal training in Indonesia and Hong Kong so that organisations can identify potential claims and the evidence required to pursue such claims. 

These frontline organisations also raise awareness on workers’ rights amongst their own communities. They equip workers with knowledge on the types of cases and evidence required to pursue claims that are based on their former host country’s laws. 

With evidence in hand, we and our lawyers and partners across the region, ensure workers can return home, reunite with their families and carry on with their lives, even as they pursue compensation overseas. 

The Bottom Line

Although there are laws in place to protect workers, many still struggle to seek compensation from exploitative employment agencies and loan companies due to the lack of evidence to file a claim, having to stay in their country of work for an indeterminate time to pursue their case, and Covid-19 movement restrictions. It takes a team to support workers through these logistical challenges, and see them through their case from evidence-collection to compensation. Fighting labour exploitation is therefore not only about having labour protection laws. It is also about bridging the gaps in the law that bad employment agencies and loan companies exploit, raising awareness of workers’ rights, and ensuring that workers can access the law in the first place.