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Sunday, December 14, 2014

MTUC and 36 Groups concerned about all MAS employees loss of employment...


Media Statement – 3/12/2014

Malaysian Airlines(MAS) Employees and Trade Union Rights at risk by new law being rushed through

We, the undersigned 37 organisations, groups and trade unions are appalled with the Malaysian government’s current attempt to pass a law that will seriously undermine worker and trade union rights of employees in the Malaysian Airline System Berhad (MAS), the operator of Malaysia’s national carrier. 

Not only will the consequence of the new law be loss of employment of all employees of MAS and its subsidiaries, but also the end of the existing trade unions and associations representing the employees of MAS. The law also opens the possibility of loss of regular employment until retirement, to be replaced by precarious forms of employment like fixed term contracts or other even more precarious forms of labour practices which even evades direct employment relationship by using of workers supplied by third parties.

 
Malaysian Airline System Berhad (Administration) Bill 2014 was tabled and 1st reading was on 26/11/2014, the 2nd reading was on 27/11/2014 and was speedily passed by the Dewan Rakyat on 27/11/2014. Now, it is on the agenda of the first day of the Senate sitting on 1/12/2014, and scheduled for second reading the following day. There was really no time for anyone, including parliamentarians, to even study it, let alone comment or object to this Bill before it was speedily rushed through and passed in the Lower House of our Malaysian Parliament.

Now, the object of the Malaysian government is clear – they want the national carrier, MAS, now owned by the Malaysian Airline System Berhad, a government linked company, that is having financial problems to be taken over by a new legal entity which will be known as Malaysian Airlines Berhad in an effort to save the airline. 

We may have no objections to MAS and its subsidiaries being taken over by the Malaysian government, or vide a government owned legal entity provided that the rights of the workers and their trade unions are respected and preserved. The current Bill, however, seems to totally disregard the rights and welfare of existing employees of MAS and its subsidiaries, or their unions. 

Workers, unlike assets, cannot be transferred from one legal entity to another new legal entity. Thus, all the employees of MAS will naturally be terminated when the present MAS seeks to exist, and the Bill is silent on whether the new entity, Malaysian Airlines Berhad, will employ all these MAS employees without loss of tenure and benefits – or will they be abandoned with no employment?

The Bill makes it most clear that Malaysian Airlines Berhad(MAB) will be a new entity, and will not be an ‘assignee or transferee or a successor  employer’(Clause 26). MAB shall also not ‘be liable for any obligation relating to any retirement plan or other post-employment benefit plans in respect of the employees  or  former  employees…’, It shall also not be ‘liable for any sum which is calculated by reference to  a  period  of  time  prior  to  Malaysia  Airlines Berhad becoming  the  employer  of  the  person  in  question.’
 
‘The  Malaysia  Airlines  Berhad,  the  appointer  and  the Administrator  shall  not  be  named  as  a  party  in  any  claim or  application  made  or  joined  as  a  party  in  any  proceeding commenced  or  continued  by  or  on  behalf  of  any  employees  or former  employees  of  the  Administered  Companies  pursuant  to the  Industrial  Relations  Act  1967  [Act  177],  Employment  Act 1955 [Act 265], Sabah Labour Ordinance 1950 [Sabah Cap. 67], Sarawak Labour Ordinance 1952 [Sarawak Cap. 76] or the Trade Unions Act  1959  [Act  262].’ This means that MAB or the Administrator will not step into the shoes of MAS, or be liable, even in cases, including pending cases, between employees/trade unions and MAS. This will result in not just in loss of rights under existing labour laws, but also will result in employees and trade unions having to bear all loss of monies, time and effort sustained this far in the pursuance of justice.

MAB will be able to employ whoever and under what terms and conditions, as is stated in Clause 25, which states, ‘Malaysia Airlines Berhad may, in its  sole  discretion, offer employment to any person who immediately before the date of that offer is in the employment or service of the Administered Companies on such terms and conditions as the Malaysia Airlines Berhad  may  determine.’. The LIFO (Last In First Out) principle when it comes to employee reduction in cases of retrenchment can be ignored here, and there is every possibility that those worker and union leaders, and workers who stand up for rights, may all just not be employed by MAB.

Now, most of the 20,000 employees in MAS enjoy stable regular employment until retirement, but now the new MAB may use precarious forms of employment like short-term contracts, or even use the contractor for labour system to get third parties to supply workers without entering into a direct employment relationship with these workers at the airline. 

 
The Bill, as it stands also will see the end of all trade unions of current employees of MAS, most of which   being in-house union of MAS employees, and also the end of enforceability of all collective bargaining agreements(CBA) with MAS. There seem to be an implied indication that future employees of MAB will enjoy the right of freedom of association and have trade unions. 
The provision in the Bill may mislead some into believing that the existing trade unions of MAS employees will continue to exist once MAB takes over, but clearly this is not the case, Clause 28 is talking only about ‘any trade union duly recognized by the Malaysia Airlines Berhad’ and ‘any  association  recognized  by  the  Malaysia  Airlines Berhad’ – which implies that employees may have to once again form new unions and once again go through the process of seeking MAB’s recognition. Hence, this can be perceived to be a ‘union busting’ exercise done by way of the enactment of a new law.

 
Whilst Clause 14 says that ‘…any person is under a contract or obligation to provide goods or services or both…’ if retained, may be ‘at the same rate  as  would  have  been  paid’ by MAS may also cover employees but alas considering the later clauses that deal specifically with employees, MAB, even if they do employ former employees of MAS may not be paying the same wages. MAB will have the legal authority to stipulate new wages, benefits and terms. 

Usually when a company is wound-up, what is due and payable to the employees is amongst the first to be settled, and as such this Bill is even more detriment to employees of MAS as MAB is freed of all these obligations to workers. Employees who are terminated will also most likely not be able to recover retrenchment/termination benefits provided for in law as MAS, even if it still exists, may most likely be devoid of capacity, assets and monies, and MAB, according to this Bill, clearly has no obligation to be responsible for MAS’s obligations to its workers.

The secrecy and the blitz manner in which this Bill has been tabled, passed and being made law is also wrong, when there really should have been prior discussion and agreements especially with regard the 20,000 over employees of MAS and their trade unions, who now are in a precarious position uncertain even about the future wellbeing and livelihood of these workers and their families.

We call for:-

a)      The immediate suspension of the process of making the Malaysian Airline System Berhad (Administration)  Bill  2014 into law, or the putting into force of this Act, until all matters concerning the rights, future employment security, wellbeing and livelihood of the about 20,0000 employees of MAS and their family is resolved and provided for. The future of the existing employee trade unions and rights must also be resolved.

b)      The Malaysian government respect and make worker and trade union rights a priority in this exercise to try to save the national carrier, MAS, for after all employees can reasonably not be blamed for poor management that have put MAS in this financial predicament.

c)       The Malaysian government to guarantee that the right to regular employment until retirement will not be sacrificed in favour of precarious employment relationship and practices to the detriment of workers, and their unions in this process of saving Malaysia’s national carrier.

Charles Hector
Mohd Roszeli bin Majid
Pranom Somwong
For and on behalf of the following 37 civil society groups, trade unions and organizations

Angkatan Rakyat Muda Parti Rakyat Malaysia (ARM-PRM)
Cambodian Human Rights and Development Association- ADHOC
CAW (Committee for Asian Women)
Community Action Network (CAN), Malaysia
CWI Malaysia (Committee For A Workers International  Malaysia)
Hawaii Center for Human Rights Research & Action  (HCHR2A) 
Human Rights Ambassador for Salem-News.com, UK 
MADPET (Malaysians Against Death Penalty and Torture)
Malaysian Physicians for Social Responsibility
Migrant Care, Indonesia
Migrante International
MTUC (Malaysian Trade Union Congress)
MTUC Sarawak on behalf of 28 affiliates union in Sarawak
National Union of Flight Attendants Malaysia (NUFAM)
National Union of Transport Equipment & Allied Industries Workers (NUTEAIW)
Network of Action for Migrants in Malaysia (NAMM)
Parti Rakyat Malaysia(PRM)
Pax Romana-ICMICA Asia
Perak Women for Women Society (PWW)
Persatuan Kesedaran Komuniti Selangor
Persatuan Sahabat Wanita, Selangor
Pusat KOMAS (KOMAS)
School of Acting Justly, Loving Tenderly and Treading humbly (SALT)
Tenaga Nasional Junior Officers Union (TNBJOU)
Workers Hub For Change (WH4C)

ALIRAN Kesatuan Pekerja-Pekerja Mitsui Copper Foil MHS Employees Union  
Sahabat Rakyat Working Committee
  Clean Clothes Campaign  
Association of Maybank Executives  
Knowledge and Rights with Young People through Safer Spaces (KRYSS)  
National Union of Journalist(NUJ) Cawangan Utusan Melayu  
Kesatuan Eksekutif AIROD  
MTUC Selangor dan Wilayah Persekutuan  
MTUC Pahang 
Club Employees Union Peninsular Malaysia



See earlier posts:- 

All MAS employees set to lose their jobs when the MAS Admin Bill becomes law, and a new entity MAB takes over the national carrier?

MAS Admin Bill - even all existing Unions in MAS are at risk?

MAS Bill - Hansard for 27/11/2014 not out - Senators may be forced to debate the Bill today without benefit of knowing what happened in Dewan Rakyat?

Letter to the People of Malaysia: Champion Open Debate and Discourse on Islamic law


Letter to the People of Malaysia: Champion Open Debate and Discourse on Islamic law

We, a group of concerned citizens of Malaysia, would like to express how disturbed and deeply dismayed we are over the continuing, unresolved disputes on the position and application of Islamic laws in this country.

The on-going debate over these matters displays a lack of clarity and understanding on the place of Islam within our constitutional democracy.

Moreover, they reflect a serious breakdown of federal-state division of powers, both in the areas of civil and criminal jurisdictions.

We refer specifically to the current situation where religious bodies seem to be asserting authority beyond their jurisdiction; where issuance of various fatwa violate the Federal Constitution and breach the democratic and consultative process of shura; where the rise of supremacist NGOs accusing dissenting voices of being anti-Islam, anti-monarchy and anti-Malay have made attempts at rational discussion and conflict resolution difficult; and most importantly, where the use of the Sedition Act hangs as a constant threat to silence anyone with a contrary opinion.

These developments undermine Malaysia’s commitment to democratic principles and rule of law, breed intolerance and bigotry, and have heightened anxieties over national peace and stability.

As moderate Muslims, we are particularly concerned with the statement issued by minister Jamil Khir Baharom (left), in response to the recent Court of Appeal judgment on the right of transgender women to dress according to their identity.

He viewed the right of the transgender community and Sisters in Islam (SIS) to seek legal redress as a “new wave of assault on Islam” and as an attempt to lead Muslims astray from their faith, and put religious institutions on trial in a secular court.

Such an inflammatory statement from a federal minister (and not for the first time) sends a public message that the prime minister’s commitment to the path of moderation need not be taken seriously when a cabinet minister can persistently undermine it.

These issues of concern we raise are of course difficult matters to address, given the extreme politicisation of race and religion in this country.

But we believe there is a real need for a consultative process that will bring together experts in various fields, including Islamic and constitutional laws, and those affected by the application of Islamic laws in adverse ways.

We also believe the prime minister is best placed with the resources and authority to lead this consultative process. It is urgent that all Malaysians are invested in finding solutions to these long-standing areas of conflict that have led to the deterioration of race relations, eroded citizens’ sense of safety and protection under the rule of law and undermined stability.

There are many pressing issues affecting all of us that need the urgent leadership and vision of the prime minister and the support of his cabinet and all moderate Malaysians.

They include:

I) A plural legal system that has led to many areas of conflict and overlap between civil and syariah laws. In particular there is an urgent need to review the Syariah Criminal Offences (SCO) laws of Malaysia.

These laws, which turn all manner of “sins” into crimes against the state, have led to confusion and dispute in both substance and implementation.

They are in conflict with Islamic legal principles and constitute a violation of fundamental liberties and state intrusion into the private lives of citizens.

More injustices perpetrated

In 1999, the cabinet directed the Attorney-General's Chambers to review the SCO laws. But to this day, they continue to be enforced with more injustices perpetrated.

The public outrage, debates over issues of jurisdiction, judicial challenge, accusations of abuses committed, gender discrimination and deaths and injuries caused in moral policing raids have eroded the credibility of the SCO laws, the law-making process and public confidence that Islamic law could indeed bring about justice.

II) The lack of public awareness, even among top political leaders, on the legal jurisdiction and substantive limits of the powers of the religious authorities and administration of Islamic laws in Malaysia.

The Federal Constitution is the supreme law of the land and any law enacted, including Islamic laws, cannot violate the constitution, in particular the provisions on fundamental liberties, federal-state division of powers and legislative procedures.

All Acts, enactments and subsidiary legislation, including fatwa, are bound by constitutional limits and are open to judicial review.

III) The need to ensure the right of citizens to debate the ways Islam is used as a source of public law and policy in this country.

The Islamic laws of Malaysia are drafted by the Executive arm of government and enacted in the Legislative bodies by human beings.

Their source may be divine, but the enacted laws are not divine.

They are human made and therefore fallible, open to debate and challenge to ensure that justice is upheld.

Rich diversity of interpretive texts

IV) The need to promote awareness of the rich diversity of interpretive texts and juristic opinions in the Islamic tradition.

This includes conceptual legal tools that exist in the tradition that enable reform to take place and the principles of equality and justice to be upheld, in particular in response to the changing demands, role and status of women in the family and community.

V) The need for the prime minister to assert his personal leadership as well as appoint key leaders who will, in all fairness, champion open and coherent debate and discourse on the administration of Islamic laws in this country to ensure that justice is done.

We especially urge that the leadership sends a clear signal that rational and informed debate on Islamic laws in Malaysia and how they are codified and implemented are not regarded as an insult to Islam or to the religious authorities.

These issues may seem complex to many, but at the end of the day, it really boils down to this: as Muslims, we want Islamic law, even more than civil law, to meet the highest standards of justice, precisely because it claims to reflect divine justice.

Therefore, those who act in the name of Islam through the administration of Islamic law must bear the responsibility of demonstrating that justice is done, and is seen to be done.

When Islam was revealed to our Prophet Muhammad in 7th century Arabia, it was astoundingly revolutionary and progressive.

Over the centuries, the religion has guided believers through harsh and challenging times.

It is our fervent belief that, for Islam to continue to be relevant and universal in our times, the understanding, codification and implementation of the teachings of our faith must continue to evolve.

Only with this, can justice, as enjoined by Allah, prevail.

Sincerely,

1. Tan Sri Datuk Abdul Rahim Bin Haji Din
Former Secretary-General, Ministry of Home Affairs

2. Tan Sri Ahmad Kamil Jaafar
Former Secretary General, Ministry of Foreign Affairs

3. Tan Sri Dr Aris Othman
Former Secretary-General, Ministry of Finance

4. Tan Sri Dr Ismail Merican
Former Director-General, Ministry of Health

5. Tan Sri Dato' Mohd Sheriff bin Mohd Kassim
Former Secretary-General, Ministry of Finance

6. Tan Sri Dato' Dr Mustaffa Babjee
Former Director-General, Veterinary Services

7. Tan Sri Nuraizah Abdul Hamid
Former Secretary-General, Ministry of Energy, Communications and Multimedia

8. Tan Sri Dr Yahya Awang
Cardiothoracic Surgeon and Core Founder, National Heart Institute

9. Dato' Seri Shaik Daud Md Ismail
Former Court of Appeal Judge

10. Dato' Abdul Kadir bin Mohd Deen
Former Ambassador

11. Datuk Anwar Fazal
Former Senior Regional Adviser, United Nations Development Programme

12. Dato' Dali Mahmud Hashim
Former Ambassador

13. Dato' Emam Mohd Haniff Mohd Hussein
Former Ambassador

14. Dato' Faridah Khalid
Representative of Women’s Voice

15. Dato' Latifah Merican Cheong
Former Assistant Governor, Bank Negara

16. Lt-Gen (Rtd) Dato' Maulob Maamin
Lieutenant General (Rtd)

17. Dato' Noor Farida Ariffin
Former Ambassador

18. Dato' Ranita Hussein
Former SUHAKAM Commissioner

19. Dato' Redzuan Kushairi
Former Ambassador

20. Dato' Dr Sharom Ahmat
Former Deputy Vice-Chancellor, Universiti Sains Malaysia

21. Dato' Syed Arif Fadhillah
Former Ambassador

22. Dato' Zainal Abidin Ahmad
Former Director General, Malaysian Timber Industry Board

23. Dato' Zainuddin Bahari
Former Deputy Secretary General, Ministry of Domestic Trade, Co-operatives and Consumerism

24. Datin Halimah Mohd Said
Former Lecturer, Universiti Malaya and President, Association of Voices of Peace, Conscience and Reason (PCORE)

25. Puan Hendon Mohamad
Past President, Malaysian Bar
 

source: Malaysiakini

Wednesday, December 10, 2014

Should next of kin be given right to end life? Could money be a factor? -Advance Medical Directive

Published: Monday December 8, 2014 MYT 12:00:00 AM
Updated: Monday December 8, 2014 MYT 6:58:23 AM

Group calls for guidelines on issuance of directive

KUALA LUMPUR: Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism called for clear guidelines on the issuance of Advance Medical Directive (AMD).

Its president Jagir Singh said the next-of-kin of patients must also be clearly defined for better management of their cases.

“The decision of next-of-kin must also have legal protections to avoid any complications later,” said Jagir.

He said the AMD would be useful for patients who had pledged to donate their organs.

Malaysians Against Death Penalty & Torture (Madpet) coordinator Charles Hector, however, warned that certain parties could abuse the issuance of AMD.

He said patients could be persuaded to sign AMDs by doctors, hospitals, insurance companies and family members for their own benefits or interests.

Hector said many religions held strong beliefs on the right to life.

“Only God has the right over whether a person live or dies. Cutting off the life support on a patient is a man-made decision,” he said.

He said there were important considerations to be looked into over the acceptance of AMD.

“For example, if a patient falls into coma, it is a matter of uncertainty. 

“There are always chances of recovery. Nothing is certain,” he added.- Star,7/12/2014

MAS Act not tackling real issues’ - trade union blasts M'sian govt

 See earlier post: Now 37 groups have endorsed this statement Malaysian Airlines(MAS) Employees and Trade Union Rights at risk by new law being rushed through

 

MAS Act not tackling real issues’ - trade union blasts M'sian govt


PETALING JAYA - Malaysian Trades Union Congress (MTUC) has blasted the new Malaysian Airline System Bhd Act (MAS Act) which it said specifically targets the employees of the national carrier and have not addressed issues of lopsided contracts and mismanagement head on.

MTUC's Sarawak division secretary Andrew Lo pointed out that the MAS Act will take away hard earned retirement and termination benefits as well as bring the end of existing trade unions and associations representing the employees of MAS.

"Worse, it will tear up the existing collective agreement (CA) that was agreed upon between the unions and MAS," he said in a statement yesterday.

Under the MAS Act, he noted, that the new entity, Malaysia Airlines Bhd (MAB), will not be responsible for any monies due to employees, including termination benefits of at least 6,000 who will lose their jobs.

Lo warned that all 20,000 employees of MAS will naturally be terminated when the present entity cease to exist.

"It is expected that the new MAB will employ most of these, (except the 6000) MAS employees.

However, the terms and conditions will be entirely at the discretion of MAB," he said.

MAB will also pick and choose which employees and union leaders from MAS that it wants.

Lo said the employees who are terminated will also most likely not be able to recover retrenchment or termination benefits provided for in law as MAS's asset will be transferred to the new MAB.

"This is where it is most discriminatory and unfair as the Act allows for liabilities due to other creditors including those lopsided contracts be transferred to the new MAB. It is unacceptable to deny lower ranked employees their basic and minimal rights," he said.

Lo added that the creditors are further protected, as the Act requires MAB to appoint an independent advisor to review any re-negotiation of contracts.

"The independent advisor may take into consideration the interests of the (lopsided) creditors," he said.

"By targeting specifically the employees and trade unions, the government is barking up the wrong tree. Until the issue of mismanagement is addressed head on, any restructuring is unlikely to succeed." -Sundaily

 

In MAS revamp, crew union fears members, families left out in the cold

Published: December 5, 2014 09:34 AM(Malay Mail)

Nufam said the MAS restructuring will affect over 6,000 of the airline's employees and an estimated 30,000 families. — Picture by Saw Siow FengNufam said the MAS restructuring will affect over 6,000 of the airline's employees and an estimated 30,000 families. — Picture by Saw Siow Feng KUALA LUMPUR, Dec 5 ― Expecting widespread layoffs in the impending shake-up of Malaysia Airlines (MAS), one of the airline's staff unions has urged owner Khazanah Nasional Berhad to assure its members that their interests will be protected.

In a statement here, the National Union of Flight Attendants Malaysia (Nufam) said the MAS restructuring will affect over 6,000 of the airline's employees and an estimated 30,000 families.

"So how does Khazanah Nasional intend to help the families of those MAS staff members affected?

"The lower income employees in MAS have been dependant on basic medical benefits and their income to sustain their livelihood all these years... they have been supported by company's insurance and medical benefits but soon, all these will be gone.

"So how will they sustain these burdens if Khazanah Nasional were to lay them off completely?"

Nufam secretary-general Mohd Akram Osman asked in the statement.

Sovereign wealth fund Khazanah Nasional, which has nearly 70 per cent stake in MAS, plans to turn around the ailing flag carrier by trimming the labour force of some 20,000 workers to just 14,000, according to the plan announced on August 29 this year.

The national carrier was delisted in August after the fund offered to buy out its minority share for a total of RM1.38 billion to restructure MAS, which suffered two major aviation disasters this year, MH370 and MH17.

The total takeover is to cost Khazanah Nasional some RM6 billion.

Khazanah Nasional's 12-point turnaround plan for the national carrier, titled "Rebuilding A National Icon – The MAS Recovery Plan", also includes transferring all MAS assets to a new entity tentatively known as “MAS Baru” or “new MAS”.

Nufam said the airline should offer its employees options to leave voluntarily or be compensated in a deal based on their number of years in service.

The layoffs should be done in stages, the union added, and the airline management should clearly spell out its criteria in the selection process when absorbing old staff members into the newly-formed MAS entity.

Mohd Akram claimed that in a "turun padang" session with airline crew members, the management had failed to answer a number of questions, including on the selection criteria, and merely said that the employees would be picked based on "merit".

"What merits are they talking? These staff have been with MAS for more than 10 years and isn't that already proven of their loyalty with the company?

"We dread to see the job alternative plans given to them will match of what they have been getting as it may not be sufficient enough to cover their monthly expenses," he said.

He added that with the newly-proposed MAS Act coming into force soon, time is running out for the airline's employees.

"We urge Khazanah and the Ministry of Human Resources to mediate these issues and create a more holistic approach with the union and our cabin crew staffs who will be affected by the restructuring exercise," Mohd Akram said, adding that Nufam will be available at anytime to discuss the issue.

The MAS Act tabled in Parliament last week proposes that a new entity called Malaysia Airlines Berhad be set up to replace Malaysian Airline System Berhad.

Its draft also suggests special laws for the administration of the airlines and all subsidiaries in addition to stricter rules regulating airline unions.

While tabling the Act, Minister in the Prime Minister’s Department Datuk Abdul Wahid Omar said that all matters to be discussed and negotiated between Malaysia Airlines Berhad and unions will be by way of meetings.

The proposed bill also stated that resourcing and allocation of resources, assessment of employees, leave entitlement, working hours and scheduling of work, including flight time limitation and flight duty periods will be determined by the new entity.

Apart from Nufam, other unions representing MAS workers are the Malaysia Airlines System Employees Union (Maseu), Malaysia Airlines Employees Union Peninsular Malaysia, and the Malaysia Airlines Pilot Association.

Flight MH17 was shot down in Ukraine in July, four months after flight MH370, en route to Beijing from Kuala Lumpur vanished mid-air in March. The latter has yet to be found.

However, even before the mysterious disappearance, the carrier had racked up RM4.13 billion in losses over three years.
- See more at: http://www.themalaymailonline.com/malaysia/article/in-mas-revamp-crew-union-fears-members-families-left-out-in-the-cold#sthash.jmxPmQtF.dpuf

Thursday, December 04, 2014

Group of 24 wants MAS Bill scrapped (FMT)

Group of 24 wants MAS Bill scrapped
Suresh Kashuerin

| December 3, 2014

The fear is that MAB, the new company, is a “union-busting” exercise and will not employ all MAS employees once the latter ceases to exist.






KUALA LUMPUR: Twenty four organisations, groups and trade unions have called in a joint statement for the new MAS Bill to be scrapped. The statement described the Bill as a “union-busting exercise” which MPs did not have enough time to consider and is now already in Senate.

The Group of 24, represented by Charles Hector, Mohd Roszeli bin Majid and Pranom Somwong, demanded in the statement that the Government take immediate steps to implement three steps which they have formulated.

For starters, they want the immediate suspension of the process of making the Malaysian Airline System Berhad (Administration) Bill 2014 into law, or the putting into force of this Act, until all matters concerning the rights, future employment security, well-being and livelihood of the about 20,000 employees of MAS and their family is resolved and provided for.

“The future of the existing employee trade unions and rights must also be resolved,” said the trio from the Group of 24.

Secondly, that the Malaysian government respect and make worker and trade union rights a priority in this exercise to try to save the national carrier, MAS.

“The employees cannot be blamed for poor management that has put MAS in this financial predicament,” said the trio.

They did not address the issue of MAS unions being against the Air Asia-MAS Collaboration Agreement to save the latter from going under. The Agreement was reportedly terminated before the last General Election after the ruling Barisan Nasional feared that MAS unions, who claimed that MAS was a “Malay” company, would vote against it.

Thirdly, the Group of 24, wants the Malaysian government to guarantee that the right to regular employment until retirement will not be sacrificed “in favour of precarious employment relationship and practices to the detriment of workers, and their unions in this process of saving the national carrier”.


“We may have no objections to MAS and its subsidiaries being taken over by the Malaysian government, or vide a government owned legal entity provided that the rights of the workers and their trade unions are respected and preserved,” the Group of 24 hastened to add.


“The current Bill, however, seems to totally disregard the rights and welfare of existing employees of MAS and its subsidiaries, or their unions.”


Workers, unlike assets, cannot be transferred from one legal entity to another new legal entity, the statement noted.


All the employees of MAS will naturally be terminated when the present MAS ceases to exist, the statement pointed out, and the Bill is silent on whether the new entity, Malaysian Airlines Berhad (MAB), will employ all MAS employees without loss of tenure and benefits or will they be abandoned.


The Group of 24 fears that the Bill, as it stands, will see the end of all trade unions of current employees of MAS, mostly in-house unions of MAS employees, and also the end of enforceability of all collective bargaining agreements(CBA) with MAS.- FMT, 3/12/2014, Group of 24 wants MAS Bill scrapped


See earlier post: Now 34 groups have endorsed this statement
Malaysian Airlines(MAS) Employees and Trade Union Rights at risk by new law being rushed through

Wednesday, December 03, 2014

Malaysian Airlines(MAS) Employees and Trade Union Rights at risk by new law being rushed through (36 Groups)



Media Statement – 3/12/2014

Malaysian Airlines(MAS) Employees and Trade Union Rights at risk by new law being rushed through

We, the undersigned 37 organisations, groups and trade unions are appalled with the Malaysian government’s current attempt to pass a law that will seriously undermine worker and trade union rights of employees in the Malaysian Airline System Berhad (MAS), the operator of Malaysia’s national carrier. 

Not only will the consequence of the new law be loss of employment of all employees of MAS and its subsidiaries, but also the end of the existing trade unions and associations representing the employees of MAS. The law also opens the possibility of loss of regular employment until retirement, to be replaced by precarious forms of employment like fixed term contracts or other even more precarious forms of labour practices which even evades direct employment relationship by using of workers supplied by third parties.

Malaysian Airline System Berhad (Administration) Bill 2014 was tabled and 1st reading was on 26/11/2014, the 2nd reading was on 27/11/2014 and was speedily passed by the Dewan Rakyat on 27/11/2014. Now, it is on the agenda of the first day of the Senate sitting on 1/12/2014, and scheduled for second reading the following day. There was really no time for anyone, including parliamentarians, to even study it, let alone comment or object to this Bill before it was speedily rushed through and passed in the Lower House of our Malaysian Parliament.

Now, the object of the Malaysian government is clear – they want the national carrier, MAS, now owned by the Malaysian Airline System Berhad, a government linked company, that is having financial problems to be taken over by a new legal entity which will be known as Malaysian Airlines Berhad in an effort to save the airline. 

We may have no objections to MAS and its subsidiaries being taken over by the Malaysian government, or vide a government owned legal entity provided that the rights of the workers and their trade unions are respected and preserved. The current Bill, however, seems to totally disregard the rights and welfare of existing employees of MAS and its subsidiaries, or their unions. 

Workers, unlike assets, cannot be transferred from one legal entity to another new legal entity. Thus, all the employees of MAS will naturally be terminated when the present MAS seeks to exist, and the Bill is silent on whether the new entity, Malaysian Airlines Berhad, will employ all these MAS employees without loss of tenure and benefits – or will they be abandoned with no employment?

The Bill makes it most clear that Malaysian Airlines Berhad(MAB) will be a new entity, and will not be an ‘assignee or transferee or a successor  employer’(Clause 26). MAB shall also not ‘be liable for any obligation relating to any retirement plan or other post-employment benefit plans in respect of the employees  or  former  employees…’, It shall also not be ‘liable for any sum which is calculated by reference to  a  period  of  time  prior  to  Malaysia  Airlines Berhad becoming  the  employer  of  the  person  in  question.’
 
‘The  Malaysia  Airlines  Berhad,  the  appointer  and  the Administrator  shall  not  be  named  as  a  party  in  any  claim or  application  made  or  joined  as  a  party  in  any  proceeding commenced  or  continued  by  or  on  behalf  of  any  employees  or former  employees  of  the  Administered  Companies  pursuant  to the  Industrial  Relations  Act  1967  [Act  177],  Employment  Act 1955 [Act 265], Sabah Labour Ordinance 1950 [Sabah Cap. 67], Sarawak Labour Ordinance 1952 [Sarawak Cap. 76] or the Trade Unions Act  1959  [Act  262].’ This means that MAB or the Administrator will not step into the shoes of MAS, or be liable, even in cases, including pending cases, between employees/trade unions and MAS. This will result in not just in loss of rights under existing labour laws, but also will result in employees and trade unions having to bear all loss of monies, time and effort sustained this far in the pursuance of justice.

MAB will be able to employ whoever and under what terms and conditions, as is stated in Clause 25, which states, ‘Malaysia Airlines Berhad may, in its  sole  discretion, offer employment to any person who immediately before the date of that offer is in the employment or service of the Administered Companies on such terms and conditions as the Malaysia Airlines Berhad  may  determine.’. The LIFO (Last In First Out) principle when it comes to employee reduction in cases of retrenchment can be ignored here, and there is every possibility that those worker and union leaders, and workers who stand up for rights, may all just not be employed by MAB.

Now, most of the 20,000 employees in MAS enjoy stable regular employment until retirement, but now the new MAB may use precarious forms of employment like short-term contracts, or even use the contractor for labour system to get third parties to supply workers without entering into a direct employment relationship with these workers at the airline. 

The Bill, as it stands also will see the end of all trade unions of current employees of MAS, most of which   being in-house union of MAS employees, and also the end of enforceability of all collective bargaining agreements(CBA) with MAS. There seem to be an implied indication that future employees of MAB will enjoy the right of freedom of association and have trade unions. 

The provision in the Bill may mislead some into believing that the existing trade unions of MAS employees will continue to exist once MAB takes over, but clearly this is not the case, Clause 28 is talking only about ‘any trade union duly recognized by the Malaysia Airlines Berhad’ and ‘any  association  recognized  by  the  Malaysia  Airlines Berhad’ – which implies that employees may have to once again form new unions and once again go through the process of seeking MAB’s recognition. Hence, this can be perceived to be a ‘union busting’ exercise done by way of the enactment of a new law.

Whilst Clause 14 says that ‘…any person is under a contract or obligation to provide goods or services or both…’ if retained, may be ‘at the same rate  as  would  have  been  paid’ by MAS may also cover employees but alas considering the later clauses that deal specifically with employees, MAB, even if they do employ former employees of MAS may not be paying the same wages. MAB will have the legal authority to stipulate new wages, benefits and terms. 

Usually when a company is wound-up, what is due and payable to the employees is amongst the first to be settled, and as such this Bill is even more detriment to employees of MAS as MAB is freed of all these obligations to workers. Employees who are terminated will also most likely not be able to recover retrenchment/termination benefits provided for in law as MAS, even if it still exists, may most likely be devoid of capacity, assets and monies, and MAB, according to this Bill, clearly has no obligation to be responsible for MAS’s obligations to its workers.

The secrecy and the blitz manner in which this Bill has been tabled, passed and being made law is also wrong, when there really should have been prior discussion and agreements especially with regard the 20,000 over employees of MAS and their trade unions, who now are in a precarious position uncertain even about the future wellbeing and livelihood of these workers and their families.

We call for:-
a)      The immediate suspension of the process of making the Malaysian Airline System Berhad (Administration)  Bill  2014 into law, or the putting into force of this Act, until all matters concerning the rights, future employment security, wellbeing and livelihood of the about 20,0000 employees of MAS and their family is resolved and provided for. The future of the existing employee trade unions and rights must also be resolved.

b)      The Malaysian government respect and make worker and trade union rights a priority in this exercise to try to save the national carrier, MAS, for after all employees can reasonably not be blamed for poor management that have put MAS in this financial predicament.

c)       The Malaysian government to guarantee that the right to regular employment until retirement will not be sacrificed in favour of precarious employment relationship and practices to the detriment of workers, and their unions in this process of saving Malaysia’s national carrier.

Charles Hector
Mohd Roszeli bin Majid
Pranom Somwong

For and on behalf of the following 37 civil society groups, trade unions and organizations

Angkatan Rakyat Muda Parti Rakyat Malaysia (ARM-PRM)
Cambodian Human Rights and Development Association- ADHOC
CAW (Committee for Asian Women)
Community Action Network (CAN), Malaysia
CWI Malaysia (Committee For A Workers International  Malaysia)
Hawaii Center for Human Rights Research & Action  (HCHR2A) 
Human Rights Ambassador for Salem-News.com, UK 
MADPET (Malaysians Against Death Penalty and Torture)
Malaysian Physicians for Social Responsibility
Migrant Care, Indonesia
Migrante International
MTUC (Malaysian Trade Union Congress)
MTUC Sarawak on behalf of 28 affiliates union in Sarawak
National Union of Flight Attendants Malaysia (NUFAM)
National Union of Transport Equipment & Allied Industries Workers (NUTEAIW)
Network of Action for Migrants in Malaysia (NAMM)
Parti Rakyat Malaysia(PRM)
Pax Romana-ICMICA Asia
Perak Women for Women Society (PWW)
Persatuan Kesedaran Komuniti Selangor
Persatuan Sahabat Wanita, Selangor
Pusat KOMAS (KOMAS)
School of Acting Justly, Loving Tenderly and Treading humbly (SALT)
Tenaga Nasional Junior Officers Union (TNBJOU)
Workers Hub For Change (WH4C)

ALIRAN
Kesatuan Pekerja-Pekerja Mitsui Copper Foil
MHS Employees Union
Sahabat Rakyat Working Committee
Clean Clothes Campaign
Association of Maybank Executives
Knowledge and Rights with Young People through Safer Spaces (KRYSS)
National Union of Journalist(NUJ) Cawangan Utusan Melayu
Kesatuan Eksekutif AIROD
MTUC Selangor dan Wilayah Persekutuan
MTUC Pahang 

Club Employees Union Peninsular Malaysia

See earlier posts:- 

All MAS employees set to lose their jobs when the MAS Admin Bill becomes law, and a new entity MAB takes over the national carrier?

MAS Admin Bill - even all existing Unions in MAS are at risk?

MAS Bill - Hansard for 27/11/2014 not out - Senators may be forced to debate the Bill today without benefit of knowing what happened in Dewan Rakyat?