Monday, March 09, 2009

Malaysia's 'Foreign Workers First Out'(FWFO) principle is unconstitutional and discriminatory

When it comes to retrenchment, the general principle followed was 'Last In First Out' (LIFO) but today in Malaysia a new principle is emerging 'Foreign Workers First Out'(FWFO) - and the question is whether this is right.

Remember the highest law of the land is the Federal Constitution - and Article 8 (1) provides that 'All persons are equal before the law and entitled to the equal protection of the law...'. The word used is 'person' - and that clearly means it applies to both citizen and non-citizen.

Again Article 8(3), which uses the term 'person' states as follows: 'There shall be no discrimination in favour of any person on the ground that he is a subject of the Ruler of any State.' Does this refer to only the States in Malaysia - or does it refer to 'any State' as in any nation...any country? The word used is 'person', and not 'citizen' and as such it leans towards the interpretation that this applies also to foreigners.

There are stated exceptions in Article 8, where discrimination is permissible - but alas there is nothing that allows discrimination based on the fact that a worker is not a Malaysian national.

In the Employment Act 1955, Section 60N, it states:-

60N. Termination of employment by reason of redundancy.

Where an employer is required to reduce his workforce by reason of redundancy necessitating the retrenchment of any number of employees, the employer shall not terminate the services of a local employee unless he has first terminated the services of all foreign employees employed by him in a capacity similar to that of the local employee.

[Ins. Act A1026]

Thus, it seems that the FWFO principle seems to be coming from the Employment Act - but is not section 60N going against the Federal Constitution?

Section 60N is ultravires the Federal Constitution - and that FWFO principle is unconstitutional, and must be stopped.

Foreign workers who have been retrenched using this FWFO principle can possibly commence legal action against their employers - and be awarded damages.
Employers must retrench their foreign workers ahead of their Malaysian staff as they seek to weather the current economic slowdown, said Deputy Human Resource Minister Datuk Noraini Ahmad.

She reiterated that employers should adopt the Government’s foreign worker first out (FWFO) principle. - Star, 28/2/2009 - Retrench foreign workers first, employers told

Article 8 of the Federal Constitution is laid out in full belowto convince you that there is no provision there that justifies discrimination of workers based on their not being citizens:-

FUNDAMENTAL LIBERTIES

8. Equality.

(1) All persons are equal before the law and entitled to the equal protection of the law.

(2) Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.

[Am. Act A1130]

(3) There shall be no discrimination in favour of any person on the ground that he is a subject of the Ruler of any State.

(4) No public authority shall discriminate against any person on the ground that he is resident or carrying on business in any part of the Federation outside the jurisdiction of the authority.

(5) This Article does not invalidate or prohibit -

(a) any provision regulating personal law;

(b) any provision or practice restricting office or employment connected with the affairs of any religion, or of an institution managed by a group professing any religion, to persons professing that religion;

(c) any provision for the protection, well-being or advancement of the aboriginal peoples of the Malay Peninsula (including the reservation of land) or the reservation to aborigines of a reasonable proportion of suitable positions in the public service;

(d) any provision prescribing residence in a State or part of a State as a qualification for election or appointment to any authority having jurisdiction only in that State or part, or for voting in such an election;

(e) any provision of a Constitution of a State, being or corresponding to a provision in force immediately before Merdeka Day;

(f) any provision restricting enlistment in the Malay Regiment to Malays.


1 comment:

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