Thursday, June 30, 2011
The Malaysian Barisan Nasional government is once again attempting to amend our Malaysian Employment Act 1955, vide the Employment (Amendment) Bill 2011, which will affect employment relationships that will certainly be detrimental to workers and trade unions in Malaysia.
In a factory/plantation/workplace there must be just one employer, being the owner-operator of the said factory, and all the workers working in the said factory are the employees of this employer. Hence, all the workers in this factory can form one union or association, and have direct dealings, negotiations and collective bargaining exercises with their employer about better working conditions and improved worker rights.
What the new amendment, if passed, would do is create a situation whereby the workers in a particular factory will no longer all be employees of the one employer, being the owner-operator, but where different groups of workers will have many different employers. A situation will be created where many of the workers in the same factory will no longer be employees of the owner-operator of the factory, and hence will no longer enjoy to be members of the union in the said factory, or have the right to negotiate or enjoy the ability to be involved or benefit from collective bargaining agreements with the factory. Their employer would be labour suppliers or ‘contractors of labour’ who supplied these workers to the factory, who really are third parties who are not even in the factory, let alone have the control or the power to do anything about improving working conditions or dealing with any work-related matters, which really is under the full control of owner-operators.
There will be now be a percentage, which could be a very percentage of workers, who work in factories who will no longer have a direct employment-relationship with their ‘real’ employer, the owner-operator. Even if they do raise grievances to the owner-operator of the factory about work related matters, the response of these owner-operator is that they are not the employers, and any grievances must be raised with their ‘contractor of labour’ employers.
Certainly, these situation of workers in a factory being employed by many different employers, some by the real owner-operator employer, and others by many different absent employers, being this newly legalized ‘contractors for labour’, and certainly would weaken workers’ bargaining powers and also their unions. ‘Divide and exploit’ would become the new norm, which will certainly be beneficial for owner-operator employers whose only concern is profits and not worker rights and welfare, and most detrimental to all workers in Malaysia.
The International Labour Organisation(ILO) has shunned the attempts of employers to evade or disguise employment relationship through various contractual, business arrangements and triangular relationships, and did not only come out with a Resolution concerning the employment relationship but has since then come out with numerous recommendations and guidelines to help unmask and/or determine who the real employer of these workers are. The employer is and always must be the owner-operator of the factory, where the worker really work, the person/entity who owns the tools of work, the person/entity who controls the place of work and supervises the actual work, the one whose product the workers makes/produces, the one who profits from what the worker produces. The employer can and should never be supplier of workers. Sadly, Malaysia is trying to legalize evasion of real employment relationship.