Thursday, October 27, 2011

3rd November MTUC's national picket - Should it just be MTUC or should others come out in support as well?

The issue surrounding the proposed amendments to the Employment Act is a matter of concern of all persons concerned with justice and human rights, not just the existing workers and/or the unions but also the families of workers now and in then future.

The government of Malaysia attempts to distract us from the real consequences of  the said amendment - claiming it is for the protection of workers, i.e. the contract workers. Well, this is not correct because the Malaysian Employment Act and other labour laws in Malaysia already sufficiently protect all workers - including contract workers (long-term and short term contract workers).

Now, any employer is already duty bound to inform the relevant labour department and agency when they do employ any worker, be they long-term contract workers, short-term contract workers, 'temporary' contract workers, local or migrant workers. They are also obligated to keep a register of all workers.

For local workers, additionally there is the need to inform the Income Tax Department, Employees Provident Fund(EPF) and SOCSO (Social Security Agency). Similarly, with foreign (or migrant workers) likewise, there is an obligation to inform the Workmen's Compensation and also get these workers the necessary insurances under the Workmen's Compensation Act, and more recently those contested medical/hospitalization insurance. The fact that employers are breaking the law - by non-compliance with existing law, including non-payment of agreed wages, wrongful deduction of wages, non-payment of other work benefits like overtime, work on rest-day/public holiday is a failure of enforcement on the part of the Malaysian government.

The real intention of the new amendments is to make 'labour suppliers'/contractors for labour/outsourcing agents into employers - hence the worker will end up being 'employees' of these 3rd parties - not the factories, plantations and other workplaces where they really do work. This intention was clear in the 2010 amendment, which clearly included this in the proposed amendment of the meaning of employer, which have been left out in the 2011 amendment, but by virtue of the proposed new section 33A has the same effect ...
33a. (1) A contractor for labour who intends to supply or undertakes to supply any employee shall register with the Director General in the prescribed form within fourteen days before supplying the employee.
Now, if the word used was not 'employee' but worker - then it may be alright, and better still if it is reenforced by the clear statement that the workers, thereafter become the employees of the principal (the factory,plantation, workplace, the end-user, the owner-operator). The government's worry that employers may not register their employees as required by law may require private employment agencies and/or 3rd party labour suppliers to inform the government when workers are being supplied could have been an additional mechanism for the government to thereafter catch employers who try to evade the law by not disclosing the names and details of their new employees... Yes, it can be just an 'additional mechanisms' - but really should that now be inserted in the Private Employment Agencies Act - not the Employment Act. Note, currently there is no law that regulates these new 'outsourcing agents' (these are really companies that received 'outsourced work' but those that in practice is supplying workers to principals). In my opinion, there is no need to create any new 'labour supply' companies - they should all fall under the Private Employment Agencies Act. This Act may require to be amended to cover migrant workers, and provide a schedule of fees payable by employers when they get migrant workers from these private employment agencies.

The government says that this amendment is being pushed through, despite the protest/objections of the MTUC that represents almost 800,000 unionized workers and is the de-facto representative of all other workers in Malaysia, by reason of the request of just one union, the National Union of Plantation Workers(NUPW) is so wrong. Government should not listen to just one union, and justify their actions. Now, the NUPW is allegedly a dying union, once maybe the biggest union in Malaysia, who apparently is now 'dormant' and have not been active in the MTUC for the past 10-15 years, whose membership now could be about 10,000 members only. I could not even find the NUPW website or blog, and the recent news items revealed
THE Malaysian Anti-Corruption Commis-sion (MACC) is set to investigate the National Union of Plantation Workers (NUPW) for alleged misapproriation of funds back in the 1980s, said Makkal Osai. - Star, 2/2/2011, MACC set to probe NUPW, says unionist

MTUC declares itself to be apolitical, and that is right for it should never be seen to be in 'blind' support of any political party, be they the current ruling BN or the Opposition party for its objective must all be to fight for the best interest of workers and trade unions. In this fight, while being 'apolitical' it must always welcome support and solidarity actions from all parties, not just political parties, who are fighting also for the good and welfare of workers in Malaysia. 

The MTUC has announced a nationwide picket on 3/11/2011 - and I hope that its leadership and member unions are currently running all over the country briefing, creating awareness and lobbying support for this publicly declared action. {It was depressing to see that the 3/10/2011 protest only was attended by about 100}. Alas, in the media or in MTUC's own website there is almost no information of the activities. As far as the mainstream media is concerned, it is to be expected as media agencies, many of which politically controlled and/or owned, being more inclined to be pro-government and/or pro-employer, may not carry any such news about worker struggles and/or actions by the union that goes against its position - which now seems to be to 'railroad' these pro-employer proposed amendments as fast as it can.

I believe that all justice loving Malaysians, and all members of  the global community of people must come forward NOW to stop these amendments from going through. If something becomes law in Malaysia, it takes a real long struggle to get it repealed...a real long time during which time workers will suffer and their unions made ineffective, weakened or even killed..

To pacify opponents to amendments, the government(or some of its officers) have allegedly been saying in private things like:---

a) That it is the principal, i.e. the factories, plantations, workplaces who will still remain the employer of all workers that work at these workplaces - but, if so, then this must have been clearly stated in the new amendments. Section 33a will clearly show that the labour suppliers are the employers of the workers they supply... [In fact, recent trends seem to show that the Malaysian government takes the narrow understanding that whoever pays the wages is the employer... and, if so if the principal pays these 'contractors of workers' (labour suppliers) who really have no control or supervision of these workers at the workplace, it will be these  'contractors of workers' (labour suppliers) who will be the employer - not the factory where they work.
b) that these amendments or the 'contractor for labour' will be confined to only some sectors by way of schedules to the Act - but alas, there is nothing in the present amendment that talks about this. Remember, there is no provision about confining it to limited sectors - or even setting a percentage of workers supplied by 'contractors for labour' that could be utilized at a workplace, meaning that soon it may just be 90-100% of workforce of these factories. The factory trade unions may be reduced to just having a handful of members. [Looking at the existing 'outsourcing agents' ("illegal and/or unregulated contractors for labour, in my opinion), they supply 50 workers to this factory, 30 to that plantation, 50 to this restaurant - and as such, it would be impossible for their workers to even meet, organize themselves and/or form unions - and what union would that be - a plantation worker union, a service sector union... ????]

All these things that the government is allegedly saying could have been included in this amendment but it was not. So, again I say that these are 'lies'...(until proven wrong) meant only to destroy resistance for the time being. Remember for the repeal of the ISA, the government is saying it would only do so when they table the 2 new laws to cover the effect. Likewise, if the government was similarly serious about worker rights, they would also make sure all the necessary parallel amendments and laws are in place...before trying to change employment relationship in Malaysia - by creating a new category of employer - i.e. the labour suppliers/contractors for labour, and removing the role, duty and obligations as employer from the end-user, principal, owner-operators as it is now and has always been since independence. 

The milk is about to be spilt - and that is why all of us must fight for justice to ensure that the amendments are withdrawn and not become law. If not, it will be too late and 'nasi sudah jadi bubur' (rice would have become porridge)...ACT NOW BEFORE IT IS TOO LATE..

October 25, 2011 18:54 PM
MTUC Is Apolitical, Says Its President

PETALING JAYA, Oct 25 (Bernama) -- The Malaysian Trades Union Congress (MTUC) will not seek the assistance of political parties for its present campaign of opposing some of the amendments to the Employment Act 1955, said its president Mohamad Khalid Atan.

Maintaining that the congress was completely apolitical, Mohamad Khalid said: "The MTUC affiliates are capable of conducting their own campaign for the benefit of their members."

He told Bernama Tuesday that the proposed nationwide picket on Nov 3 to protest against some of the amendments were within the law because the proposed changes would affect workers directly.

"MTUC's protest is nothing but a legitimate campaign to make lawmakers and the public aware of the dire consequences to workers should the amendments be adopted," he said.

Mohamad Khalid hoped the members of parliament and senators would carefully deliberate on the amendments before making a final decision.

The MUTC's main grouse is that the amendments in their present form would provide loopholes for employers to hire workers through third party agents.

"Through this system, the workers will have no permanent employer, thus exposing them to abuse ," he said.

BERNAMA, 25/10/2011, MTUC Is Apolitical, Says Its President

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