If the Minister only listened to workers and unions, no need for Nov 3 MTUC nationwide picket

Our Human Resource Minister again comes out and states that the amendment is meant to protect worker rights - and I cannot agree with it, and would now respond to the Minister's reported statement, and quick short comments are in red...

Using Manpower Contractors Aimed At Protecting Workers' Rights - Subramaniam

KUALA LUMPUR, Nov 1 (Bernama) -- The government's move of creating manpower contractors to provide workers for employers under the Employment (Amendment) Bill 2011, is aimed at protecting workers' rights.

1 - What are the worker rights that are presently not being protected by the current Employment Act 1955, that you are going to protect? At present, the law protects worker rights - permanent employees, those under fixed-duration contracts...even part-time employees - so, what worker rights exactly is not being protected that you are trying to protect. Every employer of workers are duty bound not just to maintain a register of their employees - but to also immediately inform relevant authorities (Labour Department, EPF, Income Tax, SOCSO, Workmen's Compensation) as and when they employ a new worker...and there is really no additional protection of worker rights that will come about by this amendment - but the reverse is true as workers and unions will be losing some of their rights (or will suffer an erosion of their rights)

2 - There is no need for creating 'manpower contractors' - there are already Private Employment Agencies, governed and regulated by the relevant Private Employment Agencies Act, and these agencies are in the business of finding workers for employees that need workers. [Maybe, the current fee structure of the Private Employment Agencies for the services they render may need to be amended when it involves migrant workers - but that is all. Presently, these agencies get a sum equivalent to 20 -25% salary of the 1st month's salary as their fee for the every worker they find for the employer...]

3 - Be honest Minister, your new 'manpower contractors' will not be supplying workers to employers, who will then be employees of the said employer - BUT your manpower contractors will be supplying their employees to the factories, and the workers supplied will remain employees of the manpower contractors - and not become employees of the workplaces that they are supplied to - and this is the MAIN OBJECTION to the proposed amendments. If it becomes law, then in a factory or a workplace, there will be a new class of workers - not employees of the said workplaces, but employees of these manpower contractors. (Your proposed new section 33a - indicates that the workers supplied will remain employees of your 'manpower contractors)

Human Resources Minister Datuk Seri Dr S. Subramaniam said it was not to institutionalise the system.

Big words, 'not to institutionalize the system' but what does it mean?

"As a control mechanism, the government through Section 2A of the Employment Act 1955 will formulate regulations specifically to list out the types of work now allowed through the hiring of manpower contractors to ensure the workers' welfare would be protected and to avoid manipulation by any quarters.

1 -  What is this proposed regulations so that we can see it and comment...., and by the way regulations are really meant to detail out exact procedural steps, etc - and should never be used to remove rights and privileges of certain classes and categories of workers just by Minister. On matters of rights...including excluding or including categories, it should always go through Parliament not be left to the Minister to decide as a matter of principle. Look at the ISA - the government says that it will not be repealed until the new law is also in place - should not the same position also be for workers...[Now, let us not forget that the government said in 2009 that they would amend the law to guarantee one rest day per week for domestic workers but until now nothing has happened] - In short, promises of doing something in the future by the Minister or the government really does not hold much weight..]

2- Also section 2A entitled 'Minister may prohibit employment other than under contract of service' is really that provision that gives the Minister the power to ensure that those who try to slip through loop-holes in the law and try to avoid direct employment relationships between the '... the principal or owner of that agricultural or industrial undertaking, constructional work, trade, business or place of work...' and their workers. 

Of course, the dangerous provision is section 2A(3) "(3) Notwithstanding subsection (1), the Minister may by order approve the employment of any person or class of persons by such other person or class of persons (not being the principal or owner) as he may specify but subject to such conditions as he may deem fit to impose..." - I wonder whether the Minister have been making orders allowing 'outsourcing agents', rather than principals and owners to be employers using this in the past... He may have been doing so...and he should come clean and tell us if he had been doing so...and we, in Malaysia will certainly be angry.

"This matter has been discussed with employers and workers' unions, and the feedback has been positive," he said after a dinner function with media representatives, here, tonight.

Again, he is being very very vague.... what workers' union is he talking about ...the NUPW? (who, by the way has still not come and said that they support the government's move to amend the laws..MTUC certainly is opposed to the amendment and let us not forget that MTUC is the de facto representative of all workers in Malaysia.  

Dr Subramaniam said the employers' representatives had in fact admitted that improvements were necessary to prevent malpractices by irresponsible quarters.

Again, the question is what 'malpractices' are they really talking about. Secondly, is these malpractices now mattes that could be dealt with by existing laws - tell us really, what 'malpractices' are not covered by law so we can include provisions in law that will deal with it specifically. 'Irresponsible quarters' - are these those employers that have been violating worker rights contrary to Malaysian law? Tell us what have you done so far - 'blacklisted' them?...  Or are you now just solving the problem by removing employers duties and obligations - by just making some other, i.e. manpower contractors (contractors for labour) into employers..

He said workers salaried through the manpower contractors could also join the workers' union at their workplace as there was no legal provision to prevent them from doing so.

- But, really Minister, who will the collective agreements and the negotiations be with - the owner/operator who effectively controls and supervises the worker's work...and is responsible for the conditions.  Remember one factory may be using many different 'manpower contractors'(or 'contractors for labour' or labour outsourcing agents) - so really, what you are talking is absurd. So will workers be sitting down negotiating with the owner/operator and a large number of these 'manpower contractors'? And, when a ''employee' of the manpower contractor is trying to lobby workers to join/form unions or protest - would not the owner/operator just tell the 'manpower contractor' to ...transfer/remove the said worker? What is to stop this?

So what about union of employees of the 'manpower contractor' - not possible for he supplies 20 here and 30 there and 50 here and maybe also in many different sectors - and his 'employees' will really never even get a chance to meet ...let alone unionize...and even so, which national sectoral union will they be part of? Here, the Minister maybe talking about 'possibilities' - but certainly it is not at all practical, is it...This amendment would kill unions - or weaken them to near ineffectiveness - and they would most likely be going the same way that NUPW is going ....from a big powerful union to an almost insignificant union...

"At the same time, the workers are also bound by the collective agreement agreed upon by the employer and union they have joined."

- but Minister, what is stopping the 'manpower contractors' from summarily transferring them out - how can you even say that employees of a third party working in a factory - be able to rely on the collective agreement between employees of that factory and their employer(the owner/operator of the factory).   

In the new amendment, there is no provision that says that these 'employees of the manpower contractor' will also be employees of the owner-operator/principal, is there? If there was this, and provisions that will prevent the removal of these workers from a particular workplace without due process - then things may be different. But that is not the case with the amendments you are trying to make, Mr Minister

For example, he said, there was agreement between the Malayan Agricultural Producers Association (MAPA) and National Union of Plantation Workers (NUPW) to cover workers supplied by the manpower contractors.

* That is good - but we have not seen it, and so does it also cover termination/retrenchment??? or even security of tenure in that particular estate???

"For this, the proposed amendment is management transformation to protect the rights and welfare of the workers and does not at all adversely affect the security of tenure or the future activities of workers' unions in this country."

Yes, it is 'management transformation' - to liberate true employers being the owner/operator(or principal) from the obligations and duties of an employer - they can now ignore worker's welfare - and will start treating workers no more as human persons, or a partner in the production process but merely as commodities to be used and discarded for the purpose of profit. Workers would be like other amenities - electricity, water,...

And, it has nothing to do with the protection of rights and welfare of the worker...Would owner/operator of factories/workplaces owe any obligation to the worker (who is an employee of some 3rd party) to provide for security of tenure?

Dr Subramaniam said the bill also provided benefits such as more maternity leave for women workers regardless of the wage limit, tackling sexual harassment, payment of wages through bank accounts, Hari Malaysia as compulsory public holiday and extending the Employment Act coverage to those workers earning RM2,000 monthly compared to RM1,500 previously.

We do not have much issue with a lot of these things ...but there is some protest about the fact that sexual harassment by employers will also be inquired into by a panel set up by the employer, and there is no provision for any remedy to victims.  There is protest about why employers can delay payment of overtime, work on rest days, etc for a month...Why limit the application of the Employment Act to only those earning RM2,000 - should it not apply to all workers - and practically maybe it should extend to all earning RM5,000?

On the picket planned by the Malaysian Trades Union Congress (MTUC) at 16 locations nationwide on Nov 3 in protest against the amendments to the Employment Act 1955, he said the MTUC should follow the regulations and conduct the protest peacefully.

I believe the more important thing that the Minister should do is to listen to legitimate representative of all workers, i.e. the MTUC, and also the voices of the Malaysian people who are going to picket just because this MInister and the government is not interested in listening to workers and the people of Malaysia...

The bill was passed in the Dewan Rakyat on Oct 6.

-- BERNAMA

The Bernama Report (without the comments are below)

Using Manpower Contractors Aimed At Protecting Workers' Rights - Subramaniam

KUALA LUMPUR, Nov 1 (Bernama) -- The government's move of creating manpower contractors to provide workers for employers under the Employment (Amendment) Bill 2011, is aimed at protecting workers' rights.

Human Resources Minister Datuk Seri Dr S. Subramaniam said it was not to institutionalise the system.

"As a control mechanism, the government through Section 2A of the Employment Act 1955 will formulate regulations specifically to list out the types of work now allowed through the hiring of manpower contractors to ensure the workers' welfare would be protected and to avoid manipulation by any quarters.

"This matter has been discussed with employers and workers' unions, and the feedback has been positive," he said after a dinner function with media representatives, here, tonight.

Dr Subramaniam said the employers' representatives had in fact admitted that improvements were necessary to prevent malpractices by irresponsible quarters.

He said workers salaried through the manpower contractors could also join the workers' union at their workplace as there was no legal provision to prevent them from doing so.

"At the same time, the workers are also bound by the collective agreement agreed upon by the employer and union they have joined."

For example, he said, there was agreement between the Malayan Agricultural Producers Association (MAPA) and National Union of Plantation Workers (NUPW) to cover workers supplied by the manpower contractors.

"For this, the proposed amendment is management transformation to protect the rights and welfare of the workers and does not at all adversely affect the security of tenure or the future activities of workers' unions in this country."

Dr Subramaniam said the bill also provided benefits such as more maternity leave for women workers regardless of the wage limit, tackling sexual harassment, payment of wages through bank accounts, Hari Malaysia as compulsory public holiday and extending the Employment Act coverage to those workers earning RM2,000 monthly compared to RM1,500 previously.

On the picket planned by the Malaysian Trades Union Congress (MTUC) at 16 locations nationwide on Nov 3 in protest against the amendments to the Employment Act 1955, he said the MTUC should follow the regulations and conduct the protest peacefully.

The bill was passed in the Dewan Rakyat on Oct 6.

-- BERNAMA, 1/11/2011, Using Manpower Contractors Aimed At Protecting Workers' Rights - Subramaniam