Finally the NUPW has come out and they say that the support the amendments of the Employment Act ...but reading what they say, I do not think that they really support this amendment at all - and really their primary concern will not be addressed by this amendment at all.
NUPW's primary concern is the registration of contractors and sub-contractors in the plantation sector
Navamukundan said the amendment essentially provides for registration of contractors, something which the union has, in its representation to the government, called for for decades.
“This amendment actually provides for registration of contractors....
No, it does not...and really what what NUPW is really concerned about is about contractors and sun-contractors of work - not these 'contractors for labour', as envisaged by this amendment.
In the plantation sector, some work is outsourced , like weeding where plantation companies contract out this work to contractors, who may then contract out portions to other sub-contractors, who bring in their workers to do just this work. Now, NUPW is worried about the workers of these contractors and sub-contractors, who apparently some are not registered - and some have also not been registering their employees.
In Malaysia, all these contractors and sub-contractors must be registered as companies, partnership and/or sole proprietors with the Registrar of Companies and/or the Registrar of Businesses - and if they are not, then they are breaking the law. Maybe we need a provision to say when companies outsource work to a third party, the said third party must be a registered company or business - not just some 'unregistered' individual operator.
Secondly, all employers must register their employees, be they full-time or part-time employees - maybe this is the amendment that should be inserted for apparently, according to the NUPW, some of these contractors (and subcontractors) in the plantation sector are breaking the law - and not registering their workers to the detriment of these workers when the try to claim their rights as workers...
Thirdly, it must be noted that the Employment Act at present also makes the owner-operator /principal (in this case the Plantations owner) also responsible for the workers of these contractors and/or contractors (who are 'contractors of work' NOT 'contractors for labour')) - and their liability extends to 3 months salary/wages. Yes, workers of these contractors/sub-contractors can claim from the principal for their wages for up to 3 months (see. section 33..). Currently liability of the principal is limited to ..."wages due to him for any three consecutive months" - should be extended.
(1) Where a principal in the course of or for the purposes of his trade or business, contracts with a contractor for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, and any wages are due to any employee by the contractor or any sub-contractor under the contractor for work done in the course of the performance of the contract, the principal and the contractor and any such sub-contractor (not being the employer) shall be jointly and severally liable with the employer to pay such wages as if that employee had been immediately employed by the principal and by the contractor and any such sub-contractor...
Today, in the plantation sector, more and more work is being 'outsourced' to contractors, who bring in their workers to do the work. Some of the smaller plantation companies, have even 'outsourced' almost all the work to these 'contractors' - who now do the weeding, tapping, collection and transportation of the rubber to the relevant processing factories...
Well, this is 'outsourcing of work' - similar to what Malaysian banks did when they outsourced internet banking, phone banking and even check processing to other companies, who then do the work.
This current amendment is not about contractors or sub-contractors of work, who do work that is outsourced to them by the principal. It is very different - these amendments are about 'manpower contractors' or 'contractors for labour' or 'labour suppliers' who after supplying the workers to the owner-operator/principal stay on as employers of the workers supplied... and this is something that NUPW is also against...
Navamukundan stressed that it was NUPW’s stand that where work is of a permanent nature, and not a one-time job, employer-employee relationship must be direct, that is, there must not be a contractor.
“We definitely don’t promote contractor for labour. Because through a contractor, the abuse is severe and serious,” he said.
The primary concern of NUPW is that many of the contractors, sub-contractors (and maybe even principals) do not register their employees...
He said there was one recent case where NUPW was alerted to an oil palm worker’s death, but the contract company denied having hired the man.
“It is a major problem when you can’t find out who is the contractor. The first answer the company gave us was ‘tak tau’ (we don’t know). It’s as if the person dropped from the sky and died. Nobody wanted to own up.
“Slowly, when my union officers continued to ask questions, everything came into place. Only then did the company say, ‘we would pay compensation’.”
So, how can we resolve this problem - which really is a breach of the existing law, that requires all employers to register their employee with the relevant agencies/authorities - Labour Department, EPF, SOCSO, Workmen's Compensation, etc - and the problem is lack of enforcement.
How can we better safeguard workers? Place the obligation also on the principal - to maintain records of all employees (be they part-time, casual or even one-day employees of contractors and sub-contractors of work), and to also provide these information to the relevant authorities. [Now the amendment does not do this]
Also may be wise to make principals also liable to the workers of contractors/sub-contractors for any infringement of rights, etc - with of course the right to later be indemnified by the 'real employer' being the contractor or sub-contractor for work.
To deter this practice by employers who are not registering their workers, which should be immediate or not later than 5 days, it should be made an offence with a serious penalty of maybe not less than RM10,000-00 per worker not registered.[Rewards for 'whistle-blowers' would also help - maybe RM1,000 (or 10% of the fine)]
To deter employers from breaking the law, not paying workers wages, overtime, etc - maybe it may be best to say that when they do break the law, they will be liable to pay 2 or 3 times what they should have paid the said workers (Currently, the law provides that once the claim is proven/admitted, employers only pay what they should have paid initially - this encourages the breaking of the law and cheating of workers... Say employer wrongly deducts RM100 from the worker's wages, he claims and finally it is shown that the claim is right - and the employer is ordered to pay the worker the RM100... this certainly does not deter employers from breaking the law, does it...?)
Plantation workers’ union backs amendments
The National Union of Plantation Workers (NUPW) supports amendments to the Employment Act 1955 because it will help stop outsourcing of labour.PETALING JAYA: The National Union of Plantation Workers (NUPW) is all for the amendments to the Employment Act because they say it will help outsourcing of labour.
NUPW’s executive secretary A Navamukundan said his union has been pushing for this for many many years.“We are not blindly supporting the human resources ministry; we were actually pushing for this for many, many years. We don’t want to argue who is right or wrong, but we want to do what is right for workers,” Navamukundan told FMT in an interview.
Navamukundan said the amendment essentially provides for registration of contractors, something which the union has, in its representation to the government, called for for decades.
“This amendment actually provides for registration of contractors. We welcome this amendment. We’ve asked for the registration of contractors and more than that, we want them to be licensed. This is because we understand the abuse which is happening on the ground,” he said.
Navamukundan stressed that it was NUPW’s stand that where work is of a permanent nature, and not a one-time job, employer-employee relationship must be direct, that is, there must not be a contractor.
“We definitely don’t promote contractor for labour. Because through a contractor, the abuse is severe and serious,” he said.
He said registration of such contractors now would provide transparency to start reducing the abuse of labour through contractors.
“Will the transparency help? Yes, it will help. What harm can you cause to the worker by registering them (contractors)? You say it will institutionalise contractors, but you must realise, it’s already there! Even if it is not in the law, it is being practised.”
Labour shortageNavamukundan said the “phenomenon” of contractors for labours “did not just happen yesterday”.
“Before independence, rubber was the dominant crop and second was oil palm. For a long time, in the plantation industry, the majority of the workers were employed directly by the employer. It was a direct relationship, there is no intermediary,” he said.
He added that when contractors come to estates, it was for one-time jobs such as replanting and the clearing of forests.
“But after the 60s, workers started to migrate to other industries. There was a labour shortage. Foreign workers were brought in and contractors were mobilised. Then the main industry became oil palm,” he said.
Navamukundan said today, the situation has become so serious that the bulk of the plantation workers are now engaged by contractors.
“This is where room for unfair labour practices can arise – contractors won’t pay wages, EPF, Socso; they set their own rules. This is because contractors for labour can circumvent the obligation of contract of service,” he said.
Citing the Selancar Empat “hell estate” which made headlines in the 80s, Navamukundan said that was a “classic” case of worker abuse.
“We need registration for contractors for the sake of transparency. Today, if you ask anybody how many contractors are there in any industry, nobody, including the department of statistics, has any record.”
Discretionary powers
He said there was one recent case where NUPW was alerted to an oil palm worker’s death, but the contract company denied having hired the man.
“It is a major problem when you can’t find out who is the contractor. The first answer the company gave us was ‘tak tau’ (we don’t know). It’s as if the person dropped from the sky and died. Nobody wanted to own up.
“Slowly, when my union officers continued to ask questions, everything came into place. Only then did the company say, ‘we would pay compensation’.”
Navamukundan said if the NUPW was not informed of the case, the person would be “as good as an unclaimed body”.
He said a provision currently exists under Section 2A of the Employment Act, where the ministry has discretionary powers to forbid employment through contract for a particular sector.
“But the process of documentation of contractors has always been a problem, so this order has hardly been invoked,” he said.
“This(amendment) is just a first step. We want the government to watch over the contractors.
“We hope that now we can ask, how many contractors are there in an estate and we can investigate abuses,” he said.
The revision of the Employment Act was passed in early October despite widespread protests. The proposed Bill now needs to be approved by the senate and receive royal assent, before it becomes law.
Various union groups have called the amendments a “return to slavery”, “anti-worker” and “anti-union”. The Malaysian Trades Union Congress (MTUC) had staged a picket outside Parliament and would be holding nationwide picket against the amendments today.
The human resources ministry, however, has defended the amendments, saying that it was not intended to promote or institutionalise contractors for labour. It said that it was to ensure workers’ rights were protected when all outsource agents were registered and monitored. - Free Malaysia Today, 3/11/2011, Plantation workers’ union backs amendments
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