Friday, March 16, 2012
In plantation, what happens is 'outsourcing of work' - DIFFERENT from the usage of 'outsourced workers' by Plantations
The National Union of Plantation Workers(NUPW) was at one time one of the biggest trade unions in Malaysia, but today it is almost dead. Why? Because of outsourcing of work to 3rd party contractors generally.
This is DIFFERENT from this issue of 'Contractor For Labour' and the using of 'outsourced workers' by Plantation companies without making them their employees, hence not capable to join NUPW or benefit from Collective Agreements...
In the Plantation sector, what Plantation companies did was 'outsourcing of work'
- The weeding work of the plantation was given to outside contractors, who then came and used their own workers to fulfill their contractual obligations.
- The work of tapping and bringing in the liquid rubber was similarly outsourced to one or more contractors, who then will use their OWN workers to do the tapping and rubber milk collections and then deliver to a specific collection point, where these are collected and then sent to the factories for processing
- The same system was also used with regards to oil palm
- In some plantations (the smaller ones usually), the Plantation companies staff/employee have been reduced to a handful - who are there just to ensure/confirm amount of rubber milk/scrap delivered or oil palm fruit delivered.
- Some plantation companies may have even outsourced their factories as well...
Now - this is NOT an issue of the 'contractor for labour' or a case where 3rd party labour/manpower suppliers are supplying plantation companies with 'outsourced workers' who then do the work (just like what an employee did before) under the control and supervision of the Plantation company...for this is what the MTUC, workers, unions and civil society is objecting to..
Note that some of the bigger plantation companies, however may be using 'outsourced workers' supplied by 'contractors for labour' - without assuming the obligation and duties of an employer. This is what the MTUC, workers and unions are protesting..
The Malaysian government did not disclose this differences which is material...and while there is currently no protest to 'outsourcing work' to outside contractors, there is still a strong protest about the using of 'outsourced workers' by the principal or plantation owners without assuming their rightful role, duty and obligation as EMPLOYER - hence avoiding employment relationship.
With regard these contractors, who get and do this 'outsourced work' - did the pre-amendment Employment Act 1955 cover them and their workers - YES, it did, just like any other employer-employee situation. Note that the duty of maintaining employee registers is already there in the law, likewise the duty with regard to SOCSO, EPF, etc. If the Minister says that these workers were being denied their rights, then the fault lies in the Ministry and the Labour Departments for not enforcing existing laws...NUPW's concern was that many of the employees of these smaller contractors who had got 'outsourced work' from Plantation Companies were not getting their worker rights as provided in law...and the solution was enforcement - not amending the law, which really is done for a very different pupose, i.e. to legitimize 'contractors for labour, to further the avoidance of employment relations - by stating in the Act that the workers supplied remain employees of the 'contractor for labour' and not become employees of the principal or owner of the workplace.
[*The word employee and worker in Malay is 'Pekerja' - this confusion assisted the government.
**By always using the term 'contract workers' (or 'pekerja contract') confusing between workers of contractors, those under fixed term contracts, etc - again there was confusion - for the issue was really about the workers referred to commonly as 'outsourced workers' - being the one's supplied by 3rd party who do not become employees of the place of work. Why did the government not use 'outsourced workers' - but persisted to use 'contract workers'? Was it intentional for the reason to confuse.
*** The other confusing term used was 'outsourced' - for 'outsourcing of work' is already an accepted term - Why call the 'contractors for labour' - outsourcing agents/companies? Why call the workers supplied 'outsourced workers'? Would it not have been clearer calling them labour/manpower suppliers and the workers supplied by these 3rd parties.
Governments to confuse use certain words to confuse - and likewise even the Opposition MPs in the debate about the amendment got 'confused' - read the Hansard(minutes of the Dewan Rakyat proceedings) and the confusion is apparent]