Worker
and Trade Union Rights in BN-ruled Malaysia
- A pro-business
government that undermined worker rights, welfare and livelihood -
Under the rule of the UMNO
led coalition, today known as the Barisan Nasional(BN), worker and trade union
rights have suffered significantly. ‘Eight
hours labour, Eight hours recreation, Eight hours rest’ is a right that many
workers in Malaysia have lost. Minimum wages, a norm in most developed and
developing countries, is something that is still denied to Malaysian workers.
Existing worker rights in law have been slowly eroded and accesses to justice
have not been made effective and simple for the workers. Even obligations as to
rights provided in law are still being taken away by the granting of
applications by employers whilst denying the fundamental right to be heard or
objections before decisions are made. Minister’s decisions are held to be final
and uncontestable in court. Workers are being weakened when union leaders are
now allegedly being dismissed simply because they criticized their employers –
not because of work performance or work-related misconduct.
The right to permanent
employment until retirement today is being replaced by short-term fixed
duration employment relationships, whereby most of these short-term employment
contracts are for one year or less, with no guarantee of renewal. Since 2005,
with the emergence of the ‘outsourcing concept’ which started for migrant
workers, now expanded to local workers, traditional just employment
relationships between those that own and control the workplace, who have work
and need workers to do the required work, is also being withered away with the
introduction of manpower/labour suppliers who now supply workers whilst
continuing to be the employers even after the said workers start working at and
for the workplaces, factories and offices of the principal. In short, these new
‘employment relationship’ introduces a third party and allows principals and
owners to now just utilize the labour free of employer obligations to the
rights and welfare of the workers. We shall be looking briefly at the situation
of worker and trade unions in Malaysia, but not all, to determine this current
government’s performance when it comes to worker rights and welfare.
Erosion
of Right to ‘Eight hours labour, Eight
hours recreation, Eight hours rest’
Action taken by stonemasons
on 21 April 1856, followed by many other worker struggles ultimately led to the
establishment and maintenance of the Eight Hour Day, that is now recognized
internationally, and this right was also given a high priority by the
International Labour Organization (ILO) since its creation in 1919. [i]
The slogan ‘Eight hours labour, Eight
hours recreation, Eight hours rest’ captures the essence of this
struggle. Likewise in Malaysia, this right is to be found in our Employment Act
1955. Any work beyond 8 hours would be construed as overtime work, and this
required the consent of the worker and also entitled the worker to be paid
extra, at a rate usually not less than one and half times his hourly
rate of pay.[ii]
But in 1989[iii],
the government amended the law allowing for the Minister to waive these rights
as to required hours of work, on the application of the employer, but retained
the condition that no worker is required to work for more than forty-eight
hours in one week, which subsequently was removed by yet another amendment in
1998[iv].
What was obviously missing
was the requirement of the prior agreement of the worker and/or the relevant
union, , let alone the right to be heard, before decision are made that allowed
the employer to deny workers this long
struggled for right that limits the required hours of work. The law now
provides that after that decision is made, ‘… any person who is dissatisfied
with any decision of the Director General … may, within thirty days of such
decision being communicated to him, appeal in writing … to the Minister, and
any decision or order of the Minister shall be final, thus shutting the door to
judicial review – being the court's authority to examine an executive or
legislative act and to invalidate that act if it is contrary to constitutional
principles and justice.
There is also an absence of
clear provisions in law that requires the provision of any notice whatsoever to
workers and/or their unions when the said applications are being made by
employers to the Director General, and as such decisions are being made by the
government without workers being given the right to be heard. At present such
‘permissions’ are not even publicly and openly disclosed even in the relevant
Ministry’s website. No guidelines and/or simple forms are provided for as to
how workers can appeal these decisions, and given that the appeal must be in
writing, there being no provision of any right to be heard orally, workers and/or
unions, with no required language capabilities or knowledge in law are
certainly prejudiced by this present procedure of protest and appeal. Remember,
there are about 2 million migrant workers in Malaysia, most of whom do not have
the capacity to read and write Bahasa
Malaysia, let alone write to the Minister.
The employment law provides
minimum rights for all workers in Malaysia, but these rights can so easily and
‘secretly’ be denied to workers as the Director General of Labour permits
employers to do so, with no prior notice or right to be heard given to workers.
Similar provisions are available all over the Acts providing for various worker
rights to be taken away.
As it stands, now workers
may be required to work long hours, even more than ten hours per day, and even
more than 48 hours per week – so what exactly is the limit. The employers also
can require their workers to work on rest days and even on public holidays, and
for some workers do even have to work on May 1st, Workers’ Day. Some
companies do not stop operations, and workers are continuously working in their
respective shifts and this also prevents workers from meeting and/or organizing
unions and/or developing collective demands. Workers on day shifts, some
starting at 8.00 am and ending at 8 pm would not even have the opportunity to go
to the Labour Department to lodge complaints, and in Malaysia most of the
avenues of complaints and justice for workers only operate in the usual working
hours. The same is the case with national/regional unions and the MTUC office,
National Human Rights Commission(SUHAKAM) and even the Legal Aid Centres
operated by the Malaysian Bar.
Minimum
Wages
Well in most developed and
developing countries, minimum wages for workers have long been fixed by governments
and laws. India, for example has had a
Minimum Wage Act since 1948. Other examples include Indonesia[v],
Thailand[vi],
Vietnam[vii],
Philippines, India, Hong Kong, United States of America[viii],
Australia[ix],
New Zealand[x],
Canada[xi]
and United Kingdom[xii].
Malaysian government however has been avoiding the fixing of minimum wages,
despite repeated calls being made by the Malaysian Trade Union Congress(MTUC)
and workers for several decades. Even after August 2010, when the government’s
own Human Resources Ministry's study of 1.3 million Malaysian workers found
that a shocking 34 percent earned below the poverty line income of RM750 per
month[xiii],
the government has failed to even propose, set, let alone recommend a minimum
wage until now. At the same time, the government continued to implement
measures including reducing subsidies that resulted in an even higher cost of
living – more suffering for the worker. Now, our Prime Minister, just before
the upcoming General Elections, is promising that there will be an announcement
about minimum wages on Labour Day 2012.
Fast Track: Average Wages and Allowances for Local Workers
According to
Manufacturing Sector Sub-Industry SUB-INDUSTRY
|
BASIC WAGES (RM)
|
FIXED ALLOWANCES
(RM)
|
GROSS WAGES (RM)
|
Electric & Electronic
|
547.82
|
202.16
|
749.98
|
Furniture
|
679.12
|
94.80
|
773.98
|
Plastic
|
636.19
|
136.55
|
772.74
|
Glove
|
565.14
|
169.96
|
735.10
|
Textile
|
613.99
|
116.53
|
730.52
|
AVERAGE TOTAL
|
626.76
|
135.46
|
762.20
|
Source:-
Ministry of Human Resources Official Blog [http://www.mohr.gov.my/blog/table1.pdf]
Malaysian government, obviously
committed to neo liberalism and free trade is today perceived to be
pro-employer, inclined to ensure that cost of labour is kept low and workers in
Malaysia are ‘problem-free’ – all this allegedly to keep Malaysia competitive
in drawing in foreign investors into the country to open up their factories and
businesses.
To this end, Malaysian
government may have also interfered with market forces that would reasonably
have improved wages, work benefits and conditions of workers by the introduction
of migrant workers, temporary and casual workers into the labour market, and
also introducing policies and laws that had the effect of weakening worker and
union bargaining rights.
Stagnation
of Worker Rights and Erosion of Justice for Workers
Since 1955, the Malaysian government
seems to have not created new rights or improved much on existing minimum
worker rights. They also failed to improve access to justice. If an employer
cheats the worker by non-payment of agreed wages, overtime and/or makes
wrongful deductions, the worker who succeeds in the Labour Department or Court
at the end of the day only gets the amount that he was deprived off, not even additional
interest or cost including the cost of transportation, the cost of taking leave
and hence loss of daily wages usually when he attends court, and the cost of a
lawyer and/or union representatives. When workers want to meet and seek advice
or help even from MTUC officials, workers will have to pay them a nominal sum
of about RM60 per meeting. At the end of the day, for the lowly paid worker, it
becomes more practical that they do not claim their rights, and the errant employer
gets off scot-free.
For employers, the law
favors them for even when finally it is proven that they have violated worker
rights, all that is required of them is to pay the worker what they should have
originally paid their workers. As an example, section 100(1) of the Employment
Act states:- “Any employer who fails to pay any of his employees wages for work
done by his employee on a rest day or pays wages less than the rate provided
under section 60 commits an offence, and shall also, on conviction, be ordered
by the court before which he is convicted to pay to the employee concerned the
wages due for work done on every rest day at the rate provided under section
60, and the amount of such wages shall be recoverable as if it were a fine
imposed by such court.” This certainly is not just and does not deter employers
from breaking the law. It would maybe have been more just and a deterrent if
the errant employer is ordered to pay at least 3 times the sum that he cheated
the worker.
In the Employment Act, there
is also no provision that protects worker that complaints or accesses the
avenues justices from being terminated and/or discriminated by reason of the
fact that he is claiming rights against the employer. It is thus not uncommon
that workers that complaint or claim rights are summarily terminated and for
the migrant worker, it is worse for a termination will also be the loss of the
legal right to remain in the country to claim or to continue pursuing their
claims compounded with the fact that migrant worker will also not be allowed to
work with any other employer even if he is allowed to stay.
Discrimination based on
gender also happened when the courts recently affirmed practice of a company
having different retirement age for men and women workers, and the Government
was silent despite the fact that this certainly goes against our own Federal
Constitution guarantee of equality.
Industrial
Courts – Only court which requires the Minister’s permission
When it comes to workers
claiming wrongful dismissal seeking reinstatement, they have to lodge their
complaint at the Industrial Relations Department(IRD), and if the dispute
cannot be resolved, it is then referred to the Minister who then has the power
to decide whether the case be referred to the Industrial Court for trial or
not. The issue is why the Minister’s permission is even needed, for when a matter
cannot be resolved between employee and employer at the IRD, then should it not
be immediately referred to the Industrial Court. The placement of this
additional hurdle in a worker’s quest for justice is not only unnecessary but
may also be discriminatory.
Now, the law also provides
that if any party is dissatisfied with the decision of the Minister, they may
go to the High Court to challenge that decision but unlike the Labour Courts
and Industrial Courts, the High Court there will award of cost against the
losing party, and this can be high and for the ordinary worker, who already
have been wrongfully dismissed, this may be an added financial risk which is
just unaffordable. Justice, I believe, requires the removal of risk of having
to pay cost in all worker/union – employer disputes in any court.
As of February 2008, workers
successful in their claim for wrongful dismissal saw the entitlement to wages
and benefits, drastically slashed when in lieu of reinstatement all they could
get was restricted to a maximum of 24 months wages, based on just their last
drawn salary less a percentage of post-dismissal earnings. Prior to this their
entitlement was for wages and benefits from date of dismissal until judgment
and other matters. This was certainly an anti-worker pro-employer amendment.
There is still no Industrial
Courts in Pahang, Trengganu, Kelantan, Kedah, Perlis, Melaka, Negeri Sembilan
and Selangor. Why did this government not ensure that there are Industrial
Courts in all major and medium sized towns, preferably no further than 50
kilometers from the workplace to ensure easy access to justice for workers.
Today, after 50 over years since independence, we see Industrial Courts only in
Kuala Lumpur, Penang, Ipoh, Johor Bahru, Kota Kinabalu and Kuching.
Weakening
of Trade Unions and worker’s bargaining powers for better rights
In Malaysia, as of January
2012, the employed labour force is about 12.4 million, and out of this only about 798,941(6.44%) workers are members
of trade unions, of which about 53% are private sector workers, 38% public
sector workers, and 9% workers of statutory bodies/local authorities.
After 50 over years of
independence, it is obvious that this Malaysian government have not been
actively promoting the formation of trade unions, and more recent policies
seems directed towards further weakening
of trade unions. Electronic workers, for example, have still not been allowed
by this government to form a national union until this day, and the only
concession made after years of struggle was in 2010 when BN allowed the
formation of 4 regional unions in the Peninsular.[xiv]
Amongst workers, this
government have been seen to be preference for workers in the public sector,
statutory bodies and local authorities unions in terms of wage increases, COLA
and other benefits, but the primary motive may not be the rights and welfare of
workers, but a motive to woo of these workers for support in ensuring the continued
political power of this UMNO-led coalition, but today these perks and ‘special
treatment’ of these workers may no longer translate in blind and total loyalty
to the BN. Close to elections perks may have worked before, but today the
people including workers in the public sector have awakened from their slumber,
thanks also to the availability of more information not just from alternative
media in Malaysia but also exposure to international media and information, and
they will vote in the upcoming elections as they please.
NUMBER OF TRADE UNION MEMBERSHIP BY GENDER IN MALAYSIA,
YEAR 2006-MARCH 2012
YEAR
|
NUMBERS OF TRADE
UNION
|
TOTAL
|
MALE
|
FEMALE
|
2006
|
631
|
801,585
|
484,016
|
317,569
|
2007
|
642
|
803,212
|
485,306
|
317,906
|
2008
|
659
|
805,565
|
486,978
|
318,587
|
2009
|
680
|
806,860
|
487,679
|
319,181
|
2010
|
690
|
803,289
|
485,747
|
317,542
|
2011
|
697
|
800,171
|
482,653
|
317,518
|
MARCH 2012
|
695
|
798,941
|
481,374
|
317,567
|
Source: Department of Trade Union Affairs website
The entry of short-term
contract employment, temporary and/or casual employees at workplace, all of
whom by the very nature of their employment contract and the ease at which they
may find their employment ended simply by the non-renewal of their employment
contract have made these workers generally less inclined to form, let alone
join and actively participate in trade unions. The fact that unions often hold
general meetings and elect leadership once every 3 years also denies workers on
short-term contracts from real active participation in the unions and makes
unions irrelevant to them.
Compounded with this, the
emergence of a new class of workers, who are not even employees of the
principal or owner of the workplaces, commonly known as ‘outsourced workers’,
who automatically cannot join in-house unions or even regional/national unions,
and certainly cannot rely on Collective Agreements, being agreements between
employers and worker-employees only has certainly further weakened existing
trade unions and worker-employees in terms of their bargaining powers. With no
law limiting the percentage of ‘outsourced workers’ at a workplace, some
factories today has a workforce made up of about 50% are outsourced workers.
The Trade Union Act also
provides that when a worker has been terminated, he automatically will cease
being a member of the trade union, and as such when a worker union member
really needs the support, solidarity and assistance of the trade union, he/she
is legally deprived of this and likewise, the union’s hand is also tied by this
provision is the Trade Union law that is certainly anti-union.
Of late, there has been an
increase of highlighted cases where workers who are active in their trade
unions are being dismissed, and the reasons advanced by their employer is that
they have brought disrepute and/or insulted management of their employer-company.
We have the case of Hata Wahari, then also the President of the National Union
of Journalist, and more recently the case of NUBE honorary treasurer Chen Ka
Fatt and vice-president Abdul Jamil Jalaludeen were dismissed on January 31,
believed to be linked to their participating in a rally outside the United
Nations building in Geneva where they held a banner saying “Maybank robs poor
Malaysian workers”.[xv]
Can’t workers and their unions protest and speak out against their employers?
When these happened, more so in these companies, that I believe are
government-linked or controlled companies, the failure of the Minister or the
government to come out against the dismissal of workers or trade unionist is
indicative of where this government stands with regard to workers and trade
unions. Workers should generally not be terminated save by reason of
non-performance of their job and/or some infringement/breach at the workplace
or related to work. It is wrong to start dismissing workers just because they
criticize their employers. Would workers who now wear T-shirts with words
alleging rights violations by their employers also be terminated? Is this what
our government wants, is that employees even when they struggle for their
rights are not to make any statements or remarks against their unreasonable or
‘bad’ employers, or even the government?
Erosion
of the permanent employment rights
Permanent employment is a
basic right, essential for the wellbeing and welfare of the worker and their
families. One’s employment usually determines where one will settle-down, buy
homes and land, where one’s children will school and even where one’s spouse
will find employment. With short-term contracts, it also is stressful for the
worker not knowing whether at the end of his contract period, he or she will
still be employed at the workplace.
In our employment laws, what
was clearly envisaged was permanent employment until retirement, and this also
is evident in our Employment Act 1955 by provisions that provide for increase
of entitlements to annual leave, sick leave and even the calculations of
termination and lay-off benefits which considered years of service in its
calculations. Even when it comes to retrenchment, there was the Last In First
Out (LIFO) policy, that protected workers with longer periods of service, and the
law also imposed the obligation on employers to first attempt to find
alternative employment within the workplace before having to let an employee
go.
This right to permanent
employment has systematically been replaced with short-term or fixed duration contracts
of employment, which lasted one year or less, with no guarantee or safeguard of
a renewal of employment contract even if the employer still needs workers at
the end of the contract period.
For those, who already were
permanent employees, employers used various means to destroy this relationship
and to replace it with short-term contracts. One methods used was the
outsourcing of work to 3rd parties, hence forcing employees to leave
and enter new contracts with these new employers or face retrenchment.
Another method that was
employed in Malaysia was the Volunteer Separation Schemes (VSS), which the
government also encouraged, and many workers lost their permanent employment
only to be back working with the same employer but this time under short-term
contracts.
Public sector employees also
lost permanent employment with pension rights, when privatization happened and
continues to happen.
Employers now can very
easily get rid of workers who are older, ‘problematic’ by reason of maybe
demanding rights or even involvement in union activities, women who are
pregnant, workers who have been partially disabled by reason of some industrial
accident by just not offering them a new contract of employment. It effectively
diminishes workers’ ability to fight for better wages, working conditions and
other employment benefits.
Of late, there has been the
introduction of temporary or casual employees, which interestingly also gave
the Minister absolute power to reduce worker rights guaranteed by the parent
Act for these workers, without first having to go through Parliament.
Having different classes of
workers at the workplace strengthens the ability of employers to ‘divide and
rule’ workers – hence greater powers to control workers, and at the same time
weaken powers of workers to make demands for better rights.
Usage
of ‘bonded’ controllable easily abused Migrant Workers
Whilst initially, the wooing
of Multi-National Corporations(MNCs) to set up factories and businesses in
Malaysia was governed by the primary object of to get employment and income
earning opportunities for its people, this seems to have changed and rights and
welfare of workers and their families no longer seems the priority – rather the
well-being and profits of companies.
Initially, Malaysian government
started opening Free Trade Zones near the bigger towns, and workers from all
over the country came to work but as time went by and wages remained low, cost
of living increased and the quality of life declined, workers started moving
back to their home towns and new workers were less inclined to come.
As such, the government
started to move these factories all over Malaysia to where the workers and
their families were, and today in Malaysia there are over 200 industrial
estates, free commercial zones and free industrial zones spread all over the
country.
As time went on, Malaysian
workers started wanting better wages and working conditions, but rather than
succumbing to these demands and making sure that wages, conditions and work
benefits improved, Malaysian government came to the assistance of employers by
bringing in more controllable and cheaper labour – migrant workers, who were
also bound to work with one employer only and this too enabled employers the
ability to oppress these workers, for after all if the migrant worker was
unhappy, the only choice he had was to quit and return back to their home
country but that was not a real option for them who would have also spend a lot
of money and incurred debts when they chose to come to Malaysia as migrant
workers.
Access to justice is
available to migrant workers just like any other worker, but when they
complained of rights violations or started using these legal mechanisms, the
response of many employers was simply termination and work passes/visas will
still be cancelled, and they can no longer remain legally in the country and as
such the loss of right to pursue their claims in the Labour Courts and other
avenues. To stay on in the country ‘illegally’ came with it the risk of being arrested,
detained, charged in court, convicted, whipped, and thereafter deported. The
fact that they have valid claims or have lodged complaints in relevant avenues
for justice is irrelevant.
Hence, migrant workers
became a preferred source of labour for many employers – bonded and forced to
work for the one employer, so very easily forced to work overtime, rest days
and even public holidays, so very easily cheated of their rights and benefits
who really have no real option or avenue of complaint of remedy in the home country,
and so easily gotten rid off.
Initial knee-jerk ‘protest’
by some local workers and their unions, quickly gave way to worker solidarity
and Malaysian workers and trade unions, including the MTUC began to accept migrant workers as workers,
and started also fighting for their rights as workers, and also as migrant
workers. The unions accepted migrant workers as members of trade unions,
irrespective of the fact that one of the conditions of these migrant worker
work pass/visas denied them the freedom of association. The unions, including
the MTUC, were ready and willing to take the matter to court if any employer,
or the Malaysian government, contested the right of migrant workers to join
unions or benefit from Collective Agreements – but they were never forced to do
so.
Besides migrant workers, the
Malaysian government also created other classes of workers – temporary and
casual workers, and their differences from ordinary workers kept them divided
from other workers, and also not joining existing unions.
Using
Just Labour Without Employment Relationship or obligation to protect worker
rights
But then, even short-term
contract workers, migrant workers or the other types of workers were still
employees of the factory and workplaces they worked at, and employers still had
duties and obligations as employer to ensure that the rights and welfare of
these worker-employees as contained in existing national laws, and also
collective agreements.
What if employers could just
use the labour without entering into an employment relationship with these
workers? That way employers can totally avoid all obligations placed on
employers to recognize and protect rights of their worker-employees as provided
for in law and also other international standards.
So, on about 2005, the
Malaysian government came up with a policy that allowed factories and
workplaces to use workers, without having to enter into any employment
relationship with these workers. A new entity was created called ‘outsourcing
agents/companies’, who would be labour/manpower suppliers, who would be supplying workers to factories and
workplaces, who unlike private employment agencies (governed by the Private
Employment Agencies Act 1971) will be considered employers of these workers,
and will continue to be the employer of the workers even after they are
accepted by and start working at factories and workplaces, and these workers
were commonly known as the ‘outsourced workers’. Now, this policy and practice,
I believe, was contrary to existing law and principles, and interestingly the
Ministry that issued the license/permits to ‘outsourcing agents/companies’ was
not the Ministry of Human Resources but the Ministry of Home Affairs – and this
was not right. This practice, in the beginning, applied only to migrant workers
but later was slowly extended to local workers, and today in some factories,
about 50% of the workforce is made up of these ‘outsourced workers’ – who not
being employees of the factory and/or workplace, also cannot join workplace
unions and/or benefit from Collective Agreements. Effectively, existing
employee-workers and their unions were weakened.
The ‘Outsourcing
agents/companies’, was a very profitable business with little or no risk, even
from their ‘employees’ who even if they were to strike would not affect these
manpower suppliers (‘contractors for labour’) for after all they have no
factories and no work that needs the worker’s labour to generate any profits.
Some say, that with all that talk about ‘approved permits’(AP), this just these
‘outsourcing agents/companies’ were the new way of enriching cronies and
friends of those in power. Factory for 1 worker per day pays the ‘outsourcing
company’ RM60, they pay the worker maybe about RM30, and that means profit of
RM30 per day – and for thousand workers per year that would be over RM9
million. For these new ‘Labour Toll Operators’, profiting from the sweat and
labour of workers is certainly a gold-mine.
In 2010, the Malaysian
government took steps to give statutory recognition to this adulterated unjust
employment practices and relationship. They wanted to give legal recognition to
these ‘contractors for labour’ – these manpower suppliers. They wanted to
confirm that the contractor for labour is the employer, and remains the
employer of these ‘outsourced workers’ even after they start working in the
workplaces of principals. All these was achieved, despite strong protest coming
from workers, their unions, MTUC, civil society groups not just from Malaysia
but also internationally, when the amendments proposed was passed, and came
into effect on 1/4/2012.
The use of ‘outsourced
workers’ or outside workers at workplaces by principals are growing, and it
also happens in government-linked companies. For example, the TNB Junior
Officers Union also recently in 2012 protested the employment and use of
‘outsourced workers’ by TNB.
The Minister of Human
Resources recently announced, an exemption[xvi]
of some (but not all) of the recent amendments concerning ‘contractor for
labour’ to all sectors save the agricultural sector, but if you look at the
words used, it was just a reaffirmation of ‘contractors for labour’ and the
continued use of ‘outsourced workers’ by principals who are not taken as their
employees.
What this Malaysian
government did to the workers and employment relationships in Malaysia, was
contrary to the even the sentiments and principles governing employment
relationships of even the International Labour Organization. Our own Employment
Act also clearly states that “the person
or class of persons employed, engaged or contracted with to carry out the work
shall be deemed to be an employee or employees and (a) the principal or owner
of the agricultural or industrial undertaking, constructional work, trade,
business or place of work; or (b) the statutory body or local government
authority, shall be deemed to be the employer”. Rightfully all involved in
the business of finding and supplying workers must be private employment
agencies, governed by the Private Employment Agencies Act 1971, who for their
services will be paid a fixed one-time fee, and will thereafter have no other
relationship, let alone employment relationships, with the workers after they
are accepted and started working for the principal who thereafter will be the
principal’s employees.
The protest by the MTUC and
workers continue. The Malaysian Bar also in 2012 passed a Resolution
unanimously calling also for the maintenance of just 2-party employment
relationship between workers and the principal to the exclusion of all 3rd
parties, especially the ‘contractor for labour’ – whether they are called
labour/manpower suppliers or outsourcing companies/agents. All existing
‘outsourced workers’ should immediately be considered and treated as employees
of the principal, and at any workplace there must be just one class of workers
all of whom are employees of the principal, who can join the unions at the
workplace and fight as one for better worker rights and benefits.
The
way forward
At the end of the day, we
see that this UMNO-led coalition, today known as the Barisan Nasional, who have
ruled since Malaysia’s independence in 1957, seemed to have lost their way
abandoning their duties and obligation to improve rights and welfare of
persons, workers and their families, and became pro-employer pro-businesses. By
their actions and/or omissions slowly but surely worker and trade union rights
have been eroded. The government need to immediately stop being pro-employer
and businesses, and concerned with profits, and do the needful immediately to
restore rights of workers to permanent employment until retirement, strengthen
trade unions which is an essential tool for the protection and improvement of
the livelihood of workers, and most importantly maintain the 2-party employment
relationship that is driven not by money and profits, but the common good and
wellbeing of all persons. Recent protests by workers have been ignored, and as
such all we can say is that this Barisan Nasional government have not only
failed workers and their unions, and worse still is not showing any intention
of changing their ways.
In the upcoming elections,
Malaysian workers and their families, will again have the opportunity to get
rid of this Barisan Nasional government, and let a new coalition of political
parties to win and form a new government in the hope that a new government will
do the needful not only to stop this erosion of worker and trade union rights,
but to restore some of the rights workers in Malaysia have lost. The choice
ultimately rests with the people and the workers, and upmost in their
consideration would be the future of rights, welfare and livelihood of workers
and their families, including also the children who will be future workers. Our
concern must not be driven by self-interest based on workplace or sector,
ethnicity, nationality, religion, culture or even current political
affiliations, but by a concern for the future common good and best interest of
all persons and their families which includes the over 10 million workers in
Malaysia.
Charles Hector
4th
April 2012
* This article was published ALIRAN in 2 parts
2012: 5 » Worker and trade union rights in BN-ruled Malaysia (Part 1)
2012: 6 » Workers’ and trade union rights in BN-ruled Malaysia (Part 2)
[i] The Preamble to Part
XIII “Labour” of the Versailles system of peace treaties, under which the ILO
was established, specifically included “the regulation of the hours of work,
including the establishment of a maximum working day and week” among the
measures urgently required to improve conditions of labour. Convention Limiting
the Hours of Work in Industrial Undertakings to Eight in the Day and
Forty-eight in the Week (Note: Date of coming into force: 13:06:1921.)
[ii] Section 60A 3(a)
Employment Act 1955
[iii] Employment
(Amendment) Act 1989 Act A716
[iv] Employment
(Amendment) Act 1998 Act A1026
[v] Minimum wages for
industrial zones in Jakarta – USD230 (RM701) per month
[vi] In Thailand, for
Bangkok and six provinces, the minimum wage was just recently raised to 300
baht (US$9.76)(about RM30) per day effective from April 1, 2012.
[vii] In Vietnam minimum
wage ranges from VND1,400,000 (US$67.34)(RM205) per month in remote areas to
VND2,000,000 (US$96.20)(RM293) per month in the key cities of Hanoi and Ho Chi
Minh City
[viii] $7.25(RM22) per hour
(as of July 24, 2009) but may vary in certain situations
[ix] Australia's minimum
wage is $15.51(RM49) per hour or $589.30(RM1,867) per week generally.
[x] New Zealand - The
adult minimum wage increases from $13.00 per hour to $13.50(RM34) from April
1st 2012.
[xi] Canada – between
$9.27(RM28.6) to $11(RM33.9) per hour in 2012
[xii] United Kingdom -
£6.08 (RM29.7) per hour - for workers aged 21 and over
[xiii] Malaysiakini, 5/8/2010, Study: 34% of workers earning below poverty
line
[xiv] Star, 1/5/2010,
Electronics workers to get 4 regional unions soon – “…“It was the decision of
the Cabinet on May 27 last year that only unions at regional level would be
allowed, unlike the national unions for the other industries,” he[the Western
Region union general secretary Bruno Periera ] said in a statement…”
[xv] HarakahDaily,
7/2/2012, Declaring 'war on Maybank', NUBE lodges report over staff dismissal
[xvi] Any
person that enters into a contract for service with a principal to supply the employees required by the
principal for the execution of whole or any part of any work for the principal
in any industry, establishment or undertakings other than the agricultural
undertakings is exempted from sections 31, 33A, 69 and 73 of the Act. –
Employment (Exemption) Order 2012 dated 27 March 2012. – P.U.(A) 87
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