Sunday, March 09, 2014

MAS may have good safety record but poor human rights/worker rights respect?

MAS is facing yet another problem - this time a missing flight with about 239 on board..,

MAS is again facing financial problems - after so much money that Malaysians have 'pumped' in to help MAS, they are still facing problems. In my opinion, the problem is poor administration, 'corruption' maybe... 

MAS has also been in the news for violation of worker and trade union rights....


MAS is against workers' right to have an effective Union - in this case, it is  National Union of Flight Attendants Malaysia (NUFAM). Union President terminated. Union Secretary General facing disciplinary proceeding. About 30 others facing disciplinary action. About 3 - 4 flight attendants also terminated.MAS is challenging the recognition of the Union after it had proved that it had the support of over 62% of the qualified employees. Allegedly, MAS is now saying that the flight attendants that voted were confused, not knowing what they were voting for - so lame, if it is true.[Have not seen the application proper, and thus do not have full understanding why the recognition and 'secret ballot' is being challenged by MAS]

In Malaysia, Unions must first be registered - and then before they can negotiate and work out a Collective Bargaining Agreement, they must seek the recognition of the Union by the employer.

This is a tedious process, and if the employer does not recognize the Union - then the Director General of Industrial Relations(Ministry of Human Resources) steps in to conduct a secret ballot to determine whether the Union has sufficient support from the qualified employees of the said employer. MAS refused toi accord recognition to the Union - so a secret ballot had to be conducted.

Before the secret ballot, the Union and the employer concerned, has to agree to the list of qualified employees, and after this is done, then the secret ballot would be conducted.

In the case of NUFAM, after the secret ballot was conducted, 62.73% of the qualified employees voted to be represented by NUFAM. The Union needed more than 50%  - it managed to get 62.73%. 

The unfairness of the secret ballot is that those that did not manage to cast their votes would be considered those that voted against Union - and in this case, it would have been expected that many flight attendants would not have been able to vote as they were in the airs in MAS flights. YES, it is not like General Elections, where all that matters is the votes cast. [This is a pro-employer law that needs to be amended so that only votes cast are considered just like any other elections by ballot. In fact, if the Union is able to prove that it already had sufficient members(i.e. more than the required 50%), it should be recognized without the need for any secret ballot]

MAS, after the results of the secret ballot was announced, is now allegedly challenging the recognition of NUFAM - It has filed an application to the High Court. This is unconscionable, and the only reason an employer would do this is to delay the right of the Union to enter in a Collective Bargaining Agreement. What is sad is that this is the first time, I have heard of any employer challenging the recognition after a secret ballot. This makes MAS a bad example as an employer. 

For issuing a media statement, that was reported in the press, NUFAM's president was first suspended and then terminated. Should it not be an obligation and a right for the Union or its president to issue a statement? Should it not be the right for the Union or its president or any worker to highlight injustice and wrong doings of the employer? But, sadly MAS did not recognize these fundamental rights and terminated the President without even a Domestic Inquiry. A Domestic Inquiry is a right, where this would ensure natural justice be served, and the worker the right to defend himself against the alleged misconduct that he is charged with/

The alleged allegation was participating in an 'illegal gathering' at the Ministry of Human Resources - well, the police did not consider it an illegal gathering. The Ministry did not consider it an illegal gathering. But, MAS made this allegations. Clearly, it send a wrong message - i.e. that workers cannot raised their grievances, their complaints and their opinions to even the Minister and the Ministry responsible for matters concerning worker/trade union rights.


Then there was the disciplinary actions commenced against workers for comments that they made in their Union Facebook group - What is wrong with MAS? Can't workers have their privacy? Can't they express their opinions to their fellow workers? What is MAS trying to do, can't workers highlight injustices, alleged rights violations or their opinion to one another, to their friends and family, or even the public? After all, workers when they picket(which is legal), highlight their plight to the public and call for their support. If there was a 'defamation', this should never be a misconduct for which a worker should face disciplinary action. The right course of action, in my opinion, is a legal suit against the said worker or Union for defamation - but a good employer would not even do this but just clarify any 'wrong statement' made by workers for after all, workers may not be privy to all the facts, and they may have said something based on just matters they knew.

Can a worker/Union call for the removal of a management staff, who they perceive is derailing or is an hurdle to the employer correcting injustices and rights violations? I would say YES - the employer, the company, the Directors and the shareholders must be informed of such matters. Being MAS, all Malaysians also have a right to know more so since this is a government-linked company, and we, Malaysians, have spend our monies to bail out this company before. We all have a right to know. 

Malaysia respects worker and trade union rights - but alas some, like MAS, is acting inconsistent with this policy/principle. The silence on the part of the Prime Minister and the government to speedily intervene and ensure respect of worker and trade union rights is paramount, and 'silence' or failure to do anything just gives the perception that this government is just not bothered with worker and trade union rights. 

Some say, it is alright, for after all what MAS is doing is according to law and the courts will ensure that if there is any wrong, it will be made right eventually. But, I say that this is the wrong approach, more so since court proceedings just take too much time...and all these time workers terminated suffer with their families, workers are being denied rights for way too long...The employer, in comparison, suffers they really benefit - they get rid of strong worker/union leaders, they 'silence' freedom of opinion and rights seeking, they destroy the will of workers to struggle for rights and against injustice... and this is not right. Justice delayed is justice denied.

Our media, especially the mainstream, also gives no (or very little) space for workers/Unions to have their proper say, ....

A good employer would have accorded recognition without requiring a 'secret ballot' - but a bad employer would just try to delay recognition, hence delaying Collective Bargaining Agreement with better rights/benefits for workers.

A good employer would restrict Misconduct to just work performance and work-related matters whilst a bad employer would try to dis-empower workers by termination, threats, etc ...with the hope that their workers will be docile and easily exploitable with no protest.

Joint Statement – 3/2/2014 (Now 54)
Malaysian Airlines Must Respect Trade Union and Worker Rights
Cease Anti-Union activities against NUFAM and its members
We, the 54 undersigned civil society groups, trade unions and organizations are disturbed by the news that Malaysian Airlines(MAS), a government linked company continues to violate worker and trade union rights. Recently, MAS commenced disciplinary action against Mohd Akram bin Osman, the Secretary General of the National Union of Flight Attendants Malaysia (NUFAM), and 30 other NUFAM members. The show cause letter dated on or about 14/2/2014 asked why disciplinary action should not be taken against them by reason of their participation in an ‘illegal’ gathering on 27/11/2013 at the Ministry of Human Resources in Putrajaya. 
On 17/2/2014, Mohd Akram received yet another show cause letter with new allegation, and he has been suspended with half pay. 
The National Union of Flight Attendants Malaysia (NUFAM) is a registered trade union, and it had sought recognition from Malaysian Airlines, the employer of some of its members. Recognition is a legal requirement in Malaysia before an employer can be compelled to sit down, negotiate and agree to a Collective Bargaining Agreement(CBA). When MAS rejected the application, the Director General of Industrial Relations(DGIR) conducted a secret ballot which involved all qualified employees, and NUFAM succeeded in getting 62.73% of the votes, and thereafter on August 2013, the DGIR issued the formal letter acknowledging NUFAM as a recognized union. It must be noted that in Malaysian law, MAS, as employer, would have had to agree on the list of qualified employees entitled to vote before the secret ballot, and as such challenging the result and the subsequent recognition of the Union is bad.
Sadly, on 4/10/2013, MAS challenged the decision of the Minister to accord recognition to NUFAM, and filed a Judicial Review application in the High Court. MAS also allegedly applied for an interim stay order thus depriving NUFAM the ability to move forward towards a Collective Bargaining Agreement(CBA).
On 29/11/2013 MAS wrongly terminated Ismail Nasaruddin, the President of NUFAM, without even having a Domestic Inquiry, hence denying him the right to be heard and a fair hearing. Ismail was first suspended and then terminated allegedly by reason of a statement he issued in his capacity as President of NUFAM, which appeared in the media, which amongst others stated :- ‘…NUFAM Secretariat said it is calling on the prime minister to review Jauhari's contract and remove him as the CEO of MAS, which is a government appointed position, unhappy that there has been no changes in resolving the cabin crew's problems…’ It also raised other worker issues (The Sun Daily, 8/11/2013, NUFAM calls for resignation of MAS' CEO).
MAS send him a show cause letter on 8/11/2013, which also immediately suspended him. Thereafter, Ismail received another letter terminating him on 29/11/2013. According to a Malaysiakini report, it is alleged that MAS said Ismail had acted in contradiction with his duties as a chief steward of the airline by issuing the statement.(Malaysiakini, 14/11/2011, MAS suspends chief steward for criticising CEO). This is absurd as the statement was issued in the capacity of a Union President, not a mere employee whereby even an ordinary employee should never be denied his freedom of opinion or expression.
In response, 43 civil society groups and trade unions, including the International Trade Union Confederation(ITUC), issued a Joint Statement on 3/12/2013, entitled, MAS Must Immediately Revoke Suspension of Union President Ismail Nasaruddin Worker Right Issue Should Be Resolved By Negotiations Not ‘Union Busting’. 
Then, in December 2013, disciplinary action was taken by MAS against about 10 NUFAM members allegedly based on comments made by them in their NUFAM Facebook Group. They were all suspended, but thankfully the disciplinary action seem to have been discontinued against 9. However, one Flight Attendant Ms Farahtina Kassim is still suspended from her flying duties since 8th December 2013 and even though she is now receiving full wages, she is being deprived of her flying allowance which constitutes a substantial sum of her ordinary take-home income. 
Now in February 2014, the show cause letter is against some 30 employees. The most recent allegation of participation in an ‘illegal gathering’ at the Human Resource Ministry is absurd given the reason that it a fundamental right for workers and/or their unions to file complaints and make representation to the government, including the Human Resource Minister. There has also been no known report or actions taken by the police or relevant authorities that indicated that any ‘illegal gathering’ even took place on 27/11/2013 at the Ministry. In any event, even if workers went to the Ministry not during their working hours, MAS certainly cannot make this a worker misconduct. Being convicted of serious crimes may be a basis for commencement of misconduct, but here there seem to have been no arrest, investigation or even prosecution at all. One also wonders whether there is ‘mala fide’ on the part of MAS to suddenly in February 2014 to issue show cause letter with regard to things that happened in November last year.
On or about 14 February 2014, Ms Farahtina Kassim and 3 others were terminated.
It is suspected that the timing of these recent actions by MAS may have been because the MAS’s judicial review at the High Court challenging of the recognition accorded Minister to NUFAM was fixed for 18/2/2014, which now has been adjourned to 27/3/2014. 
Taking into consideration all these actions of MAS, it is difficult not to come to the perception that MAS is on a ‘union-busting’ mission, which also includes persecution of Union leadership and those active in NUFAM.
Malaysia, being a member of the international community, must also act in accordance with International Standards including Ruggie’s Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework , whereby in cases of government-linked companies like MAS, the obligation is even greater. The Guiding Principles do state that “States should take additional steps to protect against human rights abuses by business enterprises that are owned or controlled by the State, or that receive substantial support and services from State...”. 
No worker, group of workers or unions should be barred from making public statements to the media or otherwise in the struggle for worker rights and human rights. This right is clearly acknowledged in the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, commonly known today as the UN Human Rights Defender Declaration.
We call on Malaysian Airlines to immediately cease all ‘union busting’ activities including the commencement and continuation of disciplinary actions against members and potential members of NUFAM.

We call on MAS to immediately discontinue the High Court action challenging the recognition of NUFAM, and to immediately sit down and work towards a Collective Bargaining Agreement with NUFAM.

We call again on MAS to immediately and unconditionally reinstate Ismail Nasaruddin, the president of the Union, Ms Farahtina Kassim and the 3 other flight attendants that have been terminated.

We call on MAS to recognize and respect worker rights including the freedom of association and the right of qualified employees to join the Union.

We call on the Malaysian government, being also a member of the International Labour Organization (ILO), and also having substantial influence in MAS, a government linked company, to ensure that worker rights and union rights are respected by MAS.

We call on Malaysia to immediately amend or repeal all laws that hinder or delay the speedy formation of trade unions and entry into Collective Bargaining Agreement with employers. 
Senator Syed Shahir bin Syed Mohamud
Charles Hector
Mohd Roszeli bin Majid
Pranom Somwong
For and on behalf the 52 organisations listed below
All Nepal Federation of Trade Unions
AMRC, Hong Kong.
Cambodian Human Rights and Development Organization- ADHOC
Centro De Reflexión Y Acción Laboral (CEREAL)
COAC (Center for Orang Asli Concerns), Malaysia
Committee for Asian Women, Bangkok
Community Action Network(CAN), Malaysia
CWI (Committe For Workers International) Malaysia
Damn the Dams
Dignity International
FARR(Friends' Association for Rural Reconstruction) Orissa, India
Human Rights Ambassador for , UK
Kesatuan Eksekutif AIROD
Kesatuan Eksekutif Canon Opto (Malaysia) Sdn Bhd
Kesatuan Pekerja-Pekerja Perodua
Kesatuan Pekerja-Pekerja Dalam Perkhidmatan Perubatan Dan Kesihatan Swasta
Kesatuan Pekerja-Pekerja Polyplastics Asia Pacific(KPPAP), Malaysia
Kesatuan Sekerja Industri Elektronik Wilayah Selatan, Semenanjung Malaysia
MADPET (Malaysians Against Death Penalty and Torture)
Malaysians for Beng Hock
Malaysian Physicians for Social Responsibility MPSR
Malaysian Trade Union Congress (MTUC)  Pahang
Malaysian Trade Union Congress (MTUC)  Perak
Malaysian Trade Union Congress (MTUC)  Selangor & Wilayah Persekutuan
MHS Employees Union, Malaysia
Migrant Forum in Asia (MFA)
Migrante International
National Union Employees in Companies Manufacturing Rubber Products(NUECMRP)
National Union of Hotel, Bar and Restaurant Workers (NUHBRW), Malaysia
National Union of Transport Equipment & Allied Industries Workers (NUTEAIW)
Network of Action for Migrants in Malaysia (NAMM)
Paper Products Manufacturing Employees’ Union of Malaysia (PPMEU)
Parti Rakyat Malaysia(PRM)
Parti Sosialis Malaysia(PSM)
Pax Romana ICMICA
Peoples Green Coalition
Persatuan Kesedaran Komuniti Selangor (EMPOWER)
Persatuan Masyarakat Selangor & Wilayah Persekutuan (PERMAS)
Persatuan Sahabat Wanita Selangor, Malaysia
Sahabat Rakyat Working Committee, Malaysia
Saya Anak Bangsa Malaysia (SABM )
Selangor & Federal Territory Textile Workers Union
Suara Rakyat Malaysia (SUARAM)
Tenaga Nasional Junior Officers Union (TNBJOU)
Thai Labour Campaign, Thailand
THINK Centre, Singapore
WAC, Cavite, Philippines
WH4C (Workers Hub For Change)
Women Workers Lead, Malaysia
Yayasan LINTAS NUSA – Batam
Asia  Pacific  Forum on Women , Law and Development ( APWLD)
Club Employees Union Peninsular Malaysia
Senator Syed Shahir bin Syed Mohamud - Senator in the Malaysian Parliament
Charles Hector - Human Rights Defender and lawyer;
Mohd Roszeli bin Majid  President of the TNB Junior Officers Union;
Pranom Somwong - Workers Hub For Change (WH4C), Asia  Pacific  Forum on Women , Law and Development ( APWLD);

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