May Day Rally - 7.00am - 12 noon, Dataran Petaling Jaya (opp Amcorp Mall)

Malaysian Bar Resolution on Employment Relationship and 'Contractor For Labour' (2012)

Resolution on maintaining a just employment relationship, worker and trade union rights in Malaysia

Motion proposed by Charles Hector and seconded by Francis Pereira, dated 1 Mar 2012

(As amended)

Whereas:

(1) There has been a withering away of the rights of workers and/or their unions in Malaysia over the past years, and the most recent of this is the employment relationship, where Malaysia is in the process of amending (or has amended) the Employment Act 1955 vide the Employment (Amendment) Bill 2011, the result of which would be the legalisation of the “contractor for labour”, a third party, in an employment relationship which justly should be a two-party direct relationship between owner/operators of workplaces and their workers, who reasonably must be their direct employees.

(2) What the Malaysian government has done, earlier through policy and practice and now being legalised through the amendment of the Employment Act 1955, which was passed at the Dewan Rakyat on 6/10/2011 and the Senate on 22/12/2011, goes contrary also to international standards and principles concerning Decent Work and worker rights.  Avoiding employment relationship was being done by various means, agreements and contracts, which have been criticised even by the International Labour Organisation (“ILO”). Sadly, Malaysia goes even further by legalising evasion of employment relationships.

(3) Employment relationship in Malaysia, as also evident in our Employment Act, prior to this new amendment, was a two-party relationship between employer and worker (employee) between whom there will be a contract of service, whereby “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”.  Sadly, the Minister had the power to create exceptions to this general principle.

(4) The current amendments to the Employment Act 1955 now statutorily recognises a new third party in the employment relationship, being the “contractor for labour”, who unlike Private Employment Agencies, continue to remain the employer of workers that they supply to the principal or owner of the workplace, and as such the said principal or owner of the workplace effectively can avoid becoming employer of the workers working for them, and hence all employer obligations.

(5) This practice of using workers of third parties, without the entry of an employment relationship and/or contract of service, even though there was no provision in law that specifically allowed this, started on or about 2005 with essentially migrant workers through what was known as “outsourcing agents”, but as of 2010, it was no more just migrant workers but also local workers including those from Sabah and Sarawak.

(6) This new reality causes discrimination amongst workers, with regard to wages and other benefits, including also the right to join existing unions and/or to benefit from Collective Agreements, being agreements between worker-employees and their employers – the principal or owners of the workplace.

(7) In some workplaces, the workers who still are employees of the principal or owners of the workplace is about 50% or less, the rest workers there being  workers supplied to work by third parties, at a workplace. This results in an effective weakening of trade unions and their bargaining powers when it comes to collective agreements, including their struggle for better wages and work conditions.  The law does not provide any restrictions as to the number of non-employees at a workplace, and as such this may lead to a situation where even all workers in workplaces may one day be no more employees of the owner or principal of the workplace.

(8) Given the reality, that the workplace and all workers therein is still under the effective control and supervision of the principal or owners of the workplace, matters related to work and work condition, so many workers at the workplace, now treated as not employees of the principal or owner of the workplace, is deprived the right that any worker must have to be able to fight for better working conditions and work-related rights.  The third party suppliers really have no effective control or ability when it comes to improving working conditions and matters at the workplace.

(9) The reality today is also that these principals or owners of workplaces are getting workers from not one, but many different suppliers of workers (“contractors for labour”), which again would result in further discrimination. 

(10) The reality also is that suppliers of workers (“contractors for labour”) are supplying workers to many different workplaces, in many different sectors, and as such even if the workers (now considered) employees of these suppliers were to try to form a union, it is near impossible given this reality.  They also cannot join existing regional or national trade unions in Malaysia, given the fact that in Malaysia, unions are registered based on sectors, and it will be difficult for these worker/employees of the third party to form or join existing unions, given also that the flexibility of the situation that can result in overnight changing of which sectoral unions that they can join.  Effectively, these workers if they are employees of these suppliers have lost their basic freedom of association and the right to form and/or join trade unions.  Prior to this any new employee of the workplace can easily form/join trade unions, irrespective of whether they are local or migrant workers.

(11) The Private Employment Agency, as provided for in the Private Employment Agencies Act 1971, does the service of finding workers for workplaces, and once the workers are supplied, these workers automatically are employees of the principal or owners of the said workplace, and the private employment agency is paid a statutorily fixed rate for their services. This is certainly a better practice, not detrimental to a just employment relationship and worker rights. All suppliers of workers must be private employment agencies, confined to the providing of service of supplying workers, and not be made into employers themselves of the workers after they have supplied them to the principal or owners of workplaces.

(12) It must be pointed out that the Employment Act 1955 amendments were proceeded with and passed in both houses of Parliament, despite the fact that there was strong opposition and protest from workers, trade unions including the Malaysian Trades Union Congress and the International Trade Union Confederation (“ITUC”), and civil society groups.

We hereby resolve:

(1) That the Malaysian government immediately repeal the amendments to the Employment Act 1955 with regard to the employment relationship and the contractor for labour, introduced vide Employment (Amendment) Bill 2011, and pending repeal not put into effect the said amendments.

(2) That the Malaysian government do the needful to maintain existing 2-party employment relationships between principals or owners of workplaces as employers, and workers that work in the said workplaces as employees of the said principals and owners.

(3) That the Malaysian government promotes and protect worker and trade union rights in Malaysia, and not permit any form or discrimination at the workplace or related to work amongst workers doing the same work and/or working at workplaces of principals or owners.

(4) The Malaysian Bar takes the stand that labour suppliers and/or contractors of labour should never be or continue to be employers of workers after they are supplied, accepted and start working at the workplaces of principals or owners. Thereafter, these workers shall be employees of the principal or owners of the workplace.

(5) That the Malaysian Bar continues to struggle for the promotion and protection of worker and trade union rights in Malaysia, including for just employment relationship, basic living wages and freedom of association consistent with the Principles of Decent Work and other universally recognised standards and principles.

The motion, as amended, was unanimously carried.

 

Malaysian Bar adopts Resolution on Worker Rights at AGM on 15/3/2014

At the 68th Annual General Meeting of the Malaysian Bar held at Renaissance Kuala Lumpur Hotel (Saturday, 15 Mar 2014), which was attended by 1,219 members, 4 Resolution were adopted. One of this was the resolution on worker and trade union rights, whereby the said Resolution as adopted is as follows:-

 

Resolution on Domestic Inquiry, Misconduct, and Respect of worker and trade union rights in Malaysia

 

Whereas:

 

(1) It is disturbing how many worker and trade union rights are not protected by law in Malaysia, and the recent embarrassing failures of government linked companies (GLCs) to be the best example in the protecting and respecting worker and trade union rights.

 

(2) In May 2013,18 workers from 2 DRB HICOM, a government linked company, were terminated by reason arising from the fact that they handed over a Malaysian Trade Union Congress (MTUC) memorandum demanding commitment to worker and trade union rights during last General Elections. The workers exercised their rights as citizens when they handed this MTUC memorandum not during working hours. Amongst the terminated were union leaders, where one of them was also MTUC Pahang President. 

 

(3) The misconduct leveled against these workers are (1) undermining the image or good name of the company orally, in writing or by action, and (2) bringing about or trying to bring about any form of influence or outside pressure to submit or support any external claim that is related to service be it an individual claim or claims of other employees.

 

(4) The second misconduct, in particular, is absurd for rightly in the fighting against injustice, workers and their unions would certainly try to lobby and get support from fellow workers, members of the public and others in an effort to end injustice or rights violations. 

 

(5) There was a Domestic Inquiry in the case of the 18 workers, but they were denied the right to be represented by their National Union – they were only allowed the right to be represented by a fellow worker from their workplace. The Collective Bargaining Agreement was between the National Union and the said DRB HICOM companies.

 

(6) On 29/11/2013, the President of the National Union of Flight Attendants Malaysia (NUFAM) was terminated. He had issued a statement to the media in his capacity as president of the Union, and Malaysian Airlines(MAS), a government linked company, alleged that Ismail Nasaruddin, the Union President,  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). He was terminated without even a Domestic Inquiry.

 

(7) In February 2014, MAS issued show cause letters to about 30 employees by recent of  their alleged participation in an ‘illegal gathering’ at the Human Resource Ministry. This 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.

 

(8) Disiplinary actions have also been commenced against workers for comments made in closed Facebook pages of their unions. 

 

(9) The trend seems to be to try to control workers even during their free time, their ability to highlight rights violations and injustice, their freedom of expression, opinion and peaceful assembly.

 

(10) Companies and businesses should never terminate a worker for reasons other than matters that relate to work performance and/or their conduct as a worker save in very exceptional cases, for eg, like when a worker is convicted of a criminal offence. The Industrial Relations Act 1967 also prohibits employers from discriminating against, threatening or terminating workers by reasons of involvement in trade unions.

 

(11) Natural justice demands that no worker should also be terminated without a Domestic Inquiry, without being accorded, amongst others, the right to be heard, and the right to be defended by a lawyer, a Union representative or a fellow worker of their choice.The Employment Act 1955 only provides for ‘due inquiry’ but alas it is insufficient to ensure that this right is accorded to all workers. It fails to set out clearly that this means Domestic Inquiry and how it is to be conducted, including the rights to be represented by a lawyer or Union. The failure of the employer to have a ‘due inquiry’ or Domestic Inquiry is not at all considered by the Industrial Court in wrongful dismissal cases. 

 

(12) Misconduct is also not clearly defined, or set out in law, and this is urgent need given the trend that some employers have just been extending the number of misconducts – some even extending beyond the workplace infringing into personal liberties and rights. 

 

(13) Wrongful dismissal cases, which affect the worker and their families, takes too long to be resolved, sometimes even 10 years, and at the end of the day, the Courts are not ordering reinstatement. This emboldens employers to wrongly terminate workers, especially union or worker leaders, and those that claim rights knowing that they have effectively gotten rid of these workers. 

 

(14) 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 and DRB HICOM, the obligation is even greater. The Guiding Principles states 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...”. 

 

(15) 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 hereby resolve:

 

(1) That Malaysian government ensures that all employers, especially Government-Linked Companies (GLC) respect worker and trade union rights; 

 

(2) That Malaysian government 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...”; and

 

(3) That Malaysia immediately ratifies ILO Convention No 87 (Freedom of Association and Protection of the Right to Organise Convention, 1948) and other important labour conventions.

 

 

Malaysian Airlines, a government linked company, not respecting worker rights?

Malaysian Airlines(MAS), a government linked company, made famous with the missing flight MH370 has also been seen as an employer that disrespects worker and trade union rights.

When government linked companies like MAS and DRB HICOM [see earlier post:- ] are not shining examples of employers that respect worker and trade unions, all workers and unions in Malaysia are decidedly worried about their rights and future in Malaysia.

The issues that were highlighted were the manner in which MAS has been dealing with National Union of Flight Attendants Malaysia (NUFAM), its members and flight attendants. 

First, there was the termination of the President of NUFAM in connection with a media statement that he issued as Union President. The alleged misconduct was the issuance of the press statement by an employee - MAS chose to ignore the fact that he was a Union President. In response, to the commencement of disciplinary proceeding 43 Groups issued a Joint Statement on  3/12/2013, “MAS Must Immediately Revoke Suspension of Union President Ismail Nasaruddin Worker Right Issue Should Be Resolved By Negotiations Not ‘Union Busting’. 

On 29/11/2013 MAS terminated Ismail Nasaruddin, the President of NUFAM, without even according him the right to a Domestic Inquiry, hence denying him the right to be heard and defend himself. [Issuing a Statement by an employee is NOT a specifically stated misconduct of MAS] 

There were many cases of commencement of disciplinary action against workers, and on or about 14/2/2014, 4 others were terminated. Again, I believe that there was no Domestic Inquiry.

When some workers went to the Ministry of Human Resources to raise their grievances/complaints, again MAS took disciplinary action, and the Secretary General was on 17/2/2014 handed yet another show cause letter. At least, the SG was accorded the right to a Domestic Inquiry...

  

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

ALIRAN

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 Salem-News.com , 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

Pusat KOMAS

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

Joint Statement – 3/12/2013- now 43
 

MAS Must Immediately Revoke Suspension of Union President Ismail Nasaruddin

Worker Right Issue Should Be Resolved By Negotiations Not ‘Union Busting’

 

We, the 43 undersigned civil society groups, trade unions and organizations are disturbed by the news that Malaysian Airlines, a government linked company, has suspended the president of the National Union of Flight Attendants Malaysia (NUFAM), Ismail Nasaruddin in connection with a statements made to the media by the Union, which amongst others suggested that MAS’s Chief Executive Officer (CEO),  Ahmad Jauhari Yahya who was appointed in 2011, should resign. Ismail was allegedly suspended without allowances with immediate effect starting Nov 8 following a news report quoting him that was published on the same day.

According to a news report, ‘…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…’ (The Sun Daily, 8/11/2013, NUFAM calls for resignation of MAS' CEO).

Amongst the alleged grievances being raised by NUFAM, which represents 3,500 cabin crew at Malaysia Airlines (MAS), as was contained in the said Sun Daily report are:-
· New policy imposed by MAS on a weight control ruling where cabin crew are told to reduce their weight to achieve a certain body mass index within three to six months. Failure to do so would result in an automatic transfer to ground work. The new rule is also a blanket policy and affects all cabin crew members including those who have just returned from maternity leave and may find it difficult to drastically lose weight within a short time frame;
· Cabin crew who joined in 2004 or later are no longer able to enjoy the transport services provided by the airline for pick-up from home, and Ismail said this is unfair to those who joined in 2004 or later, as they had signed contracts that included transportation as part of the benefits; and
· That the MAS management have allegedly cut costs drastically which affected the cabin crew resulting also a failure to review allowances and salaries.

We are especially concerned with this ‘weight control ruling’ which certainly is discriminatory against women, especially to those returning from pregnancy. Increase of body mass index sometimes may be beyond the control of a human being, and this really should not be used to affect their employment.

NUFAM alleges that it wants MAS to sit down with the Union to discuss and negotiate a new Collective Bargaining Agreement (CBA/CA) but apparently MAS is not interested to do so at this moment, citing as reason some judicial review.

Now, MAS has commenced disciplinary actions against Ismail Nasaruddin, and according to a Malaysiakini report, it is allegedly because 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)

Now, clearly the statements were made by Ismail in his capacity as President of the Union, representing some 3,500 workers, and as such he has the duty and obligation to fight for the rights of workers and that includes applying pressure on the employer and even calling for the removal of any of such employer’s officers or even Directors who is standing in the way of a prompt resolution of the dispute. Unlike employers, every day that a worker’s issues is not resolved, it is the workers that will continue to suffer. A prompt resolution is best and just.

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 condemn the action of Malaysian Airlines (MAS) in commencing disciplinary actions against a Union leader, and urge MAS to immediately stop this and revoke the suspension of Ismail Nasaruddin.

We call on MAS to immediately sit down, negotiate and resolve these outstanding worker issues with the trade union rather than resorting to ‘union busting’ strategies which include disciplinary actions against  worker and union leaders who dare to fight for worker rights.

We call on the Malaysian government to immediately to act, given the fact of the much influence it has in a government-linked company like MAS, to ensure that justice is done for Ismail Nasaruddin, the Union and its members.

Senator Syed Shahir bin Syed Mohamud

Charles Hector

Mohd Roszeli bin Majid

Pranom Somwong

For and on behalf of the following 43 civil society groups, trade unions and organizations

ALIRAN

Asia Pacific Forum on Women, Law and Development (APWLD)

Cambodian Human Rights and Development Association (ADHOC)

Center for Orang Asli Concerns (COAC)

CWI Malaysia (Committee For A Workers International  Malaysia)

Damn the Dams

Dignity International-Asia

Friends of Burma

Human Rights Ambassador for Salem-News.com, United Kingdom

Jaringan Rakyat Tertindas(JERIT)

Kesatuan Eksekutif AIROD (KEA)

Kesatuan Pekerja-Pekerja Polyplastics Asia Pacific

Kesatuan Sekerja Industri Elektronik Wilayah Selatan Semenanjung Malaysia (KSIEWSSM)

MADPET (Malaysians Against Death Penalty and Torture)

Malaysians for Beng Hock

Malaysia Youth & Students Democratic Movement (DEMA)

MTUC Pahang

National Union of Hotel, Bar and Restaurant Workers (NUHBRW)

Network of Action For Migrants in Malaysia (NAMM)

Paper and Paper Products Manufacturing Employees Union (PPPMEU)

Philippine Alliance of Human Rights Advocates (PAHRA)  

Parti Rakyat Malaysia (PRM)

Parti Sosialis Malaysia (PSM)

Partido ng Manggagawa (Labor Party-Philippines) 

Pax Romana-ICMICA Asia

Peoples' Green Coalition

Persatuan Kesedaran Komuniti Selangor (EMPOWER)

Persatuan Sahabat Wanita, Selangor

Pusat KOMAS

Sahabat Rakyat Working Committee

Sarawak Dayak Iban Association[SADIA]

SUARAM

Tenaga Nasional Junior Officers Union (TNBJOU)

Tenaganita

The Filipino Women's Organization in Quebec

WIRDA (Women’s Institute Research Development and Advancement), Malaysia

Women’s Centre for Change Penang

Workers Hub For Change (WH4C)

Yayasan LINTAS NUSA – Batam, Indonesia

Saya Anak Bangsa Malaysia (SABM)

Law and Society Trust.Colombo Sri Lanka

ITUC(International Trade Union Confederation)

 

What happened to the 18 workers terminated by DRB HICOM subsidiaries?

To extract commitments on workers' rights from contesting candidates and political parties involved in GE13, 18 workers submitted the MTUC memorandum to one of the contesting candidates in the Pekan parliamentary constituency

 

On 22/5/2013, 2 DRB HICOM subsidiaries initiated disciplinary action. In response, 52 groups came out with a Joint Statement on 25/6/2013, DRB HICOM Must Respect The Citizens’ Right To Participate In The Democratic Process In Malaysia– Stop disciplinary action against workers for exercising their political rights.[see below ] The statement was also sent to the Prime Minister Najib, amongst others, - but no response from him - not even an acknowledgement of receipt. [And, he wonders why people have to resort to peaceful assemblies as a means of communicating their views.]

 

All 18 workers were accorded the right to a Domestic Inquiry(DI), but alas the best rep from the National Union of Transport Equipment and Allied Industries Workers (NUTEAIW) was not allowed to represent the 18 at the DI, the company only allowed the worker to be represented by an employee of the same workplace. Neither the Union or any of the 18 did challenge the right to representation to the High Court, more so since the Collective Bargaining Agreement is between the employer and the National Union. 

 

19/8/2013 - all 18 workers were terminated, and on 20/8/2013, the National Union issued a Media Statement, "Termination action against workers exercising their political rights is abhorred"

 

On 11/9/2013, the dismissed worker and their families picketed in from of the Prime Minister's Office in Putrajaya, and on that day also in front of DRB HICOM. [I believe it was not a National Union picket, although some leaders of the Union were present, but fellow workers fellow members seem to have not been involved.]

 

A campaign for initiated by civil society groups, but later the National Union and the affected 18 workers decided to opt for a different method to resolve the issue. They asked us to stop and not go forward with the campaign. They elected to use the services of a politician who would meet with DRB HICOM and try to amicably resolve the issue which will include the reinstatement of the said workers. 

Towards the end of December, the DRB HICOM companies allegedly came back with their formal offer for reinstatement subject to certain listed conditions, which included apologies from the 18 and also the National Union, massive pay cuts, demotions and resignation of all the 18 from all union positions and a assurance not to hold union positions. The offer was rejected. 

The 18 and the National Union elected to still allow the said politician to try again... hence no campaign was proceeded with. 

More than 8 months since termination, and we hope that the new efforts vide the third party would soon bear fruits.....we also hope that if it does not, the said workers would agree to us campaigning for justice for them. 

People may be ready to campaign for justice for victims of rights violations, but alas if the victims themselves tell us not to, what can we do?  

What was disturbing in the DRB HICOM case was that even after disciplinary action, and later the termination happened, the fellow workers in the affected factories never even came out in solidarity to picket the actions of the employer. Now, these same factory workers have the experience of doing pickets in the past, the last being February 2013.  500 pekerja kilang DRB-Hicom, Pekan, Pahang berpiketmenuntut hak mereka untuk mendapat kenaikan gaji

 

 

 

Joint  Statement – 25/6/2013 (now 52)

DRB HICOM MUST RESPECT THE CITIZENS’ RIGHT TO PARTICIPATE IN THE DEMOCRATIC PROCESS IN MALAYSIA

– Stop disciplinary action against workers for exercising their political rights.

We, the undersigned 52 civil society organizations, trade unions and concerned groups, are appalled by the actions of two DRB Hicom companies based in Pekan, namely HICOM Automotive Manufacturers (Malaysia) Sdn Bhd and ISUZU HICOM Malaysia Sdn Bhd for taking disciplinary action against 18 workers who merely exercised their rights (outside working hours), as citizens, to participate in the democratic process.  Pursuant to a decision by the Malaysian Trade Union Congress (MTUC), which was also supported by the National Union of Transport Equipment and Allied Industries Workers (NUTEAIW),  to extract commitments on workers' rights from contesting candidates and political parties involved in GE13, workers throughout Malaysia, including in Pekan, met or attempted to meet  contesting candidates from all parties before election day, being on 5/5/2013. 

Accordingly, on 3/5/2013, a group of 18 workers submitted the MTUC memorandum to one of the contesting candidates in the Pekan parliamentary constituency, which also happens to be the constituency that the Prime Minister of Malaysia was contesting.

On account of this act, disciplinary action has been initiated by 2  DRB HICOM companies based in Pekan against these 18 workers. 

First, HICOM Automotive Manufacturers (Malaysia) Sdn Bhd, which assembles automobiles for Suzuki, Mercedes-Benz and Volkswagen, has issued show cause letters on  22/5/2013 to 16 workers, and speedily proceeded with the 'Domestic Inquiry' which began on 11/6/2013. At present the Domestic Inquiry is yet to end and there is no decision.

Second, ISUZU HICOM Malaysia Sdn Bhd, that assembles automobiles for Isuzu, also issued show cause letters to 2 workers. They, too, are awaiting the decision of the Domestic Inquiry. Significantly, the workers were NOT allowed the right to be represented by lawyers or representatives of the National Union, only by representatives from the work site committee. 

We consider the action taken by the two DRB Hicom companies not only a gross violation of worker rights. It is also a violation of the right of citizens to participate in the democratic process of Malaysia, especially during elections. No employer should have the right to dictate directly or indirectly the political choices, activities and/or actions of their workers, more so outside employment hours. Workers, as citizens, of Malaysia must have the freedom to join and participate in any political party of their choice, offer themselves as candidates if they so wish, and involve themselves in campaigning in general elections.

Hence DRB Hicom's taking disciplinary action against these 18 workers for exercising their rights as citizens in the run-up to GE13, is completely uncalled for. It is a gross violation of the rights of these 18 workers. Under the circumstances, we demand that DRB Hicom stop all disciplinary actions being taken against these 18 workers immediately. If any of these 18 workers have already been terminated,  they should be reinstated immediately.

We understand that the charges leveled against the workers are (1) undermining the image or good name of the company orally, in writing or by action, and (2) bringing about or trying to bring about any form of influence or outside pressure to submit or support any external claim that is related to service be it an individual claim or claims of other employees.

We further understand that the employer DRB Hicom is trying to rationalise its action against the said 18 workers - in seeking a commitment on workers rights from the Pekan parliamentary candidate – by claiming that the workers might have given the 'false impression' that 'the company was involved in politics' which is contrary to the company's stance.

We find such an explanation laughable! Indeed, it is hypocritical given the fact that during the electoral campaign period, on 25/4/2013, the company had encouraged workers to go and meet the Barisan Nasional Paliamentary candidate for Pekan, Mohd Najib Abdul Razak, also the incumbent Prime Minister. Indeed, workers were allowed to go for the meeting during working hours! This event was also highlighted in Najib’s 13^th General Election Pekan Constituency candidate website (http://www.parlimenpekan.com/?p=840), and the posting was entitled ‘Dato’ Sri Najib Beramah Mesra Dengan Warga DRB-Hicom Pekan’(Dato’ Sri Najib Socialize with DRB-Hicom citizenry). Later that very day women workers were also allowed by the company to meet up with Najib’s wife. 

Companies and businesses should never terminate a worker for reasons other than matters 

that relate to work performance and/or their conduct as a worker save in very exceptional cases, for eg, like when a worker is convicted of a criminal offence.

These 18 workers have families and children, and a termination would cause great hardship to their well-being and livelihood. Amongst the 18 are also trade union leaders, including also the current chairperson of MTUC Pahang Division. We hope that the termination of worker leaders does not occur and that the two DRB HICOM companies are not resorting to ‘union busting’.

We call on DRB Hicom, HICOM Automotive Manufacturers (Malaysia) Sdn Bhd and ISUZU HICOM Malaysia Sdn Bhd to immediately discontinue disciplinary action against the said 18 workers, and if any be already terminated to immediately reinstate them without loss of benefits.

We call on Prime Minister Mohd Najib Abdul Razak, being also the Member of Parliament for Pekan, to intervene and ensure that the rights of his constituents, as workers and as citizens, are not violated by employers.

Charles Hector

Mohd Roszeli bin Majid

Pranom Somwong

For and on behalf the 52 organisations listed below

ALIRAN

Asia  Pacific Forum on Women, Law and Development ( APWLD)

Asian Migrant Centre (AMC)

Association of Maybank Executives

Building and Wood Workers International Asia Pacific

Burma Campaign Malaysia

Clean Clothes Campaign

Community Action Network (CAN), Malaysia

Dignity International

Group of Concerned Citizens
Persatuan Sahabat Wanita Selangor

Human Rights Ambassador for Salem News , UK 

Jawatankuasa Sahabat Rakyat (人民之友)

Kesatuan Pekerja-Pekerja Polyplastics Asia Pacific

Kesatuan Sekerja Industri Elektronik Wilayah Selatan Semenanjung Malaysia

Kesatuan Pekerja Pekerja Kelab Semenanjung Malaysia

Legal Aid Commission, Sri Lanka

MADPET (Malaysians Against Death Penalty and Torture)

Malaysians for Beng Hock

Malaysian Physicians for Social Responsibility

Migrante International

Migrants Rights Council,India

MTUC(Malaysian Trade Union Congress) Melaka

MTUC(Malaysian Trade Union Congress) Pahang

MTUC(Malaysian Trade Union Congress) Penang Division

Network of Action for Migrants in Malaysia(NAMM)

NUBE (National Union of Banking Employees), Malaysia

NUHBRW (National Union of Hotel, Bar and Restaurant Workers), Malaysia

Parti Rakyat Malaysia(PRM)

Persatuan Kesedaran Komuniti, Selangor (EMPOWER)

Persatuan Masyarakat Selangor & Wilayah Persekutuan (PERMAS)

Pusat KOMAS (KOMAS)

Sarawak Dayak Iban Association

SUARAM (Suara Rakyat Malaysia)

Tenaganita, Malaysia

Think Centre, Singapore

Tenaga Nasional Berhad Junior Officers Union (TNBJOU), Malaysia

WARBE Development Foundation-Bangladesh

Women's Aid Organisation (WAO), Malaysia

Workers Assistance Center, Inc, Philippines

Workers Hub For Change (WH4C)

Additional Endorsements:

NLD LA Malaysia
Yayasan LINTAS NUSA - Batam Indonesia

IMA Research Foundation, Bangladesh

WARBE Development Foundation-Bangladesh

Committee for a Workers' International (CWI) Malaysia

Women's Rehabilitation Centre (WOREC), Nepal

National Alliance Of Women Human Rights Defenders Alliances, Nepal

Legal Support for Children and Women (LSCW), Cambodia

HMISC (Hsinchu Cathoic Diocese Migrants and Immigrants Service Center, Taiwan

National Domestic Workers’ Movement (NDWM), India

Kesatuan Pekerja-Pekerja MHS Aviation Berhad

 

Note:- The statement was send to the Prime Minister of Malaysia but still no response yet.

25 June, 2013

Dato' Sri Mohd Najib Bin Tun Haji Abdul Razak,

Member of Parlimen Pekan P.085

Prime Minister of Malaysia,

Prime Minister's Office,
Main Block, Perdana Putra Building,
Federal Government Administrative Centre,
62502 Putrajaya, MALAYSIA

Dear Sir,

Please find enclosed this Joint Statement of 41 organizations and groups, dated 25/6/2013, entitled “DRB HICOM Must Respect The Citizens’ Right To Participate In The Democratic Process In Malaysia – Stop disciplinary action against workers for exercising their political rights.”

We call on you, Prime Minister Mohd Najib Abdul Razak, being also the Member of Parliament for Pekan, to intervene and ensure that the rights of his constituents, as workers and as citizens, are not violated by employers. Intervene to ensure that the disciplinary action against the said 18 workers is discontinued, and ensure that they not be terminated for exercising the rights as citizens in a democracy.

Kindly acknowledge receipt, and we would appreciate being kept informed of steps taken in response to this statement.

Thank you.

In solidarity,

Charles Hector           Mohd Roszeli bin Majid           Pranom Somwong

For and on behalf of the said 41 Organisations/Groups