Wednesday, April 30, 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
(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.