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.
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