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.
Posts
No comments:
Post a Comment