Media Statement –
3/12/2014
Malaysian Airlines(MAS) Employees and Trade Union Rights at risk by new
law being rushed through
We, the undersigned 37 organisations,
groups and trade unions are appalled with the Malaysian government’s current
attempt to pass a law that will seriously undermine worker and trade union
rights of employees in the Malaysian Airline System Berhad (MAS), the operator
of Malaysia’s national carrier.
Not only will the consequence of
the new law be loss of employment of all employees of MAS and its subsidiaries,
but also the end of the existing trade unions and associations representing the
employees of MAS. The law also opens the possibility of loss of regular
employment until retirement, to be replaced by precarious forms of employment
like fixed term contracts or other even more precarious forms of labour
practices which even evades direct employment relationship by using of workers
supplied by third parties.
Malaysian Airline System Berhad
(Administration) Bill 2014 was tabled and 1st reading was on
26/11/2014, the 2nd reading was on 27/11/2014 and was speedily
passed by the Dewan Rakyat on 27/11/2014. Now, it is on the agenda of the first
day of the Senate sitting on 1/12/2014, and scheduled for second reading the
following day. There was really no time for anyone, including parliamentarians,
to even study it, let alone comment or object to this Bill before it was
speedily rushed through and passed in the Lower House of our Malaysian
Parliament.
Now, the object of the Malaysian government
is clear – they want the national carrier, MAS, now owned by the Malaysian
Airline System Berhad, a government linked company, that is having financial
problems to be taken over by a new legal entity which will be known as Malaysian Airlines Berhad in an effort
to save the airline.
We may have no objections to MAS
and its subsidiaries being taken over by the Malaysian government, or vide a
government owned legal entity provided that the rights of the workers and their
trade unions are respected and preserved. The current Bill, however, seems to
totally disregard the rights and welfare of existing employees of MAS and its
subsidiaries, or their unions.
Workers, unlike assets, cannot be
transferred from one legal entity to another new legal entity. Thus, all the
employees of MAS will naturally be terminated when the present MAS seeks to
exist, and the Bill is silent on whether the new entity, Malaysian Airlines
Berhad, will employ all these MAS employees without loss of tenure and benefits
– or will they be abandoned with no employment?
The Bill makes it most clear that
Malaysian Airlines Berhad(MAB) will
be a new entity, and will not be an ‘assignee or transferee or a successor employer’(Clause 26). MAB shall also not
‘be liable for any obligation relating to any retirement plan or other
post-employment benefit plans in respect of the employees or
former employees…’, It
shall also not be ‘liable for any sum which is calculated by reference to a
period of time
prior to Malaysia
Airlines Berhad becoming the employer
of the person
in question.’
‘The Malaysia
Airlines Berhad, the
appointer and the Administrator shall
not be named
as a party
in any claim or
application made or
joined as a
party in any
proceeding commenced or continued
by or on
behalf of any
employees or former employees
of the Administered
Companies pursuant to the
Industrial Relations Act
1967 [Act 177],
Employment Act 1955 [Act 265],
Sabah Labour Ordinance 1950 [Sabah Cap. 67], Sarawak Labour Ordinance 1952
[Sarawak Cap. 76] or the Trade Unions Act
1959 [Act 262].’ This means that MAB or the
Administrator will not step into the shoes of MAS, or be liable, even in cases,
including pending cases, between employees/trade unions and MAS. This will
result in not just in loss of rights under existing labour laws, but also will
result in employees and trade unions having to bear all loss of monies, time
and effort sustained this far in the pursuance of justice.
MAB will be able to employ
whoever and under what terms and conditions, as is stated in Clause 25, which
states, ‘Malaysia Airlines Berhad may, in its
sole discretion, offer
employment to any person who immediately before the date of that offer is in
the employment or service of the Administered Companies on such terms and
conditions as the Malaysia Airlines Berhad
may determine.’. The LIFO
(Last In First Out) principle when it comes to employee reduction in cases of
retrenchment can be ignored here, and there is every possibility that those
worker and union leaders, and workers who stand up for rights, may all just not
be employed by MAB.
Now, most of the 20,000 employees
in MAS enjoy stable regular employment until retirement, but now the new MAB
may use precarious forms of employment like short-term contracts, or even use
the contractor for labour system to get third parties to supply workers without
entering into a direct employment relationship with these workers at the
airline.
The Bill, as it stands also will
see the end of all trade unions of current employees of MAS, most of which being in-house union of MAS employees, and
also the end of enforceability of all collective bargaining agreements(CBA)
with MAS. There seem to be an implied indication that future employees of MAB
will enjoy the right of freedom of association and have trade unions.
The provision in the Bill may
mislead some into believing that the existing trade unions of MAS employees will
continue to exist once MAB takes over, but clearly this is not the case, Clause
28 is talking only about ‘any trade union duly recognized by the
Malaysia Airlines Berhad’ and ‘any association
recognized by the
Malaysia Airlines Berhad’ –
which implies that employees may have to once again form new unions and once
again go through the process of seeking MAB’s recognition. Hence, this can be perceived
to be a ‘union busting’ exercise done by way of the enactment of a new law.
Whilst Clause 14 says that ‘…any
person is under a contract or obligation to provide goods or services or both…’
if retained, may be ‘at the same rate
as would have
been paid’ by MAS may also cover
employees but alas considering the later clauses that deal specifically with
employees, MAB, even if they do employ former employees of MAS may not be
paying the same wages. MAB will have the legal authority to stipulate new
wages, benefits and terms.
Usually when a company is
wound-up, what is due and payable to the employees is amongst the first to be
settled, and as such this Bill is even more detriment to employees of MAS as
MAB is freed of all these obligations to workers. Employees who are terminated
will also most likely not be able to recover retrenchment/termination benefits
provided for in law as MAS, even if it still exists, may most likely be devoid
of capacity, assets and monies, and MAB, according to this Bill, clearly has no
obligation to be responsible for MAS’s obligations to its workers.
The secrecy and the blitz manner
in which this Bill has been tabled, passed and being made law is also wrong,
when there really should have been prior discussion and agreements especially
with regard the 20,000 over employees of MAS and their trade unions, who now
are in a precarious position uncertain even about the future wellbeing and
livelihood of these workers and their families.
We call for:-
a)
The immediate suspension of the process of
making the Malaysian Airline System Berhad (Administration) Bill
2014 into law, or the putting into force of this Act, until all matters
concerning the rights, future employment security, wellbeing and livelihood of
the about 20,0000 employees of MAS and their family is resolved and provided
for. The future of the existing employee trade unions and rights must also be
resolved.
b)
The Malaysian government respect and make worker
and trade union rights a priority in this exercise to try to save the national
carrier, MAS, for after all employees can reasonably not be blamed for poor
management that have put MAS in this financial predicament.
c)
The Malaysian government to guarantee that the
right to regular employment until retirement will not be sacrificed in favour
of precarious employment relationship and practices to the detriment of
workers, and their unions in this process of saving Malaysia’s national
carrier.
Charles Hector
Mohd Roszeli bin Majid
Pranom Somwong
For and on behalf of the following 37 civil society groups, trade unions and
organizations
Angkatan Rakyat Muda Parti
Rakyat Malaysia (ARM-PRM)
Cambodian Human Rights and
Development Association- ADHOC
CAW (Committee for Asian
Women)
Community Action Network (CAN),
Malaysia
CWI Malaysia (Committee
For A Workers International Malaysia)
Hawaii Center for Human
Rights Research & Action (HCHR2A)
Human Rights Ambassador
for Salem-News.com, UK
MADPET (Malaysians Against
Death Penalty and Torture)
Malaysian Physicians for
Social Responsibility
Migrant Care, Indonesia
Migrante International
MTUC (Malaysian Trade
Union Congress)
MTUC Sarawak on behalf of
28 affiliates union in Sarawak
National
Union of Flight Attendants Malaysia (NUFAM)
National Union of
Transport Equipment & Allied Industries Workers (NUTEAIW)
Network of Action for
Migrants in Malaysia (NAMM)
Parti Rakyat Malaysia(PRM)
Pax Romana-ICMICA Asia
Perak Women for Women
Society (PWW)
Persatuan Kesedaran
Komuniti Selangor
Persatuan Sahabat Wanita,
Selangor
Pusat KOMAS (KOMAS)
School of Acting Justly, Loving Tenderly and Treading humbly (SALT)
School of Acting Justly, Loving Tenderly and Treading humbly (SALT)
Tenaga
Nasional Junior Officers Union (TNBJOU)
Workers Hub For Change
(WH4C)
ALIRAN Kesatuan Pekerja-Pekerja Mitsui Copper Foil MHS Employees Union
Sahabat Rakyat Working Committee
Clean Clothes Campaign
Association of Maybank Executives
Knowledge and Rights with Young People through Safer Spaces (KRYSS)
National Union of Journalist(NUJ) Cawangan Utusan Melayu
Kesatuan Eksekutif AIROD
MTUC Selangor dan Wilayah Persekutuan
MTUC Pahang
Club Employees Union Peninsular Malaysia
ALIRAN Kesatuan Pekerja-Pekerja Mitsui Copper Foil MHS Employees Union
Sahabat Rakyat Working Committee
Clean Clothes Campaign
Association of Maybank Executives
Knowledge and Rights with Young People through Safer Spaces (KRYSS)
National Union of Journalist(NUJ) Cawangan Utusan Melayu
Kesatuan Eksekutif AIROD
MTUC Selangor dan Wilayah Persekutuan
MTUC Pahang
Club Employees Union Peninsular Malaysia
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