Resolution for Provision of Legal Aid for Workers adopted in Malaysian Bar AGM

Go forth and tell workers that now the Malaysian Bar will assist them even more for their claims...in their struggle for justice and human rights.

One of the motions that was tabled by me for consideration at the Malaysian Bar AGM on 14/3/2015 was the 'Motion for the Provision of Legal Aid and Assistance to Workers', and it was adopted - now a Resolution of the Malaysian Bar. There were minor amendments made by me to the original motion, now shown as strike out text in red.(as shown below)

Lawyers in the Malaysian Bar are committed to uphold justice without fear or favor, and this motion was in line with this principle. Workers were being denied justice by reason of not having necessary advice, assistance and even legal representation - and this needed to end.

It may have been late in the day, but democracy demands sacrifices like staying on longer just to ensure that all motions tabled will get the due consideration that it should.

Below, a news report by Malay Mail on my motion for legal aid for workers.

14/3/2015, Malay Mail

Motion For The Provision Of Legal Aid And Assistance To Workers (Now a Resolution of the Malaysian Bar)

Whereas:

1)    Workers in Malaysia whose rights are violated have the right to lodge claims with the Human Resource Department (HRD) (formerly known as Labour Department), the Industrial Relations Department (IRD) or other available avenues – but workers need legal advice and assistance to be able to effectively determine and document their claims, which would also include identifying and preparing the requisite evidence, be it documentary evidence or available witnesses, to support their claim. Workers generally do not have the capacity, legal knowledge or know-how to be able to do this.

2)    Less that 5% of workers in the private sector are unionized, and as such the majority of the about 13 million workers in Malaysia, of which about 2.9 million are migrant workers, will not have even have access to union assistance. Most unions also do not have the capacity and legal knowledge needed to assist workers with their claims.

3)    After the lodging of complaints, if the matter cannot be resolved by conciliation, in the HRD, it proceed to a hearing before the Labour Court – whereby proceedings are akin to any court proceedings, whereby the worker have the right to be represented by a lawyer. Most employers are currently represented by lawyers but most workers are not. This is an unjust situation.

4)    The worker claims at the HRD generally is small and not very large, and employing the services of a lawyer would mean paying more than the amount claimed for, or a significant percentage of the total claim. Lawyers ordinarily will not likely to take up such cases.

5)    At present, when a worker is successful in claim at the HRD or Labour Court (HR Court), what he will get is only the amount that the employer should have originally paid him but failed to. In proceeding with the claim, the worker loses monies in terms of transport and even lost days of work. Hence, at the end of the day, the worker loses out. When an employer cheats the workers, by, amongst others, the non-payment of monies due, the law should provide deterrence in the form of maybe requiring the said employer to pay double or triple the amount of payable to the worker.

6)    The Bar Council Legal Aid Centers has the capacity and the ability to assist, provide legal assistance and even representation for workers from the point before the worker lodges any complaints/claims to the point of the final settlement of the claim, and this legal aid should be provided to all workers, including migrant workers, especially those whose basic wages do not exceed RM3,000-00.

7)    National Legal Aid Foundation, at present, do not extend their services to claims for worker rights.

We hereby resolve:

(1)               That Malaysian Bar, through its Legal Aid Centers, extends the services of providing advice, assistance and legal representation for all workers with basic monthly salary of less than RM3,000 from the point of intending to file a complaint at the Human Resource Departments(Labour Offices) or other avenues of justice to the full settlement of the said cases.

(2)               The Malaysian Bar shall also do the needful to make the National Legal Aid Foundation extend its services to also worker rights violations.

(3)               The Bar Council also do the needful to create awareness of, and if possible, provide training on, worker rights, including how to use all available channels to access for justice for workers, including providing necessary training for lawyers, workers and trade unions.

(4)               That the Bar Council shall call upon Malaysia to reviews all existing labour legislations, also with a view of providing more deterrent penalties for employers and just remedies for workers who have been exploited or cheated by employers.

Charles Hector Fernandez

BC/C/712

5^th March 2015

Note:- The final wording of the Resolution will be out soon at the Malaysian Bar Website.The above is based on my personal records. I will try to post it again after it appears in the Malaysian Bar website, especially if there are material differences.

See Malaysian Bar Website for the said Resolution, It is the 3rd of 4 Resolutions adopted.

Resolution 3

Motion for the Provision of Legal Aid and Assistance to Workers”, proposed by Charles Hector Fernandez, dated 5 Mar 2015

Whereas:

1)  Workers in Malaysia whose rights are violated have the right to lodge claims with the Human Resource Department (HRD) (formerly known as Labour Department), the Industrial Relations Department (IRD) or other available avenues – but workers need legal advice and assistance to be able to effectively determine and document their claims, which would also include identifying and preparing the requisite evidence, be it documentary evidence or available witnesses, to support their claim. Workers generally do not have the capacity, legal knowledge or know-how to be able to do this.

2)  Less than 5% of workers in the private sector are unionized, and as such the majority of the about 13 million workers in Malaysia, of which about 2.9 million are migrant workers, will not have even have access to union assistance. Most unions also do not have the capacity and legal knowledge needed to assist workers with their claims.

3)  After the lodging of complaints, if the matter cannot be resolved by conciliation, in the HRD, it proceed to a hearing before the Labour Court – whereby proceedings are akin to any court proceedings, whereby the worker have the right to be represented by a lawyer. Most employers are currently represented by lawyers but most workers are not. This is an unjust situation.

4)  The worker claims at the HRD generally is small and not very large, and employing the services of a lawyer would mean paying more than the amount claimed for, or a significant percentage of the total claim. Lawyers ordinarily will not likely to take up such cases.

5)  At present, when a worker is successful in claim at the HRD or Labour Court (HR Court), what he will get is only the amount that the employer should have originally paid him but failed to. In proceeding with the claim, the worker loses monies in terms of transport and even lost days of work. Hence, at the end of the day, the worker loses out. When an employer cheats the workers, by, amongst others, the non-payment of monies due, the law should provide deterrence in the form of maybe requiring the said employer to pay double or triple the amount of payable to the worker.

6)  The Bar Council Legal Aid Centres has the capacity and the ability to assist, provide legal assistance and even representation for workers from the point before the worker lodges any complaints/claims to the point of the final settlement of the claim, and this legal aid should be provided to all workers, including migrant workers, especially those whose basic wages do not exceed RM3,000. 

7)  National Legal Aid Foundation, at present, does not extend its services to claims for worker rights.

We hereby resolve:

(1)  That Malaysian Bar, through its Legal Aid Centres, extends the services of providing advice, assistance and legal representation for workers from the point of intending to file a complaint at the Human Resource Departments (Labour Offices) or other avenues of justice to the full settlement of the said cases.

(2)  The Malaysian Bar shall also do the needful to make the National Legal Aid Foundation extend its services to also worker rights violations.

(3)  The Bar Council also do the needful to create awareness of, and if possible, provide training on, worker rights, including how to use all available channels to access for justice for workers, including providing necessary training for lawyers, workers and trade unions.

(4)  That the Bar Council shall call upon Malaysia to review all existing labour legislation, also with a view of providing more deterrent penalties for employers and just remedies for workers who have been exploited or cheated by employers.