The Electronic Industry Employees Union Western Region, Peninsular Malaysia (EIEUWR)/ Kesatuan Sekerja Industri Elektronik Wilayah Barat Semenjung Malaysia(KSIEWBSM) was victorious in the 'secret ballot' when about 72% of the qualified workers at RENESAS Semiconductor KL Sdn Bhd (formerly known as NEC Semiconductors (Malaysia) Sdn Bhd]voted in favour of the Union.
Wednesday, May 20, 2015
The right to form and belong to a Trade Union is a fundamental right of workers. Why Trade Union? Well, collectively workers are stronger and are in a better position to deal with their employer, and obtain better worker rights - something that is very difficult if workers alone or in small groups try to achieve through negotiations with employers.
The right is there but access to that right in Malaysia is very difficult.
First, there is a need for REGISTRATION,
And, thereafter there is another requirement before a Trade Union can start to negotiate and enter into Collective Bargaining Agreements with their employer...The Union needs to get the RECOGNITION of their employer.
The Union applies to the employer for RECOGNITION - and good employers can easily accord recognition, but alas many an employer will try to deny recognition using a variety of reasons... This denial of recognition happens even if the majority of the workplace are already members of the said Union? Absurd and most unreasonable...
And if the employer refuses to accord recognition, the Union brings the matter to the relevant government authority - who then will proceed to have a SECRET BALLOT - which will involve all employees of the workplace who would qualify as member of the said Union. Again, bad employers can delay matters by being uncooperative ...and make even the process of working out the list of employees qualified to vote a prolonged exercise.
The longer the employer delays the process, the better for the Employer because many qualified employees may be no more workers because they were employees under precarious short term contracts - and this includes migrant workers. The list of qualified employees entitled to vote is as it was on the first date of the Union's application for recognition... and that can sometimes be many years ago...
In any event, then we have the SECRET BALLOT - and all qualified employees are entitled to vote. But, alas 'tricks' and 'threats' may be used to prevent qualified voters coming out to cast their votes. In most elections, what matters is only ballots in the box - but unjustly this is not the case when it comes to this 'Secret Ballot' - qualified voters who did not turn up to cast their ballots are considered to be persons who voted against UNION - in favour of employees. To succeed, the Union needs to get more that 50% of all qualified employees to come and cast the vote in favour of the UNION - and this is not an easy task.
Now, even if the Union succeeds at the Secret Ballot and get the required number of votes, and the Minister orders that RECOGNITION is accorded - some 'bad' employers of late have been going for Judicial Review at the High Court to challenge the outcome of the secret ballot and/or the decision of the Minister to accord RECOGNITION. When they do this, they also go for an interim order to prevent Unions exercising their rights that come with Recognition, which is primarily proceeding with the Collective Bargaining Agreement. This again denies Unions and workers at the said place their full rights as Union - and this delay can go on for months and years...Remember, even if the High Court rejects the employer's application, the employer can further delay matters through appeals to the Court of Appeal, and thereafter to the Federal Court.
At the end of the day, the Trade Union rights are just denied Malaysian workers. With the changes happening to employment relationships - where employees now are losing rights to regular employment until retirement - and more and more employees are being employed as precarious short-term contract employees or labour requirements are being met not by hiring employees but getting workers(non-employees) from third party labour suppliers(in Malaysia, now known as 'contractors for labour'). Now these supplied workers are not considered employees - and they will not be able to benefit from a Collective Bargaining Agreement, being an agreement that only benefits employee members of the trade union and the employer.
Employers are also resorting to dismissal of union leaders as a means to 'bust' unions - It may be wrongful dismissal, but the entire process to access justice and reinstatement just takes a very long time - and even, after the courts determine that a worker is wrongfully dismissed, the courts may order the alternate remedy of 'compensation in lieu of reinstatement' - and Malaysia, now has limited this to not more than 24 months back wages/benefits. The courts consider 'industrial harmony' - and likelihood of reinstatement becomes slimmer.
Hence, it is not at all surprising that the number of unionised workers in Malaysia is not rising over the past few years. It is not surprising that less than 5% of workers in the private sector are unionised. Workers in the public sector and of statutory bodies are less affected by such denial of rights. But then, the problem is that Malaysia is now more inclined towards privatization - and they too will find themselves in the same precarious position as private sector unions and workers sooner rather than later.
One example of note is the case of the The Electronic Industry Employees Union Western Region, Peninsular Malaysia (EIEUWR)/ Kesatuan Sekerja Industri Elektronik Wilayah Barat Semenjung Malaysia(KSIEWBSM) and its struggle at RENESAS Semiconductor KL Sdn Bhd (formerly known as NEC Semiconductors (Malaysia) Sdn Bhd]
Now, here the first application for RECOGNITION was sent on January 2010. When the first application was sent, about 70%(or 1,300) of the qualified members in RENESAS were already members of the Union. Thereafter, several applications had to be send. See the following posts for more details:-
In any event, finally there was the SECRET BALLOT, which the Union was successful - getting 72% votes...
But, then the employer has applied for Judicial Review further delaying the rights that comes with RECOGNITION - and this case just recently came up for Judicial Review on 19/5/2015, and have now been adjourned to 25 June 2015