‘Wrongfully’ sacked workers union president turns to Suhakam for help(FMT,17/3/2017)

On 17/3/2017, a Human Rights Defenders' delegation, representing 55 groups, comprised of Syed Shahir bin Syed Mohamud, Charles Hector, Rudy Rusly(General Secretary of the Club Employeees Union Peninsular Malaysia), Adrian Pereira, executive director of the North South Initiative(NSI) went to Malaysian Human Rights Commission(SUHAKAM) to bring to the attention the issue of Freedom of Association, Union Busting and the Victimization/Discriminization Against Worker Leaders - with particular reference to case involving Muhammad Zulfadlee Thye Bin Abdullah, the President of the Infineon Technologies Malaysia Workers Union (Kesatuan Pekerja Pekerja Infineon Technologies (M) Sdn Bhd) and 6 other Union Committee Members at INFINEON in Malacca.

The Union President is also wrongfully being prevented by the Company from entering the Union office, and/or carrying out his Union duties/responsibilities. He is also being prevented from being involved in the discussions and negotiations of the upcoming Collective Bargaining Agreement.

We met with Human Rights Commissioner, Lok Yim Pheng, and had a long meeting and discussion. It is our hope that SUHAKAM will conduct a thorough investigation, and maybe even have an inquiry and do the needful to ensure that human rights is respected and protected.

Our hope is that INFINEON, a company that claims to respect worker rights, will not delay matters and will immediately do the needful to respect worker and trade union rights, which are all human rights. As Human Rights Defenders, we shall struggle on until justice is done...

See related posts:- 

55 Groups - INFINEON MUST STOP UNION BUSTING AND DISCRIMINATION AGAINST UNION LEADERS - Reinstate Union President?

Malaysia: Workers claim discrimination against union leaders at Infineon's assembly factory; company responds (BHRRC)- We have send in our response to Infineon's response, and are currently still waiting for INFINEON's response to that.

 

 

 
‘Wrongfully’ sacked workers union president turns to Suhakam for help

Ho Kit Yen

March 17, 2017

Former senior employee claims company sacked him to stop him from fighting for workers’ rights.

 

KUALA LUMPUR: A former employee of an electronics company in Malacca, who is also president of the workers union, filed a complaint of wrongful termination with the Human Rights Commission of Malaysia (Suhakam) here.

Muhammad Zulfadly Thye Abdullah, who was a senior technician analyst at the company, claimed he was dismissed for “committing the act of malingering”, or feigning illness to avoid going to work.

He said despite his dismissal, he remained the president of the union. He claimed he was prevented from carrying out his duties as the union president after his dismissal.

Zulfadly said he had been employed at the company since 1998, and the president of the workers union since 2005

Human rights lawyer Charles Hector, who brought the case to the attention of  Suhakam, said the company’s charge against Zulfadly was “defective”.

“According to the company policy, malingering is not a form of misconduct that can lead to termination,” he said.

Zulfadly stated in his memorandum that he was sacked on Dec 13 last year. He said he had obtained a medical certificate (MC) from the company panel clinic on Oct 18 for back pain, followed by another MC for the next three days, after being diagnosed with kidney stones.

However, the company found out that he had attended a union event in Putrajaya when he was on medical leave on Oct 18.

Zulfadly was charged with skipping work and subjected to a domestic inquiry. He was dismissed on Dec 13.

“I replied to the company that my decision to go to the union event was a last-minute one.

“It was a short event and I took the bus instead of driving there because of my back pain,” he said.

After he was sacked, Zulfadly claimed he was barred from carrying out his duties as the union president.

“I could not enter the union office in the factory compound and I was not allowed to perform my duty of negotiating over the collective agreement for the workers’ working shifts.”

He claimed the company had sacked him to prevent him from fighting for the workers’ rights.

“The Industrial Relations Act guarantees the right of workers to participate in unions.

“Even though I have been terminated from my job, I am still the president of the union, elected by fellow members.”

Suhakam commissioner Lok Yim Pheng, who heard the complaint, expressed sympathy with Zulfadly’s plight.

“I share a union background and I will be with you in this fight for workers’ rights,” said Loke, who is the former secretary-general of the National Union of the Teaching Profession.

She promised to look into Zulfadly’s complaint and make the appropriate recommendations to the government.

“Suhakam will put an end to this.”

Syed Shahir Syed Mohamud, who is former president of Malaysia Trade Union Congress, was also present.- FMT News, 17/3/2017


Some of the additional points raised at SUHAKAM :-

FREEDOM OF ASSOCIATION, UNION BUSTING  AND VICTIMIZATION OF UNION LEADERS

Freedom of Association is guaranteed by the Malaysian Federal Constitution, and worker’s right to promote, form and join Trade Unions are provided for in Malaysian laws.

However, unlike societies and other associations, Trade Union’s in Malaysia have been subjugated by existing bad laws and practices in Malaysia. 

When Malaysia intended to a party in the Trans Pacific Partnership Agreement(TPPA), some countries were forbidden to enter into agreement with Malaysia by reason of the Malaysia’s current labour laws and policies. Malaysia had to agree to amend its laws to comply with international standards and practice, if was to be part of the TPPA. As such, an agreement was entered into between the United States of America and Malaysia to this effect - Malaysia – United States Labour Consistency Plan. Now that the TPPA may not be going forward, Malaysia may not be proceeding with the necessary labour amendments. SUHAKAM need to do what is required to get Malaysia to amend/repeal laws so that it is in compliance with international standards.

However, even that TPPA motivated agreement, does not really cover all the needed changes in law.

RIGHT OF MEMBERSHIP OF TRADE UNION – Membership lost when employment lost?

Section 26(1A) of the Trade Unions Act 1959 provides that membership to a Trade Union will simply be lost when one loses one’s employment. For an in-house union, it is even worse, this means that the employer can get rid of Union leaders simply by terminating him/her…This means a worker, a member of the Union, on losing his/her job will no longer be able to rely on the Union for help and injustice. So, when a Union member most definitely needs the solidarity and support of the Union, it is lost…

Section 26(1A) - Trade Unions Act 1959

(1A) No person shall join, or be a member of, or be accepted or retained as a member by, any trade union if he is not employed or engaged in any establishment, trade, occupation or industry in respect of which the trade union is registered.

Now, the courts have determined that when a dismissed worker claims for ‘wrongful dismissal’ and is seeking reinstatement, then he/she shall be able to continue to be a Union member and/or a Union leader. But despite, several such judgments, Malaysia has yet to amend the law.

The reality is that some workers who have been ‘wrongfully terminated’ or ‘retrenched’ really may not be interested in being reinstated, or there in fact may be no opportunity to effectively be reinstated. This will also be workers (union members) who have had rights violated by their employer – but the law says they cannot retain their union membership. Hence not only can’t they get help/assistance from their Union in times of need, but the Union itself is barred from helping and/or fighting for the rights of these ‘members’.

The choice of joining or leaving a Trade Union must exist only with the member. The Trade Union may also have the right to expel members for good reason, just like any other Societies or associations. As such,  the existence of a law that terminates a membership of a Trade Union member goes against the fundamental principles of Freedom of Association.

Further, it gives employers the ‘power’ to terminate workers, and leaving them out in the cold alone separated from their fellow union members and the Trade Union itself – it creates a situation where Union Busting and Worker Exploitation can so easily be done by Employers.

Available Ineffective Remedies facilitates Union Busting and Worker Exploitation

Workers wrongfully dismissed have no immediate or direct access to the Industrial Court. Even after attempts at Conciliation fails, the matter is referred to the Minister who decides, without giving the affected worker the right to be heard, which cases get referred to the Industrial Court, and which are not.

Even after it arrives at the Industrial Court, it takes too long. As an example, in the case of  Wan Noorulazhar bin Mohd. Hanafiah, Electronic Industry Employees Union Western Region, Peninsular Malaysia (EIEUWR) wrongfully dismissed on 26/8/2011, but the Industrial Court has still not heard and disposed of this matter after almost 6 years.

UNION BUSTING - INFINEON TECHNOLOGIES MALAYSIA WORKERS UNION

Well about 40 members of the Union participated at a union event in Putrajaya, then INFINEON commenced disciplinary action on the Union President, and shortly thereafter on 6 other members of the Union Committee. 

The President was terminated, and the rest were given warnings.

Muhammad Zulfadlee Thye Bin Abdullah, the President of the Infineon Technologies Malaysia Workers Union (Kesatuan Pekerja Pekerja Infineon Technologies (M) Sdn Bhd) at INFINEON in Malacca was charged of committing the misconduct of commiting an act of malingering. This is not even in the list of misconducts of the said company. Act of malingering is pretending to be sick to avoid work – but Zulfadlee was not pretending as he truly was not well. He was examined by a qualified doctor, and was issued a Medical Certificate. Still not well, the following day the Specialist issued MC for 3 more days, and the radiology report confirms that he a stone in the kidney/bladder. But, he was still wrongfully terminated.

The fact that he was the Union President, certainly was a consideration – and this is wrong in law – victimization by reason of Union involvement.

Infineon knows very well that the Industrial Court and/or court process will take years and years. Justice delayed is justice denied. It matters not, as they will be able to continue to benefit for years even if what they did was wrong or an injustice.

The effect of a ‘warning’ may affect promotions and wage increments – and this certainly will put fear in the Union Committee.

What makes it worse is that all this is happening when the new Collective Bargaining Agreement discussions and negotiations was starting in January 2017.

INFINEON previously tried to change the 3 shift system to a 2 shift system, and the Union and its members opposed this strongly. A vote amongst Union members was made which proved that an overwhelming  majority opposed this. The current Collective Bargaining Agreement is also stopping the company from changing to a 2-shift system.. The only solution may be to change it through the upcoming CBA.This is simply a possible reason - but we do not know why exactly.

Hence the removal of the President, and the other actions may simply be to remove resistance from the Union and its members, so that the Employer may be able to push forward what they want.

Union President – prevented from entering Union Office and carrying out his duties.

As Zulfadlee is claiming ‘wrongful dismissal’, he clearly remains the Union President. Infineon, however is not even allowing him to go to the Union office. They also do not want him to participate in the Collective Bargaining discussions and negotiations between Union and Infineon Melaka. This is certainly wrong.

Union Busting in Malaysia

Over the past years, there have been several Union leaders who have similarly been ‘wrongfully dismissed.

-Wan Noorulazhar bin Mohd Hanafiah, an employee of RENESAS who is the President of the UNION was dismissed on 26/8/2011 by RENESAS whereby the alleged misconduct, was that his actions were ‘contrary to explicit company policies’. He allegedly made statements about treatment of workers in a closed Facebook Group, whose members were fellow workers.

19/8/2013 - 18 members of the National Union of Transport Equipment and Allied Industries Workers (NUTEAIW) in DRB HICOM subsidiary in Pekan were terminated for submitting a MTUC memorandum to one of the contesting candidates in the Pekan parliamentary constituency

- 29/11/2013 MAS wrongly terminated Ismail Nasaruddin, the President of NUFAM for a statement he issued in his capacity as President of NUFAM.

Other Union leaders who have ‘wrongfully terminated’ include Abdul Jamil Lalaludeen dan Chen Ka Fatt, Vice President and Treasurer respectively of the National Union of Bank Employees (NUBE); and Hata Wahari, President  National Union of Journalists(NUJ). This is not the complete list of Union leaders who have been wrongfully terminated.

WORKER RIGHTS ARE HUMAN RIGHTS, and SUHAKAM needs to immediately act on this – speaking out when rights are violated, and making also necessary recommendations for changes in laws so that Malaysia will be in compliance with international standards.