Media Statement – 20/12/2017
Workers’ Right To Claim Justice In Courts Must No Longer Be
Delayed Or Blocked By Minister
-3,600 Malaysian Airlines(MAS) Workers Denied Day In
Court By Minister-
We the 32 undersigned
organisations, trade unions and groups are shocked that the Minister of Human
Resources had decided not to refer the claim of about 3,600 Malaysian Airlines(MAS)
workers, claiming wrongful dismissal and reinstatement, to the Industrial Court
– hence denying these workers the right for their claim to be heard speedily and
determined by the Industrial Court. This is grossly unjust. (Malaysiakini, 5/10/2017)
It must be noted
that past statistics, revealed in Parliament, showed that between 2001 and
2011, that 31.5% or about 10,016 of about 31,714 workers
who claimed wrongful dismissal and reinstatement were denied access to the Industrial Court by the
Minister of Human Resources who decided not to refer their cases to the Industrial Court (Utusan Online, 23/10/2012).
Justly, whether
a worker’s claim for reinstatement is successful is a matter that should be
decided by the Courts, after considering all facts, evidence and submissions on
law - not by a Minister, without even according the right to be heard to the
affected worker and employer, and possibly only relying on limited notes of an
officer handing an attempt at conciliation at the Industrial Relations
Department.
Note at this IRD
conciliation stage the worker is also not allowed to be represented by a lawyer
of his choice, and hence a worker would have to represent himself/herself or be
represented by a union representative, and the likelihood that all relevant
facts and legal arguments may not have been put forward, and as such a decision
of a Minister in such circumstances can most probably lead to a miscarriage of
justice.
Most times, the representations are only oral, and without written
representations enclosed with relevant documents and legal arguments. The right
for a worker to be represented by a lawyer or a qualified legal representative at
all stages of the administration of justice is essential.
WORKERS SUFFER WHILST BUSINESS AS USUAL FOR THE
EMPLOYER
When a worker
loses employment and income, it is essential that justice be done speedily,
preferably within a few months.
A worker who
just lost his/her employment suffers a loss of his/her income and it impacts on
one’s financial security and that of his/her family, who still would have to
deal with all continuing monthly financial obligations of the family whereby a
failure to pay in time could result in loss of home, personal vehicle,
deprivation of basic amenities and even a rising debt given the fact that savings
of most Malaysian workers are rather low.
The worker will also most likely not
be able to secure loans from financial institutions because of the loss of
employment, and may be forced to resort to borrowing from illegal money
lenders, who charge a very high interest rate. Unless, justice is achieved
fast, there is a real risk of the worker and family plunging deeper into
poverty.
On the other hand,
the employer most likely will continue business as usual.
The pursuit of
justice also needs monies, it is most likely that many workers, especially from
the lower and middle income category, will simply choose to walk away victims
not able to undertake the quest for justice, and employer perpetrators of
injustice get off scot free.
Whilst Malaysia
government have finally provided legal aid to the poor in criminal matters, the
government still do not provide legal aid to workers, especially the poor. The Malaysian
Bar now makes available legal aid lawyers to qualified workers.
Most
importantly, the right of a worker to be represented by lawyers of his/her
choice at all stages of the administration of labour justice is currently
barred by law, and this must be right must be
provided to ensure equity and justice to workers in their quest for
justice against employers and even the government.
WORKERS DISCRIMINATED AGAINST COMPARED TO OTHER
VICTIMS OF INJUSTICE
Victims of
injustice can generally immediately commence court actions against alleged
perpetrators – but not workers claiming wrongful dismissal and their employment
back.
These workers
are discriminated as they have no right to immediately pursue their claims of
wrongful dismissal and reinstatement at the Industrial court. They will have to
go through many administrative steps
before their wrongful dismissal cases ever reaches the court. For, these worker
victims, they can only get their cases heard by the Industrial only if finally the
Minister refers their cases.
It is very wrong
and unjust for the Minister to be able to prevent workers from immediately
bringing their claims to the Industrial Court. The fact that the government
also owns and controls many employer companies makes it even more unjust for a
member of the Executive, a Cabinet Minister, to have such power. The Malaysian
Airlines, for example, was a wholly owned government company.
The hurdles that
have to be overcome by workers in their quest to reaching the Industrial court to claim wrongful dismissal and reinstatement in
Malaysia is provided for in the existing unjust laws.
This includes
the need to first lodge a claim/complaint within a stipulated time at the
Industrial Relations Department(IRD), then go through the conciliation session
at the IRD, and thereafter, if no conciliation, the claim is referred to the
Minister who then decides whether the case is referred to the Industrial Court or
not.
Their quest for reinstatement
to their job may not even end in court, and may be ended prematurely in this
administrative process including the decision of a Minister not to refer the
case to court.
The Conciliation Session
The
‘conciliation’ session is an attempt for the affected worker and employer to
come to some sort of settlement, and therefore there will be no need to send the
matter to the Minister, and possibly the Industrial Court.
Rather than
investigating and enforcing the law, the IRD sadly plays the role of an
‘impartial’ go between not taking sides, to get the parties to come to some sort
agreement so that worker not proceed any
further with his/her claim to get employment back.
It is most
unlikely that the conciliation session will not end with any employer agreeing
to reinstate the worker to his/her employment, or even paying out a just
compensation in lieu of reinstatement.
Some employer
may try to settle the claim by making a small payment, and so real justice ends
up not being done.
Now,
conciliation (or mediation) could happen at the Industrial Court, where
currently it is not uncommon that the court will try to get parties to settle
and come an agreement through mediation before trial commences.
Attempts of
settlement can also happen at any time, initiated by the parties, vide their
lawyers, trade unions, legal representatives or even 3rd parties. As
such, there is really no need for these time consuming conciliation sessions at
the IRD at all.
The Reference to the Minister – Decide whether
refer to Industrial Court or Not
Now, if and when
this ‘conciliation’ attempt fails, then the matter is referred to the Minister
who again seems to take too much time, and in the case of these 3,200 MAS
workers, it took 2 years to decide not to refer the case to the Industrial
Court.
Note, the
Minister decides whether to refer or not to refer to the Industrial Court
without even according the right to be heard to the affected worker and/or the
employer. It is a decision which is not even based on all the facts and
evidence, and as such could be said to be arbitrary. All that the Minister has
are only the notes taken by the IRD officer who conducted the conciliation
session. Being a conciliation session, parties may even not be providing all
the relevant facts and evidence, especially evidence of other witnesses.
It was most
shocking that almost about 31% worker claims are not being referred to the
Industrial Court by the Minister.
The reasons for
the non-referral by the Minister that were given in Parliament, as reported in
the media in 2012, included because the
worker was terminated by reason of misconduct, because the worker stop
employment voluntarily and/or accepted the Voluntary Separation Scheme(VSS) and
then changed his/her mind; and the worker’s employment contract period had
ended. (Utusan Online, 23/10/2012).
Well, these reasons
given by the Minister are usually what employers will say to justify
termination. This really are really a matter to be decided by the courts after
hearing and considering all evidence and facts. Was the employer right in
terminating the worker, or was the worker right in saying that it was a
wrongful dismissal? Was the alleged misconduct even a valid misconduct agreed
before by both parties of an employment contract? Was the worker deceived by
the employer and/or their agents? There are many matters that only a court
should be deciding on after not just hearing evidence of the parties to the
dispute, but also other relevant witnesses.
A worker who
takes the trouble, expending monies and time, to file a claim of wrongful
dismissal asking for reinstatement most probably has a case and arguments to
justify such a claim, and there is a need to consider all the facts and listen
to all the evidence, including evidence from witnesses, to determine the truth
and make a final decision. This is the task of the courts, not a Minister.
Delays in the
Industrial Court
There are
currently no time limits set for the completion of an Industrial Court case
and/or appeals thereafter. From the date the case is referred to the Industrial
Court until the completion of the trial, it can take years. Hearing and
conclusion of trial at the Industrial Court can take years, in some cases it
may even take about 5 years or more after the date of wrongful dismissal. If
the worker is victorious, then the fruits of justice can further be delayed by
appeals to the higher courts.
The long drawn
out process before the case reaches the court and the time taken for trials to
complete would most likely just deter most worker victims of injustice from even
filing a claim and/or to abandon the claim midstream.
Thus, this
administration of justice procedure may ultimately end up protecting violators
of law and rights rather than the worker victims.
Reducing the entitlement of the wrongfully
dismissed worker by law
The injustice to
the worker was compounded by fact that from February 2008, the law limited the
amount of claim for a worker who was successful in court proving that he was
indeed wrongfully dismissed. Now, the maximum he can get is 24 months back
wages, even if it takes 5 years or 10 years before he gets his employment back
and/or the final judgment that he was wrongfully dismissed. Before this
amendment, a worker successful in his claim would have been entitled to not
just back wages from the date of wrongful dismissal until the date of
reinstatement or the date of final judgment. He would also be entitled to
whatever increments and bonuses that he would have gotten if not for the
wrongful dismissal by the employer.
The new Second
Schedule of the Industrial Relations Act 1967, in Paragraph 1 now states, “In the event that back wages are to be given, such back wages
shall not exceed twenty-four months' back wages from the date of dismissal
based on the last-drawn salary of the person who has been dismissed without
just cause or excuse;”. Further there is provisions, for even further
deductions from the amount of back wages due and payable if the worker was
earning whilst he was waiting to get back his job.
Oddly, now even if
the worker is victorious, a further sum is deducted for “shall take into account contributory misconduct of the
workman.”, and this amount to penalising of the worker despite being successful
in court. Courts should decide whether worker was wrongfully dismissed or not,
and it is only just that a worker receives from the employer all that he would
have earned, including wage increments and bonuses, from the date of his
wrongful judgment until the date of reinstatement and/or final judgment.
Justly, there should also be a need for further damages that ought to be paid by
the employer for the violation of the worker’s rights and the law, and also for
the suffering caused.
ENFORCEMENT OF THE LAW AND PROSECUTION OF THE GUILTY
IS THE DUTY OF GOVERNMENT
Enforcement of
the law and protecting worker rights should be priority of the government. The
government, in particular the Human Resource Ministry and its various
departments, should be regularly inspecting, investigating and ensuring that
rights are not violated and laws are enforced. On receipt of information of
alleged violations from any source, the Ministry should speedily investigate
and ensure that the law is complied with at a particular workplace.
The practice of
waiting for the victims to lodge formal complaints/claims before action is
taken must end, as most victimized workers are worried about lodging formal
complaints against their employer, more so when they are still in employment
for fear of retaliation which may also include dismissal.
The law empowers
the Ministry of Human Resources to conduct regular inspections, but a perusal
of the Statistics provided by the Ministry shows that there are only inspections,
investigations and prosecutions being carried out by the Occupational Safety and Health (OSH)
department, there is no statistics about inspections, investigations,
prosecution and/or enforcement of the basic worker and trade union rights like
payment of wages, overtime, wrongful dismissal, discrimination and such rights.
A perusal of the
Ministry of Human Resources quarterly reports, Statistic Pekerjaan dan Perburuhan
Siri 13 Bil 3/2017 September (Employment and Labour Statistics) discloses no
statistics of workplace inspections to ensure that worker and trade union
rights are not being violated, no statistics of investigation and prosecution
of employers that have violated labour laws and fundamental worker rights, no
statistics of information/complaints received and no statistics of employers
found guilty. Only available are matters concerning OSH.
Given the fact
that there are statistics on
Occupational Safety and Health(OSH) inspections and enforcement, it
looks like the Malaysian government and/or the Ministry of Human Resources are
not interested in protecting basic worker and trade union rights. After all,
the statistics of inspection, investigation, prosecution, conviction and
enforcement against employers who breach existing Malaysian labour and trade
union laws is information so easily compiled by the Government.
Malaysian Airlines – A wholly government owned company
These 3,200
workers were employees of the Malaysian Airlines, who was owned by a wholly
government owned company. The airlines decided to reduce the workforce by 6,000
workers, which justly would have been done vide retrenchment exercise, which
would have had to comply with existing just legal principles like Last In First
Out (LIFO). However, what the Malaysian government did was to form a new
company, and terminate all employees in the previous company – and then
re-employed selected workers in the new wholly owned company. This would not be
just and a violation of worker rights.
The
Malaysian government then passed a new law, that made the new company
specifically not liable for the actions and liabilities of the old company.
This
exercise may also be biggest union busting exercise of recent times, as almost
6 of the trade union were in-house trade unions, and this exercise would
effectively kill all these unions.
The airlines employees in Malaysia, did
previously have a national union. In
February 1979, 22 members of the Airlines Employers Union (AEU) were detained
under the ISA after a pay dispute at the state-run Malaysian Airline System
(MAS) had led to a work to rule and a government order to deregister the union.
Thereafter, only in-house unions existed for employees of the Malaysian
Airlines, until the recent registration of National Union of Flight Attendance
Malaysia's (NUFAM). However, despite NUFAM succeeded in getting 62.73% of the votes at the secret ballot, and
thereafter on August 2013,
the Director General of Industrial Relations(DGIR) issued the formal letter
acknowledging NUFAM as a recognized union in MAS, the company challenged the
decision in court.
Considering the
background, this non reference of the claim of these 3,200 Malaysian
Airlines(MAS) workers to the Industrial Court by the Minister is all the more unconscionable.
If not for that new law, that attempts to not make the new MAS company, owned
by the same owners of the old MAS company, the owners and the new MAS company
would most likely be found to be liable for the actions of old MAS company.
Even, with the new law, the Courts may have found in favour of the workers.
The Minister’s
decision of not referring the case to the Courts as such in this case may be
tainted with mala fide – an attempt to even prevent the claims of these MAS
worker from being considered and determined by the court, where judges are duty
bound to uphold the cause of justice without fear or favour – and not follow
the agenda and/or intention of even the existing UMNO-BN government.
The reality in
Malaysia where worker rights are not protected and promoted, and have been
eroding in some cases is embarrassing. When Malaysia recently wanted to be part
of the Trans-Pacific
Partnership Agreement (TPP), one of the
pre-conditions was that Malaysia amends its labour and trade union laws to
enable it to be in compliance with international labour standards, whereby
there have been moves on the part of the government to do so but alas to date,
we have yet to see any proposed amendments.
Therefore, we
·Call on Malaysian government to ensure that workers claiming wrongful dismissal seeking reinstatement shall have the right to immediately file their claim at the Industrial Court, and that all administrative hurdles including the Minister’s discretion to refer a case be removed;·Call for the revocation of the Minister’s decision not to refer this case of the 3,200 Malaysian Airlines(MAS) workers, and that their case immediately be commenced and heard by the Industrial Court. Likewise, all Ministerial decisions not to refer worker cases be revoked, and be forthwith heard by the Industrial Court;·Call for the repeal of Schedule 2 of the Industrial Relations Act that seeks to, amongst others, limit the worker’s who have been wrongfully dismissed to just 2 years back wages;·Call for the government to expedite administration of justice, including trials, of workers wrongfully dismissed who are claiming reinstatement to end not later than 6 months from the date of claim;·Call for the Malaysian government to proactively protect worker and trade union rights, amongst others, by regular inspections, speedy investigations and enforcement of labour laws and worker rights.·Call on Malaysia to expedite the transformation of existing labour and trade union laws to be in compliance with international human rights and labour standards;·Call on Malaysia to promote and protect worker and trade union rights.
Charles Hector
Ng Yap Hwa
Pranom Somwong
For and on behalf of the 32 organisations, trade unions and
groups listed below
ALIRAN
Association of Maybank
Executives
ATRAHDOM Guatemala
CAW(Committee for Asian Women)
Christian Development Alternative (CDA),
Bangladesh
Club Employees Union Peninsular
Malaysia (CEUPM)
Community Development
Foundation (CDF)
Electronic Industry Employees Union (EIEU)
Southern Region, Peninsular Malaysia
Japan Innocence and Death
Penalty Information Center
Garments Workers Federation (NGWF ),
Bangladesh
HAK Association from Timor-Leste
Kesatuan Pekerja-pekerja Perusahaan
Otomobil Nasional Sdn Bhd
MADPET(Malaysians Against Death Penalty
and Torture)
Majlis Rangkaian
Kesatuan Sekerja Antarabangsa Malaysia (UNI-MLC)(UNI - Malaysia Labour Centre - (UNI-MLC)
Malaysian Physicians for Social
Responsibility
National Union of Flight Attendants
Malaysia (NUFAM)
National Union of Transport Equipment
& Allied Industries Workers (NUTEAIW)
North South Initiative
Parti Rakyat Malaysia(PRM)
People & Planet, UK
Persatuan Kakitangan Akademik University
Malaya - PKAUM (Academic Staff Union)
Persatuan Komuniti Prihatin Selangor dan
Kuala Lumpur
Rescue Alternatives Liberia (RAL)
Sahabat Rakyat (人民之友)
Saya Anak Bangsa Malaysia (SABM)
Singapore Anti Death Penalty Committee
Solidarity of Cavite Workers, Philippines
Teoh Beng Hock Trust for Democracy
WH4C (Workers Hub For Change)
Women's Rights and
Democracy Centre (WORD Centre)
Workers Assistance Center, Inc. ,
Philippines
Yayasan LINTAS NUSA, Batam, Indonesia
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