Thursday, October 31, 2019

Malaysian Bar welcomes the amendments to the Industrial Relations Act 1967.- What did MTUC object to?

MTUC (Malaysian Trade Union Coingress) have been objecting to the recent amendments to the Industrial Relations Act - BUT, what exactly were they objecting to? It would help if we knew.

MTUC complain seem to be that there was no CONSENSUS agreement at the National Labour Advisory Council(NLAC) - no agreement before by MTUC and the MEF(The Malaysian Employers Federation) - Is that all?
MTUC president Datuk Abdul Halim Mansor (pic) said Human Resources Minister M. Kulasegaran tabled the proposed amendments without the endorsement of the labour centre and Malaysian Employers Federation (MEF). He said the minister should have received the consensus from the National Labour Advisory Council (NLAC) on the amendments before tabling the proposals in Dewan Rakyat last Monday (Oct 7).
NLAC is made up of MTUC, MEF and government. 

MTUC is supposed to be representative of workers in Malaysia BUT was not appointment of MTUC to represent workers and trade unions really a 'political appointment' of the government. So, was MEF a political appointment.

If all Malaysian Trade Unions and workers DEMOCRATICALLY elected MTUC to represent workers and trade unions in Malaysia, it will be different...

MTUC's membership is about 30% of Malaysian Unions, and only about 7% of all workers in Malaysia are unionized - majority un-unionized. Did all the trade unions democratically elect the MTUC to represent all Malaysian Trade Unions.

CONCENSUS at NLAC - If that is what MTUC is fighting for, it is foolish. WHY? Many employers will object to demands to increase worker and trade union rights...and remember that the government are also employers ... in many cases. Worker rights will SUFFER if MTUC insist on concensus...

If the government takes on MTUC's proposals and pass laws ..that is the BEST we can achieve..

SO, again we ask what exactly is MTUC objecting to ...what amendments and WHY?

The Malaysian Bar seem to be happy with some of these amendments - maybe MTUC should come out with a CLEAR STATEMENT as to what amendments they think are good...and what are BAD.




Press Release | The Malaysian Bar Welcomes Amendments to the Industrial Relations Act 1967 Tuesday, 29 October 2019 02:36pm Image 

The Malaysian Bar welcomes the amendments to the Industrial Relations Act 1967.  The amendments, which take the form of the Industrial Relations (Amendment) Bill 2019, was tabled in the Dewan Rakyat on 7 October 2019 and passed on 9 October 2019.  The Bill is set to be tabled in the Dewan Negara. 

Leading up to the tabling of the Bill, the Bar Council through its Industrial and Employment Law Committee, have had many consultations with the Honourable Minister of Human Resources, YB M Kula Segaran, and officials of the Ministry over the past one year, whereby the Bar Council's views were consistently sought on the proposed amendments.

Having perused the proposed amendments, the Bar Council is pleased to note that several proposals by the Bar Council have been adopted by the Ministry which the Bar Council views as progressive.  These proposals which the Bar Council views favourably are as follows:

(1) Direct reference of unfair dismissal presentations to the Industrial Court by the Director General where the matter is not settled;

(2) The Industrial Court is allowed to continue its proceedings notwithstanding the death of a workman;

(3) All awards of the Industrial Court for the payment of money shall carry interest;

(4) The replacement of a cumbersome judicial review process with a direct appeal to the High Court against awards;

(5) The removal of a maximum cap of 24 months' backwages on dismissals premised on union-busting activities; and

(6) The increase in fines and penalties for non-compliance with Industrial Court awards.

The Malaysian Bar therefore stands by the amendments, and views the passage of the amendments through the Dewan Negara as a positive development. 


Abdul Fareed Abdul Gafoor
President
Malaysian Bar

29 October 2019

MTUC urges Dewan Negara to reject 'rushed' labour law amendments


  • Nation
  • Sunday, 13 Oct 2019
PETALING JAYA: The Malaysian Trades Union Congress (MTUC) has urged the Dewan Negara to reject all eight amendments to the Industrial Relations Act 1967 passed by Dewan Rakyat, saying that the amendments were "rushed".

MTUC president Datuk Abdul Halim Mansor (pic) said Human Resources Minister M. Kulasegaran tabled the proposed amendments without the endorsement of the labour centre and Malaysian Employers Federation (MEF).

He said the minister should have received the consensus from the National Labour Advisory Council (NLAC) on the amendments before tabling the proposals in Dewan Rakyat last Monday (Oct 7).

The permanent constituents of the NLAC include the Human Resources Ministry, MTUC and MEF.

"The Bill was rushed through in Dewan Rakyat and we hope the Dewan Negara will do the right thing by sending this Bill back to the NLAC so that it can be discussed and finalised by the legitimate representatives of workers and employers in this country.

"In tabling the amendments unilaterally, Kulasegaran clearly reneged on his own pledge to give the NLAC full mandate to scrutinise and finalise amendments to the three main labour laws before they are presented for Government and Parliament's approval.

"His action also clearly contradicts the International Labour Organisation's Convention 144 – Tripartite Consultation, which Malaysia ratified in 2002," he said.

Abdul Halim said MTUC has sent a memorandum to all 65 senators in Dewan Negara, urging them to withhold approving the amendments and to obtain the endorsement of the NLAC as agreed by the minister.

He said MTUC's hope now hinged on the wisdom of Dewan Negara to "reject bad laws", which did not reflect the aspirations and needs of the main stakeholders, namely the MTUC and MEF.

"The actions of the minister in rushing off the amendments to Parliament was a betrayal of the trust placed by workers and unions in the ministry, particularly Kulasegaran, all this while," he said.

Abdul Halim said Dewan Negara must not allow Kulasegaran to undermine the role of NLAC and the spirit of tripartism as it would "greatly endanger" the future of the labour movement and the rights of workers.

He said despite MTUC's reminders on the minister's pledge that NLAC will be given the right to deliberate and reach a consensus on the amendments, Kulasegaran did not convene an NLAC meeting for that purpose.

"Instead on Sept 26, 2019, we were informed by the Ministry that the minister had unilaterally submitted proposed amendments to the three labour laws to the Attorney General's Chambers (AGC) for approval," he said.

The three main laws are the Industrial Relations Act 1967, the Trade Unions Act 1959 and the Employment Act 1955.

"Even more shocking is the AGC took only 10 days to approve the amendments to such important laws which contains hundreds of provisions and sections," he said.

Kulasegaran had previously responded to claims that he did not consult MTUC, saying that the government had conducted nine National Labour Advisory Council (NLAC) meetings this year and various technical committee meetings since January. - Star, 13/10/2019


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Wednesday, October 30, 2019

SOSMA - no Bail > In prison until trial ends? Kit Siang’s polsec urges repeal of Sosma - what about parties?

Anyone charged in court for any one of the security offences listed in the First Schedule of SOSMA will have to be detained until his/her trial is over - NO BAIL except for a very few exceptions..


13  Bail (SOSMA)
(1) Bail shall not be granted to a person who has been charged with a security offence.
(2) Notwithstanding subsection (1)-
(a) a person below the age of eighteen years;
(b) a woman; or
(c) a sick or an infirm person,
charged with a security offence, other than an offence under Chapter VIA of the Penal Code [Act 574] and the Special Measures Against Terrorism in Foreign Countries Act 2015 [Act 770], may be released on bail subject to an application by the Public Prosecutor that the person be attached with an electronic monitoring device in accordance with the Criminal Procedure Code.
Judges cannot grant BAIL - even if the prosecutor has no objections. Now 2 wakil rakyat amongst those charged for offences listed as security offences - THEY HAVE TO STAY IN DETENTION IN PRISON until their trial and appeals are over - HOW LONG? Maybe years...

GRAVE INJUSTICE if he is found NOT GUILTY by court - and, is it just that he had to languish in detention for years? 

In Malaysia, there is NO COMPENSATION yet for those who have been forced to spend their time in Detention and then found to be NOT GUILTY? 

That innocent person, by reason of detention under SOSMA, suffers much -
- It impacts his/her job, business - income and source of income
- It brings about GREAT SUFFERING to not just himself, but his family including children. No income cannot pay loan obligations - may lose house, car, student loan, etc.. > may even end up being declared BANKRUPT?

In Malaysia, even persons charged with MURDER can get bail, so is it right 
Samirah Muzaffar, the widow of the late Cradle Fund chief executive officer Nazrin Hassan, posted her RM500,000 bail in two sureties pending her murder trial...The Federal Court on Tuesday allowed Samirah to be released on a half a million ringgit bail with several conditions attached.The conditions include surrendering her passport to the court and reporting to a police station once every two weeks as well as being indoors at between 6pm and 8pm.She also cannot be at public places or public functions apart from functions involving family and religious matters.In addition, she is not allowed to leave Kuala Lumpur or Petaling Jaya without leave of the court.

On March 27 this year, the High Court in Shah Alam had granted bail of RM50,000, in two sureties each, to the two teenage boys. - New Straits Times, 29/5/2019

the late Datuk Balwant Singh, who was similarly charged under Section 302 of the Penal Code for shooting and killing despatch rider Gobala Krishnan in Bangsar, Kuala Lumpur in 2002. Balwant, 81 at the time, was granted bail after the court took into account his age and health. He was later found not guilty and acquitted in 2003. - Malay Mail, 5/6/2019

-"security offences" means the offences specified in the First Schedule; 

What does the First Schedule say _

Schedule 1 (Section 3)
 

SECURITY OFFENCES
Penal Code [Act 574] -
(i) Offences under Chapter VI, (ii) Offences under Chapter VIA and (iii) Offences under Chapter VIB


Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 [Act 670] - Offences under Part IIIA 

Special Measures Against Terrorism in Foreign Countries Act 2015 [Act 770].


What kind of Penal Code Offences?


CHAPTER VI   OFFENCES AGAINST THE STATE
121 Waging or attempting to wage war or abetting the waging of war against the Yang di-Pertuan Agong, a Ruler or Yang di-Pertua Negeri
121A Offences against the Yang di-Pertuan Agong's person
121B Offences against the authority of the Yang di-Pertuan Agong, Ruler or Yang di-Pertua Negeri
121C Abetting offences under section 121A or 121B
121D Intentional omission to give information of offences against sections 121, 121A, 121B or 121C by a person bound to inform
122 Collecting arms, etc., with the intention of waging war against the Yang di-Pertuan Agong, a Ruler or Yang di-Pertua Negeri
123 Concealing with intent to facilitate a design to wage war
124 Assaulting member of Parliament, etc., with intent to compel or restrain the exercise of any lawful power
124A (Repealed)
124B Activity detrimental to parliamentary democracy
124C Attempt to commit activity detrimental to parliamentary Democracy
124D Printing, sale, etc., of documents and publication detrimental to parliamentary democracy
124E Possession of documents and publication detrimental to parliamentary democracy
124F Importation of document and publication detrimental to parliamentary democracy
124G Posting of placards, etc.
124H Dissemination of information
124I Dissemination of false reports
124J Receipt of document and publication detrimental to parliamentary democracy
124K Sabotage
124L Attempt to commit sabotage
124M Espionage
124N Attempt to commit espionage
125 Waging war against any power in alliance with the Yang di-Pertuan Agong
125A Harbouring or attempting to harbour any person in Malaysia or person residing in a foreign State at war or in hostility against the Yang di-Pertuan Agong
126 Committing depredation on the territories of any power at peace with the Yang di-Pertuan Agong
127 Receiving property taken by war or depredation mentioned in sections 125 and 126
128 Public servant voluntarily allowing prisoner of State or war in his custody to escape
129 Public servant negligently suffering prisoner of State or war in his custody to escape
130 Aiding escape of, rescuing, or harbouring such prisoner
130A Interpretation of this Chapter
CHAPTER VIA   OFFENCES RELATING TO TERRORISM Suppression of terrorist acts and support for terrorist acts
130B Interpretation in relation to this Chapter
130C Committing terrorist acts
130D Providing devices to terrorist groups
130E Recruiting persons to be members of terrorist groups or to participate in terrorist acts
130F Providing training and instruction to terrorist groups and persons committing terrorist acts
130FA Receiving training and instruction from terrorist groups and persons committing terrorist acts
130FB Attendance at place used for terrorist training
130G Inciting, promoting or soliciting property for the commission of terrorist acts
130H Providing facilities in support of terrorist acts
130I Directing activities of terrorist groups
130J Soliciting or giving support to terrorist groups or for the commission of terrorist acts
130JA Travelling to, through or from Malaysia for the commission of terrorist acts in foreign country
130JB Possession, etc. of items associated with terrorist groups or terrorist acts
130JC Offence to build, etc. conveyance for use in terrorist acts
130JD Preparation of terrorist acts
130K Harbouring persons committing terrorist acts
130KA Member of a terrorist group
130L Criminal conspiracy
130M Intentional omission to give information relating to terrorist acts
Suppression of financing of terrorist acts
130N Providing or collecting property for terrorist acts
130O Providing services for terrorist purposes
130P Arranging for retention or control of terrorist property
130Q Dealing with terrorist property
130QA Accepting gratification to facilitate or enable terrorist acts
130R Intentional omission to give information about terrorist property
130S Intentional omission to give information relating to terrorism financing offence
130T Offences by body corporate
130TA Non-application of Offenders Compulsory Attendance Act 1954 and sections 173A, 293 and 294 of the Criminal Procedure Code
CHAPTER VIB   ORGANIZED CRIME
130U Interpretation in relation to this Chapter
130V Member of an organized criminal group
130W Assisting an organized criminal group
130X Harbouring member of an organized criminal group
130Y Consorting with an organized criminal group
130Z Recruiting persons to be members of an organized criminal group
130ZA Participation in an organized criminal group
130ZB Accepting gratification to facilitate or enable organized criminal activity
130ZC Enhanced penalties for offences committed by an organized criminal group or member of an organized criminal group


YES - there are some really not serious offences - some maybe for possession of books, pamphlets, T-shirts, CD, DVD ....and guess what, some of these may not even be BANNED in Malaysia..

SOSMA IS NOT A PREVENTIVE DETENTION LAW - IT IS A LAW THAT ALLOWS THE POLICE TO USE 'SPECIAL' PROCEDURES...AND ALLOWS FOR THE USE OF EVIDENCE WHICH OUR EVIDENCE ACT DOES NOT ALLOW TO BE USED. SOSMA ALSO DENIES BAIL - AND YOU END UP IN DETENTION UNTIL THE END OF YOUR TRIAL AND/OR APPEALS THEREAFTER..SOSMA IS LIKE THAT DRACONIAN Essential (Security Cases) Regulations 1975 (ESCAR)

Many will simply plead guilty, even if innocent, so that they can be sentenced fast - stay in prison until the end of their sentence and walk out free >>> WHO WANTS TO LANGUISH IN PRISON UNTIL THEIR TRIAL AND APPEAL ENDS - IT CAN BE YEARS AND YEARS...SOMETIMES EVEN LONGER THAN THE SENTENCE IF CONVICTED. 

HOW MANY persons in detention now simply because they have been charged for one of the 'security offences' listed in SOSMA?  

Kit Siang’s polsec urges repeal of Sosma used to hold DAP reps, others over terror group links


DAP lawmakers P. Gunasekaran and G. Saminathan, along with S. Chandru, are ferried to the Melaka Sessions Court in Ayer Keroh October 29, 2019. — Bernama pic
DAP lawmakers P. Gunasekaran and G. Saminathan, along with S. Chandru, are ferried to the Melaka Sessions Court in Ayer Keroh October 29, 2019. — Bernama pic
KUALA LUMPUR, Oct 30 — The Security Offences (Special Measures) Act or Sosma violates fundamental liberties and must be abolished, lawyer and political aide Syahredzan Johan said today.

The political secretary to DAP’s Lim Kit Siang acknowledged arguments that the preventive detention law was needed to combat terrorism-related offences, such as those two DAP assemblymen were charged with yesterday, but said these did not consider the ramifications to the accused when it is invoked.

Sosma is not used to prosecute directly but rather is invoked in conjunction with another law to allow police to hold suspects for up to 28 days at a time, during which their rights may be severely curtailed.

The invocation of Sosma precludes bail except in special circumstances and even a court decision clearing the detainee of the charge will not guarantee his release from its preventive detention.

“This means the accused is ‘punished’ the entire length of the legal process, which violates the principle that a person must not be punished until proven guilty,” he said in a statement.

The law also has provisions that weaken safeguards under the Evidence Act, such as allowing the admissibility of statements extracted in any form and time from the suspects, the validity of which may not be later challenged in court.

Syahredzan said other glaring issues with Sosma include lopsided provisions such as the ability to use anonymous witnesses and the admissibility of any evidence regardless of whether they were legally obtained.

He argued that the culmination of these prevented any opportunity for a fair trial once Sosma is invoked.

“Sosma is a law that is against the principle of justice. The government is urged to repeal the law and to replace it with another, more just piece of legislation if this is needed,” he said.

DAP’s Seremban Jaya assemblyman P. Gunasekaran and Gadek assemblyman G. Saminathan were among 10 people charged separately yesterday with supporting or possessing material linked to the Liberation Tigers of Tamil Eelam (LTTE) group.

They were all detained using Sosma and were denied bail yesterday as a result.

Lim previously urged the Pakatan Harapan government to repeal Sosma after saying this was contained in the pact’s election manifesto.

Since then, however, other coalition leaders — most notably Tan Sri Muhyiddin Yassin who is the home minister — have come out to dispute this by saying PH only pledged to review the law the Najib administration introduced. - Malay Mail, 30/10/2019