Monday, December 16, 2019

To improve 'bargaining power' of Unions, abolish Contractor For Labour, Short Term Employment, Change Laws...?

Bargaining power of Malaysian Trade Unions - does it even exist under the current Iaws?

Besides the law, 2 factors that weaken Trade Unions in Malaysia are:-

1 - The 'Contractor For Labour' system 

- this allows Employers to reduce the number of employees at the workplace > They can now use workers, not their own employees by simply entering into an agreement with one or many Contractors for Labour to supply them with workers to work at their workplace - these are NOT employees of the principal/owner or operator of the workplace. In Malaysia, the law does not place any limit on the number of such non-employees working in the workplace which means that an EMPLOYER (the owner/operator/principal of the workplace) can simply also have 90-100%. of such non-employees at the workplace.

- Workers united are strong and they can fight for better rights, and against other injustice - that is the basis  of Trade Unions. 

-Trade Unions are usually the coming together of employees....If all workers are employees, then the strength or 'bargaining power' of the trade union is high  - but as the number of workers who are non-employees(i.e. those supplied by Contractor of Labour) increases, the Union power or 'bargaining power' reduces....

- What is the power of workers united or trade unions? It is essentially the power to disrupt the employers business or profit making - something that is achieved through, amongst others, industrial actions like 'work to rule'(which would mean refusal to take on extra work or work overtime, etc) and the strongest of this is to go on STRIKE(which means workers stop working completely leading to a temporary shut down of the employer's business and profit-making). Only effective if all workers act together.. -  industrial action or  strike is ineffective if  the employer can continue business and profit-making as usual. [Employers in the past will try other workers to work during strikes known as 'blacklegs' - which unions and striking workers will block...]. With the contractor for labour systems in place - even if ALL its employees go on STRIKE the employer would still be able to continue operations and profit- making at the same rate or at a lower(or tolerable pace/rate) which significantly reduces or Terminates totally the 'bargaining power' of Unions and Employees.  

- MTUC, trade unions and even the political parties(then in Opposition, some now in government) protested the introduction/legitimization of the 'Contractor For Labour' system - the mystery now under PH is why MTUC and Unions are not calling for the abolition of the 'Contractor For Labour' system - to ensure that all workers at a workplace are EMPLOYEES - who all can act together against Employer for better rights. Workers supplied by 'contractor for labour' are not employees of the principal/owner/operator of the workplaces and hence no right to demand anything from the Employer at workplace...they are simply 'employees' of the Contractor for Labour who obviously have no power to improve working conditions or worker rights at the workplace.

- Abolition of the Contractor For Labour system must be the priority of MTUC, Unions and workers - if they want to maintain their bargaining powers.

2 - Regular Employment strengthens Trade Unions and Employee capacity to struggle.

Why will an employee who is only guaranteed employment for several months be interested in struggling to improve working conditions and worker rights at their workplace? Short-term contract employees also benefits employers not Unions or their fellow employees at a workplace. They also lose rights - for they will not get the right to wage and rights increments as is also provided for in the Employment Act - the longer you are employed the more annual leave, sick leave you get. They also lose right to TERMINATION Benefits(only available if you are employed for more than 12 months according to EA). Short-term contract employees do not have their contracts extended generally even if the employer needs workers to still do the work - employers simply hire NEW workers. Malaysia can insist by law that all employees are REGULAR employees - or even significantly limit the use of of short term contract employees to say 5% and for specific work not part of of the core work of the employer. BN was not bothered about Malaysian workers - is Pakatan Harapan bothered.

- REGULAR employment does not prejudice employers as they can always RETRENCH if there is no more need for so many workers or for certain categories of employees. Hence, the only reason for 'short-term contract employees' is to weaken workers and deny them certain rights which a regular employee is entitled to > more importantly maybe to weaken Unions and discourage employees from fighting against workplace injustices and better worker rights. Most short-term employees do not cause 'trouble' hoping that their contract be extended or they become regular employees. There is no financial or economic security for short-term contract employees - Is that what PH wants?


The other major problem is the LAW itself - it prevents Trade Unions from using its 'power'...its 'bargaining power'... If there is a struggle for better rights ...before the UNION can use its 'bargaining power' or 'employee solidarity power' - the matter is pushed to the Courts - and courts do not consider the numbers of employees a Union represents or the 'bargaining power' - decisions are made usually based on legal precedents and legal arguments ...thus making the advancement of NEW RIGHTS almost impossible. The system really helps EMPLOYERS and businesses...

What is sad is that many Malaysian Trade Unions do not even use their 'POWER'...the power of employees in solidarity. They do not use the threat of industrial action...or even STRIKE..When was the last time any Malaysian Trade Union had a strike ...? 

The last major strike in Malaysia occurred in 1962. 9,000 railway workers went on strike to demand conversion of daily wages be changed to monthly salaries. The strike lasted 22 days and all government workers were converted to monthly wages. The railway belonged to and was operated by the government at the time, but has since been corporatised. 
In 1978 -79, the Airlines Employees Union (a national union representing employees of all airlines) whilst negotiating a new collective bargaining agreement with Malaysian Airlines(their employer) implemented a work to rule(i.e. no doing overtime) industrial action. Over 200 employees were suspended, 11 were dismissed. The AEU was deregistered in April 1979, and 23 of its leaders were arrested under the Internal Security Act(ISA) in 1978-79 following an industrial action of Malaysian Airlines Employees. In 1980, the laws were amended reducing the capacity and capability to fight for better rights - and 'bargaining power' was significantly reduced.
Strikes are still legal - although it has become more difficult for now a vote amongst members of the unions are required before a strike is possible. Of late, during the airlines union threatened a strike but did not proceed further ...Strikes have occurred but not initiated by Trade Unions but migrant workers in several factories. 

HARTAL - a general strike - Interestingly the fisherman in Penang did have a 'hartal' recently whereby about 4,000 fishermen did not go out to work. Unfortunately, there was little media highlighting. 

In a one-day hartal (general strike), about 4,000 fishermen had hung up their nets earlier to protest against the Penang South Reclamation (PSR) project, which calls for the reclamation of more than 1,800ha in an area deemed one of the richest fishery grounds in the northern part of the peninsula.

The fisherman came in fishing boats at the North Beach ghauts, and in cars from as far as Seberang Perai, and chanted anti-reclamation slogans for close to three hours.

Penang Fishermen’s Association chief Nazri Ahmad said about 4,000 fishermen had wanted to attend the protest but police only allowed 1,000 as part of the peaceful assembly permit.- FMT, 4/11/2019

MTUC AND MALAYSIAN TRADE UNIONS  - they represent hundreds of thousands of unionized workers ...and have a duty to speak for millions of workers...but to date, they have not shown their power - They could have organized PEACEFUL ASSEMBLIES, which is easier now and showed the government that they speak for millions of workers > BUT why did they not call for any such protest or mass display of power...'bargaining power'...MTUC has not provided leadership? Or is it that MTUC realises that even though they may have many members on paper - they simply do not have actual worker support - they are not capable of organising the millions (or even tens of thousands) of workers to come out to support their specific demands for better RIGHTS of workers?

NOW, MTUC is protesting the amendments to the Industrial Relations Act - amendments which many human rights groups including worker rights groups are saying are BETTER that what is at the moment.

What exactly is MTUC protesting? It seems that their protest is basically their allegations that the BILL was not tabled at the NLAC for approval of the MTUC(representing workers) and the MEF(representing Employers) before being tabled in Parliament. BUT, what is the NLAC - and who are the representatives of workers and employers BUT political appointees of the government. MTUC(who members are about 30% of all registered trade unions that really equates to about 7% of the total workforce) was not even democratically elected by all registered Trade Unions, let alone the millions of workers in Malaysia. Neither was MEF chosen by all employers in Malaysia to represent employers?

When pushed, as to what specific amendment that MTUC is objecting to...MTUC seems to say that they object to 2 provisions..

1- The extension of the right of employees to be represented by OTHERS - other than trade union representatives. The amendment still does not allow workers to be represented by LAWYERS, even Legal Aid lawyers willing to provide service for free. [Is this objection to protect the interest of 'trade union representatives", more so when there are allegations that some of these are not providing the service to represent workers for FREE - but are rather charging workers fees?]

2 - The 2nd objection is the allowing of more than ONE Trade union to represent workers in a workplace/industry/sector/occupation - The amendment also allows for the broadening of the scope of workers they represent. A positive move really, because it finally REMOVES the legal restrictions imposed by the British colonial powers to weaken Trade Unions and the workers movement in the mid-1940s. 

The current law allows for 1 Trade Union per industry/sector/occupation - and 60 years after Independence, they have failed to increase their membership and workplaces fact there has been an increased of in-house trade unions. If that 1 trade union is LAZY or is not committed to organizing to get more membership, this will the detriment of workers. More unions will allow for CHOICE to workers, and hopefully will encourage competition amongst unions to work harder to get more workers unionized. Imagine if we only had one Political Party and no choices of political parties - with more Trade Unions, there may be an increase in unionized workers - and if these trade unions can organize a wider range of workers not limited to just one sector/industry and/or occupation - we will see stronger trade unions. Same argument applies to workplace trade unions. 

Now, some trade unions even the MTUC are not interested in increasing membership - maybe to ensure the same 'team' to maintain power and leadership. MTUC has repeatedly rejected the membership application of NUFAM - the National Union representing Flight Attendants in Malaysia?

So, is the objection by MTUC really about the reduction of 'bargaining power' or 'weakening of trade unions' OR is it simply to preserve the control of the power and leadership of the current team of leaders. Where are the YOUNG Trade Union Leaders - for many of our National, State and Federation of Trade Unions are OLD people, who have been union leaders for ages...Maybe, like the PM, there must be a law that restricts union leadership to 2 terms.

Recently, MTUC leaders met with the Senate to convince Senate to oppose the Industrial Relations Act amending Bill - but then some other Unions, including state MTUC are unhappy with the alleged actions of the President and few leaders..MTUC issued a media statement of their meet with the Senate ..but unfortunately, we cannot even see this statement on MTUC's own website...

...the UNI Malaysia Labour Centre, which represents 104 unions, and the Labour Reform Coalition comprising 54 unions support the amendments and are critical of the current MTUC leadership. There are also allegations that the MTUC has not fully convened a full General Council Meeting since the elections of officials in 2016.

MTUC’s Sarawak chapter had previously accused Halim and Solomon of imposing their views on members and demanding a consensus before amendments to labour laws are enacted. Sarawak MTUC secretary Andrew Lo said Halim and Solomon, who disagreed with the IRA amendments, should lobby the government for improvements instead of totally rejecting them.
Getting the Malaysian government to amend labour laws in favour of workers and trade unions has been so difficult ...consultations...and consultations....but then no action. Finally, the Minister has moved and tabled a Bill to amend the Industrial Relations Act - well, many are good and some are questionable or could be improved...MTUC should be focusing on the 'bad' amendments not the entire Bill...  

The last few amendments have been anti-worker - the legalization of the 'contractor for labour' system - they also amended the law about preference of debt, which really should be for workers - but BN included the 'contractor for labour'(a company) when it should have just included the workers working under contractors and 'contractor for labour' working for the company that is being wound-up or closed...? Then, there was the amendment to DELAY payment of overtime, work on rest day by one month - when justly it should be paid at the end of the month that overtime, work on rest day was done...

Discrimination based on gender still happens in private sector - no amendment yet to ensure no discrimination based on gender...

Then, we had the special MAS Act, that freed the new company formed by the same owners of the old MAS from being liable for the outstanding financial obligations owed by the previous MAS to its employees... This Act should be amended making the new MAS liable for all still owing to old MAS employees...Many wrongful dismissal cases still pending against the old MAS - if they win, and the court awards reimbursement in lieu of reinstatement - WHO will pay? MTUC should call for an amendment of that Act that ensures new MAS will be liable to pay these workers debts owed by to them by old MAS...


MTUC meets senators in last-ditch effort to stop labour reforms bill

MTUC leaders at the meeting with senators yesterday to lobby for support in stopping the Labour Laws Reform Bill.
KUALA LUMPUR: Top leaders of the Malaysian Trades Union Congress (MTUC) yesterday met members of the National Senate Council in a last-ditch bid to stop the Labour Laws Reform (LLR) Bill.

MTUC’s delegation was led by its president Abdul Halim Mansor and secretary-general J Solomon, among others.

Senate council president Khairuddin Samad said it had noted that certain provisions of the bill were detrimental to workers.

“We listened to Halim and Solomon who briefed us on how the bill was passed without the final proposal and consultation with the main stakeholders, MTUC and Malaysian Employers Federation (MEF),” he said.
He said a main problem is that the National Labour Advisory Council, which MTUC is a part of, was not shown the final draft of the bill before it was tabled by Human Resources Minister M Kula Segaran.

“Based on the chronology of events shown to us, it was clear that the draft was shown to MTUC only after it was sent to the AG’s Chambers,” Khairuddin said.

Khairuddin also said he would urge senators to raise MTUC’s objections when the bill is tabled in the Dewan Negara next week.

But he said MTUC would find it hard to achieve its aim as Dewan Negara is now controlled by Pakatan Harapan (PH) senators.

“So I wish to urge the PH senators to consider the valid arguments of MTUC and vote according to their conscience and for the well-being of Malaysia,” he added.

“They are not asking for the bill to be withdrawn but for the good laws to be kept and the bad ones removed.”
MTUC said the bill would weaken unionism in the country and make workers poorer.
It said by not consulting MTUC and MEF, the government had violated the International Labour Organisation Convention 144 ratified by Malaysia.

“We urge the senators to consider the livelihoods of the 15 million workers, their families and the nation’s interest instead of supporting the minister’s wrongful action in proposing bad laws,” said MTUC’s Halim.- FMT, 10/12/2019

Labour law reform group hits out at ‘authoritarian’ MTUC leaders

Labour Law Reform Coalition co-chairman N Gopal Kishnam says it is unfortunate that these authoritarian leaders are holding MTUC ransom while Malaysian workers eagerly expect their leaders to push for pro-labour legislation. (MTUC pic)
PETALING JAYA: The Labour Law Reform Coalition (LLRC) today hit out at the Malaysian Trades Union Congress (MTUC) after top leaders of the union met members of the National Senate Council last week in a bid to stop the Labour Laws Reform (LLR) Bill.

LLRC co-chairman N Gopal Kishnam slammed MTUC secretary-general J Solomon and president Abdul Halim Mansor for their actions, saying these were “illegitimate” as they were not decided upon by the MTUC general council.

The LLRC is endorsed by 58 trade unions from various sectors and worker organisations in the peninsula. It began in 2018 to initiate discussions on labour law reforms, based on the International Labour Organisation’s work framework.

Kishnam called for an MTUC general council meeting to be held immediately to resolve conflicts in the labour movement, highlighting that no such meeting has taken place since 2016.
“It is very unfortunate that these authoritarian leaders are holding MTUC to ransom while Malaysian workers eagerly expect their leaders to push for pro-labour legislation.

“Solomon and Halim are engaged in endless disputes with the human resources minister and attempting to defeat the Industrial Relations Bill 2019 at the Senate.

“These arbitrary actions are again made without the sanction of the MTUC general council,” he said in a statement today.

Kishnam said general council meetings are supposed to be held every two months at the very least.

Kishnam said the trade union’s community should work with the ministry in pushing for changes in the nation’s labour laws, reiterating that Human Resources Minister M Kula Segaran had already promised further amendments in the Industrial Relations Act (IRA).

“We feel painful to make public criticism against the organisation that is collectively built by the trade union community in the country.
“As the internal channel for raising concerns and dissatisfaction is blocked, MTUC affiliates have no choice but to go public to express dissent and defend their honour.”
MTUC’s Sarawak chapter had previously accused Halim and Solomon of imposing their views on members and demanding a consensus before amendments to labour laws are enacted.

Sarawak MTUC secretary Andrew Lo said Halim and Solomon, who disagreed with the IRA amendments, should lobby the government for improvements instead of totally rejecting them.

This followed the war of words between MTUC and the human resources ministry over amendments
to the IRA 1967, Employment Act 1955 and Trade Unions Act 1959.
The labour law reforms are being carried out through tripartite consultations, involving MTUC, the Malaysian Employers Federation and ministry officials - FMT, 14/12/2019

A heartfelt request to our senators

Ronald Benjamin
LETTER | The Association for Community and Dialogue (Acid) would like to make a heartfelt request to senators of the Dewan Negara to pass the bill on amendments to the Industrial Relations Act. The reason is obvious.

Malaysia’s trade unionism has been muzzled and weakened over decades, due to the influence of employers over the Barisan National government, resulting in fragmented and silo trade unions that have very little collective influence on the direction of their social well-being.

Besides this, any proposal to bring on benefits to workers have always been shot down by employers in the tripartite consultations.

Being in the human resources profession for a long period of time, I have observed how employers have been vehement in opposing the minimum wage when it was first proposed - and it continues till today.

Benefits such as maternity and paternity leave have been interpreted from profit and lost perspective by the Malaysian Employers Federation (MEF), instead of supporting this progressive condition of work that respects the diversity and human side of the workers.

In this scenario, the government that is elected by the people has a moral imperative to embark on an equitable approach when the social-economic direction seems to tilt in the favour of employers.

The question is why are the national leaders in the Malaysian Trades Union Congress (MTUC) against the amendments when its in line with International Labour Organisation Convention 87, which covers the freedom of association and right to organise?

Larger ethical issues are at stake

One of the salient aspects of the current amendments is that unions are not limited to a specific establishment, trade, occupation or industry. This liberates unions from ineffective silo struggle towards solidarity that brings on a broader dimension of struggle and identity.

Are the MTUC national leaders afraid of losing out to more dynamic unions leaders in the context of broader solidarity in the movement? Union leaders with specialised knowledge would be needed in the context of Industry 4.0, where larger ethical issues are at stake.

It would certainly serve the interest of workers if they are given the chance to chose unions of their choice to represent them in the current and futuristic turbulent industrial revolution

MTUC’s argument that the current amendments that encourage multiple unions would weaken union bargaining power does not make sense. It is by having more trade unions with leaders of credibility that would strengthen unions.

Even without the amendments to the Industrial Relations Act, there is already a split among unions, due to the perception that the leaders that are supposed to represent them seem to represent only a minority.

For example, the UNI Malaysia Labour Centre, which represents 104 unions, and the Labour Reform Coalition comprising 54 unions support the amendments and are critical of the current MTUC leadership. There are also allegations that the MTUC has not fully convened a full General Council Meeting since the elections of officials in 2016.

Therefore, it’s time that the workers are given a new perspective of trade union dynamism that is democratically elected and accountable. Union leaders should represent the majority of workers, instead of having an agenda of control and manipulation.

Our trade unions are in dire need of a new life and perspective. It is hoped that the senators in the Dewan Negara will vote for this historical amendment to the Industrial Relations Act. - Malaysiakini, 12/12/2019

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