What is important to workers is not simply WAGES - it is also employment security > that means the ability to work until retirement, so short-term contract employment must go. Now, the Malaysian government will provide PERMANENT employment to 'contract doctors' > will the same be done for other workers too?
It has been the Malaysian government, and before that the British colonial government, who have failed to protect workers and Trade Union rights in Malaysia > in fact, they(the government) have been actively eroding worker rights...and deterring workers from claiming justice when worker rights are violated...
Before, when the court determines that a worker has been wrongfully dismissed, the worker is entitled to receive Back-Wages from the date of wrongful dismissal until the the court judgment....or reinstatement. So, if the worker was wrongfully dismissed on 2000, and ten years later, the court decides that it was a wrongful dismissal - then the worker gets 10 years of back-wages, factoring in pay rises/bonuses he/she would have received if not for the dismissal. So, a worker earning monthly wages of RM2,000 would get RM2,000 X 12 X 10 =RM240,000 at least.
Then on 2007, the government amended the law - and said maximum entitlement only 24 months - i.e. RM48,000. Then, there will be other deductions...so the amount received would be less.
In 2007, the Industrial Relations Act was amended which had the effect of reducing the entitlement of a worker found to have been wrongfully dismissed by the Industrial Court. The Industrial Court could either order the worker to be reinstated as employee, or alternatively order the employer to pay compensation in lieu of reinstatement being all salary and benefits from the date of wrongful dismissal until the date of judgment, the later being the norm.
The 2007 amendment limited the compensation award to no more than twenty-four months’ back wages from the date of dismissal, but also limited it to be calculated based on the last-drawn salary of the person who has been dismissed without just cause or excuse hence eliminating the right to salary increments and bonuses which one would have been received had they not been wrongfully dismissed. It also allowed for deductions with reference to post-dismissal earnings of the wrongfully dismissed worker, and ‘contributory misconduct’ on the part of the worker. Worst affected were workers on probation whereby their entitlements were halved, when in Malaysia there is still no law that limits the period a worker can be kept on probation, which in some cases it may extend to years.
The amendment assists the employer, and rather than deterring wrongful dismissal, it may have done the opposite.
Today, many lower income worker do not even pursue claims for wrongful dismissal vide the Industrial Relations Department, or the IR Court. The process will need the worker to 'spend monies' to get justice. As attendance at the IRD and IR Court is also needed, worker pursuing justice will need to take 'off-days' from employment and business, and this is most difficult as it will risk lose of employment. In law, there is no provision for 'LEAVE' to attend appointments at the IRD or Labour Department, or Courts > so, how much annual leave will the worker expend in his/her quest for justice.
Court process is also LONG - so many 'wrongfully dismissed' workers just choose not to pursue claims of worker rights violations. Should not the government impose a TIME LIMIT of maybe 3 months maximum, for the hearing and disposal of claims of wrongful dismissal, noting that the remedy sought is REINSTATEMENT - back to work.
No Legal Aid provided by Malaysian government for workers pursuing claims of wrongful dismissal or other violation of worker rights. Sadly, some Union Officials also CHARGE workers wrongfully dismissed - so sad, as one would have expected Trade Unions to assist workers, and Union's or Unionists charging workers who have lost employment and salary 'fees' is SHOCKING.
Some lawyers may take up this case - but often, it is on an agreement that when victorious, the worker will pay the lawyer 30% ...Well, 30% of RM48,000 is about RM14,000 may simply be 'not attractive' to lawyers = noting that after the Industrial Court, the case may go to the High Court, the Court of Appeal and even the Federal Court. [At present, contingency fees is still not legal in Malaysia]. The Malaysian Bar now, using lawyers' own monies now resolved to offer Legal Aid to workers, where the Malaysian government failed to do...Resolution for Provision of Legal Aid for Workers adopted in Malaysian Bar AGM
Why not Malaysia follow Indonesia's good practice - the moment a worker claims wrongful dismissal, the courts order 'status quo' - i.e. employee continues working, employer continues providing work and wages UNTIL the court determines whether it was wrongful dismissal or not? And these cases must be expedited ----
We hope that the new Pakatan Harapan-led government, vide new HR Minister M. Kulasegaran, will hopefully protect worker rights in wrongful dismissal cases...continued employment until the final decision at the courts as to whether the worker be dismissed or not... (read the Judgment from Indonesia below in Bahasa Indonesia)*Semasa menunggu keputusan pembuangan kerja secara salah, pekerja harus terus bekerja dan dibayar gaji oleh majikan - INI ADILbahwa pengusaha dan pekerja masih harus tetap melaksanakan kewajibannya selama putusan pengadilan hubungan industrial belum ditetapkan, in casu bahwa pekerja masih harus dipenuhi upah dan hakhak lainnya sampai keluarnya putusan hukum yang berkekuatan hukum tetap di tingkatan Mahkamah Agung.
The worker needs to be provided work and wages, whilst the Industrial Relation process(including Industrial Court and Appeals thereafter) determines whether he had been dismissed in accordance to law or not - these are in relation to cases where the worker claims wrongful dismissal...This is what is happening in Indonesia, yet to be practiced in Malaysia...but looking at Indonesia, we see that the basis for this practice is JUSTICE...and worker rights.In Indonesia, the Constitution provides:-"Everyone shall have the right to work and receive fair and reasonable remuneration and treatment in the employment relationship" - this is a right provided for in the Indonesian Constitution.And, Law No. 13 of 2003 about Employment states, 'As long as the industrial relations dispute settlement decision has not been established, both employers and workers / laborers must continue to perform all their obligations.'Pasal 28D ayat (2) Undang-Undang Dasar 1945 menyatakan bahwa “Setiap orang berhak untuk bekerja serta mendapat imbalan dan perlakuan yang adil dan layak dalam hubungan kerja”.Pasal 155 ayat (2) Undang-Undang Nomor 13 Tahun 2003 tentang Ketenagakerjaan menyatakan bahwa, Selama putusan lembaga penyelesaian perselisihan hubungan industrial belum ditetapkan, baik pengusaha maupun pekerja/buruh harus tetap melaksanakan segala kewajibannya.As such, the employer needs to continue to provide work and wages as normal to the worker, and the worker is required to work as normal - until the industrial relation process and/or courts finally determines whether the worker has been terminated/dismissed or not. Even if the employer, during this period, do not want the worker back in the workplace, the employer must still continue paying wages, etc like usual....Workers continued employment and wages until wrongful dismissal case decided by court? right to life where in the context of dismissal, access to justice in court..
Let us see how many workers are even lodging complaints on wrongful dismissal, and taking their cases to Industrial Court. You will find that most of the time, it is only the high-income workers that use this avenue - not the ordinary worker in the B40 and M40 groups. [Maybe the government can tell us, what percentage of workers who have 'wrongfully dismissed' are using this avenue for justice. We know that almost ALL migrant workers simply have no capacity to utilize this avenue of justice]
What about using the avenue of complaints/claims to the HR Department and labour courts? Again, many workers, whose rights have been violated do not use this - as it is too difficult and practically inaccessible to the lower-income worker. How many new employers will give 'Leave" for workers to attend their appointments at the Labour Department or Labour Courts - No 'access to justice leave' for workers in Malaysia - and if you absent yourself in pursuing justice, you risk losing your new jobs.
Minister has power to ensure all workers are employees of the workplace - hence, all can join Union, and fight for better rights with employer?
See older posts:-
MAS Act unjust to workers and trade unions(Malaysiakini)
Nufam president unlawfully dismissed by MAS in 2013, rules the Federal Court in January 2022?
47 Groups :- WORKER AND TRADE UNION RIGHTS MUST BE PRIORITIZED FOR THE WELLBEING OF THE WORKER AND THEIR FAMILIES
67 Groups :- Government-Owned MAB, the new Malaysian Airlines Operator, Must Recognize Unions and Not Deny Freedom of Association.
AMESU makes it 53 concerned about rights of wrongfully dismissed worker's access to justice
All Malayan Estates Staff Union makes it 53
52 groups fight for rights of wrongfully dismissed workers in Malaysia
Joint Statement 5/12/2012[Now 53]
Remedy
against employers that wrongfully dismiss workers is a fundamental right of all
workers
-
All cases of wrongful dismissal must be referred to the Industrial Court -
We, the 53 undersigned groups, organisations, trade unions and networks are
appalled by the revelation that revelation that between the period of 2001 and
2011, that 31.5% or 10,016 of workers in Malaysia who claimed
wrongful dismissal, were denied their right to have their cases heard and
determined by the Industrial Court, by reason of the Minister of Human
Resources refusal to refer these cases after attempts at conciliation with the
employer had failed to reach a settlement. (Utusan Online, 23/10/2012, 31,714 kes
tuntutan pekerja gagal diselesaikan secara rundingan/ 31,714 cases of workers
failed to be settled vide conciliation)
In Malaysia, after workers
claiming wrongful dismissal is lodged within sixty (60) days at the Industrial
Relations Department(IRD), conciliation meetings are held between employer and
worker in an attempt to reach an amicable settlement, and if this fails, the
case is referred to the Minister to decide whether the case be referred to the
Industrial Court or not. There is no right to be heard before the Minister, and
his decision seems only in reliance of the report sent by his officer involved
in the conciliation process. During conciliation process, workers are no longer
allowed the right to be represented by lawyers by virtue of amendments to the
Industrial Relations Act 1967 (IRA) in 1989.
Datuk Seri Dr. S. Subramaniam, the Minister
of Human Resources, in parliament also revealed, amongst others, the reasons
why the 10,016 cases were not referred to the Industrial Court by the Minister.
Amongst others, they were:-
a) Because the worker was dismissed for
misconduct;
b) Because the Employer has shut down its
business;
c) Because the Worker was given the
opportunity to return back to work But refused to come back to work;
d) Because the worker had been terminated
because the employment contract had come to an end;
e) Because the worker had voluntarily stopped
work under some Voluntary Separation Scheme(VSS), and then changed their mind
after receiving payment;
Clearly, these are conclusions that should never be made by the Minister without considering all evidence of witnesses and documents, and listening to legal submissions, which is best done by the Industrial Court. Hence, the Minister’s reasons are not acceptable, and he obviously seemed to have just accepted explanations of employers over claims of aggrieved workers who have lost their jobs.
The aggrieved worker, whose cases are not referred by the Minister to the Industrial Court, still do have the option to apply for Judicial Review at the High Court but realistically, this would not happen because most workers just do not have the needed resources or the capacity. The government revealed recently that 34% of 1.3 million workers in a government study earn less than RM700, which is below the poverty line income. An application to the High Court involves not only expenses but also the subsequent risk of being ordered to pay cost that could be about RM10,000 if unsuccessful, and as such most workers elect not to apply to High Court. As such, a decision of the Minister not to refer the case to the Industrial Court ends an aggrieved workers quest for justice.
We call for the amendment of the law, to ensure that all cases that could not be resolved amicably between parties should as of right be referred to the Industrial Court. The now existing step of referring to the Minister who then decides to refer or not a case to the Industrial Court should be removed from the law books.
Wrongfully dismissing a worker without just cause or reason is a grave injustice. When a worker’s employment is wrongfully terminated, it seriously affects the well being, livelihood and financial security of not just the workers but also their families. Obligations to pay monthly amenities bills, car/housing loan repayments, credit card payments and others payments necessary for well being of the family continue irrespective of a loss of monthly income.
Wrongful dismissal is a serious wrongdoing by the employer, which need to be penalized with a deterrent award, and the existence of an avenue for justice for workers wrongfully dismissed need to be available for all classes of workers.
Malaysian government sadly places the interest of employers over the interest of workers. Rights of the wrongfully dismissed workers have been eroded over the years.
In 2007, the Industrial Relations Act was amended which had the effect of reducing the entitlement of a worker found to have been wrongfully dismissed by the Industrial Court. The Industrial Court could either order the worker to be reinstated as employee, or alternatively order the employer to pay compensation in lieu of reinstatement being all salary and benefits from the date of wrongful dismissal until the date of judgment, the later being the norm.
The 2007 amendment limited the compensation award to no more than twenty-four months’ back wages from the date of dismissal, but also limited it to be calculated based on the last-drawn salary of the person who has been dismissed without just cause or excuse hence eliminating the right to salary increments and bonuses which one would have been received had they not been wrongfully dismissed. It also allowed for deductions with reference to post-dismissal earnings of the wrongfully dismissed worker, and ‘contributory misconduct’ on the part of the worker. Worst affected were workers on probation whereby their entitlements were halved, when in Malaysia there is still no law that limits the period a worker can be kept on probation, which in some cases it may extend to years.
The refusal of the Minister to refer 31.5% of wrongful dismissal cases that could not be settled amicably to court is yet another anti-worker indicator.
Only 5 out of the 13 States and 1 out of the 3 Federal Territories in Malaysia have Industrial Courts. Distance will definitely be more prejudicial to the worker than the employer. There is not just the cost of transportation and accommodation, but also the difficulty of getting witnesses to attend court. There should be Industrial Courts in every State and Federal Territory, and all major towns.
Now, there are moves by the Malaysian government to even completely exclude access to this avenue of justice to certain categories of workers being workers with less than one-year of continuous service, probationers, apprentices, workers in management positions; and also contract workers. The Malaysian government now permits employers to use short-term employment contracts, and most times these contracts do not exceed 12 months. Most recently the ‘contractor for labour system’ or outsourcing workers or ‘contract workers’. If the proposed amendments become law, employers will be happy as wrongfully dismissing most workers will no longer be a problem, and workers lose their right and ability to claim justice.
As it is, most migrant workers effectively do not have access, given the fact that after they be wrongfully dismissed, their immigration visa/pass is also terminated hence disabling them the ability to stay or work legally in Malaysia. Even if they have filed a complaint in the IRD, it is immaterial for they cannot stay on in Malaysia, and if they do they risk arrest, detention, whipping and deportation.
We call on Malaysia to promote
and protect worker rights and welfare, including those of their families.
We call for an amendment of
the Industrial Relations Act 1967(IRA) to enable all wrongful dismissal cases
that could not be resolved amicable to be referred directly to the Industrial
Court. The power of the Minister to decide whether cases are referred to the
Industrial Court must be extinguished.
We call for the repeal of the
2007 amendments to the IRA, including Schedule 2, that effectively reduced
entitlements of workers who found to have been wrongfully dismissed by the
Industrial Court, and further discriminates against workers on ‘probation’.
Minimally workers should be entitled to all back-wages without loss of benefits,
but justly they should be entitled to maybe double the said amount or an
additional sum, which would assist workers cover all the cost, expenses, time
and energy loss claiming this rights, and doubling or tripling the award sum
would also serve as a deterrent to employers wrongfully dismissing workers.
We call for the making of
Directors and principal shareholders to be personally liable, when the Company
employer is not able to pay the worker the award sum ordered by the Industrial
Court.
We call on the Minister of
Human Resources to do the needful to ensure all the said 10,016 workers cases
claiming wrongful dismissal be forthwith referred to the Industrial Court to
ensure the right to a full trial is given effect.
We also call for the speedy
disposal of cases of wrongful dismissal especially in cases where the claimant
is a migrant worker, and that until the case is heard and settled in court,
provisions be made that migrant workers be accorded the right to stay and work
legally in Malaysia.
We reject any proposed
amendments that will deprive certain classed of workers the right to claim
justice in cases of wrongful dismissal. No employer should wrongfully dismiss
workers, and all workers even workers on short-term employment contracts or
have worked for a short period should have access to avenues of justice, and
the right to claim, amongst others, reinstatement and/or compensation in lieu
of reinstatement.
We also reiterate the call
for the Malaysian government to abolish short-term contract employment and the
‘contractor for labour system’/’outsourcing’, and ensure that all workers have
the right to regular permanent employment and security of tenure in a direct
2-party employment relationship.
Charles Hector
Syed Shahir Bin Syed Mohamud
for and on behalf of
Aliran
All Malayan Estates Staff Union(AMESU)
Arus
Pelangi
Asia
Monitor Resource Centre
Burma
Campaign Malaysia
CCHR
(Cambodian Center for Human Rights)
Centre for
Development Resourses-CENFORD, Vietnam
Clean
Clothes Campaign
Community
Action Network
Community
Development Services (CDS), Sri Lanka
Democratic
Party for a New Society (DPNS)
FORLITAN
(Forum Peduli Pertanahan Indonesia)
GoodElectronics
Network
Hope
Community Action Network
Human
Rights Ambassador for Salem-News.com
IMPARSIAL
The Indonesian Human Rights Monitor
Indonesia
for Human's
JERIT
(Jaringan Rakyat Tertindas), Malaysia
Kesatuan
Pekerja-Pekerja Polyplastics Asia Pacific - (KPPAP)
Kesatuan
Sekerja Industri Elektronik Wilayah Selatan
Kilusang
Mayo Uno (May First Movement, Philippines)
Knights
For Peace, International, Philippines
Legal
Resources Center for Gender Justice and Human Rights /LRC-KJHAM
LIPS
(Lembaga Informasi Perburuhan Sedane/Sedane Labour Resource Centre)
LPSD (The
Law and Policy of Sustainable Development Research Center).
LRC-KJHAM
(Legal Resources Center for Gender Justice and Human
Rights)
Indonesia
MADPET
(Malaysians Against Death Penalty and Torture)
Malaysian
Physicians for Social Responsibility
MAP
Foundation, Thailand
makeITfair
Mindanao
Migrant Center for Empowering Actions, Inc. (MMCEAI)
MIGRANTE
International
NAMM
(Network of Action for Migrants in Malaysia)
National
Union of Bank Employees.(NUBE), Malaysia
National
Union of Transport Equipment & Allied Industries Workers (NUTEAIW),
Malaysia.
NLD-LA
(National League for Democracy-Liberated Areas), Malaysia
Pakistan
Rural Workers Social Welfare Organization,(PRWSWO),
Paper
Union Of Malaysia
Parti
Rakyat Malaysia(PRM)
Pax
Romana-ICMICA Asia
Persatuan
Sahabat Wanita Selangor
PINAY
(Filipino Womens' Oganization in Quebec)
Persatuan
Masyarakat Selangor dan Wilayah Persekutuan (PERMAS)
Pusat
Komunikasi Masyarakat (KOMAS)
Reclasseering
Indonesia KOMWIl Provinsi Sumatera Utara
Seafarers
Union of Burma/Myanmar (S.U.B)
Seksualiti
Merdeka
SUARAM
Tenaganita
Thai
Committee for Refugees Foundation (TCR)
WH4C
(Workers Hub For Change)
Yaung Chi
Oo Workers Association (YCOWA)
Yayasan
Lintas Nusa - Batam, Indonesia
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