Workers CHEATED by employers about to abscond - what is due to them in terms of wages due, OT due, termination benefits (or remaining payment due for FIXED-TERM) not paid - the REMEDY is in the Magistrate Court.
There is A REMEDY available to workers - it is provided in Section 78 of the Employment Act 1955.(in Peninsular Malaysia). Same provision also there in the Sabah Labour Ordinance and the Sarawak Labour Ordinance.
When an employer is "ABOUT TO ABSCOND" - the employer may start to empty their accounts, dispose their assets/property, etc - and then, there may be INSUFFICIENT MONIES to pay their workers...so workers cheated and victims of injustice... HENCE, the need for workers to ACT fast even before an employer makes a formal announcement that he/she/it is ceasing operations, or even 'winding-up' - if workers are TOO LATE to act, there maybe nothing left to pay workers what is due to them.
Sometimes, workers are "FORCED' to sign and accept UNFAIR settlement offers that will mean getting what is so much less than what they are entitled...
What are the RIGHTS and entitlement of workers when an employer ceases business or shuts down:-
a) Wages due and payable, including Overtime, Work of Public Holidays/Rest Days, Monies Payable to EPF/KWSP and PERKESO, ...
b) TERMINATION/RETRENCHMENT Benefits - it all depends on the duration of tenure. The longer you work, the more you get. The practice of some employers of using 'short-term contracts' repeatedly will not work, as such workers can be deemed as regular employees - and their tenure ought to be calculated from the date of commencement of their employment through their their allegedly 1st 'short-term contract'. So, if you started work on 1st January 2020, and ends up losing your job on 30/6/2024, your tenure should be 3 and a half years...
6 Amount of termination or lay-off benefits payment [EMPLOYMENT (TERMINATION AND LAY-OFF BENEFITS) REGULATIONS 1980]
(1) Subject to the provisions of these Regulations, the amount of termination or lay-off benefits payment to which an employee is entitled in any case shall not be less than-
(a) ten days' wages for every year of employment under a continuous contract of service with the employer if he has been employed by that employer for a period of less than two years; or
(b) fifteen days' wages for every year of employment under a continuous contract of service with the employer if he has been employed by that employer for two years or more but less than five years; or
(c) twenty days' wages for every year of employment under a continuous contract of service with the employer if he has been employed by that employer for five years or more, and pro-rata as respect an incomplete year, calculated to the nearest month.
c) For fixed term contract workers, reasonably it is different compared to REGULAR employees(who has employment security until retirement). It should be payment of wages and/or allowances for the remaining period of the employment contract. For example, if your contract is for 1 year only, then justly, one is entitled to be paid for the remaining months of employment based on your contract
d) For migrant workers, the employer is also obligated to pay them until their safe return back to their country of origin. The work permit(PLKS) will only be issued by the Immigration for the period that the employer can prove the migrant worker will be employed.
EMPLOYER - who do you name in your application? If it is a SOLE Proprietor, then the owner too. If it is a partnership, then name also the human Partners. If it is a COMPANY, then name also the real owners - the shareholders/owners as the company may have already disposed of its assets, but the shareholders/owners still have the monies, and for industrial labour matters, the courts will lift the CORPORATE VEIL and make liable the real owners - the shareholders/owners. The Court of Appeal, in Asnah's case, did say '(ii) third parties can be made liable to pay the award notwithstanding that they were not the employer; (iii) third parties cannot resist joinder or deny liability on the grounds there is no privity or is a separate legal entity, etc...'
In another case, the courts said that the doctrine of separate legal personality may protect shareholders/owners in general corporate law cases BUT not in industrial disputes - disputes between employees and employer.
So, in your case at the Magistrate Court for remedy against employers about to abscond - do name the shareholders and partners. After all, one cannot arrest and detain companies or businesses - only the human owners. This law talks about ' shall be detained in prison'
So, do not forget to NAME the real human owners of the EMPLOYER company/partnership/sole proprietor.
It is sad that many Trade Unionist who take on cases for workers are only familiar with Labour Courts and/or Industrial Courts - and not familiar with commencing actions in Magistrate Courts. Same goes with labour lawyers.
For workers in Peninsular Malaysia, the Malaysian Bar is committed by way of a Bar Resolution to assist workers - so go get help from the Malaysian Bar lawyers...
That Malaysian Bar, through its Legal Aid Centers, extends the services of providing advice, assistance and legal representation for workers from the point of intending to file a complaint at the Human Resource Departments(Labour Offices) or other avenues of justice to the full settlement of the said cases. = Resolution for Provision of Legal Aid for Workers adopted in Malaysian Bar AGM
For Sabah and Sarawak too, I believe that there are many lawyers who will be willing to help..
EMPLOYMENT ACT 1955
78 Employee's remedy when employer about to abscond
(1) If any employee complains to a Magistrate that he has reasonable grounds for believing that his employer, in order to evade payment of his wages, is about to abscond, the Magistrate may summon such employer and direct him to show cause why he should not be required to give security by bond to remain in Malaysia until such wages are paid; and if, after hearing the evidence of such employer, the Magistrate decides that such bond shall be given the Magistrate may order such employer to give security by bond in such sum as to the Magistrate seems reasonable, that he will not leave Malaysia until the Magistrate is satisfied that all the just claims of such employee against him for wages have been paid or settled.
(2) If the employer fails to comply with the terms of such order to give security, he shall be detained in prison until arrangements have been made to the satisfaction of the Magistrate for settling the claims of such employee:
Provided that-
(a) such employer shall be released at any time by the committing Magistrate on security being furnished or on his paying either the whole or such part as to the Magistrate seems reasonable of all just claims of such employee against him for wages or on the filing of a petition in bankruptcy by or against him; and
(b) in no case shall the period of such detention exceed three months.
(3) The bond to be given by an employer shall be a personal bond with one or more sureties, and the penalty for breach of the bond shall be fixed with due regard to the circumstances of the case and the means of the employer.
(4) If on or after a complaint by any employee under subsection (1) it appears to the Magistrate that there is good ground for believing that the employer complained against has absconded or is absconding or is about to abscond, the Magistrate may issue a warrant for the arrest of such employer and such employer shall be detained in custody pending the hearing of the complaint unless he finds good and sufficient security to the satisfaction of the Magistrate for his appearance to answer the complaint.
(5) For the purposes of this section a certificate purporting to be signed by the Director General and issued to the Magistrate to the effect that wages claimed have been paid or settled shall be sufficient evidence of the payment or settlement thereof.
SABAH CAP. 67
LABOUR ORDINANCE
7N Employee’s remedy when employer about to abscond
(1) If any employee complains to a Magistrate that he has reasonable grounds for believing that his employer, in order to evade payment of his wages, is about to abscond, the Magistrate may summon such employer and direct him to show cause why he should not be required to give security by bond to remain in the State until such wages are paid; and if, after hearing the evidence of such employer, the Magistrate decides that such bond shall be given, the Magistrate may order such employer to give security by bond in such sum as to the Magistrate seems reasonable, that he will not leave the State until the Magistrate is satisfied that all the just claims of such employee against him for wages have been paid or settled.
(2) If the employer fails to comply with the terms of such order to give security, he shall be detained in prison until arrangements have been made to the satisfaction of the Magistrate for settling the claims of such employee:
Provided that—
(a) such employer shall be released at any time by the committing Magistrate on security being furnished or on his paying either the whole or such part as to the Magistrate seems reasonable of all just claims of such employee against him for wages or on filing of a petition in bankruptcy by or against him; and
(b) in no case shall the period of such detention exceed three months.
(3) The bond to be given by an employer shall be a personal bond with one or more sureties, and the penalty for breach of the bond shall be fixed with due regard to the circumstances of the case and the means of the employer.
(4) If on or after a complaint by any employee under subsection (1) it appears to the Magistrate that there is good ground for believing that the employer complained against has absconded or is absconding or is about to abscond, the Magistrate may issue a warrant for the arrest of such employer and such employer shall be detained in custody pending the hearing of the complaint unless he finds good and sufficient security to the satisfaction of the Magistrate for his appearance to answer the complaint.
(5) For the purposes of this section, a certificate purporting to be signed by the Director and issued to the Magistrate to the effect that wages claimed have been paid or settled shall be sufficient evidence of the payment or settlement thereof.
Sarawak LABOUR ORDINANCE
CHAPTER 76
Employee’s remedy when employer about to abscond
8N.—(1) If any employee complains to a Magistrate that he hasvreasonable grounds for believing that his employer, in order to evade payment of his wages, is about to abscond, the Magistrate may summon such employer and direct him to show cause why he should not be required to give security by bond to remain in the State until such wages are paid; and if, after hearing the evidence of such employer, the Magistrate decides that such bond shall be given the
Magistrate may order such employer to give security by bond in such sum as to the Magistrate seems reasonable, that he will not leave the State until the Magistrate is satisfied that all the just claims of such employee against him for wages have been paid or settled.
(2) If the employer fails to comply with the terms of such order to give security, he shall be detained in prison until arrangements have been made to the satisfaction of the Magistrate for settling the claims of such employee:
Provided that—
(a) such employer shall be released at any time by the committing Magistrate on security being furnished or on his paying either the whole or such part as to the Magistrate seems reasonable of all just claims of such employee against him for wages or on filing of a petition in bankruptcy by or against him;
and
(b) in no case shall the period of such detention exceed three months.
(3) The bond to be given by an employer shall be a personal bond with one or more sureties, and the penalty for breach of the bond shall be fixed with due regard to the circumstances of the case and the means of the employer.
(4) If on or after a complaint by any employee under subsection (1) it appears to the Magistrate that there is good ground for believing that the employer complained against has absconded or
is absconding or is about to abscond, the Magistrate may issue a warrant for the arrest of such employer and such employer shall be detained in custody pending the hearing of the complaint unless he finds good and sufficient security to the satisfaction of the Magistrate for his appearance to answer the complaint.
(5) For the purposes of this section, a certificate purporting to be signed by the Director and issued to the Magistrate to the effect that wages claimed have been paid or settled shall be sufficient evidence of the payment or settlement thereof.
4 MNCs cease operations in Malaysia
This has occurred within first half of 2024.
Updated 6 days ago · Published on 02 Jul 2024
“These would phase out operations gradually by December this year, while another in the food industry with a majority of local shareholdings will phase out one of its operations gradually by December 2024 in Port Klang, Selangor. However, it will continue its factory operations in Johor,” he said.
The total investment for all four companies amounted to RM7 billion.
Zafrul said this in a parliamentary written reply to Bera MP Dato’ Sri Ismail Sabri Yaakob, who had asked the minister to state the number of – and provide reasons for – multinationals that had ceased operations in Malaysia.
“Goodyear Malaysia Bhd’s decision to close its Shah Alam factory was driven by a new business plan (restructuring) in response to the company’s losses since 2017.
“Other Goodyear factories closed include those in Germany and Australia.”
He said the government, through his ministry and the Malaysian Investment Development Authority would continue to be proactive and responsive in attracting new foreign investments while encouraging growth of domestic investments, as both categories complemented each other.
He stressed that efforts to strengthen the investment ecosystem and supply chain would continue, including enhancement of existing policies and strategies.
“We will conduct periodic engagement sessions and consultations with stakeholders and various relevant parties to strengthen service delivery systems and ensure investors can operate in a conducive environment,” he added. – July 2, 2024. Vibes
Goodyear to Cease Operations at Shah Alam Plant by End of 2024
IN a momentous strategic maneuver under its “Goodyear Forward” transformation blueprint, The Goodyear Tire & Rubber Company has unveiled plans for the complete shutdown of its Shah Alam facility in Malaysia by the close of 2024. This decisive action, affecting 550 positions, heralds a pivotal change in the company’s footprint in Malaysia and sparks inquiries into the future trajectory of its 180 Goodyear AutoCare outlets nationwide.
Established
in 1972, the Shah Alam factory has stood as a cornerstone of Goodyear’s
Malaysian operations, embodying a longstanding dedication to the local
economy and automotive sector. However, its impending closure mirrors
the overarching strategy delineated in the “Goodyear Forward” agenda,
geared towards achieving annualised cost savings of $1.0 billion by
2025. This strategic roadmap encompasses shedding the Dunlop brand and
rationalising the company’s global presence to bolster shareholder
returns and fortify competitiveness within the sector.... The Sun, 7/3/2024
No comments:
Post a Comment