When a Trade Union Member loses his job/employment, automatically the LAW ends his/her Trade UNION membership - and thus when a worker-union member most needs the help/assistance of his/her Trade UNION - he is UNJUSTLY denied it. Because of that law ending Union Membership, the Trade UNION also is 'prohibited by law' from using its monies and resources to assist its 'now former Union member' quest for justice, mostly against the former EMPLOYER in cases wrongful dismissal/termination, wrongful retrenchment, wrongfully withholding monies belonging to the worker....
Since September 2024, we have an amendment that came into force, and NOW any workman who has been dismissed, discharged, retrenched, or has retired may be retained as a member of a trade union.
This is a POSITIVE development for WORKERS - as now, when they MOST need the HELP/ASSISTANCE and solidarity of fellow union members, the UNION will be still there to help the worker's quest for JUSTICE - and may even be there to provided 'needed assistance' as the worker tries to find new sources of income...
BETTER STILL - Unions can now ASSIST unemployed UNION members find new employment > by inserting of 'FIRST CONSIDERATION" clauses in CBA(Collective Bargaining Agreements). What this means is that when the Employer/Companies in which the UNIONS have CBAs with will commit to considering unemployed UNION members, if and when a VACANCY arises in the company...
BUT again, UNIONS must first amend their UNION RULES/Constitution first to take the benefit of this new Trade Union Act amendment...
The law before
•26 Membership of trade union
(1A) No person shall join, or be a member of, or be accepted or retained as a member by, any trade union if he is not employed or engaged in any establishment, trade, occupation or industry in respect of which the trade union is registered.The law now (after amendment)
(1B) Notwithstanding subsection (1A)-
(a) no workman or employer shall be accepted as a member of a trade union except as provided in the rules of the trade union; and(b) any workman who has been dismissed, discharged, retrenched, or has retired may be retained as a member of a trade union subject to the rules of the trade union.
So, NOW the Trade UNION must amend its RULES/CONSTITUTION to allow now unemployed former workers or Union members to be retained as UNION MEMBERS...
Understanding possible reasons for previous law - unemployed no more union member
# UNION BUSTING - just terminate Union leaders, and they are no more UNION members - so UNION restrained by law from continuing to legally support former leaders or former union members.
# Discouraging UNION membership - when a UNION cannot help its UNION members(now former) in the time of greatest need - more so in wrongful termination/retrenchment/deportation and wrongful cancellation of work permits, etc > it makes joining Trade Unions LESS attractive...
# THREATHENING Workers to not go after Employers for RIGHTS Violation, if NOT you may be terminated...DO NOT ask for BETTER RIGHTS if NOT you will be terminated...SO, a DOCILE worker who labours on quitely TO afraid to even challenge an 'EVIL' employer...
OTHER BAD LAWS affecting workers in Malaysia
1) The WRONGFUL DISMISSAL LAWS - whilst wrongful dismissal is acknowledged as a WRONG - the administration of justice, speed of trials, and even the 'compensation in lieu of reinstatement' is UNJUST
a) In Indonesia, in wrongful dismissal cases - the approach is JUST, whereby until the COURT determines whether the Dismissal is JUST or UNJUST, the STATUS QUO is maintained, and thus the affected worker has to be paid and provided work(if the employer does not want the worker to work - still have to pay the MONTHLY wages), and the Worker must go back to work(unless the employer prevents it). This is the STATUS QUO that is maintained until the COURT makes its decision - and that Status Quo is preserved until all Appeals are done. In Indonesia too, time frames are stipulated as to when the case should END - and hence such cases end fast. EMPLOYERS too want cases to end FAST... COMPARATIVELY, in Malaysia, the income deprived 'now unemployed' worker is denied job and wages {worse, if the worker WORKS in another job whilst waiting for his/her case is over, the worker is 'penalized' as the other earning is deducted from the compensation... In Malaysia too, wrongful dismissal cases lasts very LONG - sometimes even up to 9 years ... REMEMBER the claim for wrongful dismissal cases is REINSTATEMENT (back to work at the same job) - and THUS TRIAL must end FAST... Good for worker and employer too.
Because the Malaysian wrongful dismissal cases lasts TOO LONG - very rarely do we hear that the COURT orders REINSTATEMENT - that is SO UNJUST? So, at the end of the day, the EMPLOYER succeeds in getting rid of UNION leaders, Union Members and other workers...This STATE of Affairs naturally deters workers from Joining Unions, or even defending worker rights - makes the worker a 'slave' to afraid to even highlight rights violation.
Malaysian government KNEW this BUT did nothing to protect WORKERS and their rights > in fact, they went further to help employers, by LIMITING the claims of wrongfully dismissed workers, and this happened when Schedule Schedule was introduced in 2008 - which could have been repealed by PH, PN and even the MADANI government but they did NOT...
34 New Second Schedule [INDUSTRIAL RELATIONS (AMENDMENT) ACT 2007]
The principal Act is amended by inserting after the First Schedule the following Schedule:
"SECOND SCHEDULE
FACTORS FOR CONSIDERATION IN MAKING AN AWARD IN RELATION TO A REFERENCE UNDER SUBSECTION 20(3)
[Subsection 30(6A)]
1. In the event that backwages are to be given, such backwages shall not exceed twenty-four months' backwages from the date of dismissal based on the last-drawn salary of the person who has been dismissed without just cause or excuse;
2. In the case of a probationer who has been dismissed without just cause or excuse, any backwages given shall not exceed twelve months' backwages from the date of dismissal based on his last-drawn salary;
3. Where there is post-dismissal earnings, a percentage of such earnings, to be decided by the Court, shall be deducted from the backwages given;
4. Any relief given shall not include any compensation for loss of future earnings; and
5. Any relief given shall take into account contributory misconduct of the workman.".
NOW, unlike in INDONESIA, in Malaysia the wrongfully dismissed worker ends up with NO JOB NO WAGES whilst he/she waits to be reinstated. Does Malaysia expects the worker to survive with NO INCOME for so long, and WHY should the EMPLOYER benefit because the worker to survive LIVE had to find other job and earnings. There is NO JUST LOGIC to allow the deduction of 'post-dismissal earnings' - for the EMPLOYER who committed the CRIME of wrongly dismissing the worker. The EMPLOYER must pay all the backwages... Again, we see a 'pro-employer' policy - that helps the EMPLOYER who has already found 'guilty' of WRONGFULLY dismissing the worker???
A GOOD GOVERNMENT should JUSTLY repeal this SECOND SCHEDULE - which is PRO-EMPLOYER..
BECAUSE of this BAD LAW - that does not ensure a SPEEDY TRIAL or a JUST Compensation, most wrongly dismissed workers do not even file a case for WRONGFUL DISMISSAL at all > hence, is the Government encouraging rather than DETERRING Wrongful Dismissal and Worker Rights Violations?
Say, a worker earning RM2,000 > at the end of the day because of 2nd Schedule that limits backwages to 24 months > the maximum he/she will get is ONLY RM48,000 even if the case lasted 10 years.
Before 2nd Schedule, that same worker, if the case ended after 10 years, will get RM240,000 in back wages....
Now, MEDIA reports can be MISLEADING as it reports HIGH damages - but that is because that said worker earned very very HIGH - in the case below, his wages was RM27.500 per month...NO reports of some minimum wage worker earning RM1,700 - is there? Maybe, low earning worker GAVE UP - for in terms of back wages only, he may get only about RM40,000 (and then he must take into account lawyer fees, loss of time/effort/resources, plus also loss of 'annual leave' which he must take for every court attendance) - and at the end of day, there may or may not be VICTORY, and even if there is a VICTORY - he may end up getting nothing or less than RM10,000). Currently, NO cost risk at INDUSTRIAL COURT - but if the case go to HIGH Court and higher Courts - COST is a MAJOR concern for the poor worker...)
The High Court has upheld a RM1 million compensation award in favour of a manager, ruling he was wrongfully dismissed from a family-run company after challenging his late father’s will... Paramalingam found that the company had unilaterally reduced Wong’s salary from approximately RM27,500 to RM9,000, and later RM6,000 per month, which, he said, was a “fundamental breach” of the employment contract...Wong was awarded compensation in lieu of reinstatement for RM550,000 and another RM660,000 in back wages, subject to a deduction of RM198,000 on account of post-dismissal earnings.
NOW, back to the new law that allows dismissed/terminated/retrenched workers to RETAIN Union Membership - This is positive....BUT ARE THE TRADE UNIONS happy?
If a clause, such as follows, i.e a FIRST CONSIDERATION Clause is INSERTED - then Unions can help UNEMPLOYED Union members find JOBS too...because whenever there is a JOB VACANCY, the employ will give first consideration to UNION members....
•Model CBA Clause 6 – Right of First Consideration
6.1 The Employer agrees that when a vacancy occurs or a new position is created at the worksite, the Employer shall give the Union first notice and first consideration in filling the vacancy or new position with Union members. Qualified members of the Union shall be given first consideration in filling any vacancy after the announcement of the position vacancy.
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