NUPW want contractors/sub-contractors of work registered - Not for labour suppliers (contractors for labour) becoming employers

Finally the NUPW has come out and they say that the support the amendments of the Employment Act ...but reading what they say, I do not think that they really support this amendment at all - and really their primary concern will not be addressed by this amendment at all.

NUPW's primary concern is the registration of contractors and sub-contractors in the plantation sector

Navamukundan said the amendment essentially provides for registration of contractors, something which the union has, in its representation to the government, called for for decades.

“This amendment actually provides for registration of contractors....

No, it does not...and really what what NUPW is really concerned about is about contractors and sun-contractors of work - not these 'contractors for labour', as envisaged by this amendment.

In the plantation sector, some work is outsourced , like weeding where plantation companies contract out this work to contractors, who may then contract out portions to other sub-contractors, who bring in their workers to do just this work. Now, NUPW is worried about the workers of these contractors and sub-contractors, who apparently some are not registered - and some have also not been registering their employees. 

In Malaysia, all these contractors and sub-contractors must be registered as companies, partnership and/or sole proprietors with the Registrar of Companies and/or the Registrar of Businesses - and if they are not, then they are breaking the law. Maybe we need a provision to say when companies outsource work to a third party, the said third party must be a registered company or business - not just some 'unregistered' individual operator. 

Secondly, all employers must register their employees, be they full-time or part-time employees - maybe this is the amendment that should be inserted for apparently, according to the NUPW, some of these contractors (and subcontractors) in the plantation sector are breaking the law - and not registering their workers to the detriment of these workers when the try to claim their rights as workers...

Thirdly, it must be noted that the Employment Act at present also makes the owner-operator /principal (in this case the Plantations owner) also responsible for the workers of these contractors and/or contractors (who are 'contractors of work' NOT 'contractors for labour')) - and their liability extends to 3 months salary/wages. Yes, workers of these contractors/sub-contractors can claim from the principal for their wages for up to 3 months (see. section 33..). Currently liability of the principal is limited to ..."wages due to him for any three consecutive months" - should be extended.

(1) Where a principal in the course of or for the purposes of his trade or business, contracts with a contractor for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, and any wages are due to any employee by the contractor or any sub-contractor under the contractor for work done in the course of the performance of the contract, the principal and the contractor and any such sub-contractor (not being the employer) shall be jointly and severally liable with the employer to pay such wages as if that employee had been immediately employed by the principal and by the contractor and any such sub-contractor...

Today, in the plantation sector, more and more work is being 'outsourced' to contractors, who bring in their workers to do the work. Some of the smaller plantation companies, have even 'outsourced' almost all the work to these 'contractors' - who now do the weeding, tapping, collection and transportation of the rubber to the relevant processing factories...

Well, this is 'outsourcing of work' - similar to what Malaysian banks did when they outsourced internet banking, phone banking and even check processing to other companies, who then do the work.

This current amendment is not about contractors or sub-contractors of work, who do work that is outsourced to them by the principal. It is very different - these amendments are about 'manpower contractors' or 'contractors for labour' or 'labour suppliers' who after supplying the workers to the owner-operator/principal stay on as employers of the workers supplied... and this is something that NUPW is also against...

Navamukundan stressed that it was NUPW’s stand that where work is of a permanent nature, and not a one-time job, employer-employee relationship must be direct, that is, there must not be a contractor.

“We definitely don’t promote contractor for labour. Because through a contractor, the abuse is severe and serious,” he said.

The primary concern of NUPW is that many of the contractors, sub-contractors (and maybe even principals)  do not register their employees...

He said there was one recent case where NUPW was alerted to an oil palm worker’s death, but the contract company denied having hired the man.

“It is a major problem when you can’t find out who is the contractor. The first answer the company gave us was ‘tak tau’ (we don’t know). It’s as if the person dropped from the sky and died. Nobody wanted to own up.

“Slowly, when my union officers continued to ask questions, everything came into place. Only then did the company say, ‘we would pay compensation’.”

So, how can we resolve this problem - which really is a breach of the existing law, that requires all employers to register their employee with the relevant agencies/authorities - Labour Department, EPF, SOCSO, Workmen's Compensation, etc  - and the problem is lack of enforcement.  

How can we better safeguard workers? Place the obligation also on the principal - to maintain records of all employees (be they part-time, casual or even one-day employees of contractors and sub-contractors of work), and to also provide these information to the relevant authorities. [Now the amendment does not do this]

Also may be wise to make principals also liable to the workers of contractors/sub-contractors for any infringement of rights, etc - with of course the right to later be indemnified by the 'real employer' being the contractor or sub-contractor for work. 

To deter this practice by employers who are not registering their workers, which should be immediate or not later than 5 days, it should be made an offence with a serious penalty of maybe not less than RM10,000-00 per worker not registered.[Rewards for 'whistle-blowers' would also help - maybe RM1,000 (or 10% of the fine)]

To deter employers from breaking the law, not paying workers wages, overtime, etc - maybe it may be best to say that when they do break the law, they will be liable to pay 2 or 3 times what they should have paid the said workers (Currently, the law provides that once the claim is proven/admitted, employers only pay what they should have paid initially - this encourages the breaking of the law and cheating of workers... Say employer wrongly deducts RM100 from the worker's wages, he claims and finally it is shown that the claim is right - and the employer is ordered to pay the worker the RM100... this certainly does not deter employers from breaking the law, does it...?)

Plantation workers’ union backs amendments

Teoh El Sen | November 3, 2011 

 

The National Union of Plantation Workers (NUPW) supports amendments to the Employment Act 1955 because it will help stop outsourcing of labour.

PETALING JAYA: The National Union of Plantation Workers (NUPW) is all for the amendments to the Employment Act because they say it will help outsourcing of labour.

NUPW’s executive secretary A Navamukundan said his union has been pushing for this for many many years.

“We are not blindly supporting the human resources ministry; we were actually pushing for this for many, many years. We don’t want to argue who is right or wrong, but we want to do what is right for workers,” Navamukundan told FMT in an interview.

Navamukundan said the amendment essentially provides for registration of contractors, something which the union has, in its representation to the government, called for for decades.

“This amendment actually provides for registration of contractors. We welcome this amendment. We’ve asked for the registration of contractors and more than that, we want them to be licensed. This is because we understand the abuse which is happening on the ground,” he said.

Navamukundan stressed that it was NUPW’s stand that where work is of a permanent nature, and not a one-time job, employer-employee relationship must be direct, that is, there must not be a contractor.

“We definitely don’t promote contractor for labour. Because through a contractor, the abuse is severe and serious,” he said.

He said registration of such contractors now would provide transparency to start reducing the abuse of labour through contractors.

“Will the transparency help? Yes, it will help. What harm can you cause to the worker by registering them (contractors)? You say it will institutionalise contractors, but you must realise, it’s already there! Even if it is not in the law, it is being practised.”

Labour shortage

Navamukundan said the “phenomenon” of contractors for labours “did not just happen yesterday”.

“Before independence, rubber was the dominant crop and second was oil palm. For a long time, in the plantation industry, the majority of the workers were employed directly by the employer. It was a direct relationship, there is no intermediary,” he said.

He added that when contractors come to estates, it was for one-time jobs such as replanting and the clearing of forests.

“But after the 60s, workers started to migrate to other industries. There was a labour shortage. Foreign workers were brought in and contractors were mobilised. Then the main industry became oil palm,” he said.

Navamukundan said today, the situation has become so serious that the bulk of the plantation workers are now engaged by contractors.

“This is where room for unfair labour practices can arise – contractors won’t pay wages, EPF, Socso; they set their own rules. This is because contractors for labour can circumvent the obligation of contract of service,” he said.

Citing the Selancar Empat “hell estate” which made headlines in the 80s, Navamukundan said that was a “classic” case of worker abuse.

“We need registration for contractors for the sake of transparency. Today, if you ask anybody how many contractors are there in any industry, nobody, including the department of statistics, has any record.”

Discretionary powers

He said there was one recent case where NUPW was alerted to an oil palm worker’s death, but the contract company denied having hired the man.

“It is a major problem when you can’t find out who is the contractor. The first answer the company gave us was ‘tak tau’ (we don’t know). It’s as if the person dropped from the sky and died. Nobody wanted to own up.

“Slowly, when my union officers continued to ask questions, everything came into place. Only then did the company say, ‘we would pay compensation’.”

Navamukundan said if the NUPW was not informed of the case, the person would be “as good as an unclaimed body”.

He said a provision currently exists under Section 2A of the Employment Act, where the ministry has discretionary powers to forbid employment through contract for a particular sector.

“But the process of documentation of contractors has always been a problem, so this order has hardly been invoked,” he said.

“This(amendment) is just a first step. We want the government to watch over the contractors.

“We hope that now we can ask, how many contractors are there in an estate and we can investigate abuses,” he said.

The revision of the Employment Act was passed in early October despite widespread protests. The proposed Bill now needs to be approved by the  senate and receive royal assent, before it becomes law.

Various union groups have called the amendments a “return to slavery”, “anti-worker” and “anti-union”. The Malaysian Trades Union Congress (MTUC) had staged a picket outside Parliament and would be holding nationwide picket against the amendments today.

The human resources ministry, however, has defended the amendments, saying that it was not intended to promote or institutionalise contractors for labour. It said that it was to ensure workers’ rights were protected when all outsource agents were registered and monitored. - Free Malaysia Today, 3/11/2011, Plantation workers’ union backs amendments

Go ahead with your peaceful protest: Dr Subra(Star)...and then the government started to panic??

It was a big issue for Malaysian workers and their families (and others who were concerned with human rights and worker rights of workers and their unions) ....but the media and the Malaysian government just did not give much space or attention

MTUC, whose members only have over 800,000 workers, who is also the recognized de facto representative of the over 10 million workers in Malaysia opposed the amendment and threatened a nationwide picket on Nov 3 - but the BN government seemed not at all bothered....Neither the PM or DPM even came out with any comment - they just ignored it...

Shame on you media (where most are owned or effectively controlled by government and/or political parties that form the government) for not even covering this issue and not highlighting clearly the reasons and concerns that has resulted in a very strong protest by the workers in Malaysia and MTUC...which has also received the support of so many different groups including the ITUC...

Yesterday, there were some attempts by certain quarters to scare workers from coming out and protesting as this was not a 'trade dispute' - yes, it is not a 'trade dispute'.... It is not workers protesting against employer - but generally workers protesting against the BN government that is trying to amend labour labours to the detriment of worker and union rights... and it is a constitutional right for any person in Malaysia to protest peacefully..

“If they picket during working hours, it would be illegal and action can be taken against them by their employers for disrupting the working environment,” said Subramaniam.

“However, if workers decided to hold a peaceful gathering outside of the work place or during lunch hour, it is their fundamental right.

“A strike or picket can only be done on a trade dispute. If they picket on this particular issue, it would be against the Industrial Relations Act 1967,” added Subramaniam.- Free Malaysia Today, 1/11/2011, Don’t picket, Subra warns workers

And even today in the Star, our Minister again says '...no attempt will be made to stop the gatherings.." and suddenly the police comes out at the last minute shouting "illegal...illegal..." today - when they did not do so about this before - and mind you, everyone knew about this nationwide protest today (Nov 3) for about a month....Has our Prime Minister and the government suddenly start to get worried and have got the police to move and stop this protest...this certainly would be a slap on the face of the HR Minister...

Go ahead with your peaceful protest: Dr Subra

By JOSEPH KAOS

KUALA LUMPUR: With hours to go to the MTUC nationwide picket against employment reforms, Human Resources Minister Datuk Seri Dr S Subramaniam said no attempt would be made to stop the gatherings.

"It is their right to protest, and in this country, we allow peaceful gatherings as long as they do not disrupt security," he said after launching the Malaysian-German conference on education and training.

"Actually what they are protesting against is a non-issue. Both parties want the same thing, which is to protect the rights of workers. Only thing is we have different ways of looking at it," he added.

The MTUC has given the assurance that its picket Thursday would be peaceful.

Secretary-general Abdul Halim Mansor said the picket, to protest the amendments to the Employment Act 1955 which was passed by the Dewan Rakyat on Oct 6, would not disrupt public order because it would be held after office hours from 5pm to 6.30pm.

He told Bernama 18 locations had been identified for the picket and that the Inspector-General of Police had been informed about it. - Star, 3/11/2011, Go ahead with your peaceful protest: Dr Subra

And, then in Malay Mail.... the government at the very last moment seem to be panicking....

PETALING JAYA: Police have declared the protest by the Malaysian Trades Union Congress (MTUC), scheduled for today, as illegal.

The movement had said it planned to hold a protest against the amendments to the Employment Act at 17 locations nationwide this evening.

Both the Kuala Lumpur and Selangor police, contacted by The Malay Mail yesterday, confirmed no application had been received, or a permit granted to MTUC, to hold the protest.

Police also warned that action would be taken if the action affected the movement of the public or escalated into violence.

KL deputy police chief Datuk Amar Singh said police would not hesitate to take action against the protesters if they were found to disturb the peace and disrupt traffic flow.

"The timing for the protest was set for the rush-hour of between 5pm and 6.30pm and this may cause chaos," he said.

Selangor police chief Datuk Tun Hisan Tun Hamzah said his officers would monitor the situation.

"They have informed us about the protest but did not apply for a permit. Thus, it is illegal," he said.

The protest in KL and Selangor is scheduled to be held in Jalan Raja Laut (Kuala Lumpur), Jalan Barat (Petaling Jaya), Rawang, Shah Alam (near the Proton factory), Section 15 (Shah Alam), Bukit Raja, and Teluk Panglima Garang (Banting).

Earlier, Bukit Aman Internal Security and Public Order director Datuk Salleh Mat Rasid told reporters police would be considerate and allow the protest to go on if it did not pose any threat to the public and if a permit was applied for, as required under Section 27 of the Police Act 1967.

MTUC secretary-general Abdul Halim Mansor had said yesterday it would carry out the nationwide protest to ensure its discontent with the amendments made to the Employment Act was heard.- Malay Mail, 3/11/2011, MTUC protest illegal, say police

Another way to exploit workers (Free Malaysia Today, 2/11/2011)

Another way to exploit workers

Teoh El Sen | November 2, 2011 

 

The amendments to the Employment Act will be big business for whoever gets the required licence to operate as contractors for labour, says an activist.

 

PETALING JAYA: The changes to the Employment Act 1955 are just another guise to exploit workers and to benefit political cronies, lawyer-cum-activist Charles Hector said.

He said that the amendments would promote outsourcing of workers to middlemen but do not offer the workers any protection.

“The amendments have nothing to do with protecting workers. In my opinion, it is something like the APs (approved permits) for vehicles in Malaysia, where permits and licences are allegedly issued to persons connected to those in power politically or economically,” Hector told FMT.

“This will purely be a big money-making business for whoever gets the required licences to operate as contractors for labour.”

Hector said that even now, factories are paying some of these “outsourcing agents” about RM60 per worker on a normal working day, whereas the worker only gets about RM20.

“This means the income for these labour outsourcing companies (also called ‘contractors for labour’) would be about RM40 per worker per day, and we are talking about 1.9 million migrant workers and many million local workers.”

Hector, who had represented 111 civil society groups locally and abroad, called for an immediate withdrawal of the amendments, saying that a total re-look at the law was needed.

“With the way the amendments are being phrased, I think withdrawal is the only solution at this point. Re-tabling an act is not a problem.”

Referring to the Human Resources Minister Dr S Subramaniam’s statement that the ministry had gone through rigorous consultation, he said specific suggestions by the Malaysian Trades Union Congress (MTUC) had been ignored.

“Yes, they may have gone for 18 meetings but were their (MTUC’s) views properly heard?”

Hector likened the new amendments to the Indian “Kangany system”, where a plantation head called a mandore would recruit workers from India and subsequently supervise their work here.

“It’s exactly like the Kangany system. The problem is, these labour suppliers can easily close shop and disappear if anything happens (to the workers),” he said.

“We need to go back to the traditional worker-employer relationship where the employer is responsible for the worker,” said Hector, who is being sued for RM10 million in a defamation case brought by a Japanese company Asahi Kosei against him for a blog posting alleging mistreatment of migrant workers at the company’s facility.

(In the case, Asahi had claimed that the workers are not theirs as they were supplied by an external contractor and that the contractor was responsible for the workers’ wages and welfare.)

“Now they are trying to legalise this… If this continues, one day we might have a bank without employees and all inhouse unions are essentially killed. If the bank employee complains, the bank will simply say ‘oh, I’m not your employer’,” said Hector.

Making agents liable

Hector said if the government insists on going ahead with the amendments, he suggests that outsourcing agents be made as secondary employers as is practised in other countries.

He also said the amendments will not help in dealing with sexual harassment cases.

“Now the employer himself will hold an inquiry rather than Labour Department. How can you find justice?”

The revision of the Employment Act was passed in early October despite widespread protests. The proposed Bill now needs to be approved by the senate and receive royal assent, before it becomes law.

Various union groups have called the amendments a “return to slavery”, “anti-worker” and “anti-union”. The Malaysian Trades Union Congress (MTUC) had staged a picket outside Parliament and will be organising nationwide picket against the amendments on Thursday.

The Human Resources Ministry, however, has defended the amendments, saying that it was not intended to promote or institutionalise contractors for labour.

It said that it was to ensure workers’ rights were protected when all outsource agents were registered and monitored. - Free Malaysia Today, 2/11/2011, Another way to exploit workers

Note:- This media report is copied in toto without prejudice. A settlement was reached in my case in August.

While owner-operators or principals must certainly remain the employer, responsible for the rights and welfare of workers - if the government wants to, it can also make employer's agents, recruitment agents, labour outsourcing agents, etc also clearly liable in law for all their actions and/or omissions with regard the said workers. In fact, it be best to clearly also include provisions in the law making employers vicariously liable for all the actions/ommissions of the said agents or third parties - the key word being 'ALL'.

I speak about the possibilities - or the real possibilities that these may be for the benefit of cronies, who may finally get the licences/permits of a business that is most profitable, looking at the practices even now being employed by some outsourcing agents and employers, which I believe is against the law. I am of the opinion that these amendments are also for the purpose of legalizing what is currently illegal or goes contrary to the spirit and/or provisions of existing law. 

International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco ..... (IUF) makes it 115 that wants the amendments to Employment Act withdrawn

International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF) makes it 115 

Media Statement – 1/111/2011 (107 Groups), now 115

Malaysia Must Protect Worker and Union Rights, and withdraw

proposed unjust amendments to Employment Act

- Labour Suppliers Should Not Be Employers -

We, the undersigned 115 organizations, groups and networks are disturbed that the Malaysian government has proceeded to table, and get it passed speedily on 6/10/2011 at the Dewan Rakyat (House of Representative) the Employment (Amendment) Bill 2011 despite protests from workers, trade unions and civil society. The proposed changes to the Employment Act would be most detrimental to worker rights, trade unions and the existing just direct 2-party employment relationship between worker and end-user (the principal). Malaysia’s action goes contrary to justice. In many countries employers have been wrongly trying to avoid/disguise employment relationships by way of contracts/agreements and triangular relationships, and Malaysia rather than fighting against this negative trend is now trying to legalize it, hence showing itself to be anti-worker anti-unions. 

We note also that the amendments would result in discrimination at the workplace, as many workers at a factory, plantation or any workplace would end up being no longer employees of the owner-operator of the said workplace, also referred to as the principal or end-user, but would remain employees of the supplier of workers, known as ‘contractor for labour’. Workers doing the same work at the factory, would be treated differently in terms of wages, work benefits and even rights by reason of the fact that their employers are different. This will also go against the Malaysian Federal Constitution that guarantees equality of persons. We advocate that all workers working at a factory or workplace are entitled to be treated equally in terms of wages, work benefits, rights, union rights, reliance on collective agreements and other entitlements.

The proposed amendment would also destroy direct employment relationships between owner-operator of workplaces, being the principal, and the workers that work there producing the product or providing the services from which these principals derive their profits. A just employment relationship dictates that all workers should be employees of the owner-operator employer not some other third party labour supplier, whether they be known as ‘contractor for labour’, outsourcing agent or by any other name. The relationship must be a direct relationship, to the exclusion of all third parties, between the employer who needs workers to do the work to produce the goods of their business for profits, and the workers directly who provide the necessary labour as required in exchange for fair wages and other benefits. The availability of short-term employment contracts is another reason why there is no need to legalize triangular or other employment relationships in Malaysia through the creation of the ‘contractor for labour’.

To fight for decent wages and rights, and to be able to negotiate and get better working conditions and other work benefits, workers at a workplace would generally come together collectively or as a union to be able to negotiate from a stronger position with employers, and this would result in agreements or ‘collective agreements’ between employers and workers (or their unions). If the amendments proposed become law, then many workers at the factory would effectively lose their rights to be able to form or be members of the trade union at the workplace, or the right to directly and effectively negotiate with the principal  who effectively controls the work place, working conditions and benefits.

If the proposed amendment becomes law, effectively it will also weaken existing workers and unions, by reducing their negotiating power for now when a strike or a protest in called, there will be other workers of other third party employers who will continue to work normally thus making worker struggle for better rights almost impossible. This proposed amendment is a ‘union busting’ exercises and allows employers to utilize ‘divide and rule’ tactics to counter legitimate demands of their workers and avoid employer obligations and responsibilities. Another unjustifiable proposed changed is the delay of payment of overtime and work on rest days by a month.

With regard to sexual harassment, the new provision provides only for inquiry by employer even when the alleged perpetrator is a member of the management, a partner, shareholder and/or director of the employer’s business, and provides no clear right of appeal to the Labour Courts or the High Court. Note that other worker rights violations are currently all dealt with by the definitely more independent Labour Department or Industrial Relations Department. Remedy for the victim of sexual harassment is also absent, save maybe the right to resign without the need to give the required notice when the perpetrator is a sole proprietor.

The Malaysian Trade Union Congress (MTUC), which represents over 800,000 workers of member unions, who is also is the accepted workers representative in Malaysia, picketed calling for the withdrawal of the amendments on 3/10/2011, and apparently despite the Minister assuring them that the amendment will only be tabled at the end of the month, was suddenly rushed and passed at the Lower House of Malaysia’s Parliament on 6/10/2011.

Malaysia has the Private Employment Agencies Act 1971, whereby these agencies rightfully get workers for employers, who then pay them a fee for the service, and once workers are received by the employer, these workers immediately become employees of the said employer. The amendments will creates a new kind of labour supply companies who will continue as employers of the workers even after they start working at the workplace of the principal, and this is unacceptable. All companies in the business of finding workers for companies that need workers to produce their products or for their business must be private employment agencies, and must never assume or retain the role of employers.

As the said Bill still needs to be passed by the Senate and receive royal assent, before it becomes law, we call on the Malaysian government to act in the best interest of workers and their unions and immediately withdraw this unjust proposed amendments to Employment Act 1955.

We call on Malaysia to immediately discontinue its policy of recognizing outsourcing agents, and act immediately against practices of some employers and outsourcing agents that try to avoid/disguise employment relationships to the detriment of workers and unions.

We call on countries and regional bodies, companies, ILO, trade unions and persons to do the needful to ensure that worker and union rights, not just of local but also migrant workers, are protected in Malaysia, and that the employment relationship continue to be between owner-operator end user employers who actually need workers to do work and the workers that work there to the exclusion of any third party labour suppliers or ‘contractors for labour’.

Charles Hector

Pranom Somwong

For and on behalf of the 115  Organisations listed below:-

Abra Migrant Workers Welfare Association - Hong Kong (AMWWA)

Abra Tinguian Ilocano Society - Hong Kong (ATIS-HK)

ALIRAN, Malaysia

All Women's Action Society (AWAM), Malaysia

Asian Migrants Center (AMC), Hong Kong

Asia Monitor Resource Centre (AMRC), Hong Kong

Asia Pacific Mission for Migrants (APMM)

Asia Pacific Forum on Women, Law and Development (APWLD)

Asian Migrants' Coordinating Body - Hong Kong (AMCB)

Association for Community Development-ACD, Bangladesh

Association of Concerned Filipinos in Hong Kong (ACFIL-HK)

Association of Indonesia Migrant Workers in Indonesia (ATKI-Indonesia)

Association of Migrant Child & Family, Bangladesh.

Australian Council of Trade Unions (ACTU)

BAYAN Hong Kong

Building and Wood Worker's International (BWI) Asia Pacific

Burma Campaign, Malaysia

Cambodian Human Rights and Development Association (ADHOC)

Cambodian League for the Promotion and Defense of Human Rights (LICADHO)

Center for Indonesian Migrant Workers (CIMW)

Center for Trade Union and Human Rights (CTUHR)

Clean Clothes Campaign (CCC)

Coordination of Action Research on Aids and Mobility (CARAM-ASIA)

Committee for Asian Women (CAW)

Community Action Network (CAN), Malaysia

Confederation of Voluntary Associations (COVA), Hyderabad, India

Cordillera Alliance Hong Kong (CORALL-HK)

Democratic Party For A New Society (DPNS), Burma

Dignity International, Malaysia

Education and Research Association for Consumers Malaysia (ERA Consumer Malaysia)

Filipino Friends Hong Kong (FFHK)

Filipino Migrants Association - Hong Kong (FMA)

Filipino Migrant Workers' Union - Hong Kong (FMWU)

Filipino Women Migrant Workers Association - Hong Kong (FILWOM-HK)

Foundation for Women, Thailand

Friends of Bethune House (FBH), Hong Kong

GABRIELA Hong Kong

GABRIELA Philippines

Good Shepherd Sisters, Malaysia

Health Equity Initiatives (HEI), Malaysia

Housing Rights Task Force, Cambodia

Human Rights & Legal Aid (LHRLA) Pakistan

Human Rights Education Institute of Burma (HREIB)

Human Security Alliance (HSA)

International Metalworkers' Federation (IMF)

IMA Research Foundation, Bangladesh

INFID (International NGO Forum on Indonesian Development)

Institute for National and Democratic Studies (INDIES)

International Trade Union Confederation (ITUC)

Jakarta Legal Aid Institute, Indonesia

JERIT, Malaysia

Karmojibi Nari , Bangladesh

Kalyanamitra, Indonesia

Kav La'Oved , Israel

Kilusang Mayo Uno Labor Center

Komite Independen Pemantau Pemilu (Independent Committee for Election Monitoring), Indonesia

Lawyers for Human Rights & Legal Aid (LHRLA) Pakistan

Legal Support for Children and Women (LSCW), Cambodia

LLG Cultural Development Centre, Malaysia

Malaysians Against Death Penalty and Torture (MADPET)

Malaysian Election Observers Network (MEO-Net)

MakeItfair

MAP Foundation, Thailand

Maquila Solidarity Network, Canada

May 1st Coalition for Worker & Immigrant Rights, NY-USA

Migrant CARE, Indonesia

Migrant Forum in Asia (MFA)

Migrant Trade Union, Korea (MTU)

Migrante International

MTUC (Malaysian Trade Union Congress)

National Alliance of Women Human Rights Defenders, Nepal

Network of Action for Migrants in Malaysia (NAMM)

National League For Democracy (Liberated Area )[ NLD(LA)], Malaysia

Pakistan Rural Workers Social Welfare Organization (PRWSWO)

Peduli Buruh Migran, Indonesia

Penang Watch, Malaysia

People's Green Coalition

Pergerakan Indonesia

Perkumpulan PRAXIS, Indonesia

Persatuan Kesedaran Komuniti, Selangor (EMPOWER)

Persatuan Masyarakat Selangor & Wilayah Persekutuan (PERMAS)

Persatuan Sahabat Wanita Selangor

Pinatud a Saleng ti Umili (PSU)

Pusat KOMAS, Malaysia

Quê Me: Action for Democracy in Vietnam

Saya Anak Bangsa Malaysia (SABM)

Sedane Labour Resource Center/(Lembaga Informasi Perburuhan Sedane), Indonesia

Serikat Buruh Migran Indonesia (SBMI)

Shan Women Action Network (SWAN), Thailand

Silicon Valley Toxics Coalition

Solidaritas Perempuan (Women's Solidarity for Human Rights), Indonesia

SOS(Save Ourselves), Malaysia

Suaram, Malaysia

Tenaganita, Malaysia

Thai Committee for Refugees Foundation (TCR)

The Filipino Women's Organization in Quebec, Canada

The GoodElectronics Network

The International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF)

Think Centre (Singapore)

UNI Apro, Singapore

UNI Global Union

UNIMIG (Union Migrant Indonesia)

United Filipinos in Hong Kong (UNIFIL-MIGRANTE-HK)

United Pangasinan in Hong Kong (UPHK)

Urban Community Mission (UCM Jakarta), Indonesia

Vietnam Committee on Human Rights

WARBE Development Foundation, Bangladesh

Women Forum for Women, Nepal

Women Legal BUREAU, Philippines

WOREC, Nepal

Workers Assistance Center, Inc (WAC), Philippines

Workers Hub For Change (WH4C)

 War on Want , United Kingdom

Yasanti

Yayasan LINTAS NUSA (Batam Indonesia)

17 venues of MTUC protest 0n 3/11/2011 to show discontent over amendments to Employment Act

The protest will take place tomorrow(3/11/2011) from 5pm to 6.30pm at the following locations in Kuala Lumpur and Selangor: Jalan Raja Laut; Jalan Barat (Petaling Jaya); Rawang (near Perodua); Shah Alam (near Proton); Seksyen 15 (Shah Alam); Bukit Raja; Teluk Panglima Garang (Banting).

Other locations are: MTUC Building, Ipoh, Perak; Jalan Perai, Penang (near the Prai industrial estate); Kedah; Jalan Ayer Keroh, Malacca.

Seremban, Negeri Sembilan; Jalan Sekudai, Johor Baru, Johor; Kota Baru, Kelantan (in front of the Federal Building); Kuala Terengganu, Terengganu (field near Pantai Batu Buruk); Kuantan, Pahang (field in front of Pahang State Mosque).

It will be held at the Sultan Iskandar Building in Kuching, Sarawak, and the Tang Shopping Complex in Kota Kinabalu, Sabah.

 

MTUC protest tomorrow

17 venues picked to show discontent over amendments to Employment Act

Wednesday, November 2nd, 2011 10:32:00

 

PETALING JAYA: The Malaysian Trades Union Congress (MTUC) will carry out its nationwide protest tomorrow to ensure its discontent with amendments made to the Employment Act is heard.

MTUC secretary-general Abdul Halim Mansor told The Malay Mail yesterday the protest would be held at various locations nationwide and that police had been informed.

“We are the workers' umbrella. We have no political agenda but are only voicing our concern and unhappiness with amendments made to the Employment Act," he said.

"Our dispute is not with our employers but in taking away our rights as workers through the amendments.

“We have informed the police, including the IGP and State police chiefs, on the locations and time of our protest. It will be peaceful and we will deploye our officers to ensure the discipline."

Earlier this week, Human Resources Minister Datuk Dr S. Subramaniam said the protest was illegal as it did not fall into the context of dispute between employers and employees.

To this, Abdul Halim said: “The question of whether this protest is halal or haram should not even be made."

MTUC expects a turnup of 500 of its members at each of the 17 locations throughout the country to protest against the amendments to the Act.

Abdul Halim said he did not think there would be any problem with the police as "they have always been supportive” of MTUC.

On whether the protest would affect rush-hour traffic, he said the MTUC officers at each location would maintain discipline. He also hoped police would help with the traffic flow and ensure safety of protesters.

The MTUC's main complaint against the amendments is its belief it is "a return to slavery" and that investors will only hire Malaysians as contract workers instead of permanent staff.

On the other hand, the Human Resource Ministry insisted the amendments protect the rights of workers.

MTUC is an umbrella body comprising 390 of the 692 labour unions nationwide has a total of 802,323 members.

The amendments to the Act were approved by Parliament on Oct 6.

The protest will take place tomorrow from 5pm to 6.30pm at the following locations in Kuala Lumpur and Selangor: Jalan Raja Laut; Jalan Barat (Petaling Jaya); Rawang (near Perodua); Shah Alam (near Proton); Seksyen 15 (Shah Alam); Bukit Raja; Teluk Panglima Garang (Banting).

Other locations are: MTUC Building, Ipoh, Perak; Jalan Perai, Penang (near the Prai industrial estate); Kedah; Jalan Ayer Keroh, Malacca.

Seremban, Negeri Sembilan; Jalan Sekudai, Johor Baru, Johor; Kota Baru, Kelantan (in front of the Federal Building); Kuala Terengganu, Terengganu (field near Pantai Batu Buruk); Kuantan, Pahang (field in front of Pahang State Mosque).

It will be held at the Sultan Iskandar Building in Kuching, Sarawak, and the Tang Shopping Complex in Kota Kinabalu, Sabah. - Malay Mail, 2/11/2011, MTUC protest tomorrow

If the Minister only listened to workers and unions, no need for Nov 3 MTUC nationwide picket

Our Human Resource Minister again comes out and states that the amendment is meant to protect worker rights - and I cannot agree with it, and would now respond to the Minister's reported statement, and quick short comments are in red...

Using Manpower Contractors Aimed At Protecting Workers' Rights - Subramaniam

KUALA LUMPUR, Nov 1 (Bernama) -- The government's move of creating manpower contractors to provide workers for employers under the Employment (Amendment) Bill 2011, is aimed at protecting workers' rights.

1 - What are the worker rights that are presently not being protected by the current Employment Act 1955, that you are going to protect? At present, the law protects worker rights - permanent employees, those under fixed-duration contracts...even part-time employees - so, what worker rights exactly is not being protected that you are trying to protect. Every employer of workers are duty bound not just to maintain a register of their employees - but to also immediately inform relevant authorities (Labour Department, EPF, Income Tax, SOCSO, Workmen's Compensation) as and when they employ a new worker...and there is really no additional protection of worker rights that will come about by this amendment - but the reverse is true as workers and unions will be losing some of their rights (or will suffer an erosion of their rights)

2 - There is no need for creating 'manpower contractors' - there are already Private Employment Agencies, governed and regulated by the relevant Private Employment Agencies Act, and these agencies are in the business of finding workers for employees that need workers. [Maybe, the current fee structure of the Private Employment Agencies for the services they render may need to be amended when it involves migrant workers - but that is all. Presently, these agencies get a sum equivalent to 20 -25% salary of the 1st month's salary as their fee for the every worker they find for the employer...]

3 - Be honest Minister, your new 'manpower contractors' will not be supplying workers to employers, who will then be employees of the said employer - BUT your manpower contractors will be supplying their employees to the factories, and the workers supplied will remain employees of the manpower contractors - and not become employees of the workplaces that they are supplied to - and this is the MAIN OBJECTION to the proposed amendments. If it becomes law, then in a factory or a workplace, there will be a new class of workers - not employees of the said workplaces, but employees of these manpower contractors. (Your proposed new section 33a - indicates that the workers supplied will remain employees of your 'manpower contractors)

Human Resources Minister Datuk Seri Dr S. Subramaniam said it was not to institutionalise the system.

Big words, 'not to institutionalize the system' but what does it mean?

"As a control mechanism, the government through Section 2A of the Employment Act 1955 will formulate regulations specifically to list out the types of work now allowed through the hiring of manpower contractors to ensure the workers' welfare would be protected and to avoid manipulation by any quarters.

1 -  What is this proposed regulations so that we can see it and comment...., and by the way regulations are really meant to detail out exact procedural steps, etc - and should never be used to remove rights and privileges of certain classes and categories of workers just by Minister. On matters of rights...including excluding or including categories, it should always go through Parliament not be left to the Minister to decide as a matter of principle. Look at the ISA - the government says that it will not be repealed until the new law is also in place - should not the same position also be for workers...[Now, let us not forget that the government said in 2009 that they would amend the law to guarantee one rest day per week for domestic workers but until now nothing has happened] - In short, promises of doing something in the future by the Minister or the government really does not hold much weight..]

2- Also section 2A entitled 'Minister may prohibit employment other than under contract of service' is really that provision that gives the Minister the power to ensure that those who try to slip through loop-holes in the law and try to avoid direct employment relationships between the '... the principal or owner of that agricultural or industrial undertaking, constructional work, trade, business or place of work...' and their workers. 

Of course, the dangerous provision is section 2A(3) "(3) Notwithstanding subsection (1), the Minister may by order approve the employment of any person or class of persons by such other person or class of persons (not being the principal or owner) as he may specify but subject to such conditions as he may deem fit to impose..." - I wonder whether the Minister have been making orders allowing 'outsourcing agents', rather than principals and owners to be employers using this in the past... He may have been doing so...and he should come clean and tell us if he had been doing so...and we, in Malaysia will certainly be angry.

"This matter has been discussed with employers and workers' unions, and the feedback has been positive," he said after a dinner function with media representatives, here, tonight.

Again, he is being very very vague.... what workers' union is he talking about ...the NUPW? (who, by the way has still not come and said that they support the government's move to amend the laws..MTUC certainly is opposed to the amendment and let us not forget that MTUC is the de facto representative of all workers in Malaysia.  

Dr Subramaniam said the employers' representatives had in fact admitted that improvements were necessary to prevent malpractices by irresponsible quarters.

Again, the question is what 'malpractices' are they really talking about. Secondly, is these malpractices now mattes that could be dealt with by existing laws - tell us really, what 'malpractices' are not covered by law so we can include provisions in law that will deal with it specifically. 'Irresponsible quarters' - are these those employers that have been violating worker rights contrary to Malaysian law? Tell us what have you done so far - 'blacklisted' them?...  Or are you now just solving the problem by removing employers duties and obligations - by just making some other, i.e. manpower contractors (contractors for labour) into employers..

He said workers salaried through the manpower contractors could also join the workers' union at their workplace as there was no legal provision to prevent them from doing so.

- But, really Minister, who will the collective agreements and the negotiations be with - the owner/operator who effectively controls and supervises the worker's work...and is responsible for the conditions.  Remember one factory may be using many different 'manpower contractors'(or 'contractors for labour' or labour outsourcing agents) - so really, what you are talking is absurd. So will workers be sitting down negotiating with the owner/operator and a large number of these 'manpower contractors'? And, when a ''employee' of the manpower contractor is trying to lobby workers to join/form unions or protest - would not the owner/operator just tell the 'manpower contractor' to ...transfer/remove the said worker? What is to stop this?

So what about union of employees of the 'manpower contractor' - not possible for he supplies 20 here and 30 there and 50 here and maybe also in many different sectors - and his 'employees' will really never even get a chance to meet ...let alone unionize...and even so, which national sectoral union will they be part of? Here, the Minister maybe talking about 'possibilities' - but certainly it is not at all practical, is it...This amendment would kill unions - or weaken them to near ineffectiveness - and they would most likely be going the same way that NUPW is going ....from a big powerful union to an almost insignificant union...

"At the same time, the workers are also bound by the collective agreement agreed upon by the employer and union they have joined."

- but Minister, what is stopping the 'manpower contractors' from summarily transferring them out - how can you even say that employees of a third party working in a factory - be able to rely on the collective agreement between employees of that factory and their employer(the owner/operator of the factory).   

In the new amendment, there is no provision that says that these 'employees of the manpower contractor' will also be employees of the owner-operator/principal, is there? If there was this, and provisions that will prevent the removal of these workers from a particular workplace without due process - then things may be different. But that is not the case with the amendments you are trying to make, Mr Minister

For example, he said, there was agreement between the Malayan Agricultural Producers Association (MAPA) and National Union of Plantation Workers (NUPW) to cover workers supplied by the manpower contractors.

* That is good - but we have not seen it, and so does it also cover termination/retrenchment??? or even security of tenure in that particular estate???

"For this, the proposed amendment is management transformation to protect the rights and welfare of the workers and does not at all adversely affect the security of tenure or the future activities of workers' unions in this country."

Yes, it is 'management transformation' - to liberate true employers being the owner/operator(or principal) from the obligations and duties of an employer - they can now ignore worker's welfare - and will start treating workers no more as human persons, or a partner in the production process but merely as commodities to be used and discarded for the purpose of profit. Workers would be like other amenities - electricity, water,...

And, it has nothing to do with the protection of rights and welfare of the worker...Would owner/operator of factories/workplaces owe any obligation to the worker (who is an employee of some 3rd party) to provide for security of tenure?

Dr Subramaniam said the bill also provided benefits such as more maternity leave for women workers regardless of the wage limit, tackling sexual harassment, payment of wages through bank accounts, Hari Malaysia as compulsory public holiday and extending the Employment Act coverage to those workers earning RM2,000 monthly compared to RM1,500 previously.

We do not have much issue with a lot of these things ...but there is some protest about the fact that sexual harassment by employers will also be inquired into by a panel set up by the employer, and there is no provision for any remedy to victims.  There is protest about why employers can delay payment of overtime, work on rest days, etc for a month...Why limit the application of the Employment Act to only those earning RM2,000 - should it not apply to all workers - and practically maybe it should extend to all earning RM5,000?

On the picket planned by the Malaysian Trades Union Congress (MTUC) at 16 locations nationwide on Nov 3 in protest against the amendments to the Employment Act 1955, he said the MTUC should follow the regulations and conduct the protest peacefully.

I believe the more important thing that the Minister should do is to listen to legitimate representative of all workers, i.e. the MTUC, and also the voices of the Malaysian people who are going to picket just because this MInister and the government is not interested in listening to workers and the people of Malaysia...

The bill was passed in the Dewan Rakyat on Oct 6.

-- BERNAMA

The Bernama Report (without the comments are below)

Using Manpower Contractors Aimed At Protecting Workers' Rights - Subramaniam

KUALA LUMPUR, Nov 1 (Bernama) -- The government's move of creating manpower contractors to provide workers for employers under the Employment (Amendment) Bill 2011, is aimed at protecting workers' rights.

Human Resources Minister Datuk Seri Dr S. Subramaniam said it was not to institutionalise the system.

"As a control mechanism, the government through Section 2A of the Employment Act 1955 will formulate regulations specifically to list out the types of work now allowed through the hiring of manpower contractors to ensure the workers' welfare would be protected and to avoid manipulation by any quarters.

"This matter has been discussed with employers and workers' unions, and the feedback has been positive," he said after a dinner function with media representatives, here, tonight.

Dr Subramaniam said the employers' representatives had in fact admitted that improvements were necessary to prevent malpractices by irresponsible quarters.

He said workers salaried through the manpower contractors could also join the workers' union at their workplace as there was no legal provision to prevent them from doing so.

"At the same time, the workers are also bound by the collective agreement agreed upon by the employer and union they have joined."

For example, he said, there was agreement between the Malayan Agricultural Producers Association (MAPA) and National Union of Plantation Workers (NUPW) to cover workers supplied by the manpower contractors.

"For this, the proposed amendment is management transformation to protect the rights and welfare of the workers and does not at all adversely affect the security of tenure or the future activities of workers' unions in this country."

Dr Subramaniam said the bill also provided benefits such as more maternity leave for women workers regardless of the wage limit, tackling sexual harassment, payment of wages through bank accounts, Hari Malaysia as compulsory public holiday and extending the Employment Act coverage to those workers earning RM2,000 monthly compared to RM1,500 previously.

On the picket planned by the Malaysian Trades Union Congress (MTUC) at 16 locations nationwide on Nov 3 in protest against the amendments to the Employment Act 1955, he said the MTUC should follow the regulations and conduct the protest peacefully.

The bill was passed in the Dewan Rakyat on Oct 6.

-- BERNAMA, 1/11/2011, Using Manpower Contractors Aimed At Protecting Workers' Rights - Subramaniam

Pakatan Rakyat declares that they will be joining the Nov 3 MTUC nationwide picket...

The Opposition Coalition, Pakatan Rakyat, have come out saying that they would be joining the MTUC (Malaysian Trade Union Congress) initiated nationwide picket on 3rd November in protest of the proposed new amendments to Malaysian Employment Act 1955. This statement is based in a media report in Malay, that was published in Harakah (the publication of PAS), where the headline clearly states that Pakatan will join the MTUC 3rd November picket ("Pakatan sertai piket MTUC 3 November")

Interestingly, the mainstream print and electronic media have not being giving much coverage (if any) to what may be the most important protests by workers and for workers in Malaysia over the past decade or more. Will be hundreds of thousands coming out in protest?

Pakatan sertai piket MTUC 3 November(Harakah Daily)

Hazayani Zakaria SHAH ALAM, 23 Okt: Pakatan Rakyat  akan bersama-sama Kongres Kesatuan Sekerja Malaysia (MTUC) dalam piket besar-besaran serentak di seluruh negara, 3 November depan.

Piket tersebut bagi membantah Akta Kerja (Pindaan) 2000[should be 2011] yang diluluskan Dewan Rakyat sebelum pembentangan Belanjawan 2012 baru-baru ini.

Akta ini membolehkan majikan mengambil pekerja secara kontrak melalui agensi yang dilantik sebagai orang tengah di antara majikan dan pekerja.

Agensi yang membekalkan pekerja secara kontrak akan dilembagakan dan dikitiraf kerajaan.

Bercakap pada sidang media di Pejabat PAS Selangor, dekat sini hari ini, Timbalan Presiden PAS, Mohamad Sabu berkata, PAS menyokong penuh tindakan MTUC menganjurkan piket tersebut kerana nasib pekerja bawahan semakin tidak terbela apabila semakin banyak pekerja kontrak diambil.

"Penentangan MTUC  memang ada asas dan PAS sokong MTUC supaya hak dan kedudukan pekerja lebih terjamin pada masa hadapan.

"Majikan lebih suka ambil pekerja secara kontrak bagi mengelak tanggungjawab  dan pembekal kontrak dilembagakan dan diktiraf kerajaan," kata beliau.

Pengerusi Biro Pekerja PKR, Abdullah Sani pula berkata, kerajaan BN mahu menghidupkan kembali perhambaan pekerja seperti pada tahun 1955 dahulu.

"Isyaratnya pindaan akta ini akan membunuh generasi akan datang.

"Umno menghalalkan perhambaan moden yang akan menyaksikan pekerja terus menjadi hamba kepada syarikat korporat.

"Sebanyak 277 agensi yang bergerak secara bebas dalam negara dan 42 peratus mereka merupakan kontrak yang bukan digajikan oleh syarikat utama, hampir 5,000 pekerja terlibat.

"Dengan adanya agensi perjanjian di antara majikan dan pekerja tidak ada yang banyak mengabaikan nasib pekerja termasuk tiada pemotongan Socso," katanya.

Mengulas lanjut mengenai Piket, beliau yang juga Ahli Majlis Am MTUC, berkata di Selangor piket akan diadakan di Seksyen 15 dan Teluk Panglima Garang.

Manakala di Wilayah Persekutuan kemungkinan akan diadakan di Jalan Raja Laut.

"Ini juga termasuk di Sabah dan Sarawak," katanya yang juga Ahli Paelimen Kuala Langat.

Sementara itu, Pengerusi Lajnah Pekerja PAS Pusat, Anuar Tahir berkata, pihaknya akan memobilisasi ahli agar turun bersama-sama pekerja dalam piket ini.

Menurutnya juga, siri penerangan kepada masyarakat akan bermula malam ini dengan ceramah di Ipoh, Perak.

Di peringkat Wilayah Persekutuan akan diadakan ceramah di Kolej Universiti Islam Zulkifli Muhammad (Kuiszm), Taman Melewar pada 28 Oktober.

"Kita akan bagi sokongan penuh kepada MTUC seperti piket Nation White menuntut gaji minima tahun lalu.

"Pilihan raya umum akan datang, rakyat akan memilih samaada nak pilih pemimpin yang menghambakan pekerja atau memerdekakan pekerja," katanya.

** The full statement of the 107 groups was also carried by the Malaysiakini in its letter section, and since then MTUC and several other groups have joined in this statement, and now there are 112 groups.