Saturday, June 05, 2010

When trying to access justice causes workers to get terminated/discriminated against...

When the Employment Act 1955, which provides basic worker rights, provides no protection to the worker who go and try to claim rights by lodging complaints at the Labour Department/Office, it really makes guaranteed worker rights in Malaysia a 'sham'.

When the worker who has not been paid his due wages according to law, who has not been paid overtime rates as stipulated in the law, who have had the employer make wrongful deductions  from their wages, etc.... goes to lodge a complain at the labour department - there is nothing that protects the worker from being discriminated against...or even terminated by the employer.

Hence, most workers in Malaysia suffer the exploitation and oppression by the employer, that blatantly breaches Malaysian employment laws by reason of fear...fear of negative repercussions/reactions by the employer...which can also include termination.

There are some provisions in Malaysian law that clearly prohibits the employer from reacting negatively, that is the Industrial Relations Act 1967 - which deals with workers wanting to form unions, join unions, encourage others to join unions, etc....

5.  Prohibition on employers and their trade unions in respect of certain acts.
(1) No employer or trade union of employers, and no person action on behalf of an employer or such trade union shall -
(a) impose any condition in a contract of employment seeking to restrain the right of a person who is a party to the contract to join a trade union, or to continue his membership in a trade union;

(b) refuse to employ any person on the ground that he is or is not a member or an officer of a trade union;

(c) discriminate against any person in regard to employment, promotion, any condition of employment or working conditions on the ground that he is or is not a member or officer of a trade union;

(d) dismiss or threaten to dismiss a workman, injure or threaten to injure him in his employment or alter or threaten to alter his position to his prejudice by reason that the workman -
(i) is or proposes to become, or seeks to persuade any other person to become, a member or officer of a trade union; or
(ii) participates in the promotion, formation or activities of a trade union; or
(e) induce a person to refrain from becoming or to cease to be a member or officer of a trade union by conferring or offering to confer any advantage on or by procuring or offering to procure any advantage for any person.
(2) Subsection (1) shall not be deemed to preclude an employer from -
(a) refusing to employ a person for proper cause, or not promoting a workman for proper cause or suspending, transferring, laying-off or discharging a workman for proper cause;

(b) requiring at any time that a person who is or has been appointed or promoted to a managerial, an executive or a security position shall cease to be or not become a member or officer of a trade union catering for workmen other than those in a managerial, an executive or a security position; or

(c) requiring that any workman employed in confidential capacity in matters relating to staff relations shall cease to be or not become a member or officer of a trade union.
This is good - but there is no similar provisions that protects workers who complain to the the Labour Department/Office (i.e. the Director General). The procedure to access justice for workers is clearly laid out in the Employment Act. As an example see section 70. But, when workers utilize the procedure, they run the risk of being terminated by their employers... and it even worse for the migrant worker (I'll elaborate below)

70.  Procedure in Director General's inquiry.
The procedure for disposing of questions arising under sections 69, 69B and 69C shall be as follows:
(a) the person complaining shall present to the Director General a written statement of his complaint and of the remedy which he seeks or he shall in person make a statement to the Director General of his complaint and of the remedy which he seeks;
(b) the Director General shall as soon as practicable thereafter examine the complainant on oath or affirmation and shall record the substance of the complainant's statement in his case book;
(c) the Director General may make such inquiry as he deems necessary to satisfy himself that the complaint discloses matters which in his opinion ought to be inquired into and may summon in the prescribed form the person complained against, or if it appears to him without any inquiry that the complaint discloses matters which ought to be inquired into he may forthwith summon the person complained against:
Provided that if the person complained against attends in person before the Director General it shall not be necessary to serve a summons upon him;
(d) when issuing a summons to a person complained against the Director General shall give such person notice of the nature of the complaint made against him and the name of the complainant and shall inform him of the date, time and place at which he is required to attend and shall inform him that he may bring with him any witnesses he may wish to call on his behalf and that he may apply to the Director General for summonses to such persons to appear as witnesses on his behalf;
(e) when the Director General issues a summons to a person complained against he shall inform the complainant of the date, time and place mentioned therein and shall instruct the complainant to bring with him any witnesses he may wish to call on his behalf and may, on the request of the complainant and subject to any conditions as he may deem fit to impose, issue summonses to such witnesses to appear on behalf of the complainant;

(f) when at any time before or during an inquiry the Director General has reason to believe that there are any persons whose financial interests are likely to be affected by such decision as he may give on completion of the inquiry or who he has reason to believe have knowledge of the matters in issue or can give any evidence relevant thereto he may summon any or all of such persons;
(g) the Director General shall, at the time and place appointed, examine on oath or affirmation those persons summoned or otherwise present whose evidence he deems material to the matters in issue and shall then give his decision on the matters in issue;
(h) if the person complained against or any person whose financial interests the Director General has reason to believe are likely to be affected and who has been duly summoned to attend at the time and place appointed in the summons shall fail so to attend the Director General may hear and decide the complaint in the absence of such person notwithstanding that the interests of such person may be prejudicially affected by his decision;
(i) in order to enable a court to enforce the decision of the Director General, the Director General shall embody his decision in an order in such form as may be prescribed.
When it comes to a local worker, who gets terminated by reason he has complained to the Labour Department/Office - he can go and find another job. In the case of migrant workers, their work passes limit their employment to that particular employer. Once terminated, the migrant worker cannot just simply go and work with another employer - he needs to get his work-pass amended so that he can be employed by another (But, the Malaysian government do not exercise this discretion generally, and the migrant worker will not have the ability to to work and earn legally in Malaysia after termination. This law must change.).

The migrant worker is allowed to be in Malaysia by reason of his work-pass. After termination, the employer will usually inform the Immigration Department, and cause the work-pass to be canceled, and  the migrant worker will have to leave Malaysia.

What about his worker rights? What about his complaint at the Labour Department? Well, the procedures are such that the complainant's physical presence is required for process to continue. If the worker complainant has been forced out of Malaysia, then that is the end of the complaint - and the errant employer gets off scott free. Sadly, the worker that demanded his rights is the victim...not just of the employer, but also of bad Malaysian laws and practices. 

All these promotes an environment that encourages employers to oppress and exploit workers, with no respect even to Malaysian laws and justice...and this is something that we need to do something about.

There must be a law that prevents employers from being able to terminate, discriminate against workers who lodge complaints against them at the Labour Department/Office, etc..

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