Thursday, June 23, 2011

Beware the new Employment(Amendment) Bill 2011 detrimental to all workers and unions

YES - the government is again in this new Employment(Amendment) Bill 2011 is trying to sneak in the "contractor for labour", and by wordings used it may be now possible for the principal to avoid employment relationship with the workers supplied. 

So, the supplier or the said 'contractor of labour' will then remain as the employer of the workers, and the factory/plantation owners may not be the employers - so no employment relationship, . New section 33A says exactly this - the word used clearly is 'employee' - not worker.

By the usage of the words "to supply the labour required' and not 'to supply the workers required to the principal, etc...", it mischievously may allow factories, plantations, workplaces to have workers working in these factories,plantations and workplaces who are not their employees - but employees of these 'contractors of labour' (New section 33A)

This will certainly lead to discrimination of workers working at a factory,plantation, workplace. There will now be workers of different employers working at a workplace...

It will certainly weaken trade unions, and collective bargaining ability of these workers. Workers supplied (or of these 'contractors for labour' will not be entitled to negotiate with the owners/operators of the factory/plantations/workplace for better benefits and rights - WHY? they are not the employees of this factory/plantation/workplace..  

And, of course 'employees' of these contractors for labour will be working in various different factories/plantations/workplaces - and all will be facing different work situations, wages, etc (and will not be able to meet) - so how do they form unions. Under which sectoral national, state or regional unions will the fall into, and hence not only their right to form unions will be affected but also their existing right to join national, state and regional unions will be taken away.
Amendment to Section 2
 (c) by inserting after the definition of “contractor” the following definition:

“contractor for labour” means a person who contracts with a principal, contractor or sub-contractor to supply the labour required for the execution of the whole or any part of any work which a contractor or sub-contractor has contracted to carry out for a principal or contractor, as the case may be;’;

New section 33a

11. The principal Act is amended by inserting after section 33 the following section:

“Information relating to supply of employees
33a. (1) A contractor for labour who intends to supply or undertakes to supply any employee shall register with the Director General in the prescribed form within fourteen days before supplying the employee.
(2) If a contractor for labour referred to in subsection (1) supplies any employee, he shall keep or maintain one or more registers containing information regarding each employee supplied by him and shall make such registers available for inspection.
(3) A contractor for labour who—
(a) supplies his employee without registering with the Director General as required under subsection (1); or
(b) fails to keep or maintain any register, or make available any register for inspection as required under subsection (2),
commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit.”.

Note the usage of the term 'employee' makes no doubt that the contractor for labour continue to remain the employer... and not the factory/plantation/workplace where the workers will actually be working.

Outsourcing agents and companies are already doing this 'illegally', according to my opinion, - but if this proposed amendment gets passed, it will legalize these practices.

All workers that work in a factory, plantation or workplace must be workers and employees of the owner/operator of that factory, plantation or workplace
Remember, our DPM said that this was the intention of the government with regard to workers supplied by 'outsourcing agents/companies' - they can supply workers but after that the workers must be employees of the factory/plantation/workplace...

Our Deputy Prime Minister, after chairing the cabinet committee on foreign labour and illegal foreign workers,  was reported in May 2010 as saying "We feel that employers are the people who should be responsible for their foreign workers. Outsourcing companies are only responsible for bringing them in. After that, employers must assume full responsibility."[i]
The government of

[i] New Straits Times, 21/5/2010, Higher levies for foreign workers

Looks like the DPM was being dishonest...

Remember also that in the 2010 Bill, that was later withdrawn, they also tried to make suppliers of workers the employers.

We must strongly oppose this proposed amendment.... and maybe others that we need to really analyze very very carefully.
Of course, as usual the government will focus attention on other matters in the Bill - like sexual harassment, etc....or just the 'MINIMUM WAGE' Bill. Strangely this Bill to amend the Employment Act and the that 'minimum wage bill' just have been uploaded in the Parliament website...

Serious implications to all workers in Malaysia - it would alter existing employment relationships, and allow 'real employers' to evade their obligations to protect the rights and welfare of workers that work for them for their profits.

These 'contractors for labour', the new employers would not have assets like the factory, plantations, etc - and so easily can wind-up or go bust and their workers even if they succeed in their claims will not get a remedy.

Worse still, there is no law stipulating how many of the workers of these 'contractors of labour' could be used - and many companies may just use all workers, not their employees, - and guess what, so easily will they use workers from so many different 'contractors for labour' at their workplace. Companies also will then so easily be able to get rid of workers without any due process - all they need to do is to tell this and that contractor for labour to take away this worker or that worker. How unjust would it be for workers...

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