In October 2011, 115 organisations, groups and networks from Malaysia and all over the world came out in opposition of the amendment to Malaysia's Employment Act 1955 - which included amendments which would destroy just direct employment relationships between owner-principals of workplaces and their workers, all of whom would be their employees. The new amendment INSERTED a 3rd party into that relationship, to be legally known as the 'Contractor For Labour', who unlike Private Employment Agencies would continue to be the 'employers' of the workers even after they start working for the principal under the control and supervision of the principal for the benefit and profit of the principal.
The end result - a 'divide and rule' of workers. Discrimination - when workers doing the same work are differently paid and treated. The supplied workers (sometimes called 'outsourced workers') would also not be able to form/join trade unions at the workplace - and will have no ability to even rely on Collective Agreements (which are agreements between employers and employees only ). The introduction of this new class of workers naturally will weaken and ultimately destroy UNIONs and also the bargaining power of existing worker-employees of the principal - as more and more employers(the principal) are using more and more non-employees as their workforce.
The Malaysian government railroaded the proposed amendments - and this has become law with effect on 1/4/2012... but the protests continues
Below a joint media statement of 2011, which was also endorsed by the ITUC and other international unions
Media Statement – 28/10/2011 (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
QuĂȘ 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)