Monday, April 08, 2013

How the BN Government eroded Right to ‘Eight hours labour, Eight hours recreation, Eight hours rest’

Erosion of Right to ‘Eight hours labour, Eight hours recreation, Eight hours rest’

Action taken by stonemasons on 21 April 1856, followed by many other worker struggles ultimately led to the establishment and maintenance of the Eight Hour Day, that is now recognized internationally, and this right was also given a high priority by the International Labour Organization (ILO) since its creation in 1919. [i] The slogan ‘Eight hours labour, Eight hours recreation, Eight hours rest’ captures the essence of this struggle. Likewise in Malaysia, this right is to be found in our Employment Act 1955. Any work beyond 8 hours would be construed as overtime work, and this required the consent of the worker and also entitled the worker to be paid extra, at a rate usually not less than one and half times his hourly rate of pay.[ii]
But in 1989[iii], the government amended the law allowing for the Minister to waive these rights as to required hours of work, on the application of the employer, but retained the condition that no worker is required to work for more than forty-eight hours in one week, which subsequently was removed by yet another amendment in 1998[iv].

What was obviously missing was the requirement of the prior agreement of the worker and/or the relevant union, , let alone the right to be heard, before decision are made that allowed the employer  to deny workers this long struggled for right that limits the required hours of work. The law now provides that after that decision is made, ‘… any person who is dissatisfied with any decision of the Director General … may, within thirty days of such decision being communicated to him, appeal in writing … to the Minister, and any decision or order of the Minister shall be final, thus shutting the door to judicial review – being the court's authority to examine an executive or legislative act and to invalidate that act if it is contrary to constitutional principles and justice.

There is also an absence of clear provisions in law that requires the provision of any notice whatsoever to workers and/or their unions when the said applications are being made by employers to the Director General, and as such decisions are being made by the government without workers being given the right to be heard. At present such ‘permissions’ are not even publicly and openly disclosed even in the relevant Ministry’s website. No guidelines and/or simple forms are provided for as to how workers can appeal these decisions, and given that the appeal must be in writing, there being no provision of any right to be heard orally, workers and/or unions, with no required language capabilities or knowledge in law are certainly prejudiced by this present procedure of protest and appeal. Remember, there are about 2 million migrant workers in Malaysia, most of whom do not have the capacity to read and write  Bahasa Malaysia, let alone write to the Minister. 

The employment law provides minimum rights for all workers in Malaysia, but these rights can so easily and ‘secretly’ be denied to workers as the Director General of Labour permits employers to do so, with no prior notice or right to be heard given to workers. Similar provisions are available all over the Acts providing for various worker rights to be taken away.

As it stands, now workers may be required to work long hours, even more than ten hours per day, and even more than 48 hours per week – so what exactly is the limit. The employers also can require their workers to work on rest days and even on public holidays, and for some workers do even have to work on May 1st, Workers’ Day. Some companies do not stop operations, and workers are continuously working in their respective shifts and this also prevents workers from meeting and/or organizing unions and/or developing collective demands. Workers on day shifts, some starting at 8.00 am and ending at 8 pm would not even have the opportunity to go to the Labour Department to lodge complaints, and in Malaysia most of the avenues of complaints and justice for workers only operate in the usual working hours. The same is the case with national/regional unions and the MTUC office, National Human Rights Commission(SUHAKAM) and even the Legal Aid Centres operated by the Malaysian Bar.

[i] The Preamble to Part XIII “Labour” of the Versailles system of peace treaties, under which the ILO was established, specifically included “the regulation of the hours of work, including the establishment of a maximum working day and week” among the measures urgently required to improve conditions of labour. Convention Limiting the Hours of Work in Industrial Undertakings to Eight in the Day and Forty-eight in the Week (Note: Date of coming into force: 13:06:1921.)
[ii] Section 60A 3(a) Employment Act 1955
[iii] Employment (Amendment) Act 1989 Act A716
[iv] Employment (Amendment) Act 1998 Act A1026

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