EMBARRASSING - Malaysia was one of the countries that was found to not have worker and trade union rights and laws, that are consistent with international universal labour standards...
Now, some countries, by law and policy, cannot enter into agreements with countries that are having poor human rights and labour rights standards and laws, so when Malaysia wanted to be part of the TPPA, Malaysia, Vietnam and Brunei were 'forced' to agree to make significant amendments to their own labour laws and practices. It was most embarrassing ...
United States of America and Malaysia entered into discussion and agreed to an agreement known as the 'Malaysia-United States Labour Consistency Agreement' - This Agreement, sadly was to come into force when the TPP Agreement entered into force (but now, it looks like the TPPA may never enter into force).
This agreement shall enter into force on the date of entry into force of the TPP Agreement between our two governments
It must be pointed out, that Malaysia had already started the process of preparing for the necessary amendments...and, it is hoped that irrespective of whether the TPPA comes into force or not, this UMNO-BN government will continue to make the needed amendments. It must be pointed out that there are many other provisions in worker and trade union law that need to amended. 14 million plus Malaysian workers - should this not be a priority of a caring government?
Many of these other proposed changes(that had previouly been advanced by unions and labour advocates) allegedly have longed been agreed by the Ministry - but sadly, the stumbling block for these much needed labour reforms seem to have been the Prime Minister and the UMNO-BN government. Cabinet approval will be needed prior to the tabling of the requisite Bills to bring about changes in the law...Lack of political will?
One of the biggest problem areas in Malaysia is FREEDOM OF ASSOCIATION - trade unions. There are simply too much obstacles in Malaysia - Registration of Trade Unions is difficult and takes time...then, Trade Unions need to get 'Recognition' from employers before they can start negotiations and enter into a Collective Bargaining Agreement(CBA)...(employers simply refuse, forcing a 'secret ballot', which is itself most just when it comes to determination of outcome...and even if victorious, the Minister's decision is challenged in court...taking years before a union finally can start looking at a CBA
Malaysian Airlines - 99% person voted for NUFAM, but BAD law says still no union recognition?
....and then, Malaysian laws places much restrictions of what can be contained in a CBA...Union busting including 'wrongful dismissal of leaders' are common - and the road to justice is very long and cost a lot...and effective at the end by reason of the many years it took...Enforcement of laws seems to be very ineffective...especially in matters concerning worker and trade union rights (only occupational safety and health matters seems to be better)...
Trade Union - Most Discriminated of Association? Repeal section 26(1A) Trade Unions Act 1959
Worker and Trade Union Rights in BN-ruled Malaysia - A pro-business government that undermined worker rights, welfare and livelihood -
Will DAP/PAS/PKR/PSM/PRM/AMANAH/BERSATU ensure that Workers have Regular Employment - No more Precarious Employment?
Has Malaysian Trade Unions been fighting for improvement of worker and trade union rights? What have they been fighting for exactly? Sadly, a 'Google Search' will not reveal either way. Some say, the unions have been 'struggling' 'secretly' with the government...a bad strategy which would have been more effective if that struggle had been an OPEN and transparent struggle...which would have gotten greater support from Malaysians and other groups, including maybe also Members of Parliament, Senators, political parties, etc...Clear specific demands are always better...than vague demands for justice???
Malaysia – United States Labour Consistency Plan
This Plan shall create rights and obligations only as
between the Governments of Malaysia and
the United States.
I. Preamble
The Governments of Malaysia and the United States:
ACKNOWLEDGING that
each Party commits
under Chapter 19
(Labour) to obligations
concerning its labour law and practice, including with regard to its
statutes and regulations and the labour rights as stated in the ILO
Declaration;
ENDEAVORING to co-operate
with each other
and, recognizing as
members of the
ILO the governments may utilize the technical
resources of the ILO in fulfilling the commitments of this Plan;
UNDERTAKE
through this Plan
the following specific
commitments consistent with
those obligations.
II. Legal Reforms Consistent
with its obligations
under Chapter 19 (Labour),
Malaysia shall enact
the following legal reforms, and other changes that may be required to
ensure consistency across its Acts, regulations and other measures.
A. Union Organization and Collective Bargaining
Judicial Review
1. Malaysia shall:
(a) ensure that trade unions have a right to judicial review
of administrative decisions regarding trade union registration; suspension,
withdrawal or cancellation of trade union registration; and determinations of
strike illegality;
(b) amend the relevant
sections of the
Trade Union Act
1959 (ACT 262) to
provide that where a trade union
seeks judicial review of an administrative determination to suspend,
withdraw or cancel
trade union registration, the decision
will be automatically stayed, pending that judicial
review; and
2 (c) amend relevant
sections of Act
262 to clarify that
decisions of the
Minister are subject to judicial review (relevant sections of current law include Sections
18(7) and 71A(4)).
Government discretion
in registering trade unions
2. Malaysia shall:
(a) amend relevant sections of Act 262 to remove discretion
of the Director General of Trade Unions (DGTU) to refuse to register a trade
union when another exists, and to remove the discretion of the DGTU to refuse
registration because the trade union is likely to be used for unlawful purposes
contrary or inconsistent with its objects and
rules (relevant sections
of current law
include Section 12(2)
and Section 12(3)(a));
(b) amend the implementing regulations to Act 262 to limit the discretion of the DGTU and to
clarify that “unlawful”
refers only to
serious breaches of
law (relevant sections of current
law include Section 12(3)(b), Section 12(3)(c), Section 12(3)(d) and Section 12(3)(e)(i)); and
(c) amend
relevant sections of
Act 262 to
limit the DGTU’s
discretion to deny
registration of a
union due to
the proposed union’s
name to only exceptional circumstances, such
as creating a threat
to public order
or inflaming sensitivities
related to race
or religion (relevant sections
of current law
include Section 12(3)(e)(ii)).
Government discretion to cancel trade union registration
3. Malaysia shall:
(a) amend relevant sections of Act 262 and its implementing
regulations to remove the discretion
of the DGTU
to cancel a
trade union’s registration
and to clarify that
“unlawful” refers only to serious breaches of law (relevant sections of
current law include Sections 15(1)(b)(ii) and Section 15(1)(b)(iii));
(b) amend relevant sections of Act 262 to limit the
discretion of the DGTU to cancel a union’s registration (relevant sections of
current law include Section 15(1)(b)(iv)); and
(c) amend the implementing
regulations to Act 262
to limit cancellation of
a trade union’s
registration only to
serious breaches of
law (relevant sections
of current law include Section 15(1)(b)(v)).
Cancellation of registration when two or more unions exist
4. Malaysia shall amend relevant sections of Act 262 to
remove the discretion of the DGTU to cancel a union’s registration when two or
more unions exist, and replace it with a process for determining representation of
workers for the
purposes of collective
bargaining in a
particular establishment,
trade, occupation, or
industry (relevant sections
of current law
include Section 15(2)).
Discretion to suspend a union
5. Malaysia
shall amend the
implementing regulations to
Act 262 to clarify
that “purposes prejudicial to or incompatible with...public order” shall
not include the exercise of protected trade union activity (relevant sections
of current law include Section 18(1)).
Restrictions on formation of unions in “similar” trades,
occupations or industries
6. Malaysia shall amend relevant sections of Act 262, to
remove the limitation on forming a union in only a “similar” trade, occupation
or industry (relevant sections of current law include Section 2, Section 32 and
Section 33).
Restrictions on formation of, and affiliation with, union
federations or confederations in “similar” trades, occupations or industries
7. Malaysia shall amend relevant sections of Act 262 to
remove the limitation on forming or affiliating with a union federation or
confederation in only a “similar” trade, occupation or industry (relevant
sections of current law include Section 72 and Section 74).
Affiliation with international unions
8. Malaysia
shall amend relevant
sections of Act
262 to remove
the DGTU’s discretion in
allowing trade unions
to affiliate with
an international union,
and may provide that a
union establish member consent through secret ballot vote of its members
with a quorum, as established by the
union’s constitution or by-laws, in
order to affiliate with an international union (relevant sections of current
law include Section 76A, Section 76B and Section 76C).
Restrictions on trade union membership and leadership
(dismissed, suspended or retired workers)
9. Malaysia shall amend relevant sections of Act 262 to
remove the prohibitions on dismissed, suspended
and retired workers
remaining as union members
(relevant sections of
current law include Section 26(1A) and Section 26(1)(a)).
Trade union leadership
10. Malaysia shall:
(a) amend relevant
sections of Act 262 to allow non-citizens to run for election to union office
if they have been legally working in Malaysia for at least three years
(relevant sections of current law include Section 28(1)(a));
(b)amend relevant sections of Act 262 by deleting the term
“employee of a political party” to remove that restriction on membership of the
executive of a trade union (relevant sections of current law include Section
28(1)(c1));
(c)issue implementing regulations to Act 262 to establish
that the meaning of “of any offence” is
limited only to
offences directly relevant
to the integrity
required to exercise trade union office, such as a breach
of fiduciary duty (relevant sections of current law include Section 28(1)(d));
and
(d) amend
relevant sections of
Act 262 consistent
with the above
changes (relevant sections of current law include Section 30).
Collective bargaining
11. Malaysia shall amend relevant sections of the Industrial
Relations Act 1967 (Act 177) to remove broad restrictions on the scope of
collective bargaining, including the restrictions on terms and conditions of
employment (relevant sections of current law include Section 13(3)).
Strikes
12. Malaysia shall amend relevant sections of Act 262 to provide for a quorum requirement in
an enterprise union strike vote as two-thirds of the members and the consent of
50 percent plus 1 of the member votes cast (relevant sections of current law
include Section 25A(1)(a));
13. Malaysia may establish after consulting with domestic
stakeholders, a reasonable quorum requirement
for a strike
vote for non-enterprise unions
and federations that
would not hinder
industrial level action; and
14. Malaysia shall amend the implementing regulations of Act
262 to limit the discretion of the DGTU
in determining whether a strike would contravene provisions of law (relevant
sections of current law include Section 40(6)).
Limitations on strike issues
15. Malaysia shall amend relevant sections of Act 177 to
remove limitations on strikes on any matters covered by Act 177, Section 13(3)
(relevant sections of current law include Section 44(e)).
Penal sanctions for peaceful strikes
16. Malaysia shall amend relevant sections of Act 177 to
remove penal sanctions for peaceful strikes, regardless of whether such strikes
are inconsistent with IRA provisions (relevant sections of current law include
Section 46, Section 47 and Section 48).
Administrative discretion in dispute resolution
17. Malaysia
shall amend relevant
sections of Act
177, including by deleting
“of his own
motion or”, to remove administrative discretion to intervene in a trade
dispute without the request of the
parties (relevant sections of current law include Section 19(2) and Section 26(2)).
Representation in administrative or judicial hearings
18. Malaysia shall:
(a) amend
relevant sections of
Act 177 to
allow employers, trade
unions and trade unionists to
choose their representatives in administrative hearings,
including in proceedings regarding dismissals (relevant
sections of current law include Sections 19B(2), Section 20(6) and Section
20(7));
(b) amend
relevant sections of
Act 177 to
remove restrictions on
representations in
proceedings involving trade
disputes (relevant sections
of current law
include Section 19B(1)(b)); and
(c) amend
relevant sections of
Act 177 to require
only that representatives meet
minimum qualifications essential
to their responsibilities (relevant
sections of current law include Section 27(1)).
Essential services
19. Malaysia shall amend relevant sections of Act 177,
including the First Schedule – Essential Services
, to limit
the range of
industries in which
strikes are prohibited
on the basis
that the industries are essential services, consistent
with the rights as stated in the ILO Declaration.
Subcontracting and outsourcing
20. Malaysia shall:
(a) ensure that the
use of subcontracting or outsourcing is not used to circumvent the rights of
association or collective bargaining;
(b) amend the implementing
regulations to the Employment Act
1955 (Act 265), Section
2A; Sabah Labour Ordinance (Cap. 67), Section 2A; and Sarawak Labour Ordinance
(Cap. 76), Section 2A, to provide guidance for the identification of the appropriate “employer(s)”
for purposes of ensuring meaningful associational and other rights
for workers who
are provided to
a principal either
by a labour outsourcing company or a contractor-for-labour;
and
(c) require that subcontracting and outsourcing arrangements be made in
writing, and be subject to verification by the Ministry of Human Resources.
B. Forced Labour
Protections against the withholding of passports
1. Malaysia shall:
(a) amend the implementing regulations to the Passport Act
1966 (Act 150) to reinforce that
retaining a worker’s passport by his or her employer is illegal. Such regulations shall include requiring that
foreign workers are fully informed of their right to retain their own passports
and informing workers that they retain the right to access their passports at
any time, without delay or approval of any other individual and without consequence to
their status and
relationship with their
employer or recruitment
agency;
(b) amend the implementing regulations to Act 150 to require that private employers that
utilize foreign workers in their
operations (either through a direct
employment relationship or through an employment agency) provide to each foreign
worker a notice informing workers of their right to retain their passport and
information on how to report violations of this right. Private employers with more than 10 foreign workers
and recruitment agencies also shall post a notice to this effect;
(c) amend the Workers’ Minimum Standards of Housing and
Amenities Act 1990 (Act 446) so that it covers all sectors (beyond only
plantations) and to require that private employers or recruitment agencies that
provide housing to foreign workers provide secure facilities (for example, personal lockers) for the storage and
safekeeping of workers’ passports
and other valuables.
These facilities must allow workers
to access their passports at any
time and without prior authorization; and
(d) effectively
enforce relevant laws
and regulations to
investigate and prosecute
employers nd recruitment agencies that retain employee passports.
Foreign worker recruitment practices, contracts and fees
2. Malaysia shall:
(a) ensure that all entities that recruit foreign workers,
whether a recruitment agency or a direct
employer, are covered
by the sections
of the Private
Employment Agencies Act of 1981 (Act 246), including provisions regarding
limitations on the recruitment fees charged to a foreign worker;
(b) amend relevant laws and regulations to provide that any
government levies charged for employment of foreign workers are the obligation of the
employer, rather than the foreign
worker;
(c) amend its
laws and regulations
to provide that large-scale, repeated
or egregious violations of labour law are punishable by a denial of future quota
requests of the offending employer or by a revocation
of the license
of offending recruitment
agency;
(d) ensure that any Memorandum of
Understanding regarding the recruitment of foreign workers
between Malaysia and a government of a country that
provides such workers will require that recruitment agencies and
employers provide foreign workers a valid
written contract in
their own language,
including their terms
of work, prior to their entrance
into Malaysia; and
(e) amend relevant
sections of Act 265 to prohibit contract substitution.
Trafficking and forced labour victim protection services
3. Malaysia shall:
(a) issue necessary regulations to the Anti-Trafficking in
Persons and Anti-Smuggling of Migrants Act 2007 (Act 670) to allow victims of
trafficking to move freely to and
from shelters; provide
victims of trafficking
access to legal
counsel of their choice;
allow victims of trafficking to work and
find new employment under clearly established procedures; enable non-governmental organizations to own
and operate shelters for trafficking victims; and
(b) waive any fees
associated with the
required pass provided
through the Labour Department for foreign workers who are involved in an investigation of
violations of labour law (other than
forced labour covered above) to remain
in Malaysia and seek alternative
employment.
Foreign worker housing and freedom of movement
4. Malaysia shall:
(a) amend the implementing regulations to Act 446 to require
that private employers or recruitment
agencies that provide
housing for foreign
workers provide notice informing
workers, in a language that they understand, of their right to freedom of movement
under Malaysian law and information on
how to report violations of this right.
Private employers with
more than 10
foreign workers and
recruitment agencies shall
also be required
to post the
notice on their
premises visible to workers;
and
(b) amend the implementing regulations to Act 446 to require that private
employers or recruitment agencies,
which provide housing
for foreign workers
provide a notice, in a language the
workers understand, informing those
workers of their right to acceptable housing conditions under this Act and
information on how to report violations of their right to acceptable housing conditions. Private employers with more than
10 foreign workers
and recruitment agencies
shall also be
required to post the notice on
their premises visible to workers.
C. Child Labour
Malaysia shall:
(a) issue a list of hazardous types of work prohibited for persons under 18
years of age.
(b) amend the implementing regulations
to the Children
and Young Persons (Employment) Act 1966
(Act 350), Sabah
Labour Ordinance (Cap.
67) and Sarawak Labour Ordinance (Cap. 76) to ensure
that a minimum age of at least 13 is established for admission to light work.
D. Employment Discrimination
Malaysia shall amend relevant sections
of the Act 265,
Cap. 67 and
Cap. 76 to
prohibit discrimination, in
respect of employment and occupation, including by amending Act 265, Section 34, 35 and
36,
and relevant sections
in Cap. 67
and Cap. 76
to remove the prohibitions
on employment of women in certain
occupations.
III.Institutional Reforms and Capacity Building
Malaysia shall undertake
necessary institutional changes
and capacity building
to implement the
amended statutes and
regulations, including: establishing
new administrative functions,
procedures and mechanisms; expanding and adequately training labour inspectors
and relevant criminal system authorities to effectively enforce the amended
statutes and regulations; and providing the necessary resources to implement these
changes.
A.Enforcement of Labour Laws and Protections
1.Malaysia shall:
(a) allocate
resources necessary for
the effective enforcement
of its labour
laws, including additional labour officer
and dedicated inspector
positions needed to enforce the new laws and practices
resulting from this Plan;
(b) revise
internal inspection and
other enforcement procedures
for the labour inspectorate to
ensure effective enforcement
of the new
and existing legal provisions, including
the prohibition on
employers retaining passports
of employees, and
train all relevant
personnel on the
reformed procedures and
new provisions;
(c) develop, in coordination with the ILO, a training
program for labour inspectors and plan for
increased labour inspections targeted
at addressing forced labour
and practices that increase workers’ vulnerability to forced labour,
including violations of laws governing recruitment fees, recruitment practices,
withholding of passports or other
identity documents, contract substitution, wage payments below the legally required amount
and unlawful deductions,
withholding of workers’
wages in escrow,
and living conditions
of foreign workers,
including restrictions on movement;
and
(d) require the
Enforcement Agencies Integrity
Commission (EAIC) to report biannually statistics on
the number of
complaints received, investigations conducted and final disposition or
remediation of those investigations that involve foreign workers (broken down
by government agency and type of violation).
IV. Transparency and Sharing of Information
A. Public Comment
Consistent with its
existing procedures, Malaysia
shall provide for
public comment the draft
legal instruments that result from this Plan and publicly post final legal instruments
on the applicable agency website.
B. Collaboration
Malaysia and the United States intend to collaborate on the
development of the relevant reforms and instruments that result from this
Plan.
C. Outreach and Education
To inform and educate stakeholders, including employers and
workers, of their rights and responsibilities under Malaysian law, Malaysia
shall launch an outreach program on the legal and institutional changes that
result from this Plan, as well as related remedies and courses of action available
to enforce those rights.
V. Government to Government Mechanism
1. The United States
and Malaysia shall regularly assess progress in implementing this Plan, including follow-up
enforcement and application
of the amended
laws and regulations
and institutional reforms,
and, to this
end, agree to
establish a standing
bilateral Senior Officials
Committee (SOC) comprising senior officials from the Office of the U.S.
Trade Representative and the Department
of Labor for the United States and from the Ministry of International Trade and
Industry and the Ministry of Human Resources for Malaysia to monitor, assess
and facilitate rapid response to
any concerns about
compliance with and
implementation of the
legal and institutional reforms
under this Plan.
2. The United States
and Malaysia shall
designate the responsible
senior officials prior
to entry into force of this
Agreement between the United States and Malaysia and promptly inform the other
Party of any subsequent changes.
3. The SOC shall meet, in person or by any technological
means available, annually for seven years after the date of entry into force of
this Agreement between the United States and Malaysia.
SOC members shall be supported by technical-level officials,
who shall meet as necessary. At the request
of either Malaysia or the United States, the SOC shall continue to meet
annually thereafter or as Malaysia and the United States otherwise agree.
4. At the request of either Malaysia or the United States,
the SOC shall convene within 30 days to address any concerns with regard to
compliance with or implementation of this Plan.
Either Malaysia or the United States may request an ILO review and
report on any such concern, in order to inform
the discussions of the SOC
and determinations of any actions
necessary to address
concerns.
VI. Technical Assistance
Malaysia and the United States shall endeavor to secure
funding for technical assistance programming
to directly facilitate
implementation of the
legal and institutional
reforms in this Plan. Malaysia shall request the cooperation,
advice and technical assistance of the ILO to help in such implementation and
endeavor to conclude the negotiation of an agreement with the ILO for this
purpose.
VII. Implementation
1. Malaysia shall enact the legal and institutional reforms
in Parts II and III of this Plan prior to the date of entry into force of the
TPP Agreement as between the United States and Malaysia, except as otherwise
provided for in this Plan.
2. This Plan shall be subject to consultations under Article
19.5 (Labour Consultations) of the Labour Chapter, except that with respect to
paragraphs 2 and 3, the requirement to circulate the request and reply,
respectively, to the other TPP Parties, shall not apply; and paragraph 4 shall
not apply.
3. This Plan shall be subject to dispute settlement under
Chapter 28 (Dispute Settlement) of the
TPP Agreement, except for Article 28.13 (Third Party Participation), which
shall not apply.
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