Friday, May 12, 2017

Riot and Ministry of Human Resources not inspecting and enforcing labour laws in Malaysia? No statistics?

No Statistics about the number of 'inspections' that was carried out by the Ministry of Human Resources(MOHR) to ensure that employers are complying with the laws that protect worker rights. How many employers were caught delaying payment of wages to workers? How many employers were found to have dismissed workers without 'due inquiry'? How many employers failed to pay workers correct wages for overtime, shift allowances, denial of employment contract rights, 'forced' overtime, etc..? How many employers have terminated workers on allegations that are NOT listed employment misconducts?

The law states that employers must pay wages not later than 7 days - so when this does not happen, did the MOHR take action immediately? We now hear about so many workers retrenched - but still not been paid back wages and/or retrechment benefits - all these would have been avoided if MOHR enforcement workers were efficient - when there is such a risk, the government can easily step in to ensure that workers are protected...funds could have been frozen immediately, sufficient to pay what is owed to workers. But, if the MOHR is inefficient - it will be too late...for money will be dissipated and ...

The MOHR has the power...under the laws. Under Employment Act 1955, see sections 65, 66, 67 and 68 below..

65  Powers of inspection and inquiry

 The Director General shall have power to enter without previous notice at all times any place of employment where he has reasonable grounds for believing that employees are employed and to inspect any building occupied or used for any purpose connected with such employment and to make any inquiry which he considers necessary in relation to any matter within the provisions of this Act.

66  Inspecting officer to notify presence

On the occasion of any inspection under this Part the Director General shall where practicable notify the owner or occupier of the place of employment, and the employer of any employees employed thereat, of his presence unless he has reasonable grounds for believing that such notification might be prejudicial to the performance of his duties.

67  Powers of inspecting officer
(1) In the course of an inspection under this Part-
(a) the Director General may examine orally any person whom he believes to be acquainted with the facts and circumstances of any matter within the provisions of this Act;
(b) the person so examined shall be legally bound to answer truthfully all questions put to him;
(c) the Director General examining a person under paragraph (a) shall first inform that person of the provisions of paragraph (b);
(d) a statement made by a person under this section shall, whenever possible, be reduced into writing and signed by the person making it or affixed with his thumb print, as the case may be, after it has been read to him in the language in which he made it and after he has been given an opportunity to make any correction he may wish; and
(e) any statement made and recorded under this section shall be admissible as evidence in any proceedings in Court.
(2) Notwithstanding subsection (1), a person examined under that subsection may refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture.

(3) The Director General, in addition to the powers conferred on him under subsection (1), may-
(a) require the employer to produce before him all or any of the employees employed by him together with any contracts of service, books of account of wages, registers and other documents relating to the employees or their employment and to answer such questions in respect of the employees or their employment as he may think fit to ask;
(b) copy or make extracts from the contracts of service, books of account of wages, registers and other documents relating to the employees or their employment;
(c) take possession of the contracts of service, books of account of wages, registers and other documents relating to the employees or their employment where, in his opinion-
(i) the inspection, copying or the making of extracts from the contracts of service, books of account of wages, registers or other documents cannot reasonably be undertaken without taking possession of them;
(ii) the contracts of service, books of account of wages, registers or other documents may be interfered with or destroyed unless he takes possession of them; or
(iii) the contracts of service, books of account of wages, registers or other documents may be needed as evidence in any legal proceedings under this Act.
(4) Notwithstanding paragraph (3)(a), no employee shall be required to leave or to cease from performing any work on which he is engaged if his absence or cessation from such work would endanger life or property or seriously disrupt any operation being carried on by his employer.

68  Officers to be authorized by the Director General

 An officer appointed under subsection 3(2) shall not exercise any of the powers of the Director General under this Part unless he is in possession of an official identification card signed by the Director General authorizing him to exercise such powers, and any officer so authorized shall produce his official identification card on demand to the owner or occupier of the place of employment and to the employer of any employees employed thereat.

The Ministry of Human Resources(MOHR) come up with regular reports containing statistics - but the report allegedly sadly does not contain information about  this - There is information about Occupational Safety and Health  matters, but not about these other basic worker rights - wages, rest days, overtime, work on rest days, overtime, etc...?? WHY? The report has data about employment, unemployment and migrant workers - but why are there no information about 'rights violation by employers' about the basic rights in the Employment Act and other such labour laws.

 We want to know HOW MANY INSPECTIONS?

We want to know what led to these 'Inspections"?
- Random (from time to time, they just go and inspect)
- based on information received (these could be from any sources - public, unions, etc ...information by phone call, email, verbal information, media, etc... Affected workers may be too fearful to come and report - so this information can come from any source - anonymous or known)
- based on information received from Unions? NGOs? 
- based on information from affected workers?

Outcome of the Investigations - what rights were violated? What action taken against the employer? Problem solved - workers affected got paid and/or rights restored... 

Pemeriksaan merupakan salah satu aktiviti penguatkuasaan bagi memastikan majikan mematuhi undang-undang buruh dan menjamin kebajikan pekerja dilindungi. Objektif pemeriksaan berkanun ke atas tempat-tempat pekerjaan adalah seperti berikut:
  • Memastikan pematuhan undang-undang perburuhan melalui penguatkuasaan, pemantauan dan tindakan pembetulan;
  • Sistem pengesanan dan pencegahan awal bagi sebarang pelanggaran undang-undang buruh;
  • Memberi khidmat nasihat perburuhan kepada klien jabatan di samping mempromosikan amalan terbaik perburuhan dan dasar-dasar kerajaan; dan
  • Mengumpul maklumat yang diperlukan bagi tujuan perancangan dasar dan undang-undang dalam bidang perburuhan.


MOHR should also really provide informations about CLAIMS made by workers - and the outcome of these claims. If the matter, goes to the 'Labour Court" - judgments should also be publicized on websites. That will educate Malaysian Workers and give them hope that  justice can be obtained from the MOHR administration of justice mechanism. It will also educate employers - as to what they should not do?

INDUSTRIAL COURT - well, that only deals with very limited cases - 'wrongful dismissal where the worker is seeking reinstatement' (if the worker is not seeking reinstatement but just monetary claims like back wages and termination benefits, etc.. - then they go to the Human Resource Department (before known as Labour Department), trade disputes between Union and employer usually, etc  ...where the cases will be heard and determined by the 'Labour Court'(different from the Industrial Court). Whilst, there are now publication of Industrial Court awards, there is NO PUBLICATION of Labour(HR) Court awards...WHY? This must be remedied...

For most workers, it is complaint/claims procedure of the Labour Department(HR Department), which leads to the Labour Court(HR Court)....that is most important - notn-payment of monies and denial of rights...

The absence of information about INSPECTION by the MOHR enforcement officers to ensure that employers are not violating rights of workers gives the impression that this UMNO-BN government may not be bothered about worker and trade union rights...

This UMNO-BN government is diligentlly monitoring Malaysians when it comes to traffic and parking offences - so many being summoned and/or charged...but at the same time what about enforcement against employers that deny employees their rights in Malaysian law... Absurd to not act until there is a complaint or claim from the affected workers...Information or suspicion is sufficient for MOHR enforcement officers to Act...

On a side matter, there is the case of 'union busting' - wrongful dismissal of the Union President...and more importantly the denial of Infineon Melaka to the continued carrying out of the duty and responsibilities of the Union President... the government knows - but why is there still no action by the Ministry??? Waiting for what? MTUC has already brought this to the notice of the Ministry...but why still no action?

Maybe, we need to complain to EAIC or MACC - SUHAKAM already knows, and are investigating and we hope for a public statement from SUHAKAM soon....

The Labour Court is a quasi-judicial system that serves as an alternative to civil claims. Its objective is to make available a labour justice system that is fair, simple, swift and economical to resolve workers' demands regarding wages and other financial benefits that can be claimed by them. In accordance with its establishment rationale as a mechanism to support workers’ welfare, the Labour Court has the following special features:
  •  Hears all demands of workers without any limits on the sum claimed
  • Holds simple and informal proceedings, but in accordance with the principles of justice observed by civil courts. The practice of hearing labour cases according to the principles of justice of civil court rules has been recognised through decisions made ​​by the High Court.

    Labour cases must be concluded within one to three months, depending on the complexity of the issues and legislation involved. This will preserve the welfare of the parties in dispute and industrial harmony. To achieve this, postponement of labour cases set for trial by any party is discouraged. In addition, simple claims or labour cases are solved through detailed explanation by an officer via telephone calls to the parties involved.
    Labour case handling procedures are more simple and uncomplicated compared with the trial procedure in a civil court. There are not many forms to be filled in which makes it easy for the employee, including one not highly educated and the illiterate, to file a case. If the complainant is not able to give details of the full name and address of the defendant, the officer helps complete the information and calculates the amount of claim by reviewing records in the Labour Market Database (LMD) application. Explanation must be given to the complainant on how the calculation is made to ensure the complainant understands it.
    The complainant does not have to pay any fees when filing a labour case. In addition, delays in labour cases are avoided to reduce transport expenses of the parties in dispute to the Labour Court and reduce the unpaid leave taken by workers. The trial officer must resolve a labour case immediately so that the parties in dispute need  not engage a lawyer, thus indirectly saving costs.


No comments: