Saturday, December 30, 2017

Workers rights should not be hindered by the gov't(Malaysiakini)

*Thank you Malaysiakini for carrying this Statement of 32 groups. Media play an important role, especially in a democracy - They can help disseminate views and opinions so that it will be heard by all...It is essential for the freedom of expression, freedom of opinion and human rights. A media organisation may not have the time to report on every statement/opinion - but then, they can always publish it in their Opinion columns. There is always a risk for the Media Organisation - because sometime the alleged oppressor can react and maybe even sue the Media organisation or even 'suspend/terminate' the said publication. Like all in Malaysia, media too will have to make the choice - to play safe, or bravely act in the interest of justice, human rights ...including freedom of expression and/or opinion(even when it is an opinion that the Media itself may not agree with.). Print media have restrictions as to space but online media has much more space. If media chose not to publish views of the poor, marginalised, civil society groups, human rights defenders, trade unions ...the people will stop expressing themselves...and that is a great loss.  

 

Workers rights should not be hindered by the gov't

 

Published:     Modified:

COMMENT | We, the 32 undersigned organisations, trade unions and groups are shocked that the Human Resources Minister Richard Riot had decided not to refer the claim of about 3,600 Malaysian Airlines (MAS) workers, claiming wrongful dismissal and reinstatement, to the industrial court – hence denying these workers the right for their claim to be heard speedily and determined. This is grossly unjust.

It must be noted that past statistics revealed in parliament has shown that between 2001 and 2011, 31.5 percent or about 10,016 of about 31,714 workers who claimed wrongful dismissal and reinstatement were denied access to the industrial court by the minister who decided not to refer their cases to the court.

Whether a worker’s claim for reinstatement is successful is a matter that should be decided by the courts, after careful consideration of all facts, evidence and submissions on law - not by a minister,who has not accorded the right to be heard to the affected worker and employer, and possibly only relying on limited notes of an officer handling the attempt at conciliation at the Industrial Relations Department (IRD).

It must be noted that at the IRD conciliation stage, the worker is also not allowed to be represented by a lawyer of his choice, and hence, a worker would have to represent themselves or be represented by a union representative. As such, there is also a likelihood that all relevant facts and legal arguments may not have been put forward, thus, a decision of a minister in such circumstances can lead to a miscarriage of justice.



Most times, the representations are only oral, and without written representations enclosed with relevant documents and legal arguments. The right for a worker to be represented by a lawyer or a qualified legal representative at all stages of the administration of justice is, therefore, essential.

The suffering worker

When a worker loses employment and income, it is essential that justice is done speedily, preferably within a few months.

A worker who just lost their employment suffers a loss of income and it impacts on one’s financial security and that of their family, who would have to deal with all continuing monthly financial obligations of the family.

A failure to pay in time could result in loss of home, personal vehicle, deprivation of basic amenities and even a rising debt given the fact that most Malaysians have low savings.

The worker will also likely not be able to secure loans from financial institutions because of the loss of their employment and may be forced to resort to borrowing from illegal money lenders, who charge a very high interest rate. Unless justice is achieved quickly, there is a real risk of the worker and their families plunging deeper into poverty.

On the other hand, the employer most likely will continue their business as usual.

The pursuit of justice also requires monies, and it is likely that many workers, especially from the lower and middle-income category, will simply choose to walk away. Victims are not able to undertake the quest for justice, and the employer perpetrators of injustice get off scot-free.

Whilst the Malaysian government has provided legal aid to the poor in criminal matters, the government does not provide legal aid to workers, especially the poor. However, the Malaysian Bar has now made available legal aid lawyers to qualified workers.

Most importantly, the rights of a worker to be represented by lawyers of their choice at all stages of the administration of labour justice are currently barred by law, and this right must be provided to ensure equity and justice to workers in their quest for justice against employers and even the government.

Worker discrimination

Victims of injustice can generally immediately commence court actions against the alleged perpetrators, but not workers claiming wrongful dismissal and their employment back.

These workers are discriminated against as they have no right to immediately pursue their claims of wrongful dismissal and reinstatement at the industrial court. They will have to go through many administrative steps before their wrongful dismissal cases ever reach the court. For these victims, they can only get their cases heard by the industrial court only if the minister refers their cases.

It is very wrong and unjust for the minister to be able to prevent workers from immediately bringing their claims to the industrial court. The fact that the government also owns and controls many employer companies makes it even more unjust for a member of the executive, a cabinet minister, to have such power. Malaysian Airlines, for example, was a wholly owned government company.


 
 
The hurdles that have to be overcome by workers in their quest to reach the industrial court to claim wrongful dismissal and reinstatement in Malaysia is provided for in the existing unjust laws.

This includes the need to first lodge a claim/complaint within a stipulated time at the IIRD, then go through the conciliation session at the IRD, and thereafter, if no conciliation, the claim is referred to the minister who then decides whether the case is referred to the industrial court or not.

Their quest for reinstatement to their job may not even end in court, and may be ended prematurely in this administrative process including the decision of a minister not to refer the case to court.

The conciliation session

The ‘conciliation’ session is an attempt for the affected worker and employer to come to some sort of settlement, and therefore there will be no need to send the matter to the minister, and possibly the industrial court.

Rather than investigating and enforcing the law, the IRD sadly plays the role of an ‘impartial’ go-between, not taking sides, to get the parties to come to some sort agreement so that the worker does not proceed any further with their claim to reinstate their employment.

It is most unlikely that the conciliation session will not end with any employer agreeing to reinstate the worker to their previous employment, or even paying out just compensation in lieu of reinstatement.

Some employers may try to settle the claim by making a nominal payment, and so, real justice ends undone.

Now, conciliation or mediation could happen at the industrial court, where currently it is not uncommon for the court to try to get parties to settle and come to an agreement through mediation before the trial commences.

Attempts of settlement can also happen at any time, as initiated by any party, via their lawyers, trade unions, legal representatives or even third parties. As such, there is really no need for these time-consuming conciliation sessions at the IRD at all.

The minister's reference

Now, if and when this conciliation attempt fails, then the matter is referred to the minister who again seems to take too much time, and in the case of these MAS ex-workers, it took two years before it was decided by the minister that he would not refer the case to the industrial court.

Note, the minister decides whether to refer or not to refer to the industrial court without even according the right to be heard to the affected worker and/or the employer. It is a decision which is not even based on all the facts and evidence, and as such could be said to be arbitrary.

All that the minister has are the notes taken by the IRD officer who had conducted the conciliation session. Being a conciliation session, parties may even not be providing all the relevant facts and evidence, especially the evidence of other witnesses.



It is, therefore, most shocking that about 31 percent of worker claims are not referred to the industrial court by the minister.

The reasons for the non-referral by the minister that were given in Parliament included reasons of misconduct, voluntarily stopping their employment and/or accepting the Voluntary Separation Scheme (VSS) and changing their mind, or that their employment contract period had ended. 

These reasons given by the minister are usually what employers will say to justify termination. However, these are matters to be decided by the courts after hearing and considering all evidence and facts.

Was the employer right in terminating the worker, or was the worker right in saying that it was a wrongful dismissal? Was the alleged misconduct even a valid misconduct agreed before by both parties of an employment contract? Was the worker deceived by the employer and their agents? These are matters that only a court should be deciding on after not just hearing evidence of the parties to the dispute, but also other relevant witnesses.

A worker who takes the trouble, expending monies and time, to file a claim for wrongful dismissal asking for reinstatement most likely has a case and arguments to justify such a claim, and there is a need to consider all the facts and listen to all the evidence, including evidence from witnesses, to determine the truth and make a final decision.

This is the task of the courts, not the minister.

Delays in the industrial court

There are currently no time limits set for the completion of an industrial court case or appeals thereafter. It can take years from the date the case is referred to the industrial court until the completion of the trial.

The hearing and conclusion of the trial at the industrial court can take years, and in some cases, may even take five years or more after the date of wrongful dismissal. If the worker is victorious, then the fruits of justice can further be delayed by appeals to the higher courts.

The long drawn out process before the case reaches the court and the time taken for trials to complete would most likely deter most workers from filing a claim or even cause them to abandon the claim midstream.

Thus, the procedures made may ultimately end up protecting violators of laws and rights rather than the workers themselves.

Reducing a worker's entitlement 

The injustice to the worker was compounded by the fact that from Feb 2008, the law limited the amount of claim for a worker who was successful in court proving that he was indeed wrongfully dismissed.

The maximum amount they can get is 24 months in back wages, even if it takes five years or 10 years before he gets his employment back or the final judgment that he was wrongfully dismissed.

 

Before this amendment, a worker successful in his claim would have been entitled to not just back wages from the date of wrongful dismissal until the date of reinstatement or the date of final judgment. They would also be entitled to whatever increments and bonuses that he would have gotten if not for the wrongful dismissal by the employer.

The new Second Schedule of the Industrial Relations Act 1967, in Paragraph 1 now states, “In the event that back wages are to be given, such back wages shall not exceed twenty-four months' back wages from the date of dismissal based on the last-drawn salary of the person who has been dismissed without just cause or excuse”.

Moreover, there are provisions for even further deductions from the amount of back wages due and payable if the worker was earning whilst he was waiting to get back his job.

Now even if the worker is victorious, a further sum shall be deducted for “contributory misconduct of the workman,” and this amounts to penalising the worker despite their success in court.

The courts should not only decide whether the worker was wrongfully dismissed or not, but also what the worker receives from their employer all that he would have earned, including wage increments and bonuses, from the date of his wrongful judgment until the date of reinstatement and/or final judgment.

There should also be a need for further damages that ought to be paid by the employer for the violation of the worker’s rights and the law, and also for the suffering caused.

The government's duty

Enforcement of the law and protecting worker rights should be a priority of the government. The government, in particular, the Human Resource Ministry and its various departments, should be regularly inspecting, investigating and ensuring that rights are not violated and laws are enforced. On the receipt of information of alleged violations from any source, the ministry should speedily investigate and ensure that the law is complied with at a particular workplace.

The practice of waiting for the victims to lodge formal complaints or claims before action is taken must end, as most victimised workers are worried about lodging formal complaints against their employer, more so when they are still in employment for fear of retaliation, which may also include dismissal.

The law empowers the Human Resources Ministry to conduct regular inspections, but a perusal of the statistics provided by the ministry shows that there are only inspections, investigations and prosecutions carried out by the Occupational Safety and Health (OSH) department, and there are no statistics about inspections, investigations, prosecution and/or enforcement of the basic worker and trade union rights like payment of wages, overtime, wrongful dismissal, discrimination and such rights.

A perusal of the Human Resources Ministry quarterly reports, Statistic Pekerjaan dan Perburuhan Siri 13 Bil 3/2017 September (Employment and Labour Statistics) discloses no statistics of workplace inspections to ensure that worker and trade union rights are not being violated, no statistics of investigation and prosecution of employers that have violated labour laws and fundamental worker rights, no statistics of information or complaints received and no statistics of employers found guilty. The only available are matters concerning the OSH.

Given the fact that there are statistics on OSH inspections and enforcement, it looks like the Malaysian government and the Human Resources Ministry are not interested in protecting basic worker and trade union rights. After all, the statistics of inspection, investigation, prosecution, conviction and enforcement against employers who breach existing Malaysian labour and trade union laws are information so easily compiled by the government.

The case of Malaysian Airlines

These 3,200 workers were employees of the Malaysian Airlines, a wholly government-owned company. The airline had decided to reduce the workforce by 6,000 workers, a process normally done via a retrenchment exercise, which would have had to comply with existing just legal principles like Last In First Out (LIFO).

However, what the Malaysian government did was to form a new company, and terminate all employees in the previous company – and then re-employed selected workers in the new wholly owned company. This would not be just and is a violation of worker rights.

The Malaysian government then passed a new law that made the new company specifically not liable for the actions and liabilities of the old company.

This exercise may also be the biggest union-busting exercise of recent times, as six of the trade unions were in-house trade unions, and this exercise would have effectively killed all those unions.

However, the airline employees in Malaysia did previously have a national union. In February 1979, 22 members of the Airlines Employers Union (AEU) were detained under the ISA after a pay dispute at the state-run Malaysian Airline System (MAS) had led to a work to rule and a government order to deregister the union.


 
 
Thereafter, only in-house unions existed for employees of MAS, until the recent registration of National Union of Flight Attendance Malaysia's (NUFAM). However, despite Nufam's success in getting 62.73 percent of the votes at the secret ballot, and the director general of industrial relations (DGIR) issuing the formal letter acknowledging Nufam as a recognised union in MAS, the company challenged the decision in court.

Considering the background, this nonreference claim of these 3,200 ex-MAS workers to the industrial court by the minister is all the more unconscionable. If not for that new law that attempts to not make the new company that is owned by the same owners of the old company, the owners and the new MAS company would most likely be found to be liable for the actions of old MAS company. Even with the new law, the courts may have found judgement in favour of the former workers.

The minister’s decision of not referring the case to the courts in this case may be tainted with mala fide – an attempt to even prevent the claims of these former workers from being considered and determined by the court, where judges are duty bound to uphold the cause of justice without fear or favour – and not follow the agenda and intention of the existing Umno-BN government.

The reality in Malaysia where worker rights are not protected and promoted and instead eroding is embarrassing. When Malaysia recently wanted to be part of the Trans-Pacific Partnership Agreement (TPP), one of the preconditions was that Malaysia amends its labour and trade union laws to enable it to be in compliant with international labour standards.

While there have been moves on the part of the government to do so, to date, we have yet to see any proposed amendments.

Therefore, we;
  • call on the Malaysian government to ensure that workers claiming wrongful dismissal seeking reinstatement shall have the right to immediately file their claim at the industrial court and that all administrative hurdles including the minister’s discretion to refer a case be removed;

  • call for the revocation of the minister’s decision not to refer this case of the 3,200 former MAS workers, and that their case is immediately commenced and heard by the industrial court. Likewise, all ministerial decisions not to refer worker cases be revoked, and be forthwith heard by the industrial court;

  • call for the repeal of Schedule 2 of the Industrial Relations Act that seeks to, amongst others, limit the worker’s who have been wrongfully dismissed to just 2 years back wages;

  • call for the government to expedite administration of justice, including trials, of workers wrongfully dismissed who are claiming reinstatement to end not later than 6 months from the date of claim;

  • call for the Malaysian government to proactively protect worker and trade union rights, amongst others, by regular inspections, speedy investigations and enforcement of labour laws and worker rights.

  • call on Malaysia to expedite the transformation of existing labour and trade union laws to be in compliance with international human rights and labour standards;

  • call on Malaysia to promote and protect worker and trade union rights.

Charles Hector is writing on behalf of;

ALIRAN
Association of Maybank Executives
ATRAHDOM Guatemala
CAW(Committee for Asian Women)
Christian Development Alternative (CDA), Bangladesh
Club Employees Union Peninsular Malaysia (CEUPM)
Community Development Foundation (CDF)
Electronic Industry Employees Union (EIEU) Southern Region, Peninsular Malaysia
Japan Innocence and Death Penalty Information Center
Garments Workers Federation (NGWF ), Bangladesh
HAK Association from Timor-Leste
Kesatuan Pekerja-pekerja Perusahaan Otomobil Nasional Sdn Bhd
MADPET(Malaysians Against Death Penalty and Torture)
Majlis Rangkaian Kesatuan Sekerja Antarabangsa Malaysia (UNI-MLC)(UNI - Malaysia Labour Centre - (UNI-MLC)
Malaysian Physicians for Social Responsibility
National Union of Flight Attendants Malaysia (NUFAM)
National Union of Transport Equipment & Allied Industries Workers (NUTEAIW)
North South Initiative
Parti Rakyat Malaysia(PRM)
People & Planet, UK
Persatuan Kakitangan Akademik University Malaya - PKAUM (Academic Staff Union)
Persatuan Komuniti Prihatin Selangor dan Kuala Lumpur
Rescue Alternatives Liberia (RAL)
Sahabat Rakyat (人民之友)
Saya Anak Bangsa Malaysia (SABM)
Singapore Anti Death Penalty Committee
Solidarity of Cavite Workers, Philippines
Teoh Beng Hock Trust for Democracy
WH4C (Workers Hub For Change)
Women's Rights and Democracy Centre (WORD Centre)
Workers Assistance Center, Inc. , Philippines
Yayasan LINTAS NUSA, Batam, Indonesia


Read more at https://www.malaysiakini.com/news/406043#D3VKUbxFSRUslJSy.99

Friday, December 29, 2017

Indonesian(Bugis, Javanese,...),Thai... Malaysians? Preservation of language and cultural identities?

Preservation of language and cultural identity is always important - Malays in Malaysia are from various different ethnic groups, and the different groups have distinct language and cultural identity...Kelantanese Malay, Trengganu Malay,...and various other Malay of Indonesian, Thai or Filipina ethnicity, not to forget Arabic, Chinese, Indian descent even...somehow, we do not hear much about the statistics of these different ethnic groups ...which would be intereting. Likewise Indians and Chinese also have different ethnic groupings - Hokkien, Cantonese, Hakka, Malayalee, Telugu...

Well, of late there has been many news stories about 'BUGIS' in Malaysia? 

Are there not only Malays in Malaysia? 

Well, we perused the internet, and what is revealed is that there are many other Indonesian ethnic groups in Malaysia - but then why do we not have statistics about these, who really will be the Indonesian Malaysians ...just like the Chinese Malaysians and the Indian Malaysians?

Are there original Malays of Malaysia, or are they all migrants from Indonesia or elsewhere? 

In fact, logically speaking, given the proximity of Malaysia to Thailand, Indonesia and Philippines, there would really also be a lot of Thai Malaysians, Indonesian Malaysians and even Filipino Malaysians - but how come, there has not been statistics of these different ethnic groups, many of who also do have their own language and culture...which, really should be acknowledged, preserved and recognized as part of Malaysia's rich cultural diversity?

In fact, historically Malaysia is now the home of a lot of people coming from very different nations and/or cultures...from Arabs, Europeans, Chinese, etc ...

The Bugis people are acclaimed sea traders and legendary warriors from Indonesia. They first came to Malaysia in the 16th century and settled in various parts of Malaysia in the states of Johor, Selangor, and Pulau Pinang.- Population ini Malaysia - 141,000 - Buginese in Malaysia . Although, Wikipedia says there are about 300,000 Bugis in Malaysia.


Batak is a collective term used to identify a number of ethnic groups predominantly found in North Sumatra, Indonesia. The term is used to include the Karo, Pakpak, Simalungun, Toba, Angkola, and Mandailing[4] which are related groups with distinct languages and customs (adat). - According to Wikipedia, there are about 30,000 in Malaysia

Minangkabau people (Minangkabau: Urang Minang; Indonesian: Suku Minang; Jawi: اورڠ مينڠ), also known as Minang, is an ethnic group indigenous to the Minangkabau Highlands of West Sumatra, Indonesia. The Minangkabau are the largest matrilineal society in the world, with property, family name and land passing down from mother to daughter,[5] while religious and political affairs are the responsibility of men, although some women also play important roles in these areas. This custom is called Lareh Bodi Caniago and is known as Adat perpatih in Malaysia. Today 4.2 million Minangs live in the homeland of West Sumatra, while about 60% of the people are scattered throughout many Indonesian and Malay Peninsular cities and towns.According to Wikipedia, there are about 913,000 Minangkabau people in Malaysia

Javanese - With approximately 100 million people (as of 2011), they form the largest ethnic group in Indonesia. They are predominantly located in the central to eastern parts of the island. There are also significant numbers of people of Javanese descent in most provinces of Indonesia, Malaysia, Singapore, Suriname, Saudi Arabia and the Netherlands. The Javanese ethnic group has many sub-groups, such as the Mataram, Cirebonese, Osing, Tenggerese, Samin, Naganese, Banyumasan, etc.According to Wikipedia, there are about 649,000 Javanese people in Malaysia.

Our Malaysian Federal Constitution provides for special treatment for Malays and natives of Sabah and Sarawak. The term 'Bumiputra', a term created by the UMNO-BN government is very vague... does it include others that were not accorded special privilege by the Federal Constitution... who are these other people who are now considered 'Bumiputra'? 

153  Reservation of quotas in respect of services, permits, etc., for Malays and natives of any of the States of Sabah and Sarawak.(Federal Constitution)
(1) It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article.

(2) Notwithstanding anything in this Constitution, but subject to the provisions of Article 40 and of this Article, the Yang di-Pertuan Agong shall exercise his functions under this Constitution and federal law in such manner as may be necessary to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak of such proportion as he may deem reasonable of positions in the public service (other than the public service of a State) and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government and, when any permit or licence for the operation of any trade or business is required by federal law, then, subject to the provisions of that law and this Article, of such permits and licences.

(3) The Yang di-Pertuan Agong may, in order to ensure in accordance with Clause (2) the reservation to Malays and natives of any of the States of Sabah and Sarawak of positions in the public service and of scholarships, exhibitions and other educational or training privileges or special facilities, give such general directions as may be required for that purpose to any Commission to which Part X applies or to any authority charged with responsibility for the grant of such scholarships, exhibitions or other educational or training privileges or special facilities; and the Commission or authority shall duly comply with the directions.

(4) In exercising his functions under this Constitution and federal law in accordance with Clauses (1) to (3) the Yang di-Pertuan Agong shall not deprive any person of any public office held by him or of the continuance of any scholarship, exhibition or other educational or training privileges or special facilities enjoyed by him.

(5) This Article does not derogate from the provisions of Article 136.

(6) Where by existing federal law a permit or licence is required for the operation of any trade or business the Yang di-Pertuan Agong may exercise his functions under that law in such manner, or give such general directions to any authority charged under that law with the grant of such permits or licences, as may be required to ensure the reservation of such proportion of such permits or licences for Malays and natives of any of the States of Sabah and Sarawak as the Yang di-Pertuan Agong may deem reasonable; and the authority shall duly comply with the directions.

(7) Nothing in this Article shall operate to deprive or authorise the deprivation of any person of any right, privilege, permit or licence accrued to or enjoyed or held by him or to authorise a refusal to renew to any person any such permit or licence or a refusal to grant to the heirs, successors or assigns of a person any permit or licence when the renewal or grant might reasonably be expected in the ordinary course of events.

(8) Notwithstanding anything in this Constitution, where by any federal law any permit or licence is required for the operation of any trade or business, that law may provide for the reservation of a proportion of such permits or licences for Malays and natives of any of the States of Sabah and Sarawak; but no such law shall for the purpose of ensuring such a reservation -
(a) deprive or authorise the deprivation of any person of any right, privilege, permit or licence accrued to or enjoyed or held by him; or
(b) authorise a refusal to renew to any person any such permit or licence or a refusal to grant to the heirs, successors or assigns of any person any permit or licence when the renewal or grant might in accordance with the other provisions of the law reasonably be expected in the ordinary course of events, or prevent any person from transferring together with his business any transferable licence to operate that business; or
(c) where no permit or licence was previously required for the operation of the trade or business, authorise a refusal to grant a permit or licence to any person for the operation of any trade or business which immediately before the coming into force of the law he had been bona fide carrying on, or authorise a refusal subsequently to renew to any such person any permit or licence, or a refusal to grant to the heirs, successors or assigns of any such person any such permit or licence when the renewal or grant might in accordance with the other provisions of that law reasonably be expected in the ordinary course of events.
(8A) Notwithstanding anything in this Constitution, where in any University, College and other educational institution providing education after Malaysian Certificate of Education or its equivalent, the number of places offered by the authority responsible for the management of the University, College or such educational institution to candidates for any course of study is less than the number of candidates qualified for such places, it shall be lawful for the Yang di-Pertuan Agong by virtue of this Article to give such directions to the authority as may be required to ensure the reservation of such proportion of such places for Malays and natives of any of the States of Sabah and Sarawak as the Yang di-Pertuan Agong may deem reasonable; and the authority shall duly comply with the directions.

(9) Nothing in this Article shall empower Parliament to restrict business or trade solely for the purpose of reservations for Malays and natives of any of the States of Sabah and Sarawak.

(9A) In this Article the expression "natives" in relation to the State of Sabah or Sarawak shall have the meaning assigned to it in Article 161A.

(10) The Constitution of the State of any Ruler may make provision corresponding (with the necessary modifications) to the provisions of this Article.


BUMIPUTRA - Well, do the Opposition parties also accept this term that has been created by the UMNO-BN? Note, at present there is no legal definition as to who are these Bumiputras...

The UMNO-BN has created a lot of terminologies by way of policy - but sadly, the Opposition seems to have simply accepted...terms like 'Vision 2020'...and now TN50

Lumping Malays, natives of Sabah and Sarawak...and possibly others into one grouping called 'Bumiputra' also can bring about possible discrimination amongst the beneficiary groups of special privilege provided by the Federal Constitution? 

If we were to look at a Sarawakian ethnic group like the Penan or Iban - are they getting the same amount(or same percentage) of benefit/privilege as accorded by the larger groups like the Malay?

For example, if 90 percent of Malay students/young people benefited by getting scholarships and even civil service employment? Has 90% of Iban, Kadazan, Penan, etc...students/young persons also managed to get more or less the same benefits? 

Of course, in my opinion, benefits should flow first to the poorest...to uplift their individual/family socio economic condition...no use if just a few Malays (and/or natives of Sabah and Sarawak) are taking the benefits - the scholarships, civil service positions, permits/licences, etc ...A rich Malay, who gain his wealth, by reason of the 'special privilege' will likely not be sharing his/her wealth equitably with other individual and families of Malays - the hope that this 'sharing' will happen is little...

"MY MONEY" - why should I share with others in the community? Well, for this we have taxation - the more you earn, the more you are taxed...and all taxation monies goes into the common coffers of Malaysia for the benefit of all Malaysians. Should we increase the taxation of the RICH? 

After 60 years, it is disturbing to hear that there are still a lot of poor Malays and/or other natives of Sabah and Sarawak - I would take this as a failure of the UMNO-BN government? BR1M figures highlight the number of persons and families in Malaysia that are not earning sufficiently that still needs some form of government assistance. If we had crime statistics especially of poverty related crimes - theft, robbery, snatch thieves, 'drug trafficking',...it will help us appreciate whether the poor are increasing or not...but now the UMNO-BN government stopped giving us these figures...only a 'crime index' - which is not very helpful..

Malaysia is truly a multi ethnic...multi-cultural....multi-religious country...and Najib started talking about 1Malaysia...and maybe it is time that we promote and adopt this concept...

We have one category of persons that required socio-economic upliftment, as provided for in the Federal Constitution  (Article 153),

and the other category should just be Malaysian citizens...

Now, should we really consider abolishing this term 'BUMIPUTRA', which really is an UMNO-BN creation...or, if we want to keep it, then it must be clearly defined, and maybe should be incorporated into the Federal Constitution..???

 
160  Interpretation


"Malay" means a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom and -
(a) was before Merdeka Day born in the Federation or in Singapore or born of parents one of whom was born in the Federation or in Singapore, or is on that day domiciled in the Federation or in Singapore; or
(b) is the issue of such a person;
 
 
161A  Special position of natives of States of Sabah and Sarawak.
(6) In this article "native" means -
(a) in relation to Sarawak, a person who is a citizen and either belongs to one of the races specified in Clause (7) as indigenous to the State or is of mixed blood deriving exclusively from those races; and
(b) in relation to Sabah, a person who is a citizen, is the child or grandchild of a person of a race indigenous to Sabah, and was born (whether on or after Malaysia Day or not) either in Sabah or to a father domiciled in Sabah at the time of the birth.
(7) The races to be treated for the purposes of the DEFINITION of "native" in Clause (6) as indigenous to Sarawak are the Bukitans, Bisayahs, Dusuns, Sea Dayaks, Land Dayaks, Kadayans, Kalabits, Kayans, Kenyahs (including Sabups and Sipengs), Kajangs (including Sekapans, Kejamans, Lahanans, Punans, Tanjongs and Kanowits), Lugats, Lisums, Malays, Melanos, Muruts, Penans, Sians, Tagals, Tabuns and Ukits.

There really must be efforts to preserve the languages and the cultures of the various different ethnic groups in Malaysia..

 



 

Wednesday, December 20, 2017

32 Groups Media Statement - Workers’ Right To Claim Justice In Courts Must No Longer Be Delayed Or Blocked By Minister -3,600 Malaysian Airlines(MAS) Workers Denied Day In Court By Minister-



Media Statement – 20/12/2017

Workers’ Right To Claim Justice In Courts Must No Longer Be Delayed Or Blocked By Minister

-3,600 Malaysian Airlines(MAS) Workers Denied Day In Court By Minister-

We the 32 undersigned organisations, trade unions and groups are shocked that the Minister of Human Resources had decided not to refer the claim of about 3,600 Malaysian Airlines(MAS) workers, claiming wrongful dismissal and reinstatement, to the Industrial Court – hence denying these workers the right for their claim to be heard speedily and determined by the Industrial Court. This is grossly unjust. (Malaysiakini, 5/10/2017)

It must be noted that past statistics, revealed in Parliament, showed that between 2001 and 2011, that 31.5% or about 10,016 of about 31,714 workers who claimed wrongful dismissal and reinstatement were denied  access to the Industrial Court by the Minister of Human Resources who decided not to refer their cases to the  Industrial Court (Utusan Online, 23/10/2012).

Justly, whether a worker’s claim for reinstatement is successful is a matter that should be decided by the Courts, after considering all facts, evidence and submissions on law - not by a Minister, without even according the right to be heard to the affected worker and employer, and possibly only relying on limited notes of an officer handing an attempt at conciliation at the Industrial Relations Department. 

Note at this IRD conciliation stage the worker is also not allowed to be represented by a lawyer of his choice, and hence a worker would have to represent himself/herself or be represented by a union representative, and the likelihood that all relevant facts and legal arguments may not have been put forward, and as such a decision of a Minister in such circumstances can most probably lead to a miscarriage of justice. 

Most times, the representations are only oral, and without written representations enclosed with relevant documents and legal arguments. The right for a worker to be represented by a lawyer or a qualified legal representative at all stages of the administration of justice is essential.

WORKERS SUFFER WHILST BUSINESS AS USUAL FOR THE EMPLOYER

When a worker loses employment and income, it is essential that justice be done speedily, preferably within a few months. 

A worker who just lost his/her employment suffers a loss of his/her income and it impacts on one’s financial security and that of his/her family, who still would have to deal with all continuing monthly financial obligations of the family whereby a failure to pay in time could result in loss of home, personal vehicle, deprivation of basic amenities and even a rising debt given the fact that savings of most Malaysian workers are rather low. 

The worker will also most likely not be able to secure loans from financial institutions because of the loss of employment, and may be forced to resort to borrowing from illegal money lenders, who charge a very high interest rate. Unless, justice is achieved fast, there is a real risk of the worker and family plunging deeper into poverty.

On the other hand, the employer most likely will continue business as usual.

The pursuit of justice also needs monies, it is most likely that many workers, especially from the lower and middle income category, will simply choose to walk away victims not able to undertake the quest for justice, and employer perpetrators of injustice get off scot free.

Whilst Malaysia government have finally provided legal aid to the poor in criminal matters, the government still do not provide legal aid to workers, especially the poor. The Malaysian Bar now makes available legal aid lawyers to qualified workers.

Most importantly, the right of a worker to be represented by lawyers of his/her choice at all stages of the administration of labour justice is currently barred by law, and this must be right must be  provided to ensure equity and justice to workers in their quest for justice against employers and even the government.

WORKERS DISCRIMINATED AGAINST COMPARED TO OTHER VICTIMS OF INJUSTICE

Victims of injustice can generally immediately commence court actions against alleged perpetrators – but not workers claiming wrongful dismissal and their employment back.

These workers are discriminated as they have no right to immediately pursue their claims of wrongful dismissal and reinstatement at the Industrial court. They will have to go through many  administrative steps before their wrongful dismissal cases ever reaches the court. For, these worker victims, they can only get their cases heard by the Industrial only if finally the Minister refers their cases.

It is very wrong and unjust for the Minister to be able to prevent workers from immediately bringing their claims to the Industrial Court. The fact that the government also owns and controls many employer companies makes it even more unjust for a member of the Executive, a Cabinet Minister, to have such power. The Malaysian Airlines, for example, was a wholly owned government company.

The hurdles that have to be overcome by workers in their quest to reaching the Industrial court to  claim wrongful dismissal and reinstatement in Malaysia is provided for in the existing unjust laws.

This includes the need to first lodge a claim/complaint within a stipulated time at the Industrial Relations Department(IRD), then go through the conciliation session at the IRD, and thereafter, if no conciliation, the claim is referred to the Minister who then decides whether the case is referred to the Industrial Court or not.

Their quest for reinstatement to their job may not even end in court, and may be ended prematurely in this administrative process including the decision of a Minister not to refer the case to court.

The Conciliation Session

The ‘conciliation’ session is an attempt for the affected worker and employer to come to some sort of settlement, and therefore there will be no need to send the matter to the Minister, and possibly the Industrial Court.

Rather than investigating and enforcing the law, the IRD sadly plays the role of an ‘impartial’ go between not taking sides, to get the parties to come to some sort agreement so that worker not  proceed any further with his/her claim to get employment back.  

It is most unlikely that the conciliation session will not end with any employer agreeing to reinstate the worker to his/her employment, or even paying out a just compensation in lieu of reinstatement.

Some employer may try to settle the claim by making a small payment, and so real justice ends up not being done.

Now, conciliation (or mediation) could happen at the Industrial Court, where currently it is not uncommon that the court will try to get parties to settle and come an agreement through mediation before trial commences.

Attempts of settlement can also happen at any time, initiated by the parties, vide their lawyers, trade unions, legal representatives or even 3rd parties. As such, there is really no need for these time consuming conciliation sessions at the IRD at all.

The Reference to the Minister – Decide whether refer to Industrial Court or Not

Now, if and when this ‘conciliation’ attempt fails, then the matter is referred to the Minister who again seems to take too much time, and in the case of these 3,200 MAS workers, it took 2 years to decide not to refer the case to the Industrial Court.

Note, the Minister decides whether to refer or not to refer to the Industrial Court without even according the right to be heard to the affected worker and/or the employer. It is a decision which is not even based on all the facts and evidence, and as such could be said to be arbitrary. All that the Minister has are only the notes taken by the IRD officer who conducted the conciliation session. Being a conciliation session, parties may even not be providing all the relevant facts and evidence, especially evidence of other witnesses.

It was most shocking that almost about 31% worker claims are not being referred to the Industrial Court by the Minister.

The reasons for the non-referral by the Minister that were given in Parliament, as reported in the media in 2012,  included because the worker was terminated by reason of misconduct, because the worker stop employment voluntarily and/or accepted the Voluntary Separation Scheme(VSS) and then changed his/her mind; and the worker’s employment contract period had ended. (Utusan Online, 23/10/2012).

Well, these reasons given by the Minister are usually what employers will say to justify termination. This really are really a matter to be decided by the courts after hearing and considering all evidence and facts. Was the employer right in terminating the worker, or was the worker right in saying that it was a wrongful dismissal? Was the alleged misconduct even a valid misconduct agreed before by both parties of an employment contract? Was the worker deceived by the employer and/or their agents? There are many matters that only a court should be deciding on after not just hearing evidence of the parties to the dispute, but also other relevant witnesses.

A worker who takes the trouble, expending monies and time, to file a claim of wrongful dismissal asking for reinstatement most probably has a case and arguments to justify such a claim, and there is a need to consider all the facts and listen to all the evidence, including evidence from witnesses, to determine the truth and make a final decision. This is the task of the courts, not a Minister.

Delays in the Industrial Court

There are currently no time limits set for the completion of an Industrial Court case and/or appeals thereafter. From the date the case is referred to the Industrial Court until the completion of the trial, it can take years. Hearing and conclusion of trial at the Industrial Court can take years, in some cases it may even take about 5 years or more after the date of wrongful dismissal. If the worker is victorious, then the fruits of justice can further be delayed by appeals to the higher courts.

The long drawn out process before the case reaches the court and the time taken for trials to complete would most likely just deter most worker victims of injustice from even filing a claim and/or to abandon the claim midstream.

Thus, this administration of justice procedure may ultimately end up protecting violators of law and rights rather than the worker victims.

Reducing the entitlement of the wrongfully dismissed worker by law

The injustice to the worker was compounded by fact that from February 2008, the law limited the amount of claim for a worker who was successful in court proving that he was indeed wrongfully dismissed. Now, the maximum he can get is 24 months back wages, even if it takes 5 years or 10 years before he gets his employment back and/or the final judgment that he was wrongfully dismissed. Before this amendment, a worker successful in his claim would have been entitled to not just back wages from the date of wrongful dismissal until the date of reinstatement or the date of final judgment. He would also be entitled to whatever increments and bonuses that he would have gotten if not for the wrongful dismissal by the employer.

The new Second Schedule of the Industrial Relations Act 1967, in Paragraph 1 now states, “In the event that back wages are to be given, such back wages shall not exceed twenty-four months' back wages from the date of dismissal based on the last-drawn salary of the person who has been dismissed without just cause or excuse;”. Further there is provisions, for even further deductions from the amount of back wages due and payable if the worker was earning whilst he was waiting to get back his job.

Oddly, now even if the worker is victorious, a further sum is deducted for “shall take into account contributory misconduct of the workman.”, and this amount to penalising of the worker despite being successful in court. Courts should decide whether worker was wrongfully dismissed or not, and it is only just that a worker receives from the employer all that he would have earned, including wage increments and bonuses, from the date of his wrongful judgment until the date of reinstatement and/or final judgment. Justly, there should also be a need for further damages that ought to be paid by the employer for the violation of the worker’s rights and the law, and also for the suffering caused.

ENFORCEMENT OF THE LAW AND PROSECUTION OF THE GUILTY IS THE DUTY OF GOVERNMENT

Enforcement of the law and protecting worker rights should be priority of the government. The government, in particular the Human Resource Ministry and its various departments, should be regularly inspecting, investigating and ensuring that rights are not violated and laws are enforced. On receipt of information of alleged violations from any source, the Ministry should speedily investigate and ensure that the law is complied with at a particular workplace.

The practice of waiting for the victims to lodge formal complaints/claims before action is taken must end, as most victimized workers are worried about lodging formal complaints against their employer, more so when they are still in employment for fear of retaliation which may also include dismissal.

The law empowers the Ministry of Human Resources to conduct regular inspections, but a perusal of the Statistics provided by the Ministry shows that there are only inspections, investigations and prosecutions being carried out by the Occupational Safety and Health (OSH) department, there is no statistics about inspections, investigations, prosecution and/or enforcement of the basic worker and trade union rights like payment of wages, overtime, wrongful dismissal, discrimination and such rights.

A perusal of the Ministry of Human Resources quarterly reports, Statistic Pekerjaan dan Perburuhan Siri 13 Bil 3/2017 September (Employment and Labour Statistics) discloses no statistics of workplace inspections to ensure that worker and trade union rights are not being violated, no statistics of investigation and prosecution of employers that have violated labour laws and fundamental worker rights, no statistics of information/complaints received and no statistics of employers found guilty. Only available are matters concerning OSH.

Given the fact that there are statistics on Occupational Safety and Health(OSH) inspections and enforcement, it looks like the Malaysian government and/or the Ministry of Human Resources are not interested in protecting basic worker and trade union rights. After all, the statistics of inspection, investigation, prosecution, conviction and enforcement against employers who breach existing Malaysian labour and trade union laws is information so easily compiled by the Government.

Malaysian Airlines – A wholly government owned company

These 3,200 workers were employees of the Malaysian Airlines, who was owned by a wholly government owned company. The airlines decided to reduce the workforce by 6,000 workers, which justly would have been done vide retrenchment exercise, which would have had to comply with existing just legal principles like Last In First Out (LIFO). However, what the Malaysian government did was to form a new company, and terminate all employees in the previous company – and then re-employed selected workers in the new wholly owned company. This would not be just and a violation of worker rights.

The Malaysian government then passed a new law, that made the new company specifically not liable for the actions and liabilities of the old company.

This exercise may also be biggest union busting exercise of recent times, as almost 6 of the trade union were in-house trade unions, and this exercise would effectively kill all these unions.

The airlines employees in Malaysia, did previously have a national union.  In February 1979, 22 members of the Airlines Employers Union (AEU) were detained under the ISA after a pay dispute at the state-run Malaysian Airline System (MAS) had led to a work to rule and a government order to deregister the union. Thereafter, only in-house unions existed for employees of the Malaysian Airlines, until the recent registration of National Union of Flight Attendance Malaysia's (NUFAM). However, despite NUFAM succeeded in getting 62.73% of the votes at the secret ballot, and thereafter on August 2013, the Director General of Industrial Relations(DGIR) issued the formal letter acknowledging NUFAM as a recognized union in MAS, the company challenged the decision in court.

Considering the background, this non reference of the claim of these 3,200 Malaysian Airlines(MAS) workers to the Industrial Court by the Minister is all the more unconscionable. If not for that new law, that attempts to not make the new MAS company, owned by the same owners of the old MAS company, the owners and the new MAS company would most likely be found to be liable for the actions of old MAS company. Even, with the new law, the Courts may have found in favour of the workers.

The Minister’s decision of not referring the case to the Courts as such in this case may be tainted with mala fide – an attempt to even prevent the claims of these MAS worker from being considered and determined by the court, where judges are duty bound to uphold the cause of justice without fear or favour – and not follow the agenda and/or intention of even the existing UMNO-BN government.

The reality in Malaysia where worker rights are not protected and promoted, and have been eroding in some cases is embarrassing. When Malaysia recently wanted to be part of the Trans-Pacific Partnership Agreement (TPP), one of the pre-conditions was that Malaysia amends its labour and trade union laws to enable it to be in compliance with international labour standards, whereby there have been moves on the part of the government to do so but alas to date, we have yet to see any proposed amendments.

Therefore, we

·          
Call on Malaysian government to ensure that workers claiming wrongful dismissal seeking reinstatement shall have the right to immediately file their claim at the Industrial Court, and that all administrative hurdles including the Minister’s discretion to refer a case be removed;
·          
Call for the revocation of the Minister’s decision not to refer this case of the 3,200 Malaysian Airlines(MAS) workers, and that their case immediately be commenced and heard by the Industrial Court. Likewise, all Ministerial decisions not to refer worker cases be revoked, and be forthwith heard by the Industrial Court;
·       
  Call for the repeal of Schedule 2 of the Industrial Relations Act that seeks to, amongst others, limit the worker’s who have been wrongfully dismissed to just 2 years back wages;
·          
Call for the government to expedite administration of justice, including trials, of workers wrongfully dismissed who are claiming reinstatement to end not later than 6 months from the date of claim;
·         
 Call for the Malaysian government to proactively protect worker and trade union rights, amongst others, by regular inspections, speedy investigations and enforcement of labour laws and worker rights.
·        
 Call on Malaysia to expedite the transformation of existing labour and trade union laws to be in compliance with international human rights and labour standards;
·          
Call on Malaysia to promote and protect worker and trade union rights.



Charles Hector
Ng Yap Hwa
Pranom Somwong

For and on behalf of the 32 organisations, trade unions and groups listed below

ALIRAN
Association of Maybank Executives
ATRAHDOM Guatemala
CAW(Committee for Asian Women)
Christian Development Alternative (CDA), Bangladesh 
Club Employees Union Peninsular Malaysia (CEUPM)
Community Development Foundation (CDF)
Electronic Industry Employees Union (EIEU) Southern Region, Peninsular Malaysia
Japan Innocence and Death Penalty Information Center
Garments Workers Federation  (NGWF ), Bangladesh
HAK Association from Timor-Leste
Kesatuan Pekerja-pekerja Perusahaan Otomobil Nasional Sdn Bhd
MADPET(Malaysians Against Death Penalty and Torture)
Majlis Rangkaian Kesatuan Sekerja Antarabangsa Malaysia (UNI-MLC)(UNI - Malaysia Labour Centre - (UNI-MLC)
Malaysian Physicians for Social Responsibility
National Union of Flight Attendants Malaysia (NUFAM)
National Union of Transport Equipment & Allied Industries Workers (NUTEAIW)
North South Initiative
Parti Rakyat Malaysia(PRM)
People & Planet, UK
Persatuan Kakitangan Akademik University Malaya - PKAUM (Academic Staff Union)
Persatuan Komuniti Prihatin Selangor dan Kuala Lumpur
Rescue Alternatives Liberia (RAL)
Sahabat Rakyat (人民之友)
Saya Anak Bangsa Malaysia (SABM)
Singapore Anti Death Penalty Committee
Solidarity of Cavite Workers, Philippines
Teoh Beng Hock Trust for Democracy
WH4C (Workers Hub For Change)
Women's Rights and Democracy Centre (WORD Centre)
Workers Assistance Center, Inc. , Philippines
Yayasan LINTAS NUSA, Batam, Indonesia