Monday, June 11, 2018

PH - Minimum Worker Rights, Right to Regular Employment, No GENDER Discrimination to ALL Malaysian workers?

Human Resource Ministry - the use of the 'human resource' presupposes that worker wages, welfare and rights may no longer be a priority, for now, it seems that what is the major concern is the human resource needs of employers an corporations. This shifting of priority happened during the rule of the UMNO-BN, and the question now, is whether the new Pakatan Harapan government will place more emphasis on the wellbeing of the Malaysian workers - or will they still be simply following UMNO-BN, whose priority seems the satisfaction of the human resource needs of employers.

A perusal of the Malaysian labour laws see that it was primarily drafted for workers enjoying REGULAR EMPLOYMENT - meaning it was for workers that enjoyed the security of employment until retirement...not for Malaysian workers having precarious employment like short-term employment contracts of 1 year or less, where now many employers will choose to simply employ another worker rather than to extend the contract of workers when the work still exist and needs workers.

REGULAR EMPLOYMENT - stable employment until retirement age. Here, there is 'PROBATION' - time for the employer to ascertain that a worker is suitable for the job he/she is hired to do, and justly probation should not exceed three(3) months. When the employer is satified, he confirms the employee as a permanent or regular employee. If not satisfied, he simply lets go of the worker....who goes to find some other employment.

REGULAR EMPLOYMENT is not prejudicial to the employer because he can let go of workers, if there is a need to reduce workers, or there is no need for workers doing a particular job he/she was employed to do, or if the employer ceases business...well this is RETRENCHMENT. Justly, our law provides for Retrenchment and Lay-Off Benefits, and also legal principles on how this be done, which includes the LIFO(Last In First Out) principle, and now the 'Migrant Worker First out, Then Local Worker) principle.[Personally, I am not in support of the 2nd principle...]

If an employee breaches the contract or commits a serious employment misconduct, he/she can also face dismissal.

If one were to look at the Employment Act 1955, an employees right increases with the length of employment - Annual Leave Entitlement, Sick Leave Entitlement, ...and generally there will be an increment of wages with time, usually every year - REASONABLE AND JUST, as the cost of living of an individual worker tends to increase with time ...with marriage, kids, etc...likewise, the Retrenchment and Lay-Off Benefits(which by the way becomes an entitlement only if the employee works for more than 12 months - this could a reason why many employers using short-term employment generally are for a period of 1 year or less)

UMNO-BN government allowed the erosion of a lot of Malaysian worker rights....they seem to be more concerned about the employer and businesses. Hence, they did almost nothing to protect REGULAR EMPLOYMENT ...or employment security ...allowing Malaysian businesses/employers to use more and more precarious forms of employment - the short-term or fixed-term employment contracts, and worse still 'not even employment agreements - and this was done primarily by allowing employers to use 'employees' of the new Contractor For Labour(since about 2006), where now factories and businesses do not even have to get employees - simply enter an agreement with the 'contractor for labour' to supply a certain number of workers ...who will not be considered employees at the workplace. Again UMNO-BN never even set any limit as to the number of such 'non-employees' that can be used at a workplace? 

Now, that we have a new Pakatan Harapan government, here is something that the Kulasegaran, our new HR Minister can do immediately...

EMPLOYEE RIGHTS - Employment Act 1955 only provide for basic minimum worker rights to workers earning RM2,000 or less, and for those involved in or supervising manual work no matter what the wage is...{For other workers, it is up to the worker and the employer to negotiate and include into employment agreements...dangerous for Malaysians really do not study about worker rights in school - and the employer is the stronger party in these agreements)

AMEND THE EMPLOYMENT ACT - to extend these legal basic minimum worker rights to ALL workers( or at the very least to all workers earning RM4,000 or less).

REGULAR EMPLOYMENT AND NO MORE PRECARIOUS EMPLOYMENT or avoidance of employer-employee relationship(and employer obligations)

CREATE/AMEND LAW requiring all employees to be regular employees of the workplaces the work at. [Use of fixed-term or short-term employment contracts is abolished for Malaysian Workers save for migrant workers, and maybe for certain industries like construction where the contract say for workers doing tiling is until the tiling work is done or other exceptional cases the Minister may approve] Remember, even regular employees can be let go if employers need to reduce work, no prejudice to employers. 

Create a LIMIT for the moment, that no more than 5-10% of the workforce can be employed as fixed-term (or rather until work is completed) contract employees.

'CONTRACTOR FOR LABOUR', a creation of the past UMNO-BN, to be abolished. Private Employment Agencies, who are tasked by workers to find them employment or tasked by Employers to find them workers, should be permitted and the FEE chargable for service rendered for local employees shall be no less than 1 month wages, and for migrant employees also no less than 1 month wages PLUS cost of recruiting/transport/health tests/etc - a sum that must be fixed by the Minister. The obligation to pay these Private Employment Agencies shall be on the employer - not the worker. 

93 Groups:- Abolish the ‘Contractor for Labour’ system Withdraw the 2012 amendments to Employment Act 1955.

93 - Mansuhkan Sistem ‘Contractor for Labour’ Tarikbalik pindaan 2012 kepada Akta Kerja 1955.

Letter from Prime Ministers Office on Abolish the ‘Contractor for Labour’ system Withdraw the 2012 amendments to Employment Act 1955

NON-DISCRIMINATION - The courts have determined that our Federal Constitution only says that the government, public authority and government agencies are required to not discriminate workers '.. on the ground only of religion, race, descent, place of birth or gender...' Therefore, this means that the private sector businesses and employers are free to discriminate workers on these grounds including GENDER.

8  Equality.(Federal Constitution)

(1) All persons are equal before the law and entitled to the equal protection of the law.
(2) Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.
Whilst the Employment Act has provision to prevent the discrimination based on whether one is a migrant/foreign worker or a local worker. There is nothing in our laws that prevent discrimination against Malaysian workers  '...on the ground only of religion, race, descent, place of birth or gender...'

Kulasegaran, our new HR Minister, and the Pakatan Harapan government need to enact a law that prevents the private sector employers/businesses from  discriminating workers - The constitutional guarantee of Equality and Non-Discrimination is meaningless if only applies to government and public authority - BUT not to other private sector employers.

Worker and Trade Union Rights in BN-ruled Malaysia - A pro-business government that undermined worker rights, welfare and livelihood -

orker and trade union rights in BN-ruled Malaysia (Part 1)

Workers’ and trade union rights in BN-ruled Malaysia (Part 2)

Factories allowed 100% migrant workers - an UMNO BN government policy? Local workers?Increased Wages?

BN Government says private sector workers less important than government workers - so different MINIMUM WAGES?

Malaysian workers paid 4-7 times less than Singapore?

Workers in East Malaysia discriminated against by Minimum Wage Order 

Will DAP/PAS/PKR/PSM/PRM/AMANAH/BERSATU ensure that Workers have Regular Employment - No more Precarious Employment?

IS THE PAKATAN HARAPAN, GOING TO BE DIFFERENT? Najib's UMNO-BN was interested in a high-income nation - but not so much a high-income Malaysian worker...Will PH be different?

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