Thursday, July 19, 2018

HR Minister M. Kulasegaran bringing easier speedier justice for workers in Malaysia?

When new HR Minister M. Kulasegaran announced that the 'reference to the Minister' stage will be abolished, and labour and industrial cases will be expedited, finally workers in Malaysia get some much deserved justice...A recent response by the HR Ministry that appeared in the Star, 17/7/2018 in the media to a letter protesting the removal of this stage was also most satisfactory (that Ministry letter is attached here). Refering to Federal Court judgments, it stated as follows...

The issue of dismissal is closely related to the right to” in Article 5 (1) of the wide enough to encompass the right to be engaged in lawful and gainful employment.

Wrongfully dismissed workers have the right to claim for reinstatement(get their jobs back) - but alas many do not do this (or give up half-way) because the process is very long ...and also 'expensive'...

First, they file a claim at the Industrial Relations Department - then there will be an attempt at Conciliation(see if the matter can be settled) - if cannot, the case is referred to the Minister, who decides whether to send the case to the Industrial Court or not - If it is send to the Industrial Court, then there may be an attempt at 'mediation'(try to settle) - if fail, then the trial - if worker wins, then employer may appeal to High Court...then Court of Appeal...[It is just too long ...and expensive as now, even Union reps are charging workers as high as RM10 -15k for just the Industrial Court...when it goes to the High Court and above, a lawyer need to be engaged...

If the Minister decides not to refer the case to the Industrial Court - the worker can apply for a Judicial Review at the High Court...but it costs money ..[And, at least 30% of cases are not referred...)

Worker's access to justice. Courts decide not Minister, who blocked 31% cases reaching court?

31.5%(10,016) workers denied access to Industrial Court in wrongful dismissal cases

Injustice to Workers - 22 months after being dismissed - High Court says Perwaja Steel workers case will not be heard by Industrial Court?

Now, we need the amendments to be made to remove the reference to the Minister stage....

MORE - Time frames for the completion of each stage also need to be stipulated ...In Malaysia, some of these cases have taken years...even up to 9 years to complete...and this is just not right.

MORE:-  In Indonesia, for such wrongful dismissal cases - workers continue to work and be paid wages, and employers are required to provide work. This continues until the final settlement of the dispute which decides whether the worker is dismissed or not(Watch this Blog for upcoming post that discusses this more)

MORE:- When workers are required to attend court, they must be entitled to paid leave - different from paid annual leave. If the Labour Department/Industrial Relations Department or the Courts require the presence of a worker in court be it by subpoena, court order or an official letter - workers should be entitled to go as of right - maybe time to introduce paid administration of justice leave. As such, there may be a need to amend section  23 of the Employment Act 1955 as well.

Wages shall not become payable to or recoverable by any employee from his employer for or on account of the term of any sentence of imprisonment undergone by him or for any period spent by him in custody or for or on account of any period spent by him in going to or returning from prison or other place of custody or for or on account of any period spent by him in going to, attending before or returning from a court otherwise than as a witness on his employer's behalf. (maybe, the underlined in red need to be deleted - workers should be paid if required to attend court, IRD and Labour Department...even police station, EPF, etc..if summoned, etc)

MORE:-   LEGAL AID FOR WORKERS provided by the Government?(Some Unionist and Union IR officers may object, since they now make money from workers including union members through 'fees' charged for advice and representations???)

MORE:- Maybe worker and trade union rights education must be included in the education sylabus in schools - for how will a worker know what rights he can demand when he enters into employment contracts with employers when they start working. This ignorance is most detrimental to future workers - noting that Employment Act 1955 provide minimal rights only for workers earning RM2,000 or less, and those involved in manual work - NOT all workers in Malaysia.

RULE OF LAW - demands also facilitating access to justice...and speedy justice...

Let courts decide on industrial relations cases
Star, 17/7/2018

THE Human Resources Ministry would like to respond to “Minister must continue with screening role” (The Star, July 11). 

The Industrial Relations Department views that the recommendation that the Human Resources minister release his discretionary powers to determine whether or not to refer a representation to the Industrial Court as an accurate proposition.

The power of the minister under subsection 20 (3) of the Industrial Relations Act 1967 (Act 177) derives from amendments made in 1975. This provision empowers the minister to refer or not to refer a representation to the Industrial Court if the representation is not successfully resolved through conciliation proceedings by the Industrial Relations director-general (DGIR).

The discretionary power of the minister under subsection 20 (3) of Act 177 has been questioned by stakeholders, especially workers’ unions on the grounds that it denied workers who have been dismissed by employers access to the Industrial Court to obtain justice.
The DGIR agrees with the recommendation of the minister on the following grounds:

> The issue of dismissal is closely related to the right to life as decided by the Federal Court in the case of R. Rama Chandran v Industrial Court & Anor [1997] 1 CLJ 147. 

In this case, the Federal Court had cited Tan Tek Seng v. Education Service Commission [1996] 2 AMR 1617 stating that: “life” in Article 5 (1) of the Constitution, as Sri Ram JCA has said in Tan Tek Seng v. Education Service Commission [1996] 2 AMR 1617, 1654, is wide enough to encompass the right to be engaged in lawful and gainful employment.

“In this regard, every citizen should be given the right to life where in the context of dismissal, access to justice in court.”

Therefore, it is more equitable if all representations that cannot be resolved through conciliation are referred directly to the Industrial Court for a decision.

> The proposal for direct reference of the unfair dismissal cases to the Industrial Court, will shorten the time taken for the resolution of a case. The process in which the minister exercises his quasi judicial power whether to refer or not to refer the matter to the Industrial Court will be eliminated. 

The elimination of this work process can certainly help expedite completing the case as a whole.

> The existing mechanism that provides discretionary powers to the minister can only be challenged 
via a writ of judicial review in the High Court where the cost to file the action is very high. This would certainly cause inconvenience to the parties, especially low income-earners.



Minister will no longer screen Industrial Court cases, says Kulasegaran

Human Resources Minister M. Kulasegaran speaks during a press conference at Wisma HRDF in Kuala Lumpur June 5, 2018. ― Picture by Firdaus Latif
Human Resources Minister M. Kulasegaran speaks during a press conference at Wisma HRDF in Kuala Lumpur June 5, 2018. ― Picture by Firdaus Latif
PUTRAJAYA, June 5 — The power of the minister in terms of reference and screening before a case is brought to the Industrial Court will be cancelled, to enable the settlement of the case between the employer and the employee to be accelerated.

Minister of Human Resources M. Kulasegaran said so far there were about 1,300 outstanding cases requiring referrals and ministerial decisions to be brought to the Industrial Court.

“What makes it complicated... for example, a worker is dismissed and he refers this to the Industrial Relations Department where the employer will be called for a settlement. If there is no settlement, the case will be referred to the minister and the minister will decide whether it is to be brought to the Industrial Court or not.

“I (the minister) become a filtering process. I do not think that’s necessary. If anyone wants to refer to the Industrial Court he must go straight (to court) not to refer to the minister,” he told Bernama in an exclusive interview here.

He said he would bring the proposal for the cancellation of the minister’s power to a Cabinet meeting in the near future before tabling it in parliament.

Meanwhile, Kulasegaran said he had instructed the ministry’s officers and staff to complete the 1,300 outstanding cases within 31 days from Thursday (31 May).

“I give 31 days to settle the cases which we have here (ministry). Go ahead if they need to work at night, on Saturday or Sunday. If necessary, I too will work overtime. The important thing is to complete the outstanding cases within 31 days,” he said.

He said most of the outstanding cases involved local workers forced to quit by their employers.

In the meantime, Kulasegaran, who has over 30 years’ experience as lawyer, said his ministry was looking for the best mechanism to reduce the cost of legal fees in the Industrial Court and the Labour Court.

“As a lawyer who handles many cases in the Labour Court and Industrial Court, I find that there are situations where the legal fees exceed the amounts claimed in court.

“For example, there is a Labour Court’s case claiming only RM2,000 but the legal fee is over RM2,000. So we will find a way how we can reduce the legal fees, “he said. — Bernama - Malay Mail, 5/6/2018

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