Monday, December 30, 2019

MTUC - Why Registrar of Societies(not Registrar of Trade Unions)? No protest from Trade Unions and workers? -SUSPENSION why?

Malaysian Trade Union Congress (MTUC) - Why is the Registrar of Societies(ROS) involved, when should it not be the Registrar of Trade Unions? Well, it is all because of the British colonial government - divide and weaken trade union policy done through a new law in the 1940s ...which after MERDEKA, the UMNO-MCA-MIC government (then the Barisan Nasional Government) chose to keep this bad law that effectively weakened workers, trade unions and the labour movement in Malaysia...And our former governments in fact by amendments in law, simply continued to weaken trade unions...and workers...

In Malaya, over 50% of workers were unionized, and they were active not just championing worker rights - but also fighting for human rights and also for our Independence ...

The British colonial government's interest then was to protect employers and their businesses - and many of this was owned and controlled by the British..{Interestingly, the laws in Britain or the UK was not similarly changed compared to what they did in Malaya...}


By law, they allowed ONLY one union per industry, sector, occupation and workplace ...Before this, there was no such restrictions and there were many Unions that had worker members from various different industries/sectors/occupations/workplaces ...they had also members from public sector and private sector. The law also did not allow for Federations of Trade Unions coming from different sectors/industries...etc so, even a Federation of Trade Unions like our Malaysian Trade Union Congress(MTUC) could not be registered under the Trade Union law ...because it violated the Trade Union law that did not allow trade unions of different sectors/industry/occupation/workplaces and the private sector/public sector to even come together to form a Federation of Trade Unions... hence MTUC had to be registered as a 'society' - Will Pakatan Harapan now remove all these bad laws left behind by the British(then the BN) that keeps workers and the trade unions weak...

Read earlier post:-

The state of the labour movement in Malaysia (Part 1)

The origins of the labour movement in M’sia (Part 2 of a series)

How the British suppressed the Malayan labour movement (Part 3)

The last breath of the labour movement?(Part 4)

Ever since MERDEKA, the UMNO-led coalition government further eroded away worker rights 

Read earlier post:- 

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

A few recent actions of the BN government that further weakened worker and trade union rights...include 

- Allowing employers to delay payment of overtime, work on rest days/public holidays by a month...For lower income workers, there is a serious impact on the economy...One month delay for monthly waged workers with no interest...which would have been gained by the workers if they put in banks for a month...

- Introducing the 'Contractor For Labour' system ...allowing employers to avoid Employer-Employee relationship, and hence employer obligations can be extinguished for many of their workforce by simply not employing but just enter a contract for labour supply with these 'contractor for labour'. It allowed for discrimination of workers - employees would generally enjoy better wages and rights compared to the 'non-employees' supplied by these contractor for labour who do exactly the same work...or even more? Of course that system automatically weakens the bargaining power of employees and their union - as employer depends less and less on employees ...when they can get labour through 'non-employees' supplied by third party contractors. 

Nampaknya kerajaan PH tidak prihatin terhadap pekerja sama saperti UMNO-BN? Majikan tempat kerja harus satu-satu majikan semua pekerja yang kerja di tempat kerja?


- FAILURE to stop the trend of short-term employment contracts - usually not more than 1 year. The government could have made use that all workers are employed as REGULAR employees but the then BN government did not.. Increasing RETIREMENT AGE - this certainly will not benefit 'short-term contract' employees...who also are deprived of the RIGHT to wage and rights increment with tenure...they also are deprived of TERMINATION and/or LAY-OFF Benefits as only workers who have worked for more than 12 months get this..

- Then there was the BIGGEST Union Busting Actions and 'violation' of worker rights..
- When an owner of a company, forms another company and then transfers assets/business to a new company - shuts down 1st company terminate all workers, and re-hires NEW workers, it is UNJUST ...and normally workers having claims against 1st company will be able to claim against that NEW company - but the BN government passed a LAW which said new company not liable for debts and/or obligations of 1st company even to workers...This happened with Malaysian Airlines. That action will result in the death of all in-house trade unions in the 1st company - the only trade union that survived was the National Trade Union representing Flight Attendants - Pakatan Harapan new government should have at least amended that law and allow workers to be the exception...i.e. their claims will still be covered by the NEW Company and/or the OWNER...There are still workers and trade unions, expending monies and time, fighting their cases including claims for wrongful dismissal..
- When 1st company no more - in-house trade unions have to again organize and form trade unions in the new company - Is there any NEW in-house Trade Union in Malaysian Airlines? If no, why? 

MALAYSIAN TRADE UNION CONGRESS(MTUC) does not even have as members ALL the registered Trade Unions in Malaysia - it only has about less than 30%...or is it about 220 Trade Unions?

Did the Trade Unions and/or workers in Malaysia chose MTUC as their representative to deal with the government or be in the ILO(International Labour Organisation) - NO THEY DID NOT - MTUC is workers' representative simply because the government chose them - they are a POLITICAL APPOINTEE...that's all...maybe we need a democratically elected worker representative in Malaysia.

A 'political appointee' of the government also makes MTUC or any other workers' representative very weak... 

Remember in 1990, when after the MTUC backed several candidates for the General Elections, the government reacted by removing MTUC as the workers' representative - this can be done with a 'political appointee' NEVER a democratically elected representative. MTUC also lost its position/s on the EPF and SOCSO Boards, ...I believe. Being a 'political appointee' has kept MTUC very WEAK...and maybe even its member unions weak...

In July 1990, the Mahathir-led government approved the formation of the Malaysian Labour Organisation (MLO) to weaken MTUC after MTUC took a controversial move by fielding its own candidates in the 1990 general election. - Malaysiakini,

How many Trade Unions have spoken out and protested the 'suspension' of MTUC? Too scared...or really 'very weak' trade unions....Why? A mystery indeed...

MTUC seems to be concerned more about the Industrial Court cases BUT the most important avenue for justice for workers is the Labour Office(HR Office) and the Labour Courts - where most workers will have to go to claim their worker rights - from unpaid wages, unpaid OT, unpaid medical leave, failure to pay termination/lay-off benefits, failure to award payments as per employment contracts and even Collective Bargaining agreements..

On the other hand, as far as workers are concerned - they only deal with cases where workers are claiming wrongful dismissal and REINSTATEMENT - if not claiming for reinstatement, then the proper venue is the Labour Department and Labour Courts. Major problem today is that many Trade Unionist(or Trade Union Representatives) are charging worker victims FEEs - where is the solidarity amongst workers - for Unions and/or representatives should be acting for(or representing) dismissed workers for FREE - maybe unions should also help financially these dismissed workers...not 'squeezing' money from victimized workers...Some trade union reps are charging workers(who lost their jobs claiming reinstatement) fees ranging from RM5,000 - RM10,000 - This is atrocious...

MTUC President was reported saying...'The continuous suspension of Malaysian Trades Union Congress (MTUC) by the Registrar of Society (ROS) will further impact the workers who were awarded more than RM1 million in total compensations by the Industrial Court. ..MTUC president Abdul Halim Mansor (above) said in cases, where the workers represented by their trade unions won their suits against their employers in court, the compensation awarded would first be channelled to the bank account of MTUC and then disbursed to the workers.' - ODD, because as a lawyer, such monies would normally directly flow to the clients - the workers concerned - not to the lawyer's account or the MTUC account - 

Maybe, Abdul Halim Mansor, the MTUC President, ought explain - including whether MTUC and/or the Trade Union reps from MTUC are charging these workers monies ...or the nature of the agreement - does MTUC or its representatives take a percentage of the monies due to workers. Lawyers canm charge worker client fees...but sure a Trade Union and/or Trade Union representative should not be charging any fees..

MTUC or any such Federation of Trade Unions should come under the Registrar of Trade Unions - and, not the Registrar of Societies.

Registrar of Societies and/or Registrar of Trade Unions powers should be restricted to registration --- They should not be suspending any Trade Unions - that power should be with the Court ...and only a member/s should have the right to apply to court for any remedy - including temporary suspension or even de-registration...NOT the government...not the Registrars...

We still do not know exactly what resulted in the suspension of MTUC - Did any member complain? What exactly was the nature of the complaint? As mentioned before, the power of suspending any society or trade union should be vested in the Courts ONLY...

The Registrar of Societies 'suspended' MTUC - but where is the notice of suspension and the grounds - has the Registrar even informed the 200 plus member unions and its hundred thousands of members...It must be made public at the very least on the website of the ROS and Ministry of Human Resources...One wonders whether this is a REACTION by this PH Government for the public objections to the recent Industrial Court Act amendment? Is the HR Minister 'punishing' MTUC for its open objections? But the Registrar of Societies is NOT under the HR Minister ...

The SILENCE of the member Trade Unions and workers is most disturbing...Do they even bother if MTUC is suspended or de-registered? Where is the protest...where is the outcry? 

MTUC suspended, fate in RoS’ hands

Sheridan Mahavera
President Abdul Halim Mansor says the MTUC leadership has given a thorough explanation to RoS on the issues that led to its suspension. – The Malaysian Insight pic by Kamal Ariffin, December 26, 2019.
THE Malaysian Trades Union Congress (MTUC) has been barred from holding meetings, including one on its triennial elections.

This is due to a suspension order by the Registrar of Societies, following a complaint that the influential private workers’ group, which represents 220 unions, did not conduct its bimonthly general council meetings on time.

MTUC president Abdul Halim Mansor said the congress is unable to hold its much-awaited general council meeting on Sunday to discuss its next elections.

He said the suspension is to allow for a RoS probe into the group, which will take one to two weeks.

The investigation will determine whether MTUC had breached its own rules, which would warrant its deregistration, he told a press conference in Subang Jaya today.

“We have appealed to RoS for us to not get deregistered because MTUC is an important institution. 

We sit in all meetings with the government on labour issues, we represent Malaysia in the International Labour Organisation, and we represent workers at the industrial court.

“The RoS director knows this, and will take this into account in their investigation.

“We have asked RoS to expedite their investigation as we want to hold the general council meeting as soon as possible, so that we can plan for the triennial delegates’ council meeting (where the elections will be held).”

If MTUC’s suspension is lifted next month, the earliest it can hold the polls is in March or April, as a notice must be issued 12 weeks ahead.

Halim said the congress’ leadership has given a thorough explanation to RoS on the issues that led to the suspension, with the main one being the claim about general council meetings not being held regularly every two months as stipulated in the MTUC constitution.

The general council is the group’s top decision-making body, and includes representatives from each of the 220 unions.

Halim said 10 general council meetings were held between the beginning of 2017, when the new MTUC leadership took office, and December last year.

In 2018, the congress was taken to court because of a decision made in a general council meeting regarding the membership of certain unions.

“Due to the series of court cases, MTUC was prevented by the court from holding further general council meetings until the cases were settled,” said Halim.

After a written judgment was issued on November 29, he said, the MTUC leadership met and set December 29 for the next general council meeting.

“But because a complaint had already been filed with RoS, and it had ordered MTUC to suspend all meetings, we cannot hold the general council meeting on Sunday.” – December 26, 2019. Malaysian Insight


With suspension, MTUC cannot disburse RM1m compensation to workers

Kow Gah Chie
The continuous suspension of Malaysian Trades Union Congress (MTUC) by the Registrar of Society (ROS) will further impact the workers who were awarded more than RM1 million in total compensations by the Industrial Court. 

MTUC president Abdul Halim Mansor (above) said in cases, where the workers represented by their trade unions won their suits against their employers in court, the compensation awarded would first be channelled to the bank account of MTUC and then disbursed to the workers.

However, Abdul Halim told a press conference yesterday, more than RM1 million in compensation payments was stuck in MTUC and could not be issued to the workers as its financial secretary stepped down and has been missing in action since Nov 9.

He said the MTUC's constitution does not authorise the second person to sign the checque on behalf of the financial secretary.
The matter is worsening after MTUC, a coalition of trade unions which represents half a million workers in the country, was temporary suspended on Dec 18 and barred from holding any meeting.

Abdul Halim said MTUC cannot hold a general council meeting, which was originally slated to be held this Sunday (Dec 29) to pick a date for its triennial general assembly and choose a new financial secretary.
Yesterday, Abdul Halim and MTUC secretary-general J Solomon (above) met Selangor ROS director Nurul Azhar Husin for one hour to explain why the union should not be deregistered. 

Abdul Halim said he touched on the workers' plight in their appeal to the ROS and urged ROS to expedite its investigation against the union over mismanagement complaints.

"We appealed to ROS to allow us to conduct a general council meeting so we can (immediately) choose a financial secretary or a temporary financial secretary.

"I would say the (amount of compensation stuck in MTUC) is more than RM1 million because we still receive the money until today," he said.

While it was pointed out that the compensation amount in certain cases could climb up to RM100,000, Abdul Halim said he was more worried about the workers who waited for smaller compensation sums.

Workers told: 'Your money is safe.'

"What worries us is those with small compensations, because they really need the money," he said.

He told these workers: "Your money is still safe in MTUC, I urge (you all) to give us more time."

Abdul Halim said the ROS pledged to complete its probe and make known its findings by early January.

He also pointed out even if MTUC is allowed to conduct a meeting, it would still need a 12-week notice to call for a meeting.

He also said that ROS advised MTUC to amend its constitution to authorise another person to act on behalf of the financial secretary.

In a statement recently, the ROS said it received a complaint on July 2 about mismanagement in MTUC and opened an investigation the following month.

It said that on Dec 18, it issued a notice giving the MTUC 30 days to explain why it should not be deregistered.

ROS later confirmed that it had suspended MTUC to ensure that no other rules were broken by MTUC pending an explanation.

Last week, Sarawak MTUC secretary Andrew Lo made a serious claim that the MTUC had not convened a full general council meeting ever since the elections of the current top officials in 2016.

Another union source also told Malaysiakini that the MTUC leadership had, in fact, received a show-cause letter from the ROS about two months ago for its failure to conduct meetings as prescribed. - Malaysiakini, 27/12/2019

Saturday, December 21, 2019

Court rules cops caused death of Syed Mohd Azlan, awards dad RM383,300? Have the police who killed or tampered with evidence been charged yet?

Well, another court decision awarding compensation to family of another man who died in police custody. Syed Mohd Azlan Syed Mohamed Nur, who was arrested by police on 3/11/2014 and died in police custody.

The Enforcement Agency Integrity Commission (EAIC), on 30/10/2015, after an inquiry concluded the death was caused by the police. The recommended that the said offiocer/s be charged for murder, amongst others. Has anyone been charged yet?

6. Terdapat perlakuan serangan bersifat jenayah yang melibatkan unsur niat bersama atau pensubahatan (abetment) oleh anggota PDRM yang terdiri daripada anggota pasukan tangkapan bagi melakukan kekerasan fizikal secara sengaja ke atas si matiyang telah mengakibatkan kecederaan dan kematian ke atas si mati, dan perlakuan ini adalah merupakan jeniskesalahan bersifat jenayah di bawah undang-undang, khususnya kesalahan di bawah seksyen 302 dan seksyen 325 Kanun Keseksaan dibaca bersama seksyen 34 Kanun Keseksaan atau secara alternatif seksyen 107 Kanun yang sama; 

EAIC also said there was police that tampered with the evidence  - surely the police officers who did ought to have charged for this, even if they were not involved in the killing or murder, and they still can...

3. Terdapat perlakuan gangguan bahan bukti yang material oleh anggota PDRMiaitu, 

(i) membersihkan tempat kejadian sebelum dilawati dan diperiksa oleh pegawai perubatan,

(ii) melupuskan tikar getah dan karpet yang dipercayai mempunyai kesan darah si mati di tempat kejadian tangkapan, dan 

(iii) perlakuanmenyembunyikan/menghilangkan saksi mata (eye witness) yang melihat kejadian tangkapan si mati

See related post:-

Police officers that tortured and killed detainee - what will the AG and the Malaysian government do?

Cepat tindakan kes bunuh lelaki korea, kenapa lambat tuduh polis/pembunuh Syed Mohd Azlan?

Police officers that killed Syed Mohd Azlan, and tried to hide a crime? What happened?

Resolusi Peguam 'Dakwa Polis melakukan jenayah', dan singkirkan 'polis kotor' - kes Syed Mohd Azlan?

Syed Mohd Azlan - Polis 'pembunuh',yang 'cover up' kesalahan - kenapa belum didakwa di Mahkamah?

Crime has no limitation - so all these police officers for killing, and/or for 'tampering' with evidence to 'hide'/'protect' their fellow police officers ought to have been charged - Internal Disciplinary actions is certainly not appropriate or just. 

Must all victims of death in custody and torture by police only be compensated or receive justice IF the family or victim sues the police?


Family of man who died in Johor police lock-up wins close to RM500,000 in compensation

Lawyer for the plaintiffs, M. Visvanathan and Syed Mohd Azlan Syed Mohamed Nur‘s family at the Johor Baru High Court December 19, 2019. — Picture by Ben Tan
Lawyer for the plaintiffs, M. Visvanathan and Syed Mohd Azlan Syed Mohamed Nur‘s family at the Johor Baru High Court December 19, 2019. — Picture by Ben Tan
JOHOR BARU, Dec 19 — The High Court today awarded the family of Syed Mohd Azlan Syed Mohamed Nur who died in police custody with 61 wounds on his body five years ago RM448,000 in compensation and damages.

The family had initiated civil proceedings in 2015 against three policemen and 11 others, including the inspector-general of police and the government.

The money covered their court costs, dependency claims, malfeasance in public office, exemplary, bereavement, funeral and special damages.

Syed Mohd Azlan, a 25-year-old welder, was arrested in the early hours of November 3, 2014 on suspicion of rioting and possession of a weapon two weeks earlier.

He was taken to the police station lock-up in Sungai Rengit, Johor and found unconscious five hours later during a transfer to the Kota Tinggi district police headquarters. He was sent to the Bandar Penawar health clinic where he was pronounced dead.

In 2018, the Enforcement Agency Integrity Commission (EAIC) said police personnel had beaten Syed Mohd Azlan while in custody, adding that it found 61 wounds on his body that were consistent with defensive injuries.

The EAIC, in its statement, reiterated its findings showed there was foul play in Syed Azlan’s death.
Three policemen — Weddrin Mojingkin, Joshua Perait and Muhammad Bunyamin — were charged under Section 304(b) of the Penal Code with culpable homicide not amounting to murder, which is punishable with jail up to 30 years and a fine.

However, they were found not guilty at the Sessions Court. The High Court this year upheld their acquittal.

Despite their release from the criminal proceeding, High Court Judge Datuk See Mee Chun ruled in favour of Syed Mohd Azlan’s family today.

In her ruling, the judge said the police are duty-bound to uphold the law and keep the nation’s peace and security.

“All action towards that must be in accordance with the Federal Constitution and law,” she said.

See quoted from a 2008 case involving custodial assault and police brutality against a man who was suspected to be involved in a crime.

She said that an award of damages must reflect the sense if public outrage, emphasise the importance of the constitutional right and the gravity of the breach and deter future breaches.

Syed Mohd Azlan’s family was represented by lawyer M. Visvanathan, while senior federal counsel Jailani Abdul Rahman acted for the government.

Visvanathan later told reporters that the court decision sent a strong message that injustice will not be tolerated.

“A full stop must be made,” he said.

Syed Mohamad Shariff Syed Mohamed Nur, brother to the deceased, expressed his gratitude to the court and hoped the authorities would learn the proper treatment to accord detainees.

The late Syed Mohd Azlan’s family present in court today were his father Syed Mohamed Nur Ali, 72; mother Sharifah Khalilah Syed Sulaiman, 61; and younger brother Syed Mohamad Affendi, 38. - Malay Mail, 19/12/2019

Court rules cops caused death of ex-welder, awards dad RM383,300

Lawyer M Visvanathan with Syed Mohd Azlan Syed Mohamed Nur’s father, Syed Mohamed Nur Ali (2nd from left), and other family members.
PETALING JAYA: The father of a former welder was awarded RM383,300 in damages today after the High Court in Johor Bahru found that his death was caused by police negligence when in their custody five years ago.

Judge See Mee Chun found the police liable for causing injuries to Syed Mohd Azlan Syed Mohamed Nur that ultimately led to his death.

See also said Syed Mohd Azlan must have been in severe pain before he succumbed to his injuries.

“The damages awarded must send a strong message to the police force that they must act in accordance with the Federal Constitution and the relevant laws,” she said.
The judge said the court had to come down hard on the enforcement agency as the life of a person had been unlawfully taken away.

See awarded RM150,000 for the tort of misfeasance in public office, RM150,000 in exemplary damages, and RM20,800 for bereavement, funeral and miscellaneous expenses.

Syed Mohd Azlan’s father, Syed Mohamed Nur Ali, was also awarded RM62,500 in dependency claims and another RM60,000 in costs.

The Enforcement Agency Integrity Commission (EAIC), in its investigation, found that Syed Mohd Azlan, 25, was “murdered” by police personnel who beat him up in the police station lock-up in Sungai Rengit, Johor, on Nov 3, 2014.

Syed Mohd Azlan suffered 61 injuries to his face, body and legs, some of which were consistent with “defensive wounds while protecting himself from physical attack by police personnel”, the EAIC found.

The EAIC also found evidence that police personnel had cleaned the scene of the beatings before medical officers arrived to check on Syed Mohd Azlan.
The police also disposed of the rubber mat and carpet believed to have been stained with Syed Mohd Azlan’s blood.
The EAIC also said the police “hid away eye-witnesses” from the scene, and that criminal charges should be filed against them for violating provisions in the Criminal Procedure Code.

Following the findings, lawyer M Visvanathan, who appeared for Syed Mohamed Nur, said the negligence suit was filed in 2017 against 16 policemen and the government.

Syed Mohd Azlan was arrested by a team of police officers on Nov 3, 2014 at 3.30am as part of an investigation into alleged possession of weapons or missiles in a riot, based on a police report made against him.

EDICT, an NGO fighting against deaths and abuse in custody, said the damages awarded would be a great relief to Syed Mohd Azlan’s family but could not compensate for his “dreadful death”.

In a statement, it said the case showed the extent to which abuse of police power and concealment and condonation of abuse was entrenched in the police force.

“It is shocking that to date, the police have announced no disciplinary action against any of the numerous policemen involved,” it said.

It added that today’s decision was a report card on the police, the Attorney-General’s Chambers, the Police Force Commission and the government. - FMT, 19/12/2019

Monday, December 16, 2019

Malaysian Bar, help SOSMA detainees apply for BAIL now - ABOLISH SOSMA fast? Moratorium now...

Malaysian Bar should now make sure that all those languishing in detention without Bail until their trial is over knows that they can  now apply for Bail following this High Court detention. Legal Aid lawyers should step forward and apply for Bail for all their clients....

SOSMA should have long been repealed, immediately after the new Pakatan Harapan government came into power in May 2018 - their delay in repealing this draconian legislation means so many? Thousands? Hundreds...Well, will this OPEN PH government reveal how many are languishing in detention - innocent until proven guilty....while they await for trial charged under any one of the hundred over offences in the Penal Code and other laws that draconian SOSMA chose to list as 'security offences'...

Remember the Malaysian lawyers resolved to boycott all trials that used ESCAR(
Essential (Special Cases) Regulations 1975) - a similar law like the draconian SOSMA...

Tell us now - how many people were arrested and detained using SOSMA, who were never even charged in court? Were they compensated - we need a law that provides for compensation for loss of liberty...loss of income...etc for all these INNOCENT persons wrongfully deprived of their liberty?

Tell us now, how many persons charged and tried by SOSMA identified 'security offences' and found NOT GUILTY - Should they not be compensated too?

Remember, when a person is detained, it also affects his income, his business - as such his family/dependents well-being? Should not those who are not charged, and/or those charged but found NOT GUILTY be compensated for their detention and losses?

This applies not just for SOSMA cases but for all criminal cases - for the police can always INVESTIGATE without requiring people to spend time in lock-up and/or detention - look at the Najib case?


Press Release
Giant Leap for Rights of Accused Persons and in the Quest for Legal and Institutional Reforms

The Malaysian Bar is heartened to note that the Attorney General has, in his capacity as Public Prosecutor, decided against pursuing an appeal of the case concerning the availability of bail for unbailable offences.1

The constitutionality of section 13 of the Security Offences (Special Measures) Act 2012 (“SOSMA”) which absolutely excludes bail for the various security offences contained in the Penal Code, had been challenged in the wake of the arrest and detention of 12 individuals with alleged links to the Liberation Tigers of Tamil Eelam (“LTTE”).

As reported several weeks ago, the High Court in that case had decided that the provision was unconstitutional as it violated the “the basic structure of the Constitution” — a doctrine that propagates the separation of powers and the vesting of judicial power in the Courts, as well as the fundamental liberties entrenched in the Federal Constitution.

The consequence of this decision by the Attorney General is manifold.  Firstly, accused persons who have been arrested and detained under SOSMA may now apply for bail and have such an application ventilated and decided in a court of law.  The decision of whether or not bail should be granted will ultimately rest on the sitting Judge to decide, based on the evidence before him/her.  Secondly, an accused person will have the right to be heard, even before he/she is formally charged with an offence, and/or pending appeal.  This form of check and balance between the might of the Executive and rights of the accused is absolutely necessary in our criminal justice system which presumes that an accused is innocent until proven guilty.

Pending the repeal and/or amendments of these laws, the Malaysian Bar looks forward to such reformist efforts by the Government to remedy the stripping of the doctrines, duties and rights contained in the Federal Constitution.

The Malaysian Bar therefore, views this decision by the Attorney General as a giant leap for the rights of accused persons and in our quest for legal and institutional reforms.

The Malaysian Bar nevertheless persists in its call for the urgent repeal of SOSMA.

Abdul Fareed Abdul Gafoor
Malaysian Bar
16 December 2019

1Bail under SOSMA”, Media Release, Attorney General’s Chambers, 13 December 2019.

To improve 'bargaining power' of Unions, abolish Contractor For Labour, Short Term Employment, Change Laws...?

Bargaining power of Malaysian Trade Unions - does it even exist under the current Iaws?

Besides the law, 2 factors that weaken Trade Unions in Malaysia are:-

1 - The 'Contractor For Labour' system 

- this allows Employers to reduce the number of employees at the workplace > They can now use workers, not their own employees by simply entering into an agreement with one or many Contractors for Labour to supply them with workers to work at their workplace - these are NOT employees of the principal/owner or operator of the workplace. In Malaysia, the law does not place any limit on the number of such non-employees working in the workplace which means that an EMPLOYER (the owner/operator/principal of the workplace) can simply also have 90-100%. of such non-employees at the workplace.

- Workers united are strong and they can fight for better rights, and against other injustice - that is the basis  of Trade Unions. 

-Trade Unions are usually the coming together of employees....If all workers are employees, then the strength or 'bargaining power' of the trade union is high  - but as the number of workers who are non-employees(i.e. those supplied by Contractor of Labour) increases, the Union power or 'bargaining power' reduces....

- What is the power of workers united or trade unions? It is essentially the power to disrupt the employers business or profit making - something that is achieved through, amongst others, industrial actions like 'work to rule'(which would mean refusal to take on extra work or work overtime, etc) and the strongest of this is to go on STRIKE(which means workers stop working completely leading to a temporary shut down of the employer's business and profit-making). Only effective if all workers act together.. -  industrial action or  strike is ineffective if  the employer can continue business and profit-making as usual. [Employers in the past will try other workers to work during strikes known as 'blacklegs' - which unions and striking workers will block...]. With the contractor for labour systems in place - even if ALL its employees go on STRIKE the employer would still be able to continue operations and profit- making at the same rate or at a lower(or tolerable pace/rate) which significantly reduces or Terminates totally the 'bargaining power' of Unions and Employees.  

- MTUC, trade unions and even the political parties(then in Opposition, some now in government) protested the introduction/legitimization of the 'Contractor For Labour' system - the mystery now under PH is why MTUC and Unions are not calling for the abolition of the 'Contractor For Labour' system - to ensure that all workers at a workplace are EMPLOYEES - who all can act together against Employer for better rights. Workers supplied by 'contractor for labour' are not employees of the principal/owner/operator of the workplaces and hence no right to demand anything from the Employer at workplace...they are simply 'employees' of the Contractor for Labour who obviously have no power to improve working conditions or worker rights at the workplace.

- Abolition of the Contractor For Labour system must be the priority of MTUC, Unions and workers - if they want to maintain their bargaining powers.

2 - Regular Employment strengthens Trade Unions and Employee capacity to struggle.

Why will an employee who is only guaranteed employment for several months be interested in struggling to improve working conditions and worker rights at their workplace? Short-term contract employees also benefits employers not Unions or their fellow employees at a workplace. They also lose rights - for they will not get the right to wage and rights increments as is also provided for in the Employment Act - the longer you are employed the more annual leave, sick leave you get. They also lose right to TERMINATION Benefits(only available if you are employed for more than 12 months according to EA). Short-term contract employees do not have their contracts extended generally even if the employer needs workers to still do the work - employers simply hire NEW workers. Malaysia can insist by law that all employees are REGULAR employees - or even significantly limit the use of of short term contract employees to say 5% and for specific work not part of of the core work of the employer. BN was not bothered about Malaysian workers - is Pakatan Harapan bothered.

- REGULAR employment does not prejudice employers as they can always RETRENCH if there is no more need for so many workers or for certain categories of employees. Hence, the only reason for 'short-term contract employees' is to weaken workers and deny them certain rights which a regular employee is entitled to > more importantly maybe to weaken Unions and discourage employees from fighting against workplace injustices and better worker rights. Most short-term employees do not cause 'trouble' hoping that their contract be extended or they become regular employees. There is no financial or economic security for short-term contract employees - Is that what PH wants?


The other major problem is the LAW itself - it prevents Trade Unions from using its 'power'...its 'bargaining power'... If there is a struggle for better rights ...before the UNION can use its 'bargaining power' or 'employee solidarity power' - the matter is pushed to the Courts - and courts do not consider the numbers of employees a Union represents or the 'bargaining power' - decisions are made usually based on legal precedents and legal arguments ...thus making the advancement of NEW RIGHTS almost impossible. The system really helps EMPLOYERS and businesses...

What is sad is that many Malaysian Trade Unions do not even use their 'POWER'...the power of employees in solidarity. They do not use the threat of industrial action...or even STRIKE..When was the last time any Malaysian Trade Union had a strike ...? 

The last major strike in Malaysia occurred in 1962. 9,000 railway workers went on strike to demand conversion of daily wages be changed to monthly salaries. The strike lasted 22 days and all government workers were converted to monthly wages. The railway belonged to and was operated by the government at the time, but has since been corporatised. 
In 1978 -79, the Airlines Employees Union (a national union representing employees of all airlines) whilst negotiating a new collective bargaining agreement with Malaysian Airlines(their employer) implemented a work to rule(i.e. no doing overtime) industrial action. Over 200 employees were suspended, 11 were dismissed. The AEU was deregistered in April 1979, and 23 of its leaders were arrested under the Internal Security Act(ISA) in 1978-79 following an industrial action of Malaysian Airlines Employees. In 1980, the laws were amended reducing the capacity and capability to fight for better rights - and 'bargaining power' was significantly reduced.
Strikes are still legal - although it has become more difficult for now a vote amongst members of the unions are required before a strike is possible. Of late, during the airlines union threatened a strike but did not proceed further ...Strikes have occurred but not initiated by Trade Unions but migrant workers in several factories. 

HARTAL - a general strike - Interestingly the fisherman in Penang did have a 'hartal' recently whereby about 4,000 fishermen did not go out to work. Unfortunately, there was little media highlighting. 

In a one-day hartal (general strike), about 4,000 fishermen had hung up their nets earlier to protest against the Penang South Reclamation (PSR) project, which calls for the reclamation of more than 1,800ha in an area deemed one of the richest fishery grounds in the northern part of the peninsula.

The fisherman came in fishing boats at the North Beach ghauts, and in cars from as far as Seberang Perai, and chanted anti-reclamation slogans for close to three hours.

Penang Fishermen’s Association chief Nazri Ahmad said about 4,000 fishermen had wanted to attend the protest but police only allowed 1,000 as part of the peaceful assembly permit.- FMT, 4/11/2019

MTUC AND MALAYSIAN TRADE UNIONS  - they represent hundreds of thousands of unionized workers ...and have a duty to speak for millions of workers...but to date, they have not shown their power - They could have organized PEACEFUL ASSEMBLIES, which is easier now and showed the government that they speak for millions of workers > BUT why did they not call for any such protest or mass display of power...'bargaining power'...MTUC has not provided leadership? Or is it that MTUC realises that even though they may have many members on paper - they simply do not have actual worker support - they are not capable of organising the millions (or even tens of thousands) of workers to come out to support their specific demands for better RIGHTS of workers?

NOW, MTUC is protesting the amendments to the Industrial Relations Act - amendments which many human rights groups including worker rights groups are saying are BETTER that what is at the moment.

What exactly is MTUC protesting? It seems that their protest is basically their allegations that the BILL was not tabled at the NLAC for approval of the MTUC(representing workers) and the MEF(representing Employers) before being tabled in Parliament. BUT, what is the NLAC - and who are the representatives of workers and employers BUT political appointees of the government. MTUC(who members are about 30% of all registered trade unions that really equates to about 7% of the total workforce) was not even democratically elected by all registered Trade Unions, let alone the millions of workers in Malaysia. Neither was MEF chosen by all employers in Malaysia to represent employers?

When pushed, as to what specific amendment that MTUC is objecting to...MTUC seems to say that they object to 2 provisions..

1- The extension of the right of employees to be represented by OTHERS - other than trade union representatives. The amendment still does not allow workers to be represented by LAWYERS, even Legal Aid lawyers willing to provide service for free. [Is this objection to protect the interest of 'trade union representatives", more so when there are allegations that some of these are not providing the service to represent workers for FREE - but are rather charging workers fees?]

2 - The 2nd objection is the allowing of more than ONE Trade union to represent workers in a workplace/industry/sector/occupation - The amendment also allows for the broadening of the scope of workers they represent. A positive move really, because it finally REMOVES the legal restrictions imposed by the British colonial powers to weaken Trade Unions and the workers movement in the mid-1940s. 

The current law allows for 1 Trade Union per industry/sector/occupation - and 60 years after Independence, they have failed to increase their membership and workplaces fact there has been an increased of in-house trade unions. If that 1 trade union is LAZY or is not committed to organizing to get more membership, this will the detriment of workers. More unions will allow for CHOICE to workers, and hopefully will encourage competition amongst unions to work harder to get more workers unionized. Imagine if we only had one Political Party and no choices of political parties - with more Trade Unions, there may be an increase in unionized workers - and if these trade unions can organize a wider range of workers not limited to just one sector/industry and/or occupation - we will see stronger trade unions. Same argument applies to workplace trade unions. 

Now, some trade unions even the MTUC are not interested in increasing membership - maybe to ensure the same 'team' to maintain power and leadership. MTUC has repeatedly rejected the membership application of NUFAM - the National Union representing Flight Attendants in Malaysia?

So, is the objection by MTUC really about the reduction of 'bargaining power' or 'weakening of trade unions' OR is it simply to preserve the control of the power and leadership of the current team of leaders. Where are the YOUNG Trade Union Leaders - for many of our National, State and Federation of Trade Unions are OLD people, who have been union leaders for ages...Maybe, like the PM, there must be a law that restricts union leadership to 2 terms.

Recently, MTUC leaders met with the Senate to convince Senate to oppose the Industrial Relations Act amending Bill - but then some other Unions, including state MTUC are unhappy with the alleged actions of the President and few leaders..MTUC issued a media statement of their meet with the Senate ..but unfortunately, we cannot even see this statement on MTUC's own website...

...the UNI Malaysia Labour Centre, which represents 104 unions, and the Labour Reform Coalition comprising 54 unions support the amendments and are critical of the current MTUC leadership. There are also allegations that the MTUC has not fully convened a full General Council Meeting since the elections of officials in 2016.

MTUC’s Sarawak chapter had previously accused Halim and Solomon of imposing their views on members and demanding a consensus before amendments to labour laws are enacted. Sarawak MTUC secretary Andrew Lo said Halim and Solomon, who disagreed with the IRA amendments, should lobby the government for improvements instead of totally rejecting them.
Getting the Malaysian government to amend labour laws in favour of workers and trade unions has been so difficult ...consultations...and consultations....but then no action. Finally, the Minister has moved and tabled a Bill to amend the Industrial Relations Act - well, many are good and some are questionable or could be improved...MTUC should be focusing on the 'bad' amendments not the entire Bill...  

The last few amendments have been anti-worker - the legalization of the 'contractor for labour' system - they also amended the law about preference of debt, which really should be for workers - but BN included the 'contractor for labour'(a company) when it should have just included the workers working under contractors and 'contractor for labour' working for the company that is being wound-up or closed...? Then, there was the amendment to DELAY payment of overtime, work on rest day by one month - when justly it should be paid at the end of the month that overtime, work on rest day was done...

Discrimination based on gender still happens in private sector - no amendment yet to ensure no discrimination based on gender...

Then, we had the special MAS Act, that freed the new company formed by the same owners of the old MAS from being liable for the outstanding financial obligations owed by the previous MAS to its employees... This Act should be amended making the new MAS liable for all still owing to old MAS employees...Many wrongful dismissal cases still pending against the old MAS - if they win, and the court awards reimbursement in lieu of reinstatement - WHO will pay? MTUC should call for an amendment of that Act that ensures new MAS will be liable to pay these workers debts owed by to them by old MAS...


MTUC meets senators in last-ditch effort to stop labour reforms bill

MTUC leaders at the meeting with senators yesterday to lobby for support in stopping the Labour Laws Reform Bill.
KUALA LUMPUR: Top leaders of the Malaysian Trades Union Congress (MTUC) yesterday met members of the National Senate Council in a last-ditch bid to stop the Labour Laws Reform (LLR) Bill.

MTUC’s delegation was led by its president Abdul Halim Mansor and secretary-general J Solomon, among others.

Senate council president Khairuddin Samad said it had noted that certain provisions of the bill were detrimental to workers.

“We listened to Halim and Solomon who briefed us on how the bill was passed without the final proposal and consultation with the main stakeholders, MTUC and Malaysian Employers Federation (MEF),” he said.
He said a main problem is that the National Labour Advisory Council, which MTUC is a part of, was not shown the final draft of the bill before it was tabled by Human Resources Minister M Kula Segaran.

“Based on the chronology of events shown to us, it was clear that the draft was shown to MTUC only after it was sent to the AG’s Chambers,” Khairuddin said.

Khairuddin also said he would urge senators to raise MTUC’s objections when the bill is tabled in the Dewan Negara next week.

But he said MTUC would find it hard to achieve its aim as Dewan Negara is now controlled by Pakatan Harapan (PH) senators.

“So I wish to urge the PH senators to consider the valid arguments of MTUC and vote according to their conscience and for the well-being of Malaysia,” he added.

“They are not asking for the bill to be withdrawn but for the good laws to be kept and the bad ones removed.”
MTUC said the bill would weaken unionism in the country and make workers poorer.
It said by not consulting MTUC and MEF, the government had violated the International Labour Organisation Convention 144 ratified by Malaysia.

“We urge the senators to consider the livelihoods of the 15 million workers, their families and the nation’s interest instead of supporting the minister’s wrongful action in proposing bad laws,” said MTUC’s Halim.- FMT, 10/12/2019

Labour law reform group hits out at ‘authoritarian’ MTUC leaders

Labour Law Reform Coalition co-chairman N Gopal Kishnam says it is unfortunate that these authoritarian leaders are holding MTUC ransom while Malaysian workers eagerly expect their leaders to push for pro-labour legislation. (MTUC pic)
PETALING JAYA: The Labour Law Reform Coalition (LLRC) today hit out at the Malaysian Trades Union Congress (MTUC) after top leaders of the union met members of the National Senate Council last week in a bid to stop the Labour Laws Reform (LLR) Bill.

LLRC co-chairman N Gopal Kishnam slammed MTUC secretary-general J Solomon and president Abdul Halim Mansor for their actions, saying these were “illegitimate” as they were not decided upon by the MTUC general council.

The LLRC is endorsed by 58 trade unions from various sectors and worker organisations in the peninsula. It began in 2018 to initiate discussions on labour law reforms, based on the International Labour Organisation’s work framework.

Kishnam called for an MTUC general council meeting to be held immediately to resolve conflicts in the labour movement, highlighting that no such meeting has taken place since 2016.
“It is very unfortunate that these authoritarian leaders are holding MTUC to ransom while Malaysian workers eagerly expect their leaders to push for pro-labour legislation.

“Solomon and Halim are engaged in endless disputes with the human resources minister and attempting to defeat the Industrial Relations Bill 2019 at the Senate.

“These arbitrary actions are again made without the sanction of the MTUC general council,” he said in a statement today.

Kishnam said general council meetings are supposed to be held every two months at the very least.

Kishnam said the trade union’s community should work with the ministry in pushing for changes in the nation’s labour laws, reiterating that Human Resources Minister M Kula Segaran had already promised further amendments in the Industrial Relations Act (IRA).

“We feel painful to make public criticism against the organisation that is collectively built by the trade union community in the country.
“As the internal channel for raising concerns and dissatisfaction is blocked, MTUC affiliates have no choice but to go public to express dissent and defend their honour.”
MTUC’s Sarawak chapter had previously accused Halim and Solomon of imposing their views on members and demanding a consensus before amendments to labour laws are enacted.

Sarawak MTUC secretary Andrew Lo said Halim and Solomon, who disagreed with the IRA amendments, should lobby the government for improvements instead of totally rejecting them.

This followed the war of words between MTUC and the human resources ministry over amendments
to the IRA 1967, Employment Act 1955 and Trade Unions Act 1959.
The labour law reforms are being carried out through tripartite consultations, involving MTUC, the Malaysian Employers Federation and ministry officials - FMT, 14/12/2019

A heartfelt request to our senators

Ronald Benjamin
LETTER | The Association for Community and Dialogue (Acid) would like to make a heartfelt request to senators of the Dewan Negara to pass the bill on amendments to the Industrial Relations Act. The reason is obvious.

Malaysia’s trade unionism has been muzzled and weakened over decades, due to the influence of employers over the Barisan National government, resulting in fragmented and silo trade unions that have very little collective influence on the direction of their social well-being.

Besides this, any proposal to bring on benefits to workers have always been shot down by employers in the tripartite consultations.

Being in the human resources profession for a long period of time, I have observed how employers have been vehement in opposing the minimum wage when it was first proposed - and it continues till today.

Benefits such as maternity and paternity leave have been interpreted from profit and lost perspective by the Malaysian Employers Federation (MEF), instead of supporting this progressive condition of work that respects the diversity and human side of the workers.

In this scenario, the government that is elected by the people has a moral imperative to embark on an equitable approach when the social-economic direction seems to tilt in the favour of employers.

The question is why are the national leaders in the Malaysian Trades Union Congress (MTUC) against the amendments when its in line with International Labour Organisation Convention 87, which covers the freedom of association and right to organise?

Larger ethical issues are at stake

One of the salient aspects of the current amendments is that unions are not limited to a specific establishment, trade, occupation or industry. This liberates unions from ineffective silo struggle towards solidarity that brings on a broader dimension of struggle and identity.

Are the MTUC national leaders afraid of losing out to more dynamic unions leaders in the context of broader solidarity in the movement? Union leaders with specialised knowledge would be needed in the context of Industry 4.0, where larger ethical issues are at stake.

It would certainly serve the interest of workers if they are given the chance to chose unions of their choice to represent them in the current and futuristic turbulent industrial revolution

MTUC’s argument that the current amendments that encourage multiple unions would weaken union bargaining power does not make sense. It is by having more trade unions with leaders of credibility that would strengthen unions.

Even without the amendments to the Industrial Relations Act, there is already a split among unions, due to the perception that the leaders that are supposed to represent them seem to represent only a minority.

For example, the UNI Malaysia Labour Centre, which represents 104 unions, and the Labour Reform Coalition comprising 54 unions support the amendments and are critical of the current MTUC leadership. There are also allegations that the MTUC has not fully convened a full General Council Meeting since the elections of officials in 2016.

Therefore, it’s time that the workers are given a new perspective of trade union dynamism that is democratically elected and accountable. Union leaders should represent the majority of workers, instead of having an agenda of control and manipulation.

Our trade unions are in dire need of a new life and perspective. It is hoped that the senators in the Dewan Negara will vote for this historical amendment to the Industrial Relations Act. - Malaysiakini, 12/12/2019