Wednesday, February 06, 2019

Is Kula HR Minister trying to mislead migrant workers about right to complain to Labour Department?

Looking at the Bernama Report, it seems to give the impression that migrant workers cannot lodge complaints at the Labour Department, which is FALSE, - hence the reason why employers 'violate their rights'.

“In this particular WRP case, the company paid the local workers because they can go to the Labour Department to lodge a report if they were not paid, but these foreign workers, they can’t go and this is not fair,” he[Human Resources Minister M. Kula Segaran] said. 

Knowing Kula, I would say that this is most likely a case of 'bad reporting' - dangerous because it can give migrant workers the wrong understanding that they cannot lodge claims at the Labour Department..

All workers, local or migrant, can lodge complains and make claims at the Labour Departments..

But are some bad employers preventing them the opportunity to do so by making sure that they are working always when the Labour Department is open...and, as such, removing the opportunity to go make a complaint and/or claim at the Labour Department?

The problem with workers lodging complaints against employers is the RISKS of retaliation. A Malaysian worker could be terminated...or could suffer discrimination when it comes to future promotions/pay rises/etc..

For migrant, it is worse because after termination, the employer may also cause the worker to lose his/her work visa making it impossible for the said migrant worker to continue lie (and work) in Malaysia - so even when the complaint come up for hearing at the Labour Department, that complainant migrant worker may already be considered 'illegal' - the risk of being arrested if and when he/she turns up at the meeting/hearing at the Labour Department/Industrial Relations Department.

The problem is made worse by GOVERNMENT POLICY that a migrant worker can only work for 1 Employer - so, the option of changing employers is not there.

Another BAD Government Policy is that the Immigration Department/Police arrest, detain and deport - They do not bother even to check if there is any outstanding complaint/claim by the migrant worker, whether already filed at the Labour Department or not.

* A suggestion has been made that there be no DEPORTATION until the Ministry of Human Resources meets the worker, investigate and issue a Certificate Confirming that there are no outstanding claims/complaints against the Employer - and that the employer owes nothing to the worker.

* Likewise, maybe there should be a certificate from the Home Ministry certifying that there are no cases outstanding that requires the attendance/presence of the said migrant worker as victim or witness. [Without this, corrupt police, immigration officers and other public officials gets off scot free]

Hence, these bad policies and practices of the  past UMNO-BN government makes the migrant worker in Malaysia to most easy victim of rights violation.

Can a Migrant Worker vary his work visa? Yes, he can can because such work visas/passes are personal to the holder, and the Immigration Department has the power to vary the conditions - allowing the said worker to work for another employer - enabling the migrant worker to live and work in Malaysia possibly until all his/her cases are settled  and justice done. [See below the case of Rajakanu Boopathy and about 35 other migrant workers managed to do so that their Labour Court Trial could continue - sadly, this was also the case where contempt proceedings against the Malaysian Director General of Immigration had to embarrassingly happen]

What will HR Minister Kula do to ensure worker and trade union rights in Malaysia improves, and is always protected even for migrant workers?

In Hong Kong, migrant workers are provided board and lodging until the claims/complaints are resolved?

If migrant workers can be so easily exploited and employers can get away with rights violations, Malaysian workers also suffer? Employers will prefer the 'bonded' easily cheated slave like migrant worker over Malaysian workers?

Now many a migrant worker is also forced to work on 'REST' days and even public holidays - and given Malaysia's DRACONIAN overtime limit of 104 hours per month, workers can be made to work 12 hours per day...7 days a week? Is that just and fair...

ASK YOURSELF HOW MANY HOURS A DAY SHOULD YOU WORK? HOW MANY HOURS OF SLEEP? HOW MANY HOURS OF SOCIAL LIFE? Workers fought for the right to have '8 hours work...8 hours rest ...8 hours social life? But sadly, Malaysian laws do not protect enough this right...and WORSE still, legally allow employers to breach this right..

What was embarassing about the WRP Asia Pacific Sdn Bhd situation was that the Ministry was investigating since August 2018...and the workers went on strike recently over non-payment of wages for past 3 months? Does this mean that this company committed new VIOLATIONS under the nose of the Ministry's officers?

PENALTY - The current labour law provides very inadequate punishment for worker rights violations...

Sadly, now if the employer does not pay his worker 3 months wages, it is a JOKE when found guilty, he simply has to pay the said worker the 3 months wages, and this will be the Fine...same with overtime, work on rest day, etc ...

Section 100 - Penalties for failure or non-compliance in relation to rest days, overtime, holidays, annual leave, and sick leave [Employment Act 1955]

(1) Any employer who fails to pay any of his employees wages for work done by his employee on a rest day or pays wages less than the rate provided under section 60 commits an offence, and shall also, on conviction, be ordered by the court before which he is convicted to pay to the employee concerned the wages due for work done on every rest day at the rate provided under section 60, and the amount of such wages shall be recoverable as if it were a fine imposed by such court....

As you can see, this is no DETERRENT PENALTY at all...worse, the worker would have also expended time and money lodging the claim...fighting his case(which include maybe paying legal fees)...and end of the day, he gets back just 3 months pay?  

It would have been JUST if the employer is forced to pay the worker 2-3 times the amount due, or at the very least 1.5 times. 

2,000 workers not paid for 3 months? Will the government charge the employer for 2,000 offences or just simply one? 

Well, the penalty now is fine not exceeding RM10,000 - therefore if the employer charged for one offence, he gets fined RM10,000. I say charge them for 2,000 offenses..every single worker violated is 1 offence...

99A  General penalty

Any person who commits any offence under, or contravenes any provision of, this Act, or any regulations, order, or other subsidiary legislation whatsoever made thereunder, in respect of which no penalty is provided, shall be liable, on conviction, to a fine not exceeding ten thousand ringgit.

Who is the government charging? 

- Just the Company OR Company + Directors + Managers/CEO? Monitor this to see what this PH government does...

As the law, in section 101B, says that when a Company commits the offence - then the Director/s, Managers/CEOs, etc also has committed the offence... Not charging rich (or politically connected) persons who are the Directors, Managers ...and just going after the Company alone is wrong and bad...

101B  Offence by body corporate, etc.[Employment Act 1955]

Where an offence under this Act has been committed by a body corporate, partnership, society or trade union-
(a) in the case of a body corporate, any person who is a director, manager, or other similar officer of the body corporate at the time of the commission of the offence;
(b) in the case of a partnership, every partner in the partnership at the time of the commission of the offence; and
(c) in the case of a society or trade union, every office-bearer of the society or trade union at the time of the commission of the offence,
shall be deemed to have committed the offence and may be charged jointly or severally in the same proceedings as the body corporate, partnership, society or trade union.

Now, Kula says the company committed 42 different offences ...let us see, who the government charges - will it also include the Directors, etc or simply just the 'company'.

Will  Hamidah Binti Abdullah has been Executive Chairperson of WRP Asia Pacific Sdn Bhd and the other Directors also be charged? 

Now, if a company paid its local workers, but then did not pay their migrant workers - this is DISCRIMINATION, and this is clearly against

60L  Director General may inquire into complaint

 (1) The Director General may inquire into any complaint from a local employee that he is being discriminated against in relation to a foreign employee, or from a foreign employee that he is being discriminated against in relation to a local employee, by his employer in respect of the terms and conditions of his employment; and the Director General may issue to the employer such directives as may be necessary or expedient to resolve the matter.

(2) An employer who fails to comply with any directive of the Director General issued under subsection (1) commits an offence.

“In this particular WRP case, the company paid the local workers because they can go to the Labour Department to lodge a report if they were not paid, but these foreign workers, they can’t go and this is not fair,” he said. 

Again, this non-discrimination between local and foreign worker is LAME - it should be clearly made an offence...full stop. And the penalty should be high.

DISCRIMINATION - well, in Malaysia now nothing stopping private sector employers discriminating on the basis of GENDER too - will the law be amended to make sure that workers are not discriminated on the basis of...


More than 10 companies are being monitored: Kula Segaran

02 Feb 2019 / 08:24 H.

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