Well, finally the Federal Court on 20/1/2022 ruled that the Trade Union President was wrongfully dismissed by Malaysian Airlines in 2013...
What is shocking is that a worker had to wait almost NINE(9) years to get justice... and mind you, the worker who lost his job seeking reinstatement has to also spend monies, times, etc...Because of this very long money and time consuming process, the majority of 'wrongfully dismissed' workers simply just do not use the courts....the system, as it is, favours the rights-violating employer - and not the ordinary worker.
There must be REFORM especially in dealing with wrongful dismissal cases - In Indonesia, the moment the claim comes to the courts, the 'status quo' is restored until the courts determine whether the dismissal is OK, or it is unfair > what this means is that the worker is required to return to work, and the employer is required to pay the wages(of course, the employer can refuse the worker to return to work but still monthly wages must be paid) - The law also determines time limits for wrongful dismissal cases, and even appeals to end >>> all in all, cases end within months, as employers certainly would not want to use the 'delay and exhaust/discourage the worker' tactics as they have to still pay the worker monthly wages until the court dispute ends.
In this case involving NUFAM President, many groups stood with these victims of injustice...
Joint Statement – 3/12/2013 (43 groups) MAS Must Immediately Revoke Suspension of Union President Ismail Nasaruddin - Worker Right Issue Should Be Resolved By Negotiations Not ‘Union Busting’
Joint Statement –
3/2/2014 (54 Groups) -Malaysian
Airlines Must Respect Trade Union and Worker Rights - Cease Anti-Union
activities against NUFAM and its members
Joint Statement– 2/6/2014 (47 Groups) -WORKER AND TRADE UNION RIGHTS MUST BE PRIORITIZED FOR THE WELLBEING OF THE WORKER AND THEIR FAMILIES
Joint Statement – 19/11/2015 (67 groups) Government-Owned MAB, the new Malaysian Airlines Operator, Must Recognize Unions and Not Deny Freedom of Association.YES, THE COURT HAS ORDERED MALAYSIAN AIRLINES TO PAY Nufam president Ismail Nasaruddin Abdul
Wahab 'compensations in lieu of reinstatement, cost, etc ...' but the struggle does not end year thanks to actions of the Malaysian Government through an Act of Parliament had removed rights normally a worker has,,,, this, we have to discuss later...THE STRUGGLE CONTINUES
Apex court rules in favour of Nufam president in appeal against unlawful dismissal by MAS
PUTRAJAYA (Jan 20): The Federal Court on Thursday (Jan 20) allowed National Union of Flight Attendants Malaysia (Nufam) president Ismail Nasaruddin Abdul Wahab’s appeal against his unlawful dismissal by Malaysian Airline System Bhd (MAS) in 2013 because he did not abuse his position as the Nufam leader when he issued a statement aimed at improving flight attendants’ welfare.
The three-member bench led by Federal Court Judge Datuk Nallini Pathmanathan also upheld the damages amounting to RM211,444.56 awarded by the Industrial Court of Malaysia to Ismail Nasaruddin.
“The statement issued was not malicious and was done in the interest of the thousands of flight attendants.
“The appellant did not abuse the platform of being the leader of Nufam, and it was done in the interest and improvement of the flight cabin crew.
"Hence, we allow the appeal and the decision of the Court of Appeal is set aside,” Justice Nallini said.
The judge also ordered MAS, which is now known as Malaysia Airlines Bhd, to pay costs amounting to RM50,000 to Ismail Nasaruddin.
The three-member bench included Federal Court Judges Datuk Seri Hasnah Mohammed Hashim and Datuk Harmindar Singh Dhaliwal.
In a unanimous decision, Justice Nallini said the Court of Appeal erred in its interpretation of the employment contract involving Ismail Nasaruddin.
Representing Ismail Nasaruddin were lawyers Datuk Ambiga Sreenevasan and Lim Wei Jiet.
MAS, meanwhile, was represented by lawyer N Sivabalah.
Prior to the Federal Court, the Industrial Court, High Court and Court of Appeal had heard the case.
It was reported that after Ismail Nasaruddin was dismissed by MAS in 2013, he brought the matter to the Industrial Court, which rejected his attempt to challenge MAS' dismissal.
He subsequently filed a judicial review in the High Court against the Industrial Court's decision.
In September 2019, the High Court ruled that MAS’ decision to dismiss Ismail Nasaruddin was unlawful and asked the Industrial Court to evaluate his compensation.
Following the evaluation, the Industrial Court instructed MAS to pay compensation amounting to RM211,444.56 to him.
MAS then appealed in the Court of Appeal against the High Court’s decision.
On Oct 7, 2020, the Court of Appeal allowed MAS’ appeal after concluding that there were other legal measures that Ismail Nasaruddin should have pursued before issuing the press statement highlighting the plight of MAS workers and calling for the company’s chief executive officer to resign.
The Court of Appeal set aside the compensation of RM211,444.56 awarded to Ismail Nasaruddin and ordered him to pay RM5,000 in costs to MAS.
Ismail Nasaruddin subsequently appealed in the Federal Court against the Court of Appeal’s decision.
In the Federal Court on Thursday, Justice Nallini, while explaining the court’s decision to allow Ismail Nasaruddin’s appeal, said: "An employee ought not to be dismissed for participation in trade union activities carried out in his capacity as a trade union officer or member — unless the activities concerned are strenuous and/or carried out maliciously or in a manner which knowingly or recklessly disregards the truth.
“It is plain to us that the statement made by the appellant was not malicious or knowingly or recklessly false or wholly unreasonable or extremist. We accept that the contents of the press statement wholly related to problems faced by employees at the workplace and criticism of the management for failing to address the same.
“We do not think the appellant abused the platform for his personal interest but that it was all done in the name of Nufam, and for the benefit of the thousands of cabin crew members [who were represented by Ismail Nasaruddin].
“In short, it (the statement) was made with the view to improve workplace conditions, hence we allow the appeal and the decision of the Court of Appeal is set aside,” Justice Nallini added.
Read also:
Court of Appeal rules in favour of MAS on NUFAM president dismissal
Industrial Court awards RM211,444 to NUFAM president for unfair dismissal by MAS
Chong Jin Hun - Edge Markets, 20/1/2022
Joint Statement – 3/12/2013- now 43
MAS Must
Immediately Revoke Suspension of Union President Ismail Nasaruddin
Worker Right
Issue Should Be Resolved By Negotiations Not ‘Union Busting’
We, the 43 undersigned civil society groups, trade unions and organizations are
disturbed by the news that Malaysian Airlines, a government linked company, has
suspended the president of the National
Union of Flight Attendants Malaysia (NUFAM), Ismail Nasaruddin in connection
with a statements made to the media by the Union, which amongst others
suggested that MAS’s Chief Executive Officer (CEO), Ahmad Jauhari Yahya who was appointed
in 2011, should resign. Ismail was
allegedly suspended without allowances with immediate effect starting Nov 8
following a news report quoting him that was published on the same day.
According to a news report, ‘…NUFAM Secretariat said it is calling on the prime minister to review Jauhari's contract and remove him as the CEO of MAS, which is a government appointed position, unhappy that there has been no changes in resolving the cabin crew's problems…’ (The Sun Daily, 8/11/2013, NUFAM calls for resignation of MAS' CEO).
Amongst the alleged grievances being raised by NUFAM, which represents 3,500 cabin crew at Malaysia Airlines (MAS), as was contained in the said Sun Daily report are:-
· New policy imposed by MAS on a weight control ruling where cabin crew are told to reduce their weight to achieve a certain body mass index within three to six months. Failure to do so would result in an automatic transfer to ground work. The new rule is also a blanket policy and affects all cabin crew members including those who have just returned from maternity leave and may find it difficult to drastically lose weight within a short time frame;
· Cabin crew who joined in 2004 or later are no longer able to enjoy the transport services provided by the airline for pick-up from home, and Ismail said this is unfair to those who joined in 2004 or later, as they had signed contracts that included transportation as part of the benefits; and
· That the MAS management have allegedly cut costs drastically which affected the cabin crew resulting also a failure to review allowances and salaries.
We are especially concerned with this ‘weight control ruling’ which certainly is discriminatory against women, especially to those returning from pregnancy. Increase of body mass index sometimes may be beyond the control of a human being, and this really should not be used to affect their employment.
NUFAM alleges that it wants MAS to
sit down with the Union to discuss and negotiate a new Collective Bargaining
Agreement (CBA/CA) but apparently MAS is not interested to do so at this
moment, citing as reason some judicial review.
Now, MAS has commenced disciplinary
actions against Ismail Nasaruddin, and according to a Malaysiakini report, it
is allegedly because MAS
said Ismail had acted in contradiction with his duties as a chief steward of
the airline by issuing the statement. (Malaysiakini,
14/11/2011, MAS suspends chief steward for criticising CEO)
Now, clearly the statements were made by Ismail in his
capacity as President of the Union, representing some 3,500 workers, and as
such he has the duty and obligation to fight for the rights of workers and that
includes applying pressure on the employer and even calling for the removal of
any of such employer’s officers or even Directors who is standing in the way of
a prompt resolution of the dispute. Unlike employers, every day that a worker’s
issues is not resolved, it is the workers that will continue to suffer. A
prompt resolution is best and just.
No worker, group of workers or unions should be barred from making
public statements to the media or otherwise in the struggle for worker rights
and human rights. This right is clearly acknowledged in the Declaration on the Right and Responsibility
of Individuals, Groups and Organs of Society to Promote and Protect Universally
Recognized Human Rights and Fundamental Freedoms, commonly known today as the
UN Human Rights Defender Declaration.
We condemn the action of Malaysian Airlines (MAS) in
commencing disciplinary actions against a Union leader, and urge MAS to
immediately stop this and revoke the suspension of Ismail Nasaruddin.
We call on MAS to immediately sit down, negotiate and resolve
these outstanding worker issues with the trade union rather than resorting to
‘union busting’ strategies which include disciplinary actions against worker and union leaders who dare to fight
for worker rights.
We call on the Malaysian government to immediately to act, given
the fact of the much influence it has in a government-linked company like MAS,
to ensure that justice is done for Ismail
Nasaruddin, the Union and its members.
Senator Syed Shahir bin Syed Mohamud
Charles Hector
Mohd Roszeli bin Majid
Pranom Somwong
For and on behalf of the following 43 civil society groups, trade unions
and organizations
ALIRAN
Asia Pacific Forum on Women, Law and
Development (APWLD)
Cambodian Human Rights and Development Association
(ADHOC)
Center for Orang Asli Concerns (COAC)
CWI Malaysia (Committee For A Workers
International Malaysia)
Damn the Dams
Dignity International-Asia
Friends of Burma
Human Rights Ambassador for Salem-News.com, United Kingdom
Jaringan Rakyat Tertindas(JERIT)
Kesatuan Eksekutif AIROD (KEA)
Kesatuan Pekerja-Pekerja Polyplastics Asia Pacific
Kesatuan Sekerja Industri Elektronik Wilayah Selatan
Semenanjung Malaysia (KSIEWSSM)
MADPET (Malaysians Against Death Penalty and Torture)
Malaysians for Beng Hock
Malaysia Youth & Students Democratic Movement (DEMA)
MTUC Pahang
National Union
of Hotel, Bar and Restaurant Workers (NUHBRW)
Network of Action For Migrants in Malaysia (NAMM)
Paper and Paper Products Manufacturing Employees Union
(PPPMEU)
Philippine Alliance of Human Rights Advocates (PAHRA)
Parti Rakyat Malaysia (PRM)
Parti Sosialis
Malaysia (PSM)
Partido ng Manggagawa (Labor Party-Philippines)
Pax Romana-ICMICA Asia
Peoples' Green Coalition
Persatuan Kesedaran Komuniti Selangor (EMPOWER)
Persatuan Sahabat Wanita, Selangor
Pusat KOMAS
Sahabat Rakyat Working Committee
Sarawak Dayak Iban Association[SADIA]
SUARAM
Tenaga Nasional Junior Officers Union (TNBJOU)
Tenaganita
The Filipino Women's Organization in Quebec
WIRDA (Women’s Institute Research Development and
Advancement), Malaysia
Women’s Centre for Change Penang
Workers Hub For Change (WH4C)
Yayasan LINTAS NUSA – Batam, Indonesia
Saya Anak Bangsa Malaysia (SABM)
Law and Society Trust.Colombo Sri Lanka
ITUC(International Trade Union Confederation)
Joint Statement –
3/2/2014 (Now 54)
Malaysian
Airlines Must Respect Trade Union and Worker Rights
Cease Anti-Union
activities against NUFAM and its members
We,
the 54 undersigned civil society groups, trade unions and
organizations are disturbed by the news that Malaysian Airlines(MAS), a
government linked company continues to violate worker and trade union rights.
Recently, MAS commenced disciplinary action against Mohd
Akram bin Osman, the
Secretary General of the National Union
of Flight Attendants Malaysia (NUFAM), and 30 other NUFAM members. The show
cause letter dated on or about 14/2/2014 asked why disciplinary action should
not be taken against them by reason of their participation in an ‘illegal’
gathering on 27/11/2013 at the Ministry of Human Resources in Putrajaya.
On 17/2/2014, Mohd Akram received yet another show
cause letter with new allegation, and he has been suspended with half pay.
The National Union of Flight Attendants Malaysia
(NUFAM) is a registered trade union, and it had sought recognition from
Malaysian Airlines, the employer of some of its members. Recognition is a legal
requirement in Malaysia before an employer can be compelled to sit down,
negotiate and agree to a Collective Bargaining Agreement(CBA). When MAS
rejected the application, the Director General of Industrial Relations(DGIR)
conducted a secret ballot which involved all qualified employees, and NUFAM
succeeded in getting 62.73% of the votes, and thereafter on August 2013,
the DGIR issued the formal letter acknowledging NUFAM as a recognized union. It
must be noted that in Malaysian law, MAS, as employer, would have had to agree
on the list of qualified employees entitled to vote before the secret ballot,
and as such challenging the result and the subsequent recognition of the Union
is bad.
Sadly,
on 4/10/2013, MAS challenged the decision of the Minister to
accord recognition to NUFAM, and filed a Judicial Review application in the
High Court. MAS also allegedly applied for an interim stay order thus depriving
NUFAM the ability to move forward towards a Collective Bargaining
Agreement(CBA).
On 29/11/2013 MAS wrongly terminated
Ismail Nasaruddin, the President of NUFAM, without even having a Domestic
Inquiry, hence denying him the right to be heard and a fair hearing. Ismail was
first suspended and then terminated allegedly by reason of a statement he
issued in his capacity as President of NUFAM, which appeared in the media,
which amongst others stated :- ‘…NUFAM Secretariat said it is calling on the
prime minister to review Jauhari's contract and remove him as the CEO of MAS,
which is a government appointed position, unhappy that there has been no
changes in resolving the cabin crew's problems…’ It also raised other worker
issues (The Sun Daily, 8/11/2013, NUFAM
calls for resignation of MAS' CEO).
MAS send him a show cause letter on 8/11/2013, which
also immediately suspended him. Thereafter, Ismail received another letter
terminating him on 29/11/2013. According to a Malaysiakini report, it is
alleged that MAS
said Ismail had acted in contradiction with his duties as a chief steward of
the airline by issuing the statement.(Malaysiakini,
14/11/2011, MAS suspends chief steward for criticising CEO). This is absurd
as the statement was issued in the capacity of a Union President, not a mere
employee whereby even an ordinary employee should never be denied his freedom
of opinion or expression.
In response, 43 civil society groups and trade
unions, including the International Trade Union Confederation(ITUC), issued a
Joint Statement on 3/12/2013, entitled, “MAS Must Immediately Revoke
Suspension of Union President Ismail
Nasaruddin Worker Right Issue Should Be Resolved By Negotiations Not
‘Union Busting’.
Then,
in December 2013, disciplinary action was taken by MAS against about
10 NUFAM members allegedly based on comments made by them in their NUFAM
Facebook Group. They were all suspended, but thankfully the disciplinary action
seem to have been discontinued against 9. However, one Flight Attendant Ms
Farahtina Kassim is still suspended from her flying duties since 8th December
2013 and even though she is now receiving full wages, she is being deprived of
her flying allowance which constitutes a substantial sum of her ordinary
take-home income.
Now
in February 2014, the show cause letter is against some 30
employees. The most recent allegation of participation in an ‘illegal
gathering’ at the Human Resource Ministry is absurd given the reason that it a
fundamental right for workers and/or their unions to file complaints and make
representation to the government, including the Human Resource Minister. There
has also been no known report or actions taken by the police or relevant
authorities that indicated that any ‘illegal gathering’ even took place on
27/11/2013 at the Ministry. In any event, even if workers went to the Ministry
not during their working hours, MAS certainly cannot make this a worker
misconduct. Being convicted of serious crimes may be a basis for commencement
of misconduct, but here there seem to have been no arrest, investigation or
even prosecution at all. One also wonders whether there is ‘mala fide’ on the
part of MAS to suddenly in February 2014 to issue show cause letter with regard
to things that happened in November last year.
On or about 14 February 2014, Ms
Farahtina Kassim and 3 others were terminated.
It is suspected that the timing of these recent actions
by MAS may have been because the MAS’s judicial review at the High Court
challenging of the recognition accorded Minister to NUFAM was fixed for
18/2/2014, which now has been adjourned to 27/3/2014.
Taking into consideration all these actions of MAS,
it is difficult not to come to the perception that MAS is on a ‘union-busting’
mission, which also includes persecution of Union leadership and those active
in NUFAM.
Malaysia, being a member of the international
community, must also act in accordance with International Standards including
Ruggie’s Guiding Principles on Business and Human Rights:
Implementing the United Nations “Protect, Respect and Remedy” Framework ,
whereby in cases of government-linked companies like MAS, the obligation is
even greater. The Guiding Principles do state that “States should take
additional steps to protect against human rights abuses by business enterprises
that are owned or controlled by the State, or that receive substantial support
and services from State...”.
No
worker, group of workers or unions should be barred from making public
statements to the media or otherwise in the struggle for worker rights and
human rights. This right is clearly acknowledged in the Declaration on the Right and Responsibility of Individuals, Groups and
Organs of Society to Promote and Protect Universally Recognized Human Rights
and Fundamental Freedoms, commonly known today as the UN Human Rights Defender
Declaration.
We call on Malaysian Airlines to immediately cease
all ‘union busting’ activities including the commencement and continuation of
disciplinary actions against members and potential members of NUFAM.
We call on MAS to immediately discontinue the High
Court action challenging the recognition of NUFAM, and to immediately sit down
and work towards a Collective Bargaining Agreement with NUFAM.
We call again on MAS to immediately and
unconditionally reinstate Ismail Nasaruddin, the president of the Union, Ms Farahtina
Kassim and the 3 other flight attendants that have been terminated.
We call on MAS to recognize and respect worker
rights including the freedom of association and the right of qualified
employees to join the Union.
We call on the Malaysian government, being also a
member of the International Labour Organization (ILO), and also having
substantial influence in MAS, a government linked company, to ensure that
worker rights and union rights are respected by MAS.
We call
on Malaysia to immediately amend or repeal all laws that hinder or delay the
speedy formation of trade unions and entry into Collective Bargaining Agreement
with employers.
Senator
Syed Shahir bin Syed Mohamud
Charles Hector
Mohd Roszeli bin Majid
Pranom Somwong
For and on behalf the 52
organisations listed below
ALIRAN
All Nepal Federation of Trade Unions
AMRC, Hong Kong.
Cambodian Human Rights and Development Organization-
ADHOC
Centro De Reflexión Y Acción Laboral (CEREAL)
COAC
(Center for Orang Asli Concerns), Malaysia
Committee
for Asian Women, Bangkok
Community Action Network(CAN), Malaysia
CWI (Committe For Workers International) Malaysia
Damn the Dams
Dignity
International
FARR(Friends'
Association for Rural Reconstruction) Orissa, India
Human Rights Ambassador for Salem-News.com , UK
Kesatuan Eksekutif AIROD
Kesatuan Eksekutif Canon Opto (Malaysia) Sdn Bhd
Kesatuan Pekerja-Pekerja Perodua
Kesatuan
Pekerja-Pekerja Dalam Perkhidmatan Perubatan Dan Kesihatan Swasta
Kesatuan Pekerja-Pekerja Polyplastics Asia Pacific(KPPAP),
Malaysia
Kesatuan Sekerja Industri Elektronik Wilayah Selatan,
Semenanjung Malaysia
MADPET (Malaysians Against Death Penalty and Torture)
Malaysians for Beng Hock
Malaysian Physicians for Social Responsibility MPSR
Malaysian Trade Union Congress (MTUC) Pahang
Malaysian Trade Union Congress (MTUC) Perak
Malaysian Trade Union Congress (MTUC) Selangor & Wilayah Persekutuan
MHS Employees Union, Malaysia
Migrant Forum in Asia (MFA)
Migrante International
National Union Employees in Companies Manufacturing
Rubber Products(NUECMRP)
National Union of Hotel, Bar and Restaurant Workers
(NUHBRW), Malaysia
National
Union of Transport Equipment & Allied Industries Workers (NUTEAIW)
Network of Action for Migrants in Malaysia (NAMM)
Paper Products Manufacturing Employees’ Union of Malaysia
(PPMEU)
Parti Rakyat Malaysia(PRM)
Parti Sosialis Malaysia(PSM)
Pax
Romana ICMICA
Peoples Green Coalition
Persatuan Kesedaran Komuniti Selangor (EMPOWER)
Persatuan Masyarakat Selangor & Wilayah Persekutuan
(PERMAS)
Persatuan
Sahabat Wanita Selangor, Malaysia
Pusat
KOMAS
Sahabat Rakyat Working Committee, Malaysia
Saya
Anak Bangsa Malaysia (SABM )
Selangor & Federal Territory Textile Workers Union
Suara Rakyat Malaysia (SUARAM)
Tenaga Nasional Junior Officers Union (TNBJOU)
Thai
Labour Campaign, Thailand
THINK
Centre, Singapore
WAC, Cavite, Philippines
WH4C (Workers Hub For Change)
Women
Workers Lead, Malaysia
Yayasan LINTAS NUSA – Batam
Asia
Pacific Forum on Women , Law and Development ( APWLD)
Club Employees Union Peninsular Malaysia
Senator Syed Shahir bin Syed
Mohamud - Senator in the Malaysian
Parliament
Charles Hector -
Human Rights Defender and lawyer;
Mohd Roszeli bin Majid
President of the TNB Junior Officers Union;
Pranom Somwong - Workers Hub For Change (WH4C), Asia Pacific Forum on Women , Law and Development ( APWLD);
Joint Statement– 2/6/2014
WORKER AND TRADE UNION RIGHTS MUST BE PRIORITIZED FOR THE WELLBEING OF THE WORKER
AND THEIR FAMILIES
We, the undersigned 47 civil
society organizations, trade unions and concerned groups, make the following
demands to better protect worker and trade union rights in Malaysia. It is sad
when a government places the interest of businesses, investors and employers
over the rights and welfare of workers and their families.
1. STABLE REGULAR EMPLOYMENT UNTIL RETIREMENT
AGE–ABOLISH PRECARIOUS SHORT-TERM EMPLOYMENT CONTRACTS
The right to permanent regular employment until retirement age is
essential for the economic wellbeing and financial stability of the worker and
their families.
A short-term or fixed term employment contract is a form of precarious
employment that must be abolished. It allows for the denial of the right of
retirement at 60, maternity rights and benefits, increments of rights which
comes with tenure, makes it near impossible for such workers to form, join or
even serve as leaders in existing unions. Such short-term employment contracts,
usually a year or less, with no right of extension even if the work still
exist, weakens worker capacity to struggle for better worker rights, and certainly
weakens unions or makes unionization impossible.
We call for guarantee of the right to regular employment until
retirement, and the abolition of short-term employment contracts and similar
precarious employment practices.
2.
ABOLISH THE ‘CONTRACTOR FOR LABOUR SYSTEM’ –
ENSURE DIRECT EMPLOYMENT RELATIONSHIP BETWEEN WORKER AND OWNER/OPERATOR OF
WORKPLACES
Direct employment relationship with the owner/operator of the workplace
known as the principal, is essential to ensure stable employment, noting that employers
do have the obligation to ensure worker rights and welfare are best protected.
A contractor for labour (COL) should never be employers, and their role, if any,
is to supply workers to owner/operators of workplace or alternatively find
workers work with employers who need workers, and for the service rendered they
should be paid a fee.
It is the owner/operator of workplaces, known as the principal, who
should be having direct employment relationship with workers that work at their
workplaces. This demand, amongst others, had been made vide the joint statement
by 93 groups dated 3/5/2012 entitled, ‘Abolish the ‘Contractor for Labour’
system - Withdraw the 2012 amendments to Employment Act 1955’, and also vide the earlier statement by 115
groups on 28/10/2011 entitled,‘Malaysia Must Protect Worker and Union
Rights, and withdraw proposed unjust amendments to Employment Act - Labour
Suppliers Should Not Be Employers’. We also draw attention to the Malaysian
Bar Resolution of 2012 expressing the same sentiment, which amongst others said
‘The Malaysian Bar takes the stand that labour suppliers and/or contractors of
labour should never be or continue to be employers of workers after they are
supplied, accepted and start working at the workplaces of principals or owners.
Thereafter, these workers shall be employees of the principal or owners of the
workplace.’ We also recall the MTUC initiated pickets and protests against the
‘contractor for labour system’.
3.
PREVENT OUTSOURCING OF WORK, ‘BREAKING UP OF
EMPLOYER COMPANIES’ AND OTHER SUCH SCHEME WHICH EFFECTIVELY DESTROYS WORKER
SOLIDARITY AND IS AN ACT OF UNION BUSTING.
To avoid trade unions and employer relationship, some employers are
outsourcing parts of the work to third party contractors who then use their own
employees to do the work. This happened in the plantation sector, and National
Union of Plantation Workers(NUPW), which once was a strong union with many
members, is today so much weakened even though the number of workers in the
plantation sector has remained the same or even increased. Another example, is
what happened to the banking sector when certain aspects of the banking
industry work like phone and internet banking was outsourced to third parties. Outsourcing
of work is yet another ‘union busting’ strategy, that weakens trade unions, and
deprives union members of the benefits of existing Collective Bargaining
Agreement.
Another method, is to break up one company into different smaller
companies, something that Tenaga Nasional Berhad(TNB) is now considering. This has
been strongly opposed by the 4 existing unions representing the many workers in
TNB. The break-up action would result in weakening of existing strong unions,
and possibly deprivation of existing members of benefits and rights they now
enjoy through Collective Bargaining Agreements. When new companies are formed,
workers who find themselves in these new entities would have to go through the
long process of forming, then getting union recognition all over again, and
entering into new CBA with their new employers, a process that can take years.
We support the statement of the 4 Trade Unions of TNB workers, being Persatuan Eksekutif
Tenaga Nasional Berhad (PETNB), Kesatuan Percantuman Pekerja-Pekerja TNB
(KPPPTNB), Tenaga Nasional Junior Officers Union (TNBJOU) and Persatuan Unit
Keselamatan TNB (PERUNIKA) dated 14/11/2013 opposing the proposal to break up
TNB.
4 STOP
THE TERMINATION AND PERSECUTION OF UNION AND WORKER LEADERS FOR ACTIVITIES TO
ADVANCE WORKER RIGHTS AND HIGHLIGHT INJUSTICES.
When the president of the National Union of Flight Attendants Malaysia (NUFAM)
issued a statement as Union President highlighting also some of the pending
issues yet to be dealt by Malaysian Airlines (MAS), he was terminated by reason
of issuing a statement as an employee. 53 organisations issued a statement on
3/3/2014 entitled, ‘Malaysian Airlines
Must Respect Trade Union and Worker Rights -Cease Anti-Union activities against
NUFAM and its members’, and we also refer to the earlier statement by 43
groups on 3/12/2013, entitled, ‘MAS Must
Immediately Revoke Suspension of Union President Ismail Nasaruddin Worker Right Issue Should Be Resolved By
Negotiations Not ‘Union Busting’.
Likewise, 18 workers were terminated by DRB HICOM for handing over a
Malaysian Trade Union Congress(MTUC) memorandum to candidates contesting in the
last General Election, where the object of MTUC was to get commitment from incoming
parliamentarians with regard to worker rights. We reiterate the statement by 51
groups issued on 25/6/2013 entitled, “DRB
HICOM Must Respect The Citizens’ Right To Participate In The Democratic Process
In Malaysia– Stop disciplinary action against workers for exercising their
political rights.”
Many other trade union leaders have been terminated for highlighting
injustices affecting workers, amongst others Abdul Jamil Lalaludeen and Chen
KaFatt who were, respectively, the Vice-President and the Honorary
Treasurer of the National Union of Bank Employees (NUBE); Hata Wahari, the President of the National Union of Journalists; Ismail
Nasaruddin, the President of NUFAM;
and Wan Noorulazhar , the
President of the Electronic Industry Employees Union Western Region, Peninsular
Malaysia (EIEUWR). We recall the Joint Statement by 87 groups dated 4/4/2013, ‘RENESAS
Must Immediately Accord Recognition To The Union And Reinstate Wan Noorulazhar.’
We call for the end of termination,
discrimination against and other forms of persecution against unionist and
worker leaders, all of which could be rightly perceived as union busting by bad
employers, which can be perceived as being condoned by Malaysian government.
We call for a repeal of the law that now
allows employers to terminate of unionist by simply treating it as an employee
misconduct. For example, NUFAM’s president was terminated because MAS said that
the act of an employee issuing a media statement was a misconduct.
5. RIGHT TO A DOMESTIC INQUIRY BEFORE BEING
TERMINATED
Ismail Nasarudin and 4 other from NUFAM were recently terminated without
even a Domestic Inquiry. In the spirit of industrial harmony and justice, when an
employer alleges a misconduct, natural justice demands that workers be accorded
the right to be heard and right to defend against the allegation in front an
independent panel.
In the case of the 18, who have been terminated by DRB HICOM
subsidiaries, they had a Domestic Inquiry but were denied the right to be
represented by a representative of their National Union. They were only allowed
to be represented by a worker from their own workplace.
Noting that the majority of workers are not even unionized, it is
essential that in the interest of justice, all workers shall have the right to
domestic inquiry, and this should be provided for in law. There must also be
the right accorded to the affected worker to be represented by a lawyer, unionist
or worker of their choice.
6. MISCONDUCT NEED TO BE STATUTORILY DEFINED
Employers have been arbitrarily increasing the number of misconducts,
many of which are vague and some even undermine fundamental rights of workers,
or their unions, including the right of workers to highlight injustices, fight
for better rights or even make representations to the relevant authorities to
complain about violation of rights.
In the case of the DRB HICOM, one of the alleged misconduct was the‘bringing
about or trying to bring about any form of influence or outside pressure to
submit or support any external claim that is related to service be it an
individual claim or claims of other employees’. Now, how can this be a
misconduct when it really is what workers and unions do – that is highlight and
campaign for support and hence ‘exertion of pressure’, etc… on employers, which
by the way is also the object of any worker pickets. It is absurd when this very
right is made into misconduct. 51 Groups issued a statement on25/6/2013, ‘DRB HICOM Must Respect The Citizens’
Right To Participate In The Democratic Process In Malaysia– Stop disciplinary
action against workers for exercising their political rights.’ Now, workers
in MAS are facing disciplinary actions for bringing their grievances to the
Ministry in Putrajaya.
Worker misconduct should never attempt to diminish worker rights,
freedom of expression, rights as citizens and other human rights.Like criminal
offences, misconducts must be clearly stipulated including also the penalties
that could be imposed by employer in the event the misconduct is proven or
admitted.
For the protection of workers, there must be laws that defining
employment misconducts, limiting it to matters at the workplace or reasonably
related, but never to prevent worker organizing, union building and union
activities. Attempts of employers to control the personal life, freedoms and
human rights of workers especially outside working hours should never be permitted.
7.
WHEN A WORKER TERMINATION HAS BEEN
DETERMINED AS BEING WITHOUT JUST CAUSE, THE RIGHT TO BE REINSTATED WITHOUT LOSS
OF BENEFITS MUST BE GUARANTEED.
When a worker is wrongfully dismissed, justice is sought by a worker
seeking reinstatement by lodging a complaint which ultimately goes to the
Industrial Court who decides whether it wasa wrongful dismissal or not. If wrongfully
dismissed, the employer shouldjustly be ordered to reinstate the worker without
loss of benefits.Alternatively, the worker should be able to claim compensation
in lieu of reinstatement.
In Malaysia, the choice between reinstatement and compensation is taken
away from the worker, and placed in the courts which now generally do not order
reinstatement. In 2007, a new Scheduled 2 was added to the Industrial Relations
Act 1977, which unjustly now not just limits the quantum of compensation in
lieu of reinstatement to not more than 24 months, and for probationers not more
than 12 months but also provides further deductions. This, rather than deter
employers from wrongfully dismissing workers now emboldens them to use
‘wrongful dismissal’ as a means to get rid of worker and/or union leaders. This
anti-worker Schedule 2 must be repealed, and the choice of accepting
reinstatement or compensation must be restored to the aggrieved worker.
8 PROBATION AND OTHER RIGHTS SHOULD BE PROTECTED BY THE
LAW FOR ALL WORKERS
More than 92% of workers in Malaysia are not unionized, and as such they
do not have the mechanism of a Collective Bargaining Agreement, that may allow the
recognition of basic worker rights now absent from labour legislations to be enjoyed.
Probation is one such right, which reasonably for a regular employee, should never
be more than three(3) months, being more than sufficient time for any employer
to assess the suitability of a worker to be considered and confirmed as a permanent
employee until retirement.
Now, many employers abuse this gap in the law, and keep workers as
probationers for very long periods sometimes even years, and this is because a
worker on probation has far less worker rights compared to a confirmed regular
employee. The law must now fix the maximum length of probation, and include a
deeming provision that after three(3) months, an employee shall be deemed to be
a confirmed employee.
9. EXPEDITE TRADE UNION REGISTRATION AND RECOGNITION
While time limits and consequences for failure to do something are there
in the law for acts to be done by workers and their unions, there is absence of
similar provisions when it comes to employers. The recognition of the trade
union in the case of RENESAS took about 4 years. In this case, there were times
that employer RENESAS failed to comply with explicit instructions by the
Ministry or was delay complying with the law, and this was possible when the
law provides no time limits or the consequence of an employer failing to do
something – this allows employers to so easily delay and even ignore workers
and trade union rights.
Recognition of trade unions, a condition that needs to be satisfied in
Malaysia before employers and trade unions are allowed to enter into Collective
Bargaining Agreement, must be expedited and dealt with speedily, preferably
taking no longer than three(3) months. The outcome of the ‘secret ballot’ must
just be based just on the number of votes cast, whereas now it unjustly
considers those who should have but did not manage to cast their votes as being
votes against the union.
The right to Judicial Review is acknowledged, but when employers resort
to using it to delay recognition of trade unions, it is essential that such
proceedings in courts are proceeded with speedily to prevent denial and
delaying worker and trade union rights. It is shameful how some employers are
willing to do whatever to deny workers their rights, Malaysian Airlines(MAS),
for example, is embarrassingly challenging the Minister’s decision to accord recognition
of NUFAM after the secret ballot conducted clearly showed that 62.73% flight attendants in MAS wanted NUFAM
as the union representing them.In the case of RENESAS, union recognition was
delayed for a year or more by reason of Judicial Review and appeals initiated
by the employer. As a matter of policy, such judicial review and appeals should
be speedily disposed as delays affects worker rights, and these court actions
should never be allowed to delay union recognition process, or the execution of
Collective Bargaining Agreements.
10. TRADE DISPUTES MUST BE RESOLVED
EXPEDITIOUSLY AND STATUS QUO PENDING RESOLUTION MUST BE MAINTAINED
History shows that it is strikes and industrial actions that have been
most effective means available to workers and their unions in resolving
disputes with employers and claiming rights, but Malaysia has interfered with
this option to the detriment of workers and unions, and have adopted a preference
of dealing with trade disputes vide negotiation and arbitration, and as such
this process must be done speedily, and workers and unionist must be
effectively protected from termination and discrimination by employers, more so
pending resolution of trade disputes or complaints.
The majority of the trade disputes are initiated by workers and unions,
who many a time have to suffer termination, discrimination or violation of
rights whilst employers continue their business operation as usual, and as such
justice demands that trade disputes be resolved speedily, not longer than 30 days,
and that any workers who have been terminated pursuant to the filing of or
related to a trade dispute should continuously be paid normal wages until the said
dispute is resolved. Employers should be barred from terminating workers or
unionists who have lodged trade disputes and/or complaints until the matter is
resolved.
11. MIGRANT WORKERS SHOULD NOT BE DISCRIMINATED
Equal pay for equal work is just. It is wrong for migrant workers to be
discriminated against with regards the right to minimum wages, as an example,
where the government is suggesting the making of migrant workers to now pay
levy, which was a payment imposed on employers to deter employers from
employing migrant workers over local workers. 82 groups issued a statement on
8/2/2013, ‘Minimum Wages For All
Workers, Including Migrant Workers - No to Wage Deduction to recover Levy
Payable By Employers –‘
12. THE UNILATERAL GIVING OF
EXEMPTION GRANTED TO EMPLOYERS TO EVADE RIGHTS PROVIDED BY LAW MUST STOP
The law provide for worker rights, but many a time there are provisions
that allow the Minister to provide exemption to certain employers. For example,
the maximum 8 hour working day or 48 hours working week,can also be avoided if
the employer gets an exemption. The exemptions are granted without the prior
knowledge of, let alone being accorded the right to be heard to, the affected
workers and/or their unions. There is the possibility to challenge the
exemptions within a limited time frame, but workers, especially those without
trade unions, just do not have the capacity to challenge such decisions.
Justly, the right to be heard and contest application for exemption must be
granted to the worker or their union, before the decision.In fact, employers
should never be granted exemptions, that will deny workers their worker or
trade union rights.
13. MINIMUM WAGES MUST BE SUFFICIENT TO SUSTAIN A DECENT
LIVELIHOOD
All workers in Malaysia are supposed to be receiving minimum wages as of
1 January 2014 but alas the quantum of minimum wages fixed in 2012 at RM900 for
Peninsular Malaysia, and RM800 for Sabah and Sarawak is no longer sufficient to
ensure a decent livelihood for the worker and his family given the large
increases in the cost of living. While for public sector workers get also Cost
of Living Allowances(COLA), the majority of the workers are in the private
sector do not get COLA. Using also the fact that the Malaysian government has
declared that households earning less than RM3,000-00 are in need of financial
assistance, it is only logical that minimum wages be increased for all workers
to at least RM1,500.
COLA should also be made a legal right for worker, especially for the
lower income worker. Minimum wage rates should also be reviewed at least every
6 months, taking into account the speedily increasing cost of living and the
monies required to ensure a decent livelihood for the worker and the family.
14. THE RIGHT TO UNEMPLOYMENT BENEFITS
In this day and age when employment is precarious, there is a need for
the government to put in place unemployment benefits to assist workers
temporarily out of a job and their families. Even if out of job, and deprived
of an income, regular payments for rental, basic amenities, car and house
loans, children’s education, etc is required of the unemployed worker. Without
financial assistance in the form of an unemployment benefit, the lives of the unemployed
worker and their families will be seriously affected. This safety net for workers
is something that is available in many countries, including also neighboring
Thailand.
15. NON-DISCRIMINATION BASED ON GENDER
While our Federal Constitution guarantees equality, courts have found
that the obligation not to discriminate workers based on gender is only on the
government and statutory bodies – not on private sector employers. This goes
against the Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW) which Malaysia has ratified. The laws must be amended to
ensure that all employers do not discriminate workers based on gender or any other
forms of discrimination.
16. OCCUPATIONAL SAFETY AND HEALTH AT THE WORKPLACE
The Department of Occupational Safety and Health
(DOSH) recorded 1,248 workplace accidents in 10 sectors in the first five
months of 2013, which resulted in 68 worker deaths, 81 permanent disabilities
and 1,099 injuries not resulting in permanent disabilities.
In 2010, a total of 1426 cases of occupational
disease and poisoning have been reported to the Occupational Health Division as
compared with 791 cases reported in the previous year, whereby only about half
were successfully investigated. Amongst the diseases reported were noise
induced hearing loss (NIHL), occupational skin diseases and occupational lung
diseases. There is still a general low awareness about occupational diseases,
more so when it becomes evident long after the worker has left the workplace –
hence an under-reporting of occupational diseases occurs. For migrant workers
who have returned to country of origin, there yet no effective mechanism of
complaint or access to justice when it comes to occupational disease.
Malaysia must increase awareness of workers about
occupational disease, and be committed to active enforcement to ensure
occupational safety and health at the workplace. Hospitals and medical
practitioners should also inform workers with diseases or medical conditions
that could have been related to their workplace of this fact, and of where they
can lodge complaints and access justice.
Noting that many employers also provide workers
accommodation, there must be law stipulating the minimum standards of worker
housing that would protect the health and safety of workers. Migrant workers
who came into Malaysia with a clean bill of health have been subsequently sent
back by reason of diseases like tuberculosis(TB) that could have most likely
been contracted by reason of cramped worker housing or workplace, and as such
the list of occupational disease need to be reviewed to include also diseases
that could have been contracted by reason worker working or even poor worker housing
conditions.
17. WORKER RIGHTS IN LAW
FOR ALL WORKERS
Noting that in Malaysia, most workers are ignorant
of worker and trade union rights, a fact brought about also by reason that
worker and trade union rights are not taught in schools or colleges, it is thus
necessary that minimum worker rights are provided for and protected by law.The
laws that provide for minimum worker rights should ensure that these rights are
enjoyed by all workers, not just workers earning RM2,000 and below or just
certain classes of workers. Domestic workers, like all other workers, should also
have the right to enjoy all minimum worker rights provided for by law.
18. DO NOT SIGN AGREEMENTS THAT WILL ERODE OR
STAGNATE WORKER RIGHTS
Malaysia signs or will still sign Free Trade
Agreements and other Treaties, like the Trans-Pacific Partnership Agreement
(TPPA) without being open and transparent of the contents of the said
agreements, and without consultation with the people. Some of these agreements,
it is now known, contain clauses that will in effect not just erode but also
stagnate worker rights. One such clause is the Investor Protection Clause,
which protects investors allowing them to sue governments if the government
does anything in the future which would mean employers having to expend more
money, or do things that may affect the businesses profits. As such, if and
when Malaysia in the future decides to improve matters like worker rights,
worker safety, public health and environmental protection, requiring businesses
to thus expend monies which will impact profits, Malaysia risk being sued and
this may deter Malaysia from improving rights and working conditions of workers
in Malaysia.
It must be noted that in no way is the above a
comprehensive listing all demands or issues that affect worker and trade union
rights, but it is a listing of some of the fundamental issues and calls that
must be acted on, and not be allowed to swept aside with the lapse of time,
control of the media and other means.
The obligation to recognize and protect worker and
trade union rights is not just on the Malaysian government, but also on
business, corporations, employers, countries from where persons who own or
control businesses come from, countries from where the workers come from,
consumers of products and services provided, other businesses that have a link
with an employer by being within the supply chain or otherwise, and generally
everyone in our global community. It is an unacceptable attitude to say it is
alright to compromise on worker rights and standards as available in one’s
country or even businesses, for so long as one complies with the Malaysian law.
Ruggie’s"Guiding Principles on Business and
Human Rights: Implementing the United Nations 'Protect, Respect and Remedy'
Framework", is just but one of the standards and guidelines, that should
be adopted and followed by both governments, businesses and employers. It is
not just sufficient to ratify or sign United Nations(UN) or International
LabourOrganisation(ILO) Conventions and Instruments but not do the needful to
put into effect these commitments in Malaysia.
We call on
the Malaysian government to immediately act to ensure that all the above
demands are given effect to ensure justice for workers and trade unions in
Malaysia. The rights and welfare of workers and their families must be a
priority of any government, and this also include creating protection
mechanisms like unemployment benefits when workers are out of work.
We call for
the immediate reinstatement of all union and worker leaders including Abdul
Jamil Lalaludeen and Chen Ka Fatt from NUBE, Ismail Nasaruddin from NUFAM, Wan Noorulazharfrom EIUWR, and
RusainiMamat from NUTEAW.
We also call
for Malaysia to immediately ratify ILO Conventions 87, Freedom of Association
and Protection of the Right to Organise and Convention, and other important
worker conventions. We also call for Malaysia to give full effect to the ILO
and UN Conventions that it has ratified including also ILO Convention 98, Right
to Collective Bargaining.
Senator
Syed Shahir bin Syed Mohamud
Charles Hector
Mohd Roszeli bin Majid
Pranom Somwong
For and on behalf the 47
organisations listed below
Endorsements:-
ALIRAN
Asia Pacific Forum on Women , Law and Development (
APWLD)
Asian Muslim Action Network (AMAN) Indonesia
Center for Orang
Asli Concerns (COAC)
Clean Clothes Campaign
Club Employees Union
Peninsular Malaysia
CWI Malaysia (Committee For A Workers International
Malaysia)
Community Action Network(CAN)
Damn the Dams
Dignity International
Food Not Bombs-Kuala Lumpur
GoodElectronics Network
Human Rights Ambassador for Salem-News.com , UK
Jaringan Rakyat Tertindas (JERIT)
Kesatuan Eksekutif AIROD (KEA), Malaysia
Kesatuan Eksekutif Canon Opto
Kesatuan Pekerja-Pekerja
Polyplastics Asia Pacific (KPPAP)
Knowledge and Rights with Young people through Safer
Spaces (KRYSS)
MADPET(Malaysians Against Death Penalty and Torture)
MAP Foundation Thailand
National Union of Flight Attendants Malaysia
(NUFAM)
National Union of Hotel, Bar and Restaurant Workers (NUHBRW),
Malaysia
Network of Action for Migrants in Malaysia(NAMM)
Paper Products Manufacturing Employees’ Union of Malaysia
(PPMEU)
Parti Rakyat Malaysia(PRM)
Parti Sosialis Malaysia(PSM)
Pax Romana –ICMICA
Peoples ' Green Coalition,
Pergerakan Indonesia
Persatuan
Komuniti Prihatin Selangor dan KL (PRIHATIN)
Persatuan Sahabat Wanita Selangor
PINAY, Quebec, Canada
Pusat Komas
Radanar Ayar Rural Development Association
Sahabat Rakyat Working Committee
SALT (School of Acting Justly Loving Tenderly and Walking
Humbly)
Saya Anak Bangsa Malaysia (SABM)
Seksualiti Merdeka
Suara Rakyat Malaysia (SUARAM)
Tenaga Nasional Junior Officers Union (TNBJOU)
Tenaganita
Think Centre, Singapore
WH4C (Workers Hub For Change)
Workers Assistance Center, Inc. Philippines
Yayasan LINTAS NUSA - Batam – Indonesia
Youth
Section of The KL & Selangor Chinese Assembly Hall (Pemuda KLSCAH)
Bread for All, UK
Government-Owned MAB,
the new Malaysian Airlines Operator, Must Recognize Unions and Not Deny Freedom
of Association.
We, the 67 undersigned trade unions, civil society organisations and
groups are shocked that Malaysian government owned Malaysian Airline Berhad
(MAB), the company that took over Malaysian Airlines, chose to ignore the
application for recognition by the National Union of Flight
Attendants Malaysia(NUFAM).
In Malaysia,
before a Union can proceed to negotiate and enter into a Collective Bargaining
Agreement(CBA), the employer needs to recognize the said Trade Union. MAB’s failure to immediately recognize NUFAM reflects
badly on Malaysia who has the duty to respect worker rights especially the
freedom of Association, which is also a right enshrined in the Malaysian
Federal Constitution.
In accordance to
the existing law, NUFAM applied to MAB for recognition vide a letter dated 11/9/2015.
Section 9(3)
Industrial Relations Act 1967 states that, ‘…An employer or a trade union of
employers upon whom a claim for recognition has been served shall, within
twenty-one days after the service of the claim- (a) accord recognition; or
(b) if recognition is not accorded, notify the trade union of workmen concerned
in writing the grounds for not according recognition…’
MAB did not even have courtesy of replying
to NUFAM within the stipulated 21 days, which can be considered conduct
unbecoming especially of a Malaysian government owned company.
As required by law,
vide letter delivered on 6/10/2015, NUFAM then reported
the matter in writing to the Director General for Industrial Relations to
take such steps or make such enquiries to ascertain the
‘… the competence of the trade union of workmen concerned to represent any
workmen or class of workmen…’ in MAB, and to determine ‘…by way of secret
ballot, the percentage of the workmen or class of workmen, in respect of whom
recognition is being sought, who are members of the trade union of workmen
making the claim. The result of the secret ballot must demonstrate that more
than 50% of the qualified employees are for the Union, whereby those that never
had the opportunity to vote are taken as being against the Union.
More than 40 days has lapsed, and the DG
for Industrial Relations has not yet responded to NUFAM. Given that many
employees are hired as fixed-term contract employees, speedy efficient action
is required by the authorities. Delay prejudices workers.
Even when
Unions in Malaysia are successful in demonstrating that they have the support of
more than 50% of all qualified employees in a secret ballot, and the Minister
decides that recognition is to be accorded by the employer, some employers are
challenging this decision in court and as a result rights that come with recognition
is put on hold for many years to the detriment of workers and their union.
When the
Malaysian Airlines was previously operated by Malaysian Airlines Systems
Berhad(MAS Bhd), NUFAM succeeded at the
secret ballot and the Minister decided that NUFAM is recognized by MAS Bhd.
Unfortunately, MAS Bhd commenced a Judicial Review action in court challenging
the Minister’s decision, and this case is still pending.
Union Busting – Creating a New Legal
Entity
Private
sector companies have been known to in the past form a new separate legal
entity, and then transfer assets and business from the existing company to this
new entity, thereby killing existing unions – forcing workers to start all over
again to form, register and get recognition of unions in the new entity. This
strategy is also used to get rid of worker leaders and workers brave enough to
fight exploitation.
It is
disappointing that the Malaysian government is using a similar ‘union busting’
strategy for government owned and/or government-linked companies (GLCs).
Malaysian
Airlines Systems Berhad(MAS Bhd) was the company running the Malaysian Airlines
with about 20,000 employees. What was done was that MAS Bhd apparently
transferred their assets and the airline business to a newly created separate
legal entity, Malaysian Airlines Berhad(MAB), and terminated about 20,000 MAS Bhd Employees.
MAB, the
new company that took over the Malaysian Airlines, employed new employees,
amongst them some 14,000 ex-MAS Bhd employees. All the in-house trade unions
that existed in MAS Bhd were effectively killed.
Now, MAB is
free of trade unions.
NUFAM may
be the first union that is seeking recognition from MAB – whereby recognition
is needed to better represent their worker members in MAB and to enter into a
Collective Bargaining Agreement.
Moratorium on all court action involving
MAS Bhd
To make matters
worse, Malaysia passed a new law – Malaysian Airline System Berhad
(Administration) Act 2015, which amongst others, effectively prevented speedy access
to justice through the courts. A moratorium was put in place preventing court
actions involving MAS Bhd from proceedings. When the moratorium is finally
lifted, it would likely be too late. Justice delayed is justice denied.
Malaysian Government Owns The Old And
New Company
Malaysian
government, vide its strategic investment fund Khazanah Nasional, owns both MAS
Bhd and this new MAB. Hence, it is the current Barisan Nasional government
under Prime Minister Najib Tun Razak that is now possibly guilty of union
busting. The denial of speedy recognition of NUFAM and possibly other unions by
the new Malaysian Airline Berhad(MAB) can be said to be anti-worker and
anti-trade union conduct.
Malaysian
Trade Union Laws are oppressive and anti-worker.
WE CALL FOR
-
The Immediate
recognition by Malaysian Airline Berhad(MAB), a Malaysian owned company, of National
Union of Flight Attendants Malaysia(NUFAM);
-
The Malaysian government
to ensure that all government owned and/or government-linked companies(GLCs)
set the highest standards when it comes to respecting worker and trade union
rights in Malaysia;
-
That Malaysia immediately
ratifies ILO Convention No. 87 Freedom of Association and Protection of
the Right to Organise Convention, 1948, which is one of 8 fundamental core
conventions;
-
That Malaysia immediately amend and/or
repeal trade union laws that are not compliant with international standards
especially freedom of association.
Charles Hector
Mohd Roszeli bin Majid
Pranom Somwong
For and on
behalf the 67 organisations, trade unions and groups listed below
ALIRAN
Asia Monitor Resource Centre (AMRC)
Association of Maybank Executives
BPSLU (Batangas Pier Stevedores and Dockworkers Labor
Union), Philippines
Center for Trade Union and Human Rights (CTUHR),
Philippines
Centro De Reflexión Y Acción Laboral (CEREAL), México
Clean Clothes Campaign(CCC)
Committee for Asian Women (CAW)
CBBRC (Crispin B. Beltran Resource Center), Philippines
Daeduck Employees Union- Ind. , Philippines
Eagle Ridge Employees Union, Philippines
Electronic Industry Employees Union (EIEU) Southern
Region, Peninsular Malaysia
GoodElectronics Network
Hyesung Workers Union-Ind., Philippines
IDEAL （Institute for Development of Alternative Living）
Institut Rakyat
Inverclyde Advice and Employment Rights Centre, Scotland
Jaringan Kampung Orang Asli Semenanjung Malaysia /JKOASM
Jaringan Orang Asal SeMalaysia
Jawatankuasa Bertindak Kuala Lumpur Tak Nak Insinerator
Kalikasan People's Network for the Environment,
Philippines
Kesatuan Eksekutif AIROD
Kesatuan Eksekutif Canon Opto
Kesatuan Pekerja-Pekerja Mitsui Copper Foil(MCFEU)
Knowledge and Rights with Young people through Safer
Spaces(KRYSS)
LINTAS NUSA - Batam Indonesia
MADPET (Malaysians Against Death Penalty and Torture)
Malaysian Youth and Students' Democratic Movement (DEMA)\
Malaysia Physicians for Social Responsibility
MAP Foundation for the Health and Knowledge of Ethnic
Labour, Thailand
Migrant CARE
Myanmar Migrants Rights Centre
Nagkakaisang Manggagawa ng Keyrin Electronics-Ind. ,
Philippines
NAMM(Network of Action for Migrants in Malaysia)
National Union Employees in Companies Manufacturing
Rubber Products (NUECMRP)
National Union of Flight Attendants
Malaysia(NUFAM)
National Union of Journalist (NUJ) Cawangan Utusan Melayu
National Union of Transport Equipment & Allied
Industries Workers (NUTEAIW)
North South Initiative
Paper Products Manufacturing Employees’ Union of Malaysia
(PPMEU)
Parti Rakyat Malaysia(PRM)
Pax Romana ICMICA
People & Planet
Perak Women for Women Society
PERMAS (Persatuan Masyarakat Selangor & Wilayah
Persekutuan)
Persatuan Kesedaran Komuniti Selangor (EMPOWER)
Persatuan Komuniti Prihatin Selangor dan Kuala Lumpur
Persatuan Sahabat Wanita Selangor (PSWS)
Projek Dialog, Malaysia
Sahabat Rakyat 人民之友
Samahan ng mga Manggagawa sa Eagle Ridge Golf Course and
Residential Estate, Philippines
SAVE Rivers
SAWO (Sabah Women's Action Resource Group)
Selangor and KL Hokkien Association Youth Section
Solidarity of Cavite Workers, Philippines
Tenaga Nasional Junior Officers Union (TNBJOU)
Tenaganita
The Alternative ASEAN Network on Burma(Altsean-Burma)
Workers Assistance Center, Inc (WAC) , Philippines
Workers Assistance Center, Inc (WAC) , Philippines
WH4C (Workers Hub For Change)
Yayasan Chow Kit
Yayasan LINTAS NUSA - Batam IndonesiaCWI Malaysia (Committee For Workers’ International)
Cividep, India
Kesatuan Pekerja-Pekerja Dalam Perkhidmatan Perubatan Dan Kesihatan Swasta
Kesatuan Pekerja-pekerja Perodua EngineManufacturing Sdn. Bhd
Kesatuan Pekerja-Pekerja Perusahaan Otomobil Nasional Sdn Bhd (KPP Proton)
See related links
47 Groups :- WORKER AND TRADE UNION RIGHTS MUST BE PRIORITIZED FOR THE WELLBEING OF THE WORKER AND THEIR FAMILIES
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Malaysian Airlines takes disciplinary SG of NUFAM and 30 others - Union Busting?
MAS is embarassing Malaysia in the way that it is treating workers and their union
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Malaysian Airlines terminated the President of National Union of Flight Attendants Malaysia (NUFAM), and now suspends 7 others
67 Groups :- Government-Owned MAB, the new Malaysian Airlines Operator, Must Recognize Unions and Not Deny Freedom of Association.
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