Foreign workers punished - forced to play "volleyball with stones" and refusal results in beatings?

Workers, and migrant workers too, are human beings and deserve to be treated with dignity. The allegations of torture - forced to play 'volleyball with stones', beaten with sticks, etc are  serious violations of worker rights, human rights and even Malaysian law. 

The allegation of denying workers suddenly of bus that tansports them to work - forcing them to walk an hour to work is also wrong.

Do workers, migrant workers, have REAL access to justice in Malaysia? Sadly, I would have to say the answer is 'NO'. Migrant workers can lodge complaints at the Human Resource Department(formerly known as the Labour Department) or even the police - but then many employers will just terminate the services of these workers and cause their employment pass/visa to be terminated - denying workers the right to remain legally in Malaysia. These 'illegal migrants' are then tracked, arrested, detained, charged in court or deported. Remember, the sentence now for remaining in Malaysia 'illegally' includes 2 caning..

Because of the inefficient, or really 'absent' REAL access to justice, migrant workers have 2 choices - (1) To suffer the exploitation, violation of rights, cheating, 'torture', etc and continue to work; OR (2) To highlight and 'fight' for justice...and now, the only means from the migrant perspective is to picket, protest or go on 'strike'... [And when there is a big hoo-hah at the factory, the media gets interested and report the incidents....]. The solution really is for the government to put in place a more effective system to access justice for migrant workers - something that is speedy, and also give workers claiming rights the ability to stay and work legally in Malaysia...

A Malaysian worker exploited by an employer has the CHOICE to leave that employer and seek employment with another employer... Maybe, this right to change employer should be extended to migrant workers - the onus being on employers to then register and 'legalize' the worker..

The relevant human resource department should also become PROACTIVE making regular spot-checks at places of employment - making sure that employees are not being cheated or exploited...

It is a loss of faith in the government and relevant authorities that results in stronger actions from aggrieved workers... The perception of many workers, not just migrant workers, is that the authorities are pro-employer... This perception must be changed, and the onus is with the government...

So what will happen in this case - will some workers be arrested and charged? Will some be terminated and sent off? Will the government take any action these employers or their management staff? Or will there be a 'blackout' in reporting and employer wrongs all be 'swept under the carpet'?

Workers will want to know outcome of these cases - what action taken against the employers, etc - and maybe these information should be publicly available at the Ministry or relevant department websites... That will impact the perspective of workers to the authorities - they will know that 'bad employers' cannot escape...

Workers are losing...Malaysian workers who take actions for worker rights just get terminated....Union leaders who are vocal and active just get terminated... Malaysian present government must really stop these 'persecution' of workers... See:-

What happened to the 18 workers terminated by DRB HICOM subsidiaries? 

Now 51 groups call on DRB HICOM TO RESPECT THE CITIZENS’ RIGHT TO PARTICIPATE IN THE DEMOCRATIC PROCESS IN MALAYSIA

Malaysian Airlines takes disciplinary SG of NUFAM and 30 others - Union Busting?

54 groups and unions:- Malaysian Airlines Must Respect Trade Union and Worker Rights Cease Anti-Union activities against NUFAM and its members

87 Groups :- RENESAS MUST IMMEDIATELY ACCORD RECOGNITION TO THE UNION AND REINSTATE WAN NOORULAZHAR

Migrant workers voted in 'secret ballot' for union recognition, terminated and send back to country of origin?

I believe the workers would not have burned the car, etc if not for what the employer did - so, who is at fault? 

1500 Migrant Workers Strike for 36 Hours Following Death of Migrant Worker

Will the AG charge the employer for the death of the Nepali worker in Pokok Sena, Kedah? Will there be an autopsy to determine cause of death? 

Remembering the JCY's 5,000 Workers Protest 2010 - maybe the biggest workers' protest in Malaysia for many years

3:35PM Aug 26, 2014

Workers torch car in 'stone volleyball' riot

A manager had allegedly forced a group of foreign workers to play "volleyball with stones" and those who refused were beaten with a stick.
The incident is said to have sparked off a riot outside the factory in Kulai, Johor, this morning, which witnessed hundreds of enraged workers throwing stones and torching a car belonging to a management staff.
According to a source, who works in the area, the "stone volleyball" was punishment for workers who took part in a protest at a sister factory in Tebrau over the death of a fellow worker.
The worker had allegedly died after he was refused treatment. However, there is no other information regarding this case.
The riot, which started at 10am, lasted for more than an hour until it was diffused by the police Federal Reserve Unit (FRU).
Despite numerous attempts, Malaysiakini could not get comments from the management.
One staff member, who answered the call, said: "The company is closed today, call tomorrow... call tomorrow, I don’t know anything... call tomorrow and speak to the manager."
Meanwhile, The Star Online quoted a representative of the workers, Kishor Rai, 23, claiming that the company abused the workers, mostly Nepalese, on daily basis and they could not take it anymore.
"When we make mistakes, they hit us and this is just unfair.
"In fact, due to an earlier disagreement, the management even refused to send us our usual bus and we were forced to walk for about 1 hour to get to work," he was quoted as saying.- Malaysiakini, 26/8/2014, Workers torch car in 'stone volleyball' riot

All workers entitled to Minimum Wages, that is Basic Wages - if employers can deduct levy, allowances, etc - Workers lose

It is a grave injustice when migrant workers are made to pay back to their employers the levy that they had to pay the government to employ a foreign worker - and not a local worker. Remember, the rationale for the levy imposition was to discourage employers hiring foreign workers...Previously, employers were deducting wages of workers to recover their expenses in bringing in migrant workers - then as of 1/4/2009, the Malaysian government put a stop to this practice especially with regards to levy. Now, we are back to a state of injustice.

They work under the same working conditions - BUT now they will not be getting the same for their work for they may get the same minimum wage BUT then there will be further deductions from their wages, when there are no such deductions for local workers.Remember, this not the first of this additional deductions - the Malaysian government already shifted the obligation for most migrant workers from their employers when they forced the migrant worker to pay that foreign workers’ hospitalisation and surgical insurance scheme in 2011. After all, is it not always the obligation of employers to pay for the hospitalisation and surgery more so when it happens at the workplace, or is related to employment.

If the Malaysian government is concerned about employers financial obligations in paying minimum wages, then just do away with the LEVY or reduce the LEVY... or reduce the other fees that employers have to pay in running their business. Do not make workers bear the burden

See also:-Foreign workers will now have to pay levy as in 1992 - a great injustice for workers

January 30, 2013 21:14 PM

Foreign Workers To Bear Levy Payment With Immediate Effect

KUALA LUMPUR, Jan 30 (Bernama) -- The Cabinet today decided that payment of foreign worker levy should be fully borne by the worker, and not the employer, with immediate effect.

In a statement, the finance ministry said the 1992 levy policy would be re-imposed on new foreign workers or when they renewed their work, study or visit permits.

"The move by the government in imposing the levy on foreign workers will not burden them as the levy rate is between RM34.16 and RM54.16, as compared to the hike in their wages of between RM300 to RM500 a month," it said.

According to the statement, since April 2009, the government had decided that the payment of foreign worker levy was fully borne by the employer to keep a check on the employment of too many foreign workers.

Nonetheless, since the RM900 minimum monthly wage policy in Peninsular Malaysia and RM800 in Sabah and Sarawak became effective on Jan 1, it has been getting brickbats from several parties.

Among them were the Malaysian Employers Federation and the Malaysian Trades Union Congress which claimed that foreign workers were now receiving better wages under the minimum wage policy, and should therefore, pay the levy themselves.

The collection of levy was introduced in 1992, to off-set the huge expenditure undertaken by the government for public amenities such as clinics, roads and other services enjoyed by both foreign workers and local residents.

-- BERNAMA, 30/1/2013,  Foreign Workers To Bear Levy Payment With Immediate Effect

Cabinet: Foreign workers to pay levy instead of employers with immediate effect

PUTRAJAYA: The Cabinet decided on Wednesday that foreign workers should pay the levy instead of employers.

The decision is to be enforced with immediate effect on new foreign workers and those who wish to renew their work pass, employment pass or temporary work visit pass.

The move is to alleviate the hiring cost for employers, said Finance Minister II Datuk Seri Ahmad Husni Hanadzlah.

“The minimum wage, which came into force this year has raised the salary for all workers on an average of between 30% and 50%, or from RM600- RM700 per month to RM900 monthly.

“The Government's move to impose a levy on foreign workers will not be a burden to them as the levy paid is between RM34.16 and RM154.16 per month as compared to a salary increase of between RM300 to RM500 per month,” Ahmad Husni said in a statement Wednesday.

The collection of levy for foreign workers was introduced in 1992 and was fully borne by the workers until 2009 when the Government decided to shift the levy burden to employers.

The 2009 decision was aimed at controlling the increase in the number of foreign workers in the country at that time.- Star, 30/1/2013, Cabinet: Foreign workers to pay levy instead of employers with immediate effect

Published: Thursday January 10, 2013 MYT 6:28:00 PM

MTUC: Don't give in to employers' demand on foreign workers levy

PETALING JAYA: The MTUC has called on the government not to bow to the demands of employers to revert the policy of levy payment for foreign workers.

Since 2009, employers had been paying the levy for their foreign workers, but now the Malaysian Employers Federation (MEF) wants to shift this burden of levy payment back to the workers.

The MEF's rationale was that the workers would be earning more, with the implementation of minimum wage policy and hence, could afford to pay the levy.

The minimum wage policy of RM900 monthly for Peninsular and RM800 for Sabah and Sarawak, came to effect on Jan 1.

MTUC president Khalid Atan begged to differ, saying that the employers should not confuse minimum wage with increased wage.

He told Bernama that if workers were asked to pay the levy, the minimum wages policy would not benefit them at all, as whatever little increase in salary they enjoyed, would be wiped out with the levy payment.

According to MEF executive director Shamsuddin Bardan, the employers forked out an annual RM2.5bil in levy payment.

He estimated that the minimum wages policy implemented effective this month, would cost employers another RM8.5bil per year.

He pointed out that with such huge payout, it would be appreciated if the government could ease the burden of employers and asked the workers to pay their own levy.

Khalid, however, felt that employers could afford to absorb the levy with their increased income due to the economic boom.

On the provision of free accommodation, transportation, medical, electricity and water to foreign workers, he said this was part and parcel of the terms and conditions of employing foreigners.

As a result, employers should abide by it, and should not deduct the cost of these perks from the employee's salary, he said. - Star, 10/1/2013, MTUC: Don't give in to employers' demand on foreign workers levy

Thursday April 16, 2009 MYT 4:09:00 PM

Employers can deduct levy from wages, again

KUALA LUMPUR: Employers are now allowed, again, to deduct the cost of the levy from the wages of the their foreign workers until the expiry of their present visas, Labour Director-General Datuk Ismail Abdul Rahim said Thursday.

Employers had been stopped from making that deduction from April 1. Making them bear the cost made them unhappy as it upset their budget.

The directive was, therefore, reversed by the Human Resources Minister Datuk S. Subramaniam Thursday following numerous appeals by employers, Ismail told Bernama.

However, Ismail explained that no deduction would be allowed for new employees registered after April 1 in line with the government's policy requiring employers from all sectors to bear the full cost of the levy from that cutoff date.

The rationale behind getting employers to bear the levy was to discourage them from employing foreigners, he said.

Nevertheless, Ismail hoped the new decision would lessen the burden of employers during this economic downturn.

Meanwhile, the Immigration Department has yet to implement the new levy rates for foreign workers in the manufacturing and services sectors because it had not been gazetted by the Home Ministry.

The new levy was doubled for workers in these two sectors from RM1,800 to RM3,600 a year.

Immigration Director-General Datuk Mahmood Adam told Bernama that the department expected to implement the new rates by May 1.

However, Bernama understands that the delay in gazetting the new rates was due to the numerous protests and appeals by employers from the affected sectors.

In fact the Indian Muslim Restaurant Owners Association had threatened to increase the price of Malaysian favourites, roti canai and teh tarik, if the new rates were implemented.

Meanwhile, the Malaysian Employers Federation executive director Shamsuddin Bardan welcomed the Human Resources Ministry's decision to allow employers to deduct the levy from the workers wages, saying this was a step in the right direction.

“This decision would greatly benefit employers who had thousands of foreign workers on their payroll.”

He hoped the government would review the proposed new levy rate and maintain the existing one at least until the economy improved.

"This will give some breathing space for employers and help them to put back their businesses on a stronger footing," he said. - Bernama- Star, 16/4/2009, Employers can deduct levy from wages, again

Najib, we need a stronger women rights movement and you must listen to them

Again, our Prime Minister has done it when he allegedly stated that  there is "no need for a women's rights movement in Malaysia". He is ignorant of the importance of Malaysia's women rights movement and their many contributions to the promotion of not just women rights but also human rights in Malaysia. Next, he may say that there is no need for human rights movement....worker rights movement...environmental rights movement in Malaysia..

There is "no need for a women's rights movement in Malaysia" as equality has been given from the start, Prime Minister Najib Abdul Razak has claimed.Speaking at the 50th National Women's Day celebration this morning, he said that Malaysia is even more advanced than developed nations in this aspect. - Malaysiakini, 2/10/2012, PM: No need for women's rights movement in M'sia

PM Najib, is there gender equality in Malaysia?  

Yes, there is in some areas but in Malaysia discrimination based on gender is still permissible - and the government has not done enough to end gender-based discrimination despite the fact that Malaysia has also ratified the CEDAW (The United nations Convention on the Elimination of All Forms of Discrimination Against Women) in 1995. 

It must be acknowledged that it was the efforts of Malaysia's women rights movement that finally moved the Malaysian government, who finally after about 15 years to  acceded to CEDAW on 5 July 1995 with reservation on 3 articles. CEDAW was adopted by the UN General Assembly on 18 December 1979.It took Malaysia another 6 years to  amend the Federal Constitution, and include 'gender' in Article 8(2)...Some Acts were amended as well - but the best option would have been to pass a law incorporating the CEDAW into Malaysian Law. 

It would have been good if our Federal Constitution was amended to include the 'doctrine of incorporation' - which will automatically ensure that all conventions that Malaysia ratifies becomes part of the domestic law in Malaysia. 

Malaysia, however relies on the 'doctrine of transformation', which means that these international obligations like those in CEDAW only becomes part of domestic law if enacted by subsequent domestic laws (or judicial decisions). The piecemeal approach by the Malaysian government of amending this and that law has resulted that there are many areas of Malaysian law that still do not incorporate the principles and obligations in CEDAW.

So, are women still being discriminated against in Malaysia?

YES, they are.

For example, in Malaysian women workers can still be discriminated against by reason of their gender. Employers in the private sector still do discriminate women on the basis of gender, and this happens because the Malaysian government FAILED women workers when they failed to enact/amend necessary laws to ensure an end of discrimination based on gender. In fact, it is still allowed for individual persons, private corporations to discriminate women on the basis of their gender.

When an employers can force women to retire at 50 and men at 55 at the same workplace, this is DISCRIMINATION based on GENDER, and our Malaysian courts said that it is OK. Why? Because the amendment to Art. 8(2) of the Federal Constitution only prevents public authority from discriminating against their employees...not employers in the private sector.

(2) Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.

In the recent case of  Noorfadilla Ahmad Saikin V. Chayed Basirun & Ors (Shah Alam High Court, 12 July 2011), here Noorfadilah was an employee of the government....BUT if she was an employee in the private sector, the outcome would not have been the same...

It is also the defendants' submission that based on the Federal Court's decision in the case of Beatrice AT Fernandez v. Sistem Penerbangan Malaysia & Anor [2005] 2 CLJ 713, art. 8 of the Federal Constitution does not apply to a contractual relationship. With due respect, what was held in Beatrice's case (supra) inter alia, is as follows:

To invoke Article 8 of the Federal Constitution, the applicant must show that some law or action of the Executive discriminates against her so as to controvert her rights under the said article. Constitutional law, as a branch of public law, deals with contravention of individual rights by the Legislative or the Executive or its agencies. ...

By virtue of art. 160 of the Federal Constitution, the defendants are definitely public authorities and therefore agents of the Executive. To me, the defendants' act of revoking and withdrawing the Placement Memo because the plaintiff was pregnant constitute a violation of art. 8(2) of the Federal Constitution. It was the contravention of the plaintiff's rights by the defendants as agents of the Executive. As such, the requirement of Beatrice's case has been fulfilled....

 Court decision supports discrimination against women - retirement age

The Court of Appeal today(21/3/2012) dismissed an application by female workers claiming gender discrimination in being forced to retire earlier than male colleagues.A three-man bench led by Datuk K. N. Segara upheld a 2010 High Court ruling on the 11-year-old case, which had overturned an initial Industrial Court’s 2008 decision in favour of the eight plastic industry workers. They were forced to retire in June 2001 after the company, Guppy Plastic Industries, enforced a then-new employee handbook rule stipulating a retirement age of 50 for female employees and 55 for male employees. - unfortunately the Judgment is still not available to me, and when it is, I will share it with you.

In short, court decisions seem to indicate that only the Government is barred from discriminating its employees on the basis for gender but it is alright for all other employers, including even Government-linked companies.

Article 11 of CEDAW

1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:

(a) The right to work as an inalienable right of all human beings;

(b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment;

(c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training;

(d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work;

(e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave;

(f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.

2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures:

(a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status;

(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances;

(c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities;

(d) To provide special protection to women during pregnancy in types of work proved to be harmful to them.

3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary.

To name some other laws/policies that do have a tendency discriminate against women directly or indirectly, amongst others, are:-

- the Anti Human Trafficking law in Malaysia that do not provide victims of trafficking any remedies like compensation and damages - this law today provides only temporary protection, which really is a period for the authorities to gather evidence only. Thereafter, local women are sent for 'rehabilitation' and foreign women handed over to Immigration Department to be send back. What about the compensation for these victims from their perpetrators....which may also include wages owed to them as Malaysia defines victims of trafficking as persons exploited and these include workers who are exploited. see also Malaysia's Anti-Trafficking Act will cause injustice to workers...especially migrant workers

- then  we have the recent amendment to the Employment Act with regard to sexual harassment, for here again there is nothing about compensation or damages for the victim. All that the law seem to say is that these victims can end their employment without the giving of notice. Further, inquiry is done generally by a panel set up by the employer. There seem to be not even the ability to lodge the complaint at the labour department, where the matter could be better adjudicated by a third party, i.e. the Labour Department, whereby thereafter parties aggrieved by the decision could appeal to the High Courts and appeal courts if dissatisfied. Many of the victims are women and certainly this law does not aid the victim much at all ...and Najib is saying that we do not need a women rights movement...see also Why 'Sexual Harassment' proposed amendments to Employment Act must be withdrawn and repealed? and JAG :- Employment Act amendments piecemeal and unjust

- How many women in the private sector on fixed-term contracts who got pregnant did get their contracts renewed, and enjoyed the maternity leave rights? Most, if not all, will just not renew these contracts when the women is pregnant - not will they offer employment to women who are pregnant?. Malaysia, rather than protecting worker rights for regular employment until retirement, retrenchment, etc allowed the use of short-term contract employment - which is certainly a form of precarious work, and is also an effective tool of control of workers. Short-term contract employment should be restricted to what is really short term work - not work which is regular in nature and is part of the core operations of the employer.  See also BN government is NOT on the side of workers - Workers also need to reclaim their lost rights ...

- Malaysia cancels a migrant worker's employment/work pass just because she got pregnant. How she got pregnant has no bearing? See also MEDICAL SCREENING is very wrong & should be STOPPED immediately

- When young women are arrested at night spots - so easily are they highlighted in the media or commented on as being 'prostitutes' (sex workers), and this 'name calling' undermines the presumption of innocence until proven guilty. How many of these women have really gone through a full trial, whereby the court found them guilty of soliciting for sex for money? see also Police and Media must be held accountable for antics at "anti-vice' raid

There certainly are so many BN women MPs and Senators who could be made the Minister of Women Affairs - but our male Prime Minister chooses to hold on to that position himself - it is so patriarchal....and also an indication that this PM really have not much confidence in his own BN women MPs and Senators...I am quite disappointed that the BN women leaders never protested strongly this...

There is certainly a need for a stronger women rights movement in Malaysia, and there is a need for a much stronger struggle for women rights especially in Malaysia where the BN government has failed to ensure that all women enjoy freedom from discrimination by reason of gender...

Despite CEDAW, women workers in the private sector are not protected from discrimination

Women in Malaysia, despite Malaysia's ratifying of CEDAW, continue to be discriminated against. This would include women workers in the private sector..

Even though, Malaysia's constitution guarantees Equality....it is not for all. Some in Malaysia can discriminate on grounds of gender, etc and it is allowed..and legal.

8.  Equality.

(1) All persons are equal before the law and entitled to the equal protection of the law.

(2) Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.

[Am. Act A1130]

(3) There shall be no discrimination in favour of any person on the ground that he is a subject of the Ruler of any State.

(4) No public authority shall discriminate against any person on the ground that he is resident or carrying on business in any part of the Federation outside the jurisdiction of the authority.

(5) This Article does not invalidate or prohibit -

(a) any provision regulating personal law;
(b) any provisions or practice restricting office or employment connected with the affairs of any religion or of an institution managed by a group professing any religion, to persons professing that religion;
(c) any provision for the protection, well-being or advancement of the aboriginal peoples of the Malay Peninsula (including the reservation of land) or the reservation to aborigines of a reasonable proportion of suitable positions in the public service;
(d) any provision prescribing residence in a State or part of a State as a qualification for election or appointment to any authority having jurisdiction only in that State or part, or for voting in such an election;
(e) any provision of a Constitution of a State, being or corresponding to a provision in force immediately before Merdeka Day;
(f) any provision restricting enlistment in the Malay Regiment to Malays.

And, the fact is that this guarantee of equality and/or non discrimination only is for workers employed by government and government agencies - not to workers employed in the private sector. This came to light, amongst others, in the Beatrice Fernandez case. Recently the same was reiterated in the Guppy Plastic case - whereby this case challenged the fact that women were required to retire at 50 and men at 55 claiming that this was discrimination on the grounds of gender...

To invoke art. 8 of the Federal Constitution, the applicant must show that some law or action of the Executive discriminates against her so as to controvert her rights under the said article. Constitutional law, as a branch of public law, deals with the contravention of individual rights by the Legislature or the Executive or its agencies. Constitutional law does not extend its substantive or procedural provisions to infringements of an individual' s legal right by another individual. - BEATRICE  FERNANDEZ v. SISTEM PENERBANGAN MALAYSIA & ANOR, Federal Court, 11 May 2005

We want the guarantee of equality and non-discrimination on the basis of gender, etc for everyone in Malaysia. It must be a guarantee enjoyed by all workers, both in public and private sector.

Laws can be enacted that rights contained therein will supercede existing contracts and agreements, and as a precedence we have that in Malaysia's Employment Act 1955, whereby section 7 does this...It matters not what your employment contract says, you can rely on better terms, conditions and rights contained in the law...

7.  More favourable conditions of service under the Act to prevail.

Subject to section 7A, any term or condition of a contract of service or of an agreement, whether such contract or agreement was entered into before or after the coming into force of this Act, which provides a term or condition of service which is less favourable to an employee than a term or condition of service prescribed by this Act or any regulations, order or other subsidiary legislation whatsoever made thereunder shall be void and of no effect to that extent and the more favourable provisions of this Act or any regulations, order or other subsidiary legislation whatsoever made thereunder shall be substituted therefor.

7A.  Validity of any term or condition of service which is more favourable.

Subject to any express prohibition under this Act or any regulations, order or other subsidiary legislation whatsoever made thereunder, nothing in section 7 shall be construed as preventing an employer and an employee from agreeing to any term or condition of service under which an employee is employed, or shall render invalid any term or condition of service stipulated in any collective agreement or in any award of the Industrial Court, which is more favourable to the employee than the provisions of this Act or any regulations, order, or other subsidiary legislation whatsoever made thereunder.

Likewise, should not the fundamental rights/liberties guaranteed in our Constitution, i.e. the guarantee of equality and equal treatment...the guarantee that there will be NO discrimination on the basis of GENDER, etc also apply to all in Malaysia. 

We have been independent for 55 years, but the government has failed to ensure that women are not discriminated against on the basis of their gender... 

WOMEN workers not being employed by government or government agencies are still being discriminated against in Malaysia. 

Malaysia ratified/aceded/signed the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1995, and in 2001, the Federal Constitution to include 'gender' in Art 8(2)...but in reality private corporations and employers are still free to discriminate women - women workers...

When Malaysia ratifies/signs a UN Convention, it is best that an Act be enacted that clearly states that all rights and obligations contained therein is now part of Malaysian law, and overrides all provisions in other existing laws and subsidiary legislation that is contrary to the said Convention. Now, what is done is that the Government makes amendment in this law and that to ensure compliance - and, of course, some may be missed out by the law makers/drafters - but if there exist a law that immediately puts into effect UN, ILO or other Conventions and/or Instruments that Malaysia has already publicly adopted/accepted/acceded to/signed/ratified, it would be good for all in Malaysia and  these can be raised in courts... And, the courts' findings will assist the government to make the necessary amendments to the laws to bring it in line with the said Convention...

This really is not a new thing. For even today, many existing laws/regulations/etc are being challenged as being contrary to the Federal Constitution...so when CEDAW was ratified, by law it should have immediately been put into effect by such a law... Slowly, the government law drafters can vet the hundreds of existing law and make necessary amendments as they find inconsistencies and non-compliance with CEDAW...

I am sure CEDAW does not women workers, by virtue of they being in the private sector and not in the public sector, to be discriminated by reason of their gender. This state of affairs itself is DISCRIMINATION - for people are being discriminated on the basis of who their employer is, i.e. the government or some private corporation/company/person..

What is scary is that every worker, not in the employ of government or government bodies, can be discriminated against on the basis of religion, race, descent, place of birth or gender. 

I wonder also why  Art. 8(2) only refers to citizens and not all persons as in Art. 8(1)

National Worker Protection Policy, Public Transport Policy - not 'Car Policy'

Automotive policy - for car owners - well, PKR and Pakatan can have a new policy - but really there are so many other matters that need to be priority.... and, one of this is a new Worker Policy (or Labour Policy). Elements of this new labour policy should include...

1 -  Permanent Regular Employment until retirement age for all workers. The trend of employing workers on short-term employment contracts must end, or severely restrained. When the work is part of the core operations, perennial in nature (or on-going work),etc - workers employed must be regular workers - not short-term contract workers, not workers of sub-contractors, not workers of 'contractors for labour'.... Employment security is a priority and a basic right for all workers - and it is essential for the well-being and welfare of workers in their family. What use talking about increased retirement age, better maternity benefits, etc...when workers employed on the basis of short-fixed term contracts can so easily be denied all these rights..

In India, The Contract Labour (Regulation And Abolition) Act, 1970, in brief, disallows principals from using 'short-term contract employees or workers' when:- (a) The work is perennial and must go on from day to day; (b) The work is incidental to and necessary for the work of the factory; (c) The work is sufficient to employ considerable number of whole time workmen; (d)  The work is being done in most concerns through regular workmen..." F

The said Act stipulates that the principal/owner of the workplace shall be the Principal Employer, and it also places obligations on the Principal. For example, “The contractor is required to pay wages and a duty is cast on him to ensure disbursement of wages in the presence of the authorized representative of the Principal Employer...”. As a matter of interest, there is a provision in that Act that states that,  “The contract labour who performs same or similar kind of work as regular workmen, will be entitled to the same wages and service conditions as regular workmen.”

2 - All workers must be employees of the principal/owner of the establishment that they work in. The trend of allowing principals/owners using workers, not their employees, but employees of 'contractors for labour' must end. The first step if for the repeal of the recent amendments to the Employment Act 1955 which allows the 'contractor for labour' and their practices.


3 - Minimum wages - All workers shall be entitled to minimum wages. The BN's denial of minimum wages to workers on probation (for up to 6 months) must be ended immediately. Workers on probation also need to live a decent life and there is no justification that they be denied minimum wages.... Remember, that with current employment practices in Malaysia, these probation workers unlike in the past are not just the young workers who enter the employment market after school for their first job....


4 - Probation - This is usually the period provided to employers to determine the suitability of new employees before they are confirmed as permanent regular employees - and this period need to be limited to no longer than three(3) months maximum. 3 months is long enough for any employer to access the performance and suitability of any worker. Today, some employers abuse this ...and sometime persons can be still on probation after 1 year...2 years... and this is really unfair. Their status as workers on probation also affects their other rights as workers - and this is so wrong. 


5 - Trade Unions - This is a fundamental right to ensure justice for workers - it allows workers to be united and engage with their employer on a more equal footing to negotiate better rights and working conditions BUT under the BN it is so difficult for unions to be formed.... New policy should be that any approval or recognition process must be completed not later than 30 days, for now the delay in the process many a time is caused unnecessarily by the registration/recognition process. Every workplace shall be entitled to form a trade union therein...Maybe on application, there should be immediate registration and recognition...


6 - Protection of worker rights must be a priority and violations by employers must be penalized. Now if employer does not pay overtime for 5 days, and the worker complains and he is successful be it after mediation of trial - all that the employer is required to do is pay the worker what he should have paid in the first place. The worker will also not get any compensation for cost and time wasted in pursuing the claim. This will certainly not deter employers from violating worker rights...And the BN government is happy with this - reflective of its stance of being pro-employer and anti-worker. Changes needed (1) If the worker is successful in his/her claim the errant employer shall be liable to pay three(3) times what they should have originally paid the worker PLUS also compensate the worker for transport and wages most in pursuing the claim. (2) The employer should also be liable to a FINE of not less than RM10,000 and not more than RM50,000, and the amount and the nature of the violation shall be a consideration in the determination of the fine. We need deterrent sentences to protect workers...and their families, and deter employers from violating worker rights.

7 - The equality guaranteed by the Federal Constitutions shall also apply to all workers, including those in the private sector. Now, it only applies to workers in the public sector. Today Syarikat XXY can easily discriminate workers on the basis on gender - pay women workers less than male workers, require women workers to retire at 50 while men workers can retire at 55... There is still discrimination in Malaysia when it comes to workers in the private sector - and this needs to end. 


8 - Establish a National Retrenchment Fund....maybe even a National Unemployment Fund that will be able workers who have been retrenched...and who cannot find new jobs. Many workers, when companies cease operations, suddenly find themselves being deprived of overdue wages, benefits...even termination and lay-off benefits to which they are entitled to in Malaysian law. MTUC has been suggesting this for so many years and this BN-government is just not interested in workers of Malaysia.





- well, a National Workers Policy... a National Labour Policy is what we really want and we hope that PKR (or better still Pakatan Rakyat) will tell us what their policy is .... Silence may lead to many believing that PR's policy like that of the BN may end up being a pro-employer anti-worker policy...


Alas - they are talking about 'car-policies'..... and, even then, should they not be talking about a more efficient public transport policy so that we Malaysians are not forced to buy a car or a motor-bike at all. It is the failure of BN government having a comprehensive public transport policy... that has forced many Malaysians to have to buy cars and motor-bikes just to get to work and anywhere in time... 

And, PKR did a lot of work on their car policy ---- if only, they spend more time presenting us with a National Worker Policy, National Public Transport Policy, National Social Protection Policy,.... hello - do think more about the poor, the low and middle income earners, the ordinary people... 

PKR: Our car policy will benefit existing owners

Aidila Razak 2:50PM Aug 2, 2012

PKR's proposed automotive policy will also be beneficial to car owners still servicing their vehicle loans, as they can upgrade to a better vehicle while paying the same amount in installments.
However, PKR strategic director Rafizi Ramli said existing car owners can only benefit from the proposed policy if they upgrade to a new car.

This is because the proposed automotive policy would cause a depression in the second hand car market once excise duties are removed.

To illustrate how the scheme may be beneficial, Rafizi uses the example of a person paying RM600 in installments and still owes a bank RM40,000 for a car.

Once excise duties are removed, the hypothetical car value would  drop to RM25,000 and thus, by selling it in the second hand market, the owner will suffer a loss of RM15,000.

However, if the owner trades in his vehicle and upgrades to a better vehicle, lower market prices would mean that he can purchase a much better one for RM40,000 for the same monthly installment of RM600.

"So rather than paying RM600 a month for a Proton Saga, I'd rather pay RM600 for a Honda," he told Malaysiakini after a press conference to detail the nuts and bolts of the proposed automotive policy.

The second hand cars will later be exported, said PKR de facto leader Anwar Ibrahim at a press conference earlier.

"The export of second hand cars to new markets is expected to create new income for the government," he said.

To encourage a second-hand export industry, Anwar said that incentives will be given to those who set up reconditioning and upgrading facilities for used cars for export purposes.

Plugging RM8 bil revenue loss
 Besides the second hand export market, he said loss of RM8 bil a year in revenue from the scrapping of the excise tax can be recouped through:

• Implementing a three tier bidding system for approved permits to import cars, expected to return RM2 to 3 billion a year until the 2015 deadline;

• A rise in sales and income tax of about RM1 to RM1.5 billion a year, as consumers now have RM8 bil more in their pockets through cheaper car prices; and,

• Reduction in ad hoc expenditure and allocation for the Prime Minister's Department.

Anwar also gave the assurance that the proposed policy will not render automotive sector workers jobless.

“The policy does not guarantee advantage for any quarter. This is important to ensure that the job opportunities for the sector grow through the entrance of more international automotive firms,” he said.

He added that local car manufacturers will ,however, be offered a special incentive to upgrade the quality of the cars in order to compete with the international carmakers locally and abroad. 

He added that the policy also considers the need for a comprehensive public transport, with the focus on making Malaysia the most public transport friendly nation in south east asia in 10 years.

This includes restructuring Keretapi Tanah Melayu Bhd and the rail systems in the long run, while upgrading the bus systems in the short run.

He said that Pakatan does not intend to review all existing agreements on transport, including the MRT and LRT, unless found to not be in the public interest.

Incentives will also be accorded  companies which manufacture environmentally friendly vehicles in Malaysia.

Anwar also explained that this is PKR's policy to be presented to its Pakatan partners. - Malaysiakini, 2/8/2012, PKR: Our car policy will benefit existing owners

Tax Rebate for organising Family Day events absurd when poor Malaysia been cutting subsidies and causing family sufferings

Tax Rebate for companies where there are trade unions

 

Tax Rebate for companies whose workers are all regular workers on employment contracts until retirement. (i.e. companies where no workers, who are not employees of the principal, but supplied by contractors for labour, and no short-term contract employees). Companies who use workers on short-term contract, or workers without making them employees as provided by contractors for labour, really do not even care for the rights and welfare of workers and their families. Companies that care will only be using workers, who are all their employees, who are regular permanent employee until retirement...

Tax Rebate for companies who practices no discrimination especially based on gender - Remember the Guppy Case where women are being discriminated against and are made to retire at 50 when men are allowed to retire at 55...Federal Constitution guarantees equality - but alas the obligation not to discriminate seems not to extend to PRIVATE companies... and this is SO WRONG.

But the Malaysian government foolishly is giving 100% tax rebate for companies that have family day celebrations - but alas, how can these companies that do not even care for their own employees - and put them on short-term contracts, or  even those that use workers, employees of contractors for labour...

So, will these Family Day Celebrations be for ALL the workers at the factory - or just the companies regular employees - not their short term employees, not for the workers supplied by the contractors for labour - the 'outsourced worker'..

Family Day for migrant workers - they cannot even fall in love and get married when they are in Malaysia - not even to some other migrant worker. They cannot even bring their families to Malaysia as they work. Women migrant workers who get 'pregnant' get their work passes cancelled and are sent back to their countries... So for Migrant Workers - it would be just a BACHELOR DAY CELEBRATION

No conditions placed on these companies - so maybe some companies will organize a Family Day Celebration for SOME (not all) workers - maybe at some major hotel, etc - (maybe even in lieu of annual dinners) - after all they will get Tax Rebates from the government - 100% Tax Rebates...

Well, Malaysia is in financial trouble, so says the BN government - and thus the cut in subsidies, and the increase in prices...so how come the government is willing to give Tax Rebates for these companies...usually rich companies...

Give Tax Rebates to the poor... to the needy ...to the ordinary Malaysians.... not to the RICH...

PM: Companies to get 100% tax rebate on expenses for holding Family Day events

KUALA LUMPUR: Private sector companies will get a 100% tax rebate on expenses to hold their 1Malaysia Family Day celebrations in conjunction with the national-level celebration in November this year, said Prime Minister Datuk Seri Najib Tun Razak.

 

Najib, who assumed the responsibility of the Women, Family and Community Development Ministry in April, made the announcement in Parliament Monday, saying this was part of the ministry's move to further strengthen the family institution.

"I am glad to announce that November has been fixed for the national-level 1Malaysia Family Day celebration this year.

"Private companies that hold events to mark the celebrations would be given 100% rebate on expenses incurred to organise their respective events," he said, when answering a question raised by Zuraida Kamaruddin (PKR-Ampang) in Parliament.

Earlier, Najib said the ministry had launched the Women Director Programme this year to train and equip women to be appointed in decision-making positions in private companies, as part of the Government's goal of achieving 30% women representation in such roles.- Star, 25/6/2012, PM: Companies to get 100% tax rebate on expenses for holding Family Day events

Court's gender discriminatory judgment against CEDAW & Federal Constitution - Why must women retire earlier than men?

See earlier post:- Court decision supports discrimination against women - retirement age.

Why must women retire earlier than men?

Tuesday, March 27, 2012 - 12:44

THE Joint Action Group for Gender Equality (JAG) is deeply disappointed by the recent Court of Appeal decision to dismiss an appeal by eight women who were forcibly retired by their employer, Guppy Plastic Industries, after they reached the age of 50.

Men employed at the company are able to work until they are 55 years of age. This disparity in retirement age between men and women is a clear case of gender-based discrimination.

In 2001, eight women workers from Guppy Plastic Industries were forced to retire after a new handbook of employment regulations was introduced by the company, in which retirement age was stipulated.

The women filed a complaint with the Industrial Court. In 2008, the Industrial Court decided in favour of the women workers, finding that the difference in retirement age constituted gender discrimination.

Guppy Plastic Industries sought a review of this decision and in 2010 the High Court overturned the Industrial Court’s decision, finding in favour of the company.

The eight women appealed the 2010 High Court decision. On March 21 this year, the Court of Appeal dismissed the women’s appeal. The decision of the three-member panel of judges was unanimous.

Judge Datuk K.N. Segara reportedly said that the company was merely following its own employment regulations and that it was the industry norm to have different retirement ages.

JAG disagrees with the judges — the argument that there is no discrimination because the company was merely following its own employment regulations and was acting in accordance with the industry norm, is not acceptable.

JAG wishes to stress that companies’ harmful and/or discriminatory policies cannot be accepted when they violate Article 8(2) of the Federal Constitution, which prohibits gender discrimination.

Women must not be discriminated against — such a practice effectively robs them of five years salary and benefits.

The United Nations Convention on the Elimination of All Forms of Discrimination against Women (Cedaw), to which Malaysia is a party, defines discrimination against women as: “Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”

The provisions of Cedaw apply to all fields, including, “contracts and all other private instruments of any kind with a legal effect directed at restricting the legal capacity of women.”

In July 2011, in a judgment by Justice Zaleha Yusof in the Shah Alam High Court in relation to a women’s job offer being revoked because of pregnancy, it was affirmed that Cedaw has the “force of law” and is “binding” on Malaysia.

All arms of the Malaysian government, including the judiciary, legislature and executive, have a legal obligation under Cedaw to ensure there is no gender discrimination.

By finding against the women, the judges in the Court of Appeal have not fulfilled this obligation. This decision sends a message to employers that gender discrimination is a non-issue and is acceptable.

It is often the industry norm that upon reaching the age of 50, women workers in the plastics industry are forced to retire, and many are then re-hired on a short term contract basis. Besides elements of labour exploitation, their livelihood becomes insecure as they do not receive the benefits of permanent employment.

Women are often disproportionately and negatively affected by unfair and unjust labour practices. This discrimination is unacceptable and must not continue.

THE JOINT ACTION GROUP FOR

GENDER EQUALITY (JAG)

Source: Malay Mail, 27/3/2012, Why must women retire earlier than men?

Court decision supports discrimination against women - retirement age.

I am totally shocked at the outcome - more so when Malaysian Constitution guarantees equality - and more so that there will be no discrimination based on gender has been particularly guaranteed. (We need to consider the full judgment of the court to get the full details - now we rely only on the news report)

Shocking also, the appeal of these female workers was dismissed with cost of RM10,000 - and what would that be, from an ordinary workers perspective, about 10 or more months wages. Costs in these kind of cases, should never be ordered - more so when it involves matters of public interest, and here it was certainly involved matters of public interest like - Is it OK to discriminate against women workers when it comes to retirement age?

Court rules no gender bias in workers’ retirement age

UPDATED @ 03:07:25 PM 21-03-2012

By Clara Chooi

March 21, 2012

 

PUTRAJAYA, March 21 — The Court of Appeal today dismissed an application by female workers claiming gender discrimination in being forced to retire earlier than male colleagues.

A three-man bench led by Datuk K. N. Segara upheld a 2010 High Court ruling on the 11-year-old case, which had overturned an initial Industrial Court’s 2008 decision in favour of the eight plastic industry workers.

They were forced to retire in June 2001 after the company, Guppy Plastic Industries, enforced a then-new employee handbook rule stipulating a retirement age of 50 for female employees and 55 for male employees.

When reading the panel’s judgement before the court today, Segara discarded the appellants’ argument for discrimination, saying the case was a straightforward matter based on facts.

The panel agreed that the Industrial Court had in 2008 erred in its judgement when it failed to take into consideration relevant factors presented before it, such as the respondent’s submission of several Collective Agreements (CAs) from other firms in the same industry that stipulated the same retirement ages for both male and female employees.

“It is our unanimous view that the appeal should be dismissed.

“We are entirely in agreement with the High Court judge that the Industrial Court had erred by failing to take into consideration the relevant factors and taking into consideration the irrelevant factors,” he said.

The Industrial Court, Segara added, had failed to consider whether it was “fair and reasonable” for Guppy Plastic to “adapt to industry norms for the retirement ages of male and female employees as implemented by other companies”.

The group of workers, upon hearing the decision, stood up to leave the courtroom before the end of the panel’s judgement, as a sign of protest.

The appellants’ counsel, Ragunath Kesavan had earlier raised Article 8(2) of the Federal Constitution and the Committee on the Elimination of Discrimination against Women or “Cedaw” convention of which Malaysia is a member, to argue his case for gender discrimination.

He told the court that during the hearing before the Industrial Court, Guppy Plastics had not furnished medical proof or a report from the Department of Occupational Safety and Health (DOSH) to support its argument that women above 50 are physically unfit to resume their duties.

The Industrial Court, he added, had then decided there was discrimination in the difference between the retirement ages for men and women and said the burden laid on the company to prove their reason for the retirement policy.

Ragunath added that it was also discovered that upon the retirement of its employees, Guppy Industries had “re-hired” 90 per cent on an annual contract basis.

This, he said, meant the “re-hired” workers would no longer be entitled to the benefits offered to them when they were full-time employees.

“There is a big difference when you take away a person’s right as a permanent employee than a contract worker,” he pointed out.

The respondent’s counsel later told the court that the matter did not involve gender bias, pointing out that at the time the company’s retirement policy was introduced, Article 8(2) of the Federal Constitution had not yet been amended to include the word “gender”.

“There is no government guideline on how to fix a retirement age. Neither is it against public policy. So the company did what’s best, which is to refer to industry practices,” the counsel said.

The appeal was dismissed with costs at RM10,000.

Speaking to reporters later, Ragunath expressed disappointment, saying the court should have been at the forefront of standing up for constitutional rights. - Malaysian Insider, 21/3/2012, Court rules no gender bias in workers’ retirement age