Worker and trade union rights in BN-ruled Malaysia (Part 1)
In the first of a two-part article, Charles Hector examines how a pro-business government has led to a steady weakening of workers’ rights and their welfare and livelihood.
Photograph: Jerit
Under the rule of the Umno-led coalition, today known as the
Barisan Nasional (BN), worker and trade union rights have suffered
significantly.
‘Eight hours labour, Eight hours recreation, Eight hours rest’ is a
right that many workers in Malaysia have lost. Minimum wages, a norm in
most developed and developing countries, is something that is still
denied to Malaysian workers.
Existing worker rights in law have been slowly eroded and accesses to
justice have not been made effective and simple for the workers. Even
obligations as to rights provided in law are still being taken away by
the granting of applications by employers whilst denying the fundamental
right to be heard or objections before decisions are made. Minister’s
decisions are held to be final and uncontestable in court. Workers are
being weakened when union leaders are now allegedly being dismissed
simply because they criticized their employers – not because of work
performance or work-related misconduct.
The right to permanent employment until retirement today is being
replaced by short-term fixed duration employment relationships, whereby
most of these short-term employment contracts are for one year or less,
with no guarantee of renewal. Since 2005, with the emergence of the
‘outsourcing concept’ which started for migrant workers, now expanded to
local workers, traditional just employment relationships between those
that own and control the workplace, who have work and need workers to do
the required work, is also being withered away with the introduction of
manpower/labour suppliers who now supply workers whilst continuing to
be the employers even after the said workers start working at, and for
the workplaces, factories and offices of the principal.
In short, these new ‘employment relationship’ introduces a third
party and allows principals and owners to now just utilize the labour
free of employer obligations to the rights and welfare of the workers.
We shall be looking briefly at the situation of worker and trade unions
in Malaysia, but not all, to determine this current government’s
performance when it comes to worker rights and welfare.
Right to ‘eight hours labour, eight hours recreation, eight hours rest’ eroded
Right to ‘eight hours labour, eight hours recreation, eight hours rest’ eroded
Action taken by stonemasons on 21 April 1856, followed by many other
worker struggles ultimately led to the establishment and maintenance of
the Eight Hour Day, that is now recognized internationally, and this
right was also given a high priority by the International Labour
Organization (ILO) since its creation in 1919. The slogan ‘Eight hours
labour, Eight hours recreation, Eight hours rest’ captures the essence
of this struggle.
Likewise in Malaysia, this right is to be found in our Employment Act
1955. Any work beyond 8 hours would be construed as overtime work, and
this required the consent of the worker and also entitled the worker to
be paid extra, at a rate usually not less than one and half times his
hourly rate of pay (Section 60A 3(a) Employment Act 1955).
In 1989, the government amended the law (Employment (Amendment) Act
1989 Act A716) allowing for the Minister to waive these rights as to
required hours of work, on the application of the employer, but retained
the condition that no worker is required to work for more than
forty-eight hours in one week, which subsequently was removed by yet
another amendment in 1998 (Employment (Amendment) Act 1998 Act A1026).
What was obviously missing was the requirement of the prior agreement
of the worker and/or the relevant union, let alone the right to be
heard, before decision are made that allowed the employer to deny
workers this long struggled for right that limits the required hours of
work. The law now provides that after that decision is made, ‘… any
person who is dissatisfied with any decision of the Director General …
may, within thirty days of such decision being communicated to him,
appeal in writing … to the Minister, and any decision or order of the
Minister shall be final, thus shutting the door to judicial review –
being the court’s authority to examine an executive or legislative act
and to invalidate that act if it is contrary to constitutional
principles and justice.
There is also an absence of clear provisions in law that requires the
provision of any notice whatsoever to workers and/or their unions when
the said applications are being made by employers to the Director
General, and as such decisions are being made by the government without
workers being given the right to be heard. At present such ‘permissions’
are not even publicly and openly disclosed even in the relevant
Ministry’s website.
No guidelines and/or simple forms are provided for as to how workers
can appeal these decisions, and given that the appeal must be in
writing, there being no provision of any right to be heard orally,
workers and/or unions, with no required language capabilities or
knowledge in law are certainly prejudiced by this present procedure of
protest and appeal. Remember, there are about 2 million migrant workers
in Malaysia, most of whom do not have the capacity to read and write
Bahasa Malaysia, let alone write to the Minister.
The employment law provides minimum rights for all workers in
Malaysia, but these rights can so easily and ‘secretly’ be denied to
workers as the Director General of Labour permits employers to do so,
with no prior notice or right to be heard given to workers. Similar
provisions are available all over the Acts providing for various worker
rights to be taken away.
As it now stands, workers may be required to work long hours, even
more than ten hours per day, and even more than 48 hours per week – so
what exactly is the limit? The employers also can require their workers
to work on rest days and even on public holidays. Some workers even have
to work on May 1st, Workers’ Day!
Some companies do not stop operations, and workers are continuously
working in their respective shifts and this also prevents workers from
meeting and/or organizing unions and/or developing collective demands.
Workers on day shifts, some starting at 8.00 am and ending at 8 pm would
not even have the opportunity to go to the Labour Department to lodge
complaints, and in Malaysia most of the avenues of complaints and
justice for workers only operate during the usual working hours. The
same is the case with national/regional unions and the MTUC office,
National Human Rights Commission (SUHAKAM) and even the Legal Aid
Centres operated by the Malaysian Bar.
Minimum wages
Minimum wages
In most developed and in some developing countries, minimum wages for
workers have long been fixed by governments and laws. India, for
example has had a Minimum Wage Act since 1948. Other examples include
Indonesia, Thailand, Vietnam, Philippines, India, Hong Kong, United
States of America, Australia, New Zealand, Canada and United Kingdom.
Fast track: Average wages and allowances for local workers
However, the Malaysian government has been avoiding the fixing of
minimum wages, despite repeated calls being made by the Malaysian Trade
Union Congress(MTUC) and workers for several decades. Even after August
2010, when the government’s own Human Resources Ministry’s study of 1.3
million Malaysian workers found that a shocking 34 percent earned below
the poverty line income of RM750 per month (Malaysiakini, 5 August 2010), the government has failed to recommend a minimum wage.
At the same time, the government continued to implement measures,
including reducing subsidies, that resulted in an even higher cost of
living. Then suddenly, just before the upcoming 13th General Elections,
the prime minister announced on Labour Day 2012, that he would be
implementing a minimum wage policy.
The Malaysian government, obviously committed to neo liberalism and
free trade is perceived to be pro-employer, inclined to ensure that cost
of labour is kept low and workers in Malaysia are ‘problem-free’ – all
this allegedly to keep Malaysia competitive so as to attract foreign
direct investments into the country.
Paradoxically, the Malaysian government may have interfered with
market forces that might have improved wages, work benefits and
conditions of workers by the introduction of migrant workers, temporary
and casual workers into the labour market. However, these workers
related policies and laws might have had the effect of weakening the
bargaining rights of workers and unions.
Stagnation of workers’ righrts and erosion of justice for workers
Stagnation of workers’ righrts and erosion of justice for workers
The Malaysian government seems to have failed to improve workers’
access to justice too. If an employer cheats the worker by non-payment
of agreed wages, overtime and/or makes wrongful deductions, the worker
who succeeds in the Labour Department or Court at the end of the day
only gets the amount that he was deprived of, not even additional
interest or cost including the cost of transportation, the cost of
taking leave and hence loss of daily wages when he attends court, and
the cost of a lawyer and/or union representatives. When workers want to
meet and seek advice or help even from MTUC officials, workers allegedly
have to pay them a nominal sum of about RM60 per meeting. At the end of
the day, for the lowly paid worker, it becomes more practical that they
do not claim their rights. Hence the errant employer gets off
scot-free.
For employers, the law favors them for even when it is proven that
they have violated worker rights, all that is required of them is to pay
the worker what they should have originally paid their workers. As an
example, section 100(1) of the Employment Act states:
Any employer who fails to pay any of his employees wages for work done by his employee on a rest day or pays wages less than the rate provided under section 60 commits an offence, and shall also, on conviction, be ordered by the court before which he is convicted to pay to the employee concerned the wages due for work done on every rest day at the rate provided under section 60, and the amount of such wages shall be recoverable as if it were a fine imposed by such court.
This certainly is not just and does not deter employers from breaking
the law. It would have been more just and a deterrent if the errant
employer is ordered to pay at least 3 times the sum that he cheated the
worker.
In the Employment Act, there is also no provision that protects
workers who complain or access the avenues of justices, from being
terminated and/or discriminated by reason of the fact that he is
claiming rights against the employer. It is thus not uncommon that
workers who complain or claim rights are summarily terminated; for the
migrant worker, it is worse! For a termination will also be the loss of
the legal right to remain in the country to claim or to continue
pursuing their claims compounded with the fact that migrant worker will
also not be allowed to work with any other employer even if he is
allowed to stay.
Discrimination based on gender also occurs as when the courts
recently affirmed practice of a company that had different retirement
ages for men and women workers. Indeed, the Government was silent
despite the fact that this certainly goes against our own Federal
Constitution which guarantees equality to men and women performing the
same job.
Industrial courts – Only court which requires Minister’s permission
Industrial courts – Only court which requires Minister’s permission
When it comes to workers claiming wrongful dismissal seeking
reinstatement, they have to lodge their complaint at the Industrial
Relations Department(IRD), and if the dispute cannot be resolved, it is
then referred to the Minister who has the power to decide whether the
case be referred to the Industrial Court for trial or not. The issue is:
why should the Minister’s permission be needed? For when a matter
cannot be resolved between employee and employer at the IRD, it should
immediately br referred to the Industrial Court. An additional hurdle in
a worker’s quest for justice is unnecessary; it may also be
discriminatory.
The law also provides that if any party is dissatisfied with the
decision of the Minister, they may go to the High Court to challenge
that decision. But unlike the Labour Courts and Industrial Courts, the
High Court will award cost against the losing party, and this can be
high and for the ordinary worker, who has been wrongfully dismissed,
this may be an added financial risk which is unaffordable. The pursuit
of justice in any court, I believe, requires the removal of all monetary
risks.
As of February 2008, workers successful in their claim for wrongful
dismissal saw the entitlement to wages and benefits, drastically slashed
when in lieu of reinstatement all they could get was limited to a
maximum of 24 months wages, based on their last drawn salary, less a
percentage of post-dismissal earnings. Prior to this, their entitlement
was for wages and benefits from date of dismissal until judgment and
other matters. This was certainly an anti-worker amendment to the
Employment Act.
There is still no Industrial Courts in Pahang, Trengganu, Kelantan,
Kedah, Perlis, Melaka, Negeri Sembilan and Selangor. Why did this
government not ensure that there are Industrial Courts in all major and
medium sized towns, preferably no further than 50 kilometers from the
workplace to ensure easy access to justice for workers. Today, after 50
over years since independence, we see Industrial Courts only in Kuala
Lumpur, Penang, Ipoh, Johor Bahru, Kota Kinabalu and Kuching.
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This
is because the proposed automotive policy would cause a depression in
the second hand car market once excise duties are removed.
The second hand cars will later be exported, said PKR de facto leader Anwar Ibrahim at a press conference earlier. 
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. 
Some
suspected sex workers were shocked by the sudden appearance of the
police personnel and the media horde, causing them to grab their clothes
to cover their bodies.
Women’s
Aid Organisation executive director Ivy Josiah said the police should
stop taking media personnel along on the raids, especially to massage
parlours.
They
(news subjects) are innocent until proven guilty. Media are quick in
blaming people and it is dangerous especially when it involves the
rights of women and children.
In any news coverage, they (media) should respect the subject's dignity. 
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