Erosion
of Right to ‘Eight hours labour, Eight
hours recreation, Eight hours rest’
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. [i]
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.[ii]
But in 1989[iii],
the government amended the law 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[iv].
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 stands, now 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, and
for some workers do 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 in 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.
[i] The Preamble to Part
XIII “Labour” of the Versailles system of peace treaties, under which the ILO
was established, specifically included “the regulation of the hours of work,
including the establishment of a maximum working day and week” among the
measures urgently required to improve conditions of labour. Convention Limiting
the Hours of Work in Industrial Undertakings to Eight in the Day and
Forty-eight in the Week (Note: Date of coming into force: 13:06:1921.)
[ii] Section 60A 3(a)
Employment Act 1955
[iii] Employment
(Amendment) Act 1989 Act A716
[iv] Employment
(Amendment) Act 1998 Act A1026
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