MTUC May Day Rally with Dr.M at Wisma MTUC - expected 20,000?

Workers will be gathering come 1st May to demonstrate their solidarity as workers in their struggle for better worker and trade union rights...and MTUC expects 20,000 in an event that will also see for the first time former PM Dr Mahathir...

Interestingly, the Malaysian Trade Union Congress(MTUC) MAY DAY Rally will now be Wisma MTUC USJ 9 - Why? This certainly is not a venue that is easily accessible by public transport. Previous rallies have been held in the field in front of Amcorp Mall, just nearby the Taman Jaya LRT station.

Surely, the Menteri Besar of Selangor could have provided a better venue, considering that MTUC is expecting over 20,000 to turn up..

Earlier, it was also reported that former Prime Minister Dr Mahathir will also be turning up...for the promotion of worker and trade union rights...

Details

Date:

May 1

Time:

7:45 am - 11:00 am

Venue

Wisma MTUC

10-5 Jalan 9/5T, Subang Jaya, Selangor 47620 Malaysia

Dr M to hit the streets again, this time for workers' rights

---

Terence Tang     Published 22 Apr 2016, 11:48 am     Updated 22 Apr 2016, 4:27 pm     

Former prime minister Dr Mahathir Mohamad will once again hit the streets of Kuala Lumpur.

Come May 1, he and Selangor Menteri Besar Azmin Ali will attend the May Day rally organised by the Malaysian Trades Union Congress (MTUC).

Since launching his campaign against Prime Minister Najib Abdul Razak, Mahathir has become a regular feature at street protests and public rallies, which the nonagenarian had little tolerance for during his tenure as prime minister.

In announcing Mahathir’s participation, MTUC acting president Abdullah Sani Abdul Hamid told reporters that the rally would demand better treatment for workers nationwide, irrespective of whether they are foreign or local.

"Our demands include the setting of the monthly minimum wage to RM1,200, maintaining the EPF (Employees Provident Fund) withdrawal age at 55 and further study on the impact of the goods and services tax (GST) on the rakyat," he said.

“We hope to get an attendance of between 10,000 and 20,000 people at the rally.

“We must stop the oppression of workers by certain employers and authorities. We need to defend the employees’ rights so they can be treated fairly and with respect.

“The employees in question include all of you too,” he added, referring to the journalists present.

Quizzed further on Mahathir’s presence, MTUC secretary-general N Gopal Kishnam said the union hopes he would share his contributions towards workers in the country during his tenure as prime minister.

In addition to the minimum wage, EPF and GST issues, MTUC also urged the government to:

• Respect the federal constitution by protecting the rights of workers and guaranteeing the social safety of workers of all nationalities;
• Recognise and implement the ILO Convention 87, which comprises the right for employees to form associations and more;
• Make it compulsory for employers from the private sector to provide a cost-of-living adjustment allowance of RM300 to every employee;
• To reconsider and analyse the implementation of Trans-Pacific Partnership Agreement (TPPA), so that its implementation will not burden the rakyat, especially in the form of increasing medical costs;
• To fully implement the ILO Convention 98 so that workers can reclaim the right to hold discussions with officials in the public sector; and
• To study and amend the law in regard to employees, so that the workers and unions’ rights are truly protected. - Malaysiakini, 22/4/2016

AG Apandi, do not underestimate the professionalism and integrity of Malaysian Judges?

I want to believe that Malaysian judges are professional and qualified, and as such will not be affected by 'fear' or even opinions ventilated in the public arena or in the media. They will judge in accordance with the law, and in accordance to their conscience. There are matters where the law, be it written law, or precedence have not yet determined. A judge should be brave enough to express his own mind to create 'new law' where it so requires, and his reasoning must be just. 

It is hence most disturbing when Attorney General Apandi Ali makes a suggestion that Malaysian judges may be affected by 'fear' or influenced by outside opinions wrongly. 

He seems to be propagating the SUBJUDICE rule - Is he trying to say that Malaysians and others should not be commenting or discussing ongoing cases? Is he trying to say that 'our courtroom public gallery and premises' should be cleared of members of the public not party to the suit? 

To another question on the need of sub judice rule as it raised a gap in journalism, Apandi said to avoid judges to be influenced, there was the need to maintain the sub judice rule.

"Judges are human, they are supposed to give decisions without fear or favour but when they are sitting (on the bench), he is confronted with so many supporters for example the accused person staring at him, I heard judges telling me, indicating to me that they feel the fear. The element of the fear factor is there.

"Judges are also human, they have the fear factor, so to avoid that, it is better to still maintain the sub judice principle," he said.

Apandi explained that judges might have not only been influenced by the writing, even the mere people present in the courtroom could also create fear in the judges.

Sub judice means the public are prohibited to discuss anywhere on any case which is still under judicial consideration.

I say that JUDGES who cannot uphold the cause of justice without fear or favour should really not be a Judge at all. 

Judges, are not lay persons like in a Jury, but are professionals, and they will not and should not be influenced by 'external matters' or 'discussions' be it from the Prime Minister, the government, a religious authority, individuals - be it by reason of FEAR or any other reason, be it 'rewards', promise of rewards, etc...

JUDGES are humans - but in carrying out their duties, they must act FEARLESSLY in upholding the cause of justice. I have faith in Malaysian judges, and if there are judges who cannot fulfill their role and responsibilities...well, it is time for them to leave...we need a STRONG DEPENDABLE Judiciary.

Maybe, AG Apandi Ali should now identify these 'judges' who told him that they acted out of fear when giving their judgments - such Judges need to be removed. Feeling fear is human, but the question is whether they can overcome this fear and act justly as required by them...

AG Apandi, when did these judges tell you this - when you were still a Judge, or after you became the Attorney General? This also is material. Odd if judges are 'complaining' to the AG? Independence of the Judiciary means also independence from the AG, the PM or the Government?

Now, why is the AG commenting on this? Anyway, the AG does not determine the law in Malaysia - so, I take it this is only the opinion of one man.

JUDGES are the Judges of the Malaysian people - and not merely Judges of the government. Judges also must be conscious of their reality - our Malaysian reality and also the global reality, of differing sentiments, opinions and viewpoints...

Criticizing court judgments and/or even rulings - well, this is important for judges and also for the development of law. Remember, a judge decides not just on the basis of what has been submitted by the lawyers of the parties, but also based on his/her own personal understanding and knowledge. It is not uncommon to see good judgments of courts that are decided not just based on any points or authorities that were raised by lawyers of the parties in court, but based also on the personal knowledge of law of judges. Justice will not be done, if judges can only rely on what has been submitted - as then, justice may not be done by reason of lawyer's failings. 

For Apandi, it seems that 'Sub judice means the public are prohibited to discuss anywhere on any case which is still under judicial consideration' - and, in my opinion, he is wrong. Subjudice may be relevant if we still have jury trials - but professional judges will and should not be influenced by 'public discussion anywhere on any cases which is under judicial consideration. The public can discuss as they will - but professional judges will not allow anything irrelevant to affect their judgment.

Well, hopefully the AG will also advice the Inspector General of Police and some of our Ministers - reminding them of the presumption of innocence before proven guilty. Many of them make comments as though persons arrested are guilty of an offence - when a person arrested is still only a 'suspect', and even a person charged in court is only a person who is accused of committing an offence. It is only when a person is convicted by court, will he be considered guilty of any crime.

Remember, that we are in a democracy - and here we place great importance of the Freedom of Expresion, Freedom of Opinion, Freedom of Assembly and Press Freedom...

In any event, this is only an opinion of AG Apandi, and like all of us, he has the freedom to express his opinion - and I have the right and freedom to disagree with his opinion..

Tuesday, 26 April 2016 | MYT 8:26 PM

A-G Apandi: I am enjoying the job

Apandi

KUALA LUMPUR: Despite facing various criticisms for the past eight months he has been in office, Attorney-General Tan Sri Mohamed Apandi Ali said he enjoyed his job and would take criticisms as a challenge.

Apandi said as long as his duties involved the law of which he had a passion for, he would always take them as challenges and he loved challenges.

He said the eight months that he had been in office was neither "terrible nor conducive", but he regarded them as trying and challenging.

"My interest is always there, I am enjoying the job and I take the critics in stride," he said when asked by Bernama chairman Datuk Seri Azman Ujang to describe his tenure as the Attorney-General during the question and answer session at a luncheon talk with editors and media practitioners at a hotel here.

Apandi was a former Federal Court judge before he was appointed Attorney-General on July 27 last year replacing Tan Sri Abdul Gani Patail, whose service was terminated due to health reasons.

To another question on the need of sub judice rule as it raised a gap in journalism, Apandi said to avoid judges to be influenced, there was the need to maintain the sub judice rule.

"Judges are human, they are supposed to give decisions without fear or favour but when they are sitting (on the bench), he is confronted with so many supporters for example the accused person staring at him, I heard judges telling me, indicating to me that they feel the fear. The element of the fear factor is there.

"Judges are also human, they have the fear factor, so to avoid that, it is better to still maintain the sub judice principle," he said.

Apandi explained that judges might have not only been influenced by the writing, even the mere people present in the courtroom could also create fear in the judges.

Sub judice means the public are prohibited to discuss anywhere on any case which is still under judicial consideration.

During the press conference, Apandi said the investigation papers (IPs) opened on former prime minister Tun Dr Mahathir Mohamad, has yet to be referred to him for further action.

"I have not seen the IPs yet. The police may have sent the papers to my officers, in the prosecution department.

"In the final analysis if they (prosecution) want to make any decision they have to refer to me, but they have yet to refer to me until now," he said when asked on the development of the case.

On April 16, Inspector-General of Police Tan Sri Khalid Abu Bakar had said that police were waiting for the Attorney-General's decision on four IPs opened on Dr Mahathir.

Questioned again on the 1Malaysia Development Berhad (1MDB) case, Apandi clarified that he had directed further investigation in respect of other personalities who might be involved in the matter.

"And I am yet to receive back the IPs pertaining to that directive, until now they have not come back," he said. - Bernama - Star, 26/4/2016

Is PKR, DAP, PAS, Amanah, ...committed to saving the life of Sarawakian Kho Jabing?

Well, it is elections in Sarawak - and the question is whether these political parties have made a commitment to save the life of young Sarawakian, Kho Jabing, who may be hanged to death in Singapore? Or are they merely concerned in 'winning' seats but not really protecting the lives and livelihood of Sarawakians....

What is the position of PAS, DAP, PKR, Amanah - just not bothered? What is their stand on the Death Penalty - are they for the Abolition of the Death Penalty? 

Are they just like the Sarawak BN? ....who will not take steps to save the life of this Sarawakian...

Najib and BN not bothered about saving Sarawakian Kho Jabing's life - may be executed in Singapore soon?

Remember, in the case of Kho Jabing, the Singapore High Court had re-sentenced him, saving him from the death penalty. The Singapore Court of Appeal then on a 3-2 decision reversed the High Court decision sentencing him again to death... If we look at it, 3 judges said he did not deserve the death penalty and 3 said he did. 

Hence, I believe his life should be spared and his death sentence commuted to life >> not will the people and political parties contesting in the Sarawak Elections make a commitment to save the life of this Sarawakian. It will also mean a lot for the voters - will these political parties only be interested in the 'big projects' - and not just the woes of the individual person.

Remember that the Malaysian Bar, Sarawak Bar and the Sabah Bar has called that Kho Jabing's death sentence be commuted to life imprisonment...

23. Where the occasion demands it, the 3 Bars have stood together in voicing out society’s concerns such as the repressive laws recently by Parliament. In 2015, we also lent our voice to the cause of justice and humanity by joining in the campaign to commute the death sentence of a Sarawakian, Mr Kho Jabing to life imprisonment. Mr Kho Jabing, is on death row in Singapore after being convicted by the Courts there for murder. - OPENING OF THE LEGAL YEAR 2016,22 JANUARY 2016, ADDRESS BY THE PRESIDENT,OF THE ADVOCATES’ ASSOCIATION OF SARAWAK, Leonard D. Shim

  

Sarawak won’t interfere in Kho Jabing’s Singapore execution, state minister says
BY SULOK TAWIE Wednesday November 4, 2015
06:59 AM GMT+8



Tan Sri Dr James Masing, acknowledged Jabing’s death sentence but said it was inappropriate for any Malaysian authority to interfere in the Singapore court system. — Picture by Kamles Kumar

KUCHING, Nov 4 — The Sarawak government will not interfere in Kho Jabing’s murder case as the youth, who will be executed this Friday in Singapore, was not convicted of the crime in Malaysia, a senior state minister said.

The minister, Tan Sri Dr James Masing, acknowledged Jabing’s death sentence but said it was inappropriate for any Malaysian authority to interfere in the Singapore court system.

“Just (as) we do not want other countries to interfere in our justice system, we also do not want to interfere in the justice system of other countries,” the minister in charge of land development said.

“Let the law takes it course (sic),” he added, when reminded of the Friday deadline for Jabing.

Masing, who is also Parti Rakyat Sarawak (PRS) president, also urged Sarawakians to respect and abide by the laws of the countries they currently work and reside in.

“Please do not break the laws of the countries where you work. If you do, you alone will face the consequences of your misbehaviours,” he said.

He said Jabing’s case should be taken as a lesson to others not to violate any law, regardless where they are.

Jabing (pix) was accused of beating Cao Ruyin, 40, with a piece of wood, with the China national later succumbing to injuries. — Picture courtesy of Jumai Kho

Malay Mail Online reported yesterday Jabing’s sister Jumai as confirming that her brother will be executed this Friday in Singapore over the 2008 murder of 40-year old China national Cao Ruyen.

Jabing left Miri, Sarawak, in 2007 to look for a better-paying job as a labourer in Singapore so that he could help support his family.

One year later, the Sarawakian of Iban and Chinese ethnicity was arrested together with a friend for robbing and assaulting a labourer from China.

Jabing was accused of beating Cao Ruyin, 40, with a piece of wood, with the China national later succumbing to injuries.

According to Kirsten Han, the co-founder of We Believe in Second Chances, Jabing was convicted and sentenced to death under Section 300c of the Singapore Penal Code, which at the time, in 2010, required the mandatory death penalty.

However, amendments to the mandatory death penalty came into force in 2013 and Jabing was deemed eligible to apply for resentencing. The High Court resentenced him to life imprisonment plus 24 strokes of the cane.

But the prosecution appealed and last January,the Court of Appeal sentenced the Malaysian to death in a 3-2 decision.

Singapore President Tony Tan rejected Jabing’s appeal for clemency on October 19. - See more at: http://www.themalaymailonline.com/malaysia/article/sarawak-wont-interfere-in-kho-jabings-singapore-execution-state-minister-sa#sthash.n3uzRYvW.dpuf

Workers’ and trade union rights in BN-ruled Malaysia (Part 2)

Sadly, the erosion of worker and trade union rights continued, and based on the official statistics, the number of trade unions and trade union membership in 2015 declined..

In 2014, there were 735 trade unions but in 2015, there are just 723 trade unions (and this is based on official government statistics, Ministry of Human Resources Statistik Pekerjaan dan Perburuhan Bil 3/2015, September 2015)

And, if we just look at the private sector trade unions, there were 485 in 2014, and 475 in 2015 

In 2014, union members was 930,512 but in 2015, that number had declined to 923,938.- and this statistics was most probably just for the 2nd Quarter, that means end of June

Union busting in Malaysia - Unions reduced, Union membership declining.

 

Workers’ and trade union rights in BN-ruled Malaysia (Part 2)

by admin - 25 Aug 2012

Under this pro-business BN government, trade unions have been weakened and workers’bargaining powers eroded, writes Charles Hector.

Photograph: Jerit

As of January 2012, the employed labour force in Malaysia was about 12.4m. Out of this, only 798,941 workers (6.44 per cent) are members of trade unions, of which about 53 per cent are private sector workers, 38 per cent public sector workers, and 9 per cent workers of statutory bodies/local authorities, after more than 50 years of independence.

It is obvious that this Malaysian government has not been actively promoting the formation of trade unions. In fact, its more recent policies seem directed towards the weakening of trade unions. Electronic workers, for example, have still not yet been allowed to form a national union. The only concession made after years of struggle was when the BN allowed the formation of four regional unions in the Peninsula in 2010 (The Star, 1 May 2010).

The perception amongst workers is that this government has favoured unions that represent workers in the public sector, statutory bodies and local authorities, who have enjoyed wage increases, cost of living allowances (Cola) and other benefits. The primary motive, however, may not be acknowledgement of the rights and welfare of workers; instead, it is to woo these workers to support the Umno-led BN coalition. That said, the perks and ‘special treatment’of these workers just prior to elections does not necessarily translate into blind loyalty to the BN cause. For today, the people, including workers in the public sector, have awakened from their slumber, thanks to the availability of more information via the alternative media and exposure to the global media. Hence, they will vote in the upcoming elections as they please!

Another reason for the declining number of workers involved in the trade unions is the growing use of short-term contract employment, temporary and/or casual employees at the workplace. Such short-term and temporary employment which can be terminated by not renewing the employment contracts have made such workers disinclined to form, let alone join and actively participate in, trade unions. The fact that unions often hold general meetings and elect their leaders once every three years, further discourages short-term contract workers from active participation in the unions.

Trade union membership in Malaysia 2006-2012

Source: Department of Trade Union Affairs website

Compounded with this is the emergence of a new class of workers commonly known as ‘outsourced workers’, who are not considered employees of the principal or owner of the workplaces. As such, they are not allowed to join in-house unions or even regional/national unions. As well, they cannot resort to Collective Agreements, since these are agreements between employers and direct worker-employees. With no law limiting the percentage of ‘outsourced workers’working at a particular workplace, they can account for up to 50 per cent of total workers in some factories.

The Trade Union Act also provides that when a worker has been terminated, he/she automatically will cease to be a member of the trade union. At a time like this, when a worker really needs the support and assistance of the trade union, he/she is legally deprived of union membership.

In this regard, there have been an increasing number of cases wherein active union leaders have been dismissed. Often, the reason advanced by their employer is that they have brought disrepute and/or insulted the management of their employer-company – eg, Hata Wahari, the president of the National Union of Journalists, and more recently Chen Ka Fatt and Abdul Jamil Lalaludeen, respectively, honorary treasurer and vice-president of the National Union of Bank Employees (Nube) were dismissed. In the latter two cases, the Nube leaders apparently had participated in a rally outside the United Nations building in Geneva where they carried a banner declaring “Maybank robs poor Malaysian workers” (Harakah, 7 Feb 2012). Workers should not be terminated, save by reason of non-performance of their job and/or some infringement/breach at the workplace or related to work. It is wrong to start dismissing workers because they criticise their employers.

Erosion of the right to permanent employment

Permanent employment is a basic right, essential for the well being and welfare of workers and their families. One’s employment usually determines where one will settle-down, buy homes and land, where onefs children will go to school and even where onefs spouse will find employment. With short-term contracts increasingly the practice, it is stressful for the worker not knowing whether at the end of his contract period, he or she will still be employed at the workplace.

In our employment laws, what was clearly envisaged was permanent employment until retirement. Accordingly, the Employment Act 1955 contains clauses that provide for gradual increases in entitlements to annual leave, sick leave and even the calculation of termination and lay-off benefits. Even when it comes to retrenchment, there was the Last In First Out (LIFO) policy, that protected workers with longer periods of service. Indeed, the law imposed the obligation on employers to first attempt to provide alternative employment within the workplace, before having to let an employee go.

This right to permanent employment has systematically been replaced with short-term or fixed duration contracts of employment, sometimes less than one year, with no guarantee or safeguard of a renewal of employment contract even if the employer still needs workers at the end of the contract period.

For those, who already are permanent employees, employers have used various means to destroy this relationship and to replace it with short-term contracts. One method used is the outsourcing of work to third parties: forcing employees to leave and to enter into a new contract with these new third party employers, or face retrenchment.

Another method employed in Malaysia is the Voluntary Separation Scheme (VSS). Ironically, many workers have lost permanent employment and only to be re-employed by the same employer, this time as short-term contract workers.

Public sector employees also lost permanent employment with pension rights when state entities were privatised and this continues to happen.

Employers now can very easily get rid of workers who are older, ‘problematic’ (because they are demanding rights or even getting involved in union activities), pregnant or partially disabled following an industrial accident. Or they may just not offer them a new contract of employment. This effectively diminishes significantly the workers’ ability to fight for better wages, working conditions and other employment benefits.

The provisions for employing temporary or casual workers also gives the Minister the power to reduce workersf rights guaranteed by the parent Act for these workers.

Having different classes of workers at the workplace strengthens the ability of employers to ‘divide and rule’workers – hence greater power to control workers while eroding the workers’ability to demand better rights.

‘Bonded’ migrant workers

Initially, the Malaysian government created Free Trade Zones near the bigger towns, and workers from all over the country came to work. As time passed and wages remained low while the cost of living rose and the quality of life declined, workers started moving back to their home towns and new workers were less inclined to come.

The government then allowed these factories to be established all over Malaysia, especially where the workers and their families resided. Today, there are over 200 industrial estates, free commercial zones and free industrial zones spread all over the country.

As time went on, Malaysian workers demanded higher wages and better working conditions. Instead of facilitating these demands, the Malaysian government came to the assistance of employers by bringing in more controllable and cheaper labour, namely, the migrant workers, who were obliged to work for one employer only which, invariably enabled employers to oppress these workers. After all, if the migrant workers were dissatisfied, the only choice they had was to quit and return to their home country. In fact, even this is not a real option – for these workers would have spent a lot of money and incurred debts when they chose to come to Malaysia as migrant workers.

Access to justice is available to migrant workers just like any other worker, but when they complain of rights violations or start using these legal mechanisms, the response of many employers is simply termination of their employment: work passes/visas would be cancelled, disallowing the workers to legally remain in the country. Hence, they would lose any right to pursue their claims in the Labour Courts or via other avenues. If they stay on in the country ‘illegally’, they risk being arrested, detained, charged in court, convicted, whipped, and thereafter deported. The fact that they have valid claims or have lodged complaints in relevant avenues for justice is irrelevant.

Hence, migrant workers became a preferred source of labour for many employers – bonded and forced to work for the one employer, so very easily forced to work overtime, denied rest days and even public holidays.

Fortunately, there has emerged some measure of workers’ solidarity and Malaysian workers and trade unions, including the MTUC began to accept migrant workers as workers, and started fighting for the rights of migrant workers too. The unions accepted migrant workers as members of trade unions, irrespective of the fact that one of the conditions of these migrant workers’work passes/visas denies them the freedom of association. The unions, including the MTUC, have been ready and willing to take the matter to court if any employer, or the Malaysian government, contests the right of migrant workers to join unions or to benefit from Collective Agreements.

Besides migrant workers, the Malaysian government also created other classes of workers – temporary and casual workers. Such different categories of workers kept them divided and prevented them from joining existing unions.

Using labour without entering into employment relationship

In fact, short-term contract workers, migrant workers or the other types of workers are employees of the factory and workplaces they work in. Hence, employers have duties and obligations to ensure that the rights and welfare of these worker-employees, as contained in existing national laws and in collective agreements, are provided for.

Alas, in 2005, the Malaysian government came up with a policy that allowed factories and workplaces to use workers, without having to enter into any employment relationship with these workers. A new entity was created called ‘outsourcing agents/companies’, who would be labour/manpower suppliers, who would be supplying workers to factories and workplaces.

Under the Private Employment Agencies Act 1971, private employment agencies are considered the employers of these workers, and will continue to be the employer of the workers even after they start working in particular factories and workplaces. These workers are commonly known as ‘outsourced workers’.

In contrast, the ‘outsourcing agencies/companies’ are not considered to be the employers of these outsourced workers. Significantly, it was not the Ministry of Human Resources but the Ministry of Home Affairs that issued the licence/permits to these ‘outsourcing agents/companies’.

In this regard, I believe that this new Act runs contrary to the spirit of existing laws and principles. In the beginning, this practice applied only to migrant workers. It was later extended to cover local workers too. Consequently, in some factories today, about 50 per cent of the workforce is made up of these ‘outsourced workers’ who are not employees of the factory and/or workplace. Accordingly, they cannot join workplace unions and/or benefit from Collective Agreements either.

The ‘outsourcing agents/companies’ set-up is a very profitable business with little or no risk, even from their ‘employees’, who even if they were to strike would not affect these labour suppliers (‘contractors for labour’). After all, they do not run factories; indeed, there is no work that needs to be performed in order to generate profits. This is a form of what might be called ‘rentier capitalism’!

In 2010, the Malaysian government took steps to give statutory recognition to this unjust employment practice and relationship. They wanted to give legal recognition to these ‘contractors for labour’ – these labour suppliers. They wanted to confirm that the ‘contractor for labour’ is the employer, and remains the employer of these ‘outsourced workers’ even after they start working in the workplaces of principals. All this was achieved, despite strong protests coming from workers, their unions, MTUC, civil society groups not just within Malaysia but also internationally. The amendments proposed was passed and came into effect on 1 April 2012.

The use of ‘outsourced workers’ or outside workers at workplaces by principals are growing, and it also happens in government-linked companies. For example, the TNB Junior Officers Union protested in early 2012 against the employment and use of eoutsourced workers by TNB.

The Minister of Human Resources recently announced an exemption of some (but not all) of the recent amendments concerning ‘contractor for labour’ to all sectors except the agricultural sector. In fact, it was just a reaffirmation of ‘contractors for labour’ and the continued use of ‘outsourced workers’by principals who do not consider them as their employees.

There is no doubt that such arrangements run contrary to the sentiments and principles governing employment relationships of the International Labour Organization. Our own Employment Act also clearly states that ‘the person or class of persons employed, engaged or contracted with to carry out the work shall be deemed to be an employee or employees and (a) the principal or owner of the agricultural or industrial undertaking, constructional work, trade, business or place of work; or (b) the statutory body or local government authority, shall be deemed to be the employer’. Rightfully all involved in the business of finding and supplying workers must be private employment agencies, governed by the Private Employment Agencies Act 1971, who for their services will be paid a fixed one-time fee. They will thereafter have no other relationship, let alone employment relationships, with the workers after they are accepted and start working for the principal. The workers will then become the principalfs employees. Hence this provision for ‘contractors for labour’ is totally against the spirit of our own Employment Act!

The MTUC and workers have continued to protest against this provision for labour contractors. In 2012, the Malaysian Bar passed a Resolution unanimously calling for the maintenance of a two-party employment relationship between workers and the principal to the exclusion of all thid parties, especially the ‘contractor for labour’. Regardless of whether they are called labour/manpower suppliers or outsourcing companies/agents, there must be just one class of workers – all of whom are employees of the principal – who can join the unions at the workplace and fight as one for better workers’ rights and benefits.

The way forward

The BN government seems to have lost its way and abandoned its duties and obligations to improve the rights and welfare of persons, workers and their families. Slowly but surely workers’ and trade union rights have been eroded. The government needs to stop being pro-employer and pro-business, concerned only with big profits. It must do what is needed immediately to restore the rights of workers to permanent employment until retirement, to strengthen trade unions, which is an essential tool for the protection and improvement of the livelihood of workers, and most importantly to maintain the two-party employment relationship.

In the upcoming elections, Malaysian workers and their families will again have the opportunity to get rid of this BN government and let a new coalition form a new government in the hope that a new government will reverse this erosion of workersf and trade union rights. The choice ultimately rests with the people and the workers. Our concern must not be driven by self-interest based on workplace or sector, ethnicity, nationality, religion, culture or even current political affiliations, but by a concern for the future common good and best interest of all persons and their families – which includes the over 10 million workers in Malaysia.
Charles Hector is a human rights lawyer based in Temerloh. Part 1 of this article appeared in the previous issue of Aliran Monthly.

Worker and trade union rights in BN-ruled Malaysia(Part 1)

Worker and trade union rights in BN-ruled Malaysia(Part 1)

Workers Day (1st May) is fast approaching, and it is good we look at worker and trade union issues - including the commendable efforts that many unions, civil society groups and persons were involved in. Interestingly, in 2016, MTUC is inviting Dr Mahathir for its May Day Rally - Will the former Prime Minister take responsibility for his part in violation and/or erosion of worker rights in Malaysia? 

Dr M to hit the streets again, this time for workers' rights?

 

Worker and trade union rights in BN-ruled Malaysia (Part 1)

by admin - 28 Jul 2012

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

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

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

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

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. 

Charles Hector, an Aliran member, is a human right lawyer based in Temerloh. Part 2 will appear in the next issue. - ALIRAN Website