WORKER AND TRADE UNION RIGHTS MUST BE PRIORITIZED FOR THE WELLBEING OF THE WORKER
AND THEIR FAMILIES
We, the undersigned 47 civil society organizations, trade unions and concerned groups, make the following demands to better protect worker and trade union rights in Malaysia. It is sad when a government places the interest of businesses, investors and employers over the rights and welfare of workers and their families.
1. STABLE REGULAR EMPLOYMENT UNTIL RETIREMENT AGE–ABOLISH PRECARIOUS SHORT-TERM EMPLOYMENT CONTRACTS
The right to permanent regular employment until retirement age is essential for the economic wellbeing and financial stability of the worker and their families.
A short-term or fixed term employment contract is a form of precarious employment that must be abolished. It allows for the denial of the right of retirement at 60, maternity rights and benefits, increments of rights which comes with tenure, makes it near impossible for such workers to form, join or even serve as leaders in existing unions. Such short-term employment contracts, usually a year or less, with no right of extension even if the work still exist, weakens worker capacity to struggle for better worker rights, and certainly weakens unions or makes unionization impossible.
We call for guarantee of the right to regular employment until retirement, and the abolition of short-term employment contracts and similar precarious employment practices.
2. ABOLISH THE ‘CONTRACTOR FOR LABOUR SYSTEM’ – ENSURE DIRECT EMPLOYMENT RELATIONSHIP BETWEEN WORKER AND OWNER/OPERATOR OF WORKPLACES
Direct employment relationship with the owner/operator of the workplace known as the principal, is essential to ensure stable employment, noting that employers do have the obligation to ensure worker rights and welfare are best protected. A contractor for labour (COL) should never be employers, and their role, if any, is to supply workers to owner/operators of workplace or alternatively find workers work with employers who need workers, and for the service rendered they should be paid a fee.
It is the owner/operator of workplaces, known as the principal, who should be having direct employment relationship with workers that work at their workplaces. This demand, amongst others, had been made vide the joint statement by 93 groups dated 3/5/2012 entitled, ‘Abolish the ‘Contractor for Labour’ system - Withdraw the 2012 amendments to Employment Act 1955’, and also vide the earlier statement by 115 groups on 28/10/2011 entitled,‘Malaysia Must Protect Worker and Union Rights, and withdraw proposed unjust amendments to Employment Act - Labour Suppliers Should Not Be Employers’. We also draw attention to the Malaysian Bar Resolution of 2012 expressing the same sentiment, which amongst others said ‘The Malaysian Bar takes the stand that labour suppliers and/or contractors of labour should never be or continue to be employers of workers after they are supplied, accepted and start working at the workplaces of principals or owners. Thereafter, these workers shall be employees of the principal or owners of the workplace.’ We also recall the MTUC initiated pickets and protests against the ‘contractor for labour system’.
3. PREVENT OUTSOURCING OF WORK, ‘BREAKING UP OF EMPLOYER COMPANIES’ AND OTHER SUCH SCHEME WHICH EFFECTIVELY DESTROYS WORKER SOLIDARITY AND IS AN ACT OF UNION BUSTING.
To avoid trade unions and employer relationship, some employers are outsourcing parts of the work to third party contractors who then use their own employees to do the work. This happened in the plantation sector, and National Union of Plantation Workers(NUPW), which once was a strong union with many members, is today so much weakened even though the number of workers in the plantation sector has remained the same or even increased. Another example, is what happened to the banking sector when certain aspects of the banking industry work like phone and internet banking was outsourced to third parties. Outsourcing of work is yet another ‘union busting’ strategy, that weakens trade unions, and deprives union members of the benefits of existing Collective Bargaining Agreement.
Another method, is to break up one company into different smaller companies, something that Tenaga Nasional Berhad(TNB) is now considering. This has been strongly opposed by the 4 existing unions representing the many workers in TNB. The break-up action would result in weakening of existing strong unions, and possibly deprivation of existing members of benefits and rights they now enjoy through Collective Bargaining Agreements. When new companies are formed, workers who find themselves in these new entities would have to go through the long process of forming, then getting union recognition all over again, and entering into new CBA with their new employers, a process that can take years. We support the statement of the 4 Trade Unions of TNB workers, being Persatuan Eksekutif Tenaga Nasional Berhad (PETNB), Kesatuan Percantuman Pekerja-Pekerja TNB (KPPPTNB), Tenaga Nasional Junior Officers Union (TNBJOU) and Persatuan Unit Keselamatan TNB (PERUNIKA) dated 14/11/2013 opposing the proposal to break up TNB.
4 STOP THE TERMINATION AND PERSECUTION OF UNION AND WORKER LEADERS FOR ACTIVITIES TO ADVANCE WORKER RIGHTS AND HIGHLIGHT INJUSTICES.
When the president of the National Union of Flight Attendants Malaysia (NUFAM) issued a statement as Union President highlighting also some of the pending issues yet to be dealt by Malaysian Airlines (MAS), he was terminated by reason of issuing a statement as an employee. 53 organisations issued a statement on 3/3/2014 entitled, ‘Malaysian Airlines Must Respect Trade Union and Worker Rights -Cease Anti-Union activities against NUFAM and its members’, and we also refer to the earlier statement by 43 groups on 3/12/2013, entitled, ‘MAS Must Immediately Revoke Suspension of Union President Ismail Nasaruddin Worker Right Issue Should Be Resolved By Negotiations Not ‘Union Busting’.
Likewise, 18 workers were terminated by DRB HICOM for handing over a Malaysian Trade Union Congress(MTUC) memorandum to candidates contesting in the last General Election, where the object of MTUC was to get commitment from incoming parliamentarians with regard to worker rights. We reiterate the statement by 51 groups issued on 25/6/2013 entitled, “DRB HICOM Must Respect The Citizens’ Right To Participate In The Democratic Process In Malaysia– Stop disciplinary action against workers for exercising their political rights.”
Many other trade union leaders have been terminated for highlighting injustices affecting workers, amongst others Abdul Jamil Lalaludeen and Chen KaFatt who were, respectively, the Vice-President and the Honorary Treasurer of the National Union of Bank Employees (NUBE); Hata Wahari, the President of the National Union of Journalists; Ismail Nasaruddin, the President of NUFAM; and Wan Noorulazhar , the President of the Electronic Industry Employees Union Western Region, Peninsular Malaysia (EIEUWR). We recall the Joint Statement by 87 groups dated 4/4/2013, ‘RENESAS Must Immediately Accord Recognition To The Union And Reinstate Wan Noorulazhar.’
We call for the end of termination, discrimination against and other forms of persecution against unionist and worker leaders, all of which could be rightly perceived as union busting by bad employers, which can be perceived as being condoned by Malaysian government.
We call for a repeal of the law that now allows employers to terminate of unionist by simply treating it as an employee misconduct. For example, NUFAM’s president was terminated because MAS said that the act of an employee issuing a media statement was a misconduct.
5. RIGHT TO A DOMESTIC INQUIRY BEFORE BEING TERMINATED
Ismail Nasarudin and 4 other from NUFAM were recently terminated without even a Domestic Inquiry. In the spirit of industrial harmony and justice, when an employer alleges a misconduct, natural justice demands that workers be accorded the right to be heard and right to defend against the allegation in front an independent panel.
In the case of the 18, who have been terminated by DRB HICOM subsidiaries, they had a Domestic Inquiry but were denied the right to be represented by a representative of their National Union. They were only allowed to be represented by a worker from their own workplace.
Noting that the majority of workers are not even unionized, it is essential that in the interest of justice, all workers shall have the right to domestic inquiry, and this should be provided for in law. There must also be the right accorded to the affected worker to be represented by a lawyer, unionist or worker of their choice.
6. MISCONDUCT NEED TO BE STATUTORILY DEFINED
Employers have been arbitrarily increasing the number of misconducts, many of which are vague and some even undermine fundamental rights of workers, or their unions, including the right of workers to highlight injustices, fight for better rights or even make representations to the relevant authorities to complain about violation of rights.
In the case of the DRB HICOM, one of the alleged misconduct was the‘bringing about or trying to bring about any form of influence or outside pressure to submit or support any external claim that is related to service be it an individual claim or claims of other employees’. Now, how can this be a misconduct when it really is what workers and unions do – that is highlight and campaign for support and hence ‘exertion of pressure’, etc… on employers, which by the way is also the object of any worker pickets. It is absurd when this very right is made into misconduct. 51 Groups issued a statement on25/6/2013, ‘DRB HICOM Must Respect The Citizens’ Right To Participate In The Democratic Process In Malaysia– Stop disciplinary action against workers for exercising their political rights.’ Now, workers in MAS are facing disciplinary actions for bringing their grievances to the Ministry in Putrajaya.
Worker misconduct should never attempt to diminish worker rights, freedom of expression, rights as citizens and other human rights.Like criminal offences, misconducts must be clearly stipulated including also the penalties that could be imposed by employer in the event the misconduct is proven or admitted.
For the protection of workers, there must be laws that defining employment misconducts, limiting it to matters at the workplace or reasonably related, but never to prevent worker organizing, union building and union activities. Attempts of employers to control the personal life, freedoms and human rights of workers especially outside working hours should never be permitted.
7. WHEN A WORKER TERMINATION HAS BEEN DETERMINED AS BEING WITHOUT JUST CAUSE, THE RIGHT TO BE REINSTATED WITHOUT LOSS OF BENEFITS MUST BE GUARANTEED.
When a worker is wrongfully dismissed, justice is sought by a worker seeking reinstatement by lodging a complaint which ultimately goes to the Industrial Court who decides whether it wasa wrongful dismissal or not. If wrongfully dismissed, the employer shouldjustly be ordered to reinstate the worker without loss of benefits.Alternatively, the worker should be able to claim compensation in lieu of reinstatement.
In Malaysia, the choice between reinstatement and compensation is taken away from the worker, and placed in the courts which now generally do not order reinstatement. In 2007, a new Scheduled 2 was added to the Industrial Relations Act 1977, which unjustly now not just limits the quantum of compensation in lieu of reinstatement to not more than 24 months, and for probationers not more than 12 months but also provides further deductions. This, rather than deter employers from wrongfully dismissing workers now emboldens them to use ‘wrongful dismissal’ as a means to get rid of worker and/or union leaders. This anti-worker Schedule 2 must be repealed, and the choice of accepting reinstatement or compensation must be restored to the aggrieved worker.
8 PROBATION AND OTHER RIGHTS SHOULD BE PROTECTED BY THE LAW FOR ALL WORKERS
More than 92% of workers in Malaysia are not unionized, and as such they do not have the mechanism of a Collective Bargaining Agreement, that may allow the recognition of basic worker rights now absent from labour legislations to be enjoyed. Probation is one such right, which reasonably for a regular employee, should never be more than three(3) months, being more than sufficient time for any employer to assess the suitability of a worker to be considered and confirmed as a permanent employee until retirement.
Now, many employers abuse this gap in the law, and keep workers as probationers for very long periods sometimes even years, and this is because a worker on probation has far less worker rights compared to a confirmed regular employee. The law must now fix the maximum length of probation, and include a deeming provision that after three(3) months, an employee shall be deemed to be a confirmed employee.
9. EXPEDITE TRADE UNION REGISTRATION AND RECOGNITION
While time limits and consequences for failure to do something are there in the law for acts to be done by workers and their unions, there is absence of similar provisions when it comes to employers. The recognition of the trade union in the case of RENESAS took about 4 years. In this case, there were times that employer RENESAS failed to comply with explicit instructions by the Ministry or was delay complying with the law, and this was possible when the law provides no time limits or the consequence of an employer failing to do something – this allows employers to so easily delay and even ignore workers and trade union rights.
Recognition of trade unions, a condition that needs to be satisfied in Malaysia before employers and trade unions are allowed to enter into Collective Bargaining Agreement, must be expedited and dealt with speedily, preferably taking no longer than three(3) months. The outcome of the ‘secret ballot’ must just be based just on the number of votes cast, whereas now it unjustly considers those who should have but did not manage to cast their votes as being votes against the union.
The right to Judicial Review is acknowledged, but when employers resort to using it to delay recognition of trade unions, it is essential that such proceedings in courts are proceeded with speedily to prevent denial and delaying worker and trade union rights. It is shameful how some employers are willing to do whatever to deny workers their rights, Malaysian Airlines(MAS), for example, is embarrassingly challenging the Minister’s decision to accord recognition of NUFAM after the secret ballot conducted clearly showed that 62.73% flight attendants in MAS wanted NUFAM as the union representing them.In the case of RENESAS, union recognition was delayed for a year or more by reason of Judicial Review and appeals initiated by the employer. As a matter of policy, such judicial review and appeals should be speedily disposed as delays affects worker rights, and these court actions should never be allowed to delay union recognition process, or the execution of Collective Bargaining Agreements.
10. TRADE DISPUTES MUST BE RESOLVED EXPEDITIOUSLY AND STATUS QUO PENDING RESOLUTION MUST BE MAINTAINED
History shows that it is strikes and industrial actions that have been most effective means available to workers and their unions in resolving disputes with employers and claiming rights, but Malaysia has interfered with this option to the detriment of workers and unions, and have adopted a preference of dealing with trade disputes vide negotiation and arbitration, and as such this process must be done speedily, and workers and unionist must be effectively protected from termination and discrimination by employers, more so pending resolution of trade disputes or complaints.
The majority of the trade disputes are initiated by workers and unions, who many a time have to suffer termination, discrimination or violation of rights whilst employers continue their business operation as usual, and as such justice demands that trade disputes be resolved speedily, not longer than 30 days, and that any workers who have been terminated pursuant to the filing of or related to a trade dispute should continuously be paid normal wages until the said dispute is resolved. Employers should be barred from terminating workers or unionists who have lodged trade disputes and/or complaints until the matter is resolved.
11. MIGRANT WORKERS SHOULD NOT BE DISCRIMINATED
Equal pay for equal work is just. It is wrong for migrant workers to be discriminated against with regards the right to minimum wages, as an example, where the government is suggesting the making of migrant workers to now pay levy, which was a payment imposed on employers to deter employers from employing migrant workers over local workers. 82 groups issued a statement on 8/2/2013, ‘Minimum Wages For All Workers, Including Migrant Workers - No to Wage Deduction to recover Levy Payable By Employers –‘
12. THE UNILATERAL GIVING OF EXEMPTION GRANTED TO EMPLOYERS TO EVADE RIGHTS PROVIDED BY LAW MUST STOP
The law provide for worker rights, but many a time there are provisions that allow the Minister to provide exemption to certain employers. For example, the maximum 8 hour working day or 48 hours working week,can also be avoided if the employer gets an exemption. The exemptions are granted without the prior knowledge of, let alone being accorded the right to be heard to, the affected workers and/or their unions. There is the possibility to challenge the exemptions within a limited time frame, but workers, especially those without trade unions, just do not have the capacity to challenge such decisions. Justly, the right to be heard and contest application for exemption must be granted to the worker or their union, before the decision.In fact, employers should never be granted exemptions, that will deny workers their worker or trade union rights.
13. MINIMUM WAGES MUST BE SUFFICIENT TO SUSTAIN A DECENT LIVELIHOOD
All workers in Malaysia are supposed to be receiving minimum wages as of 1 January 2014 but alas the quantum of minimum wages fixed in 2012 at RM900 for Peninsular Malaysia, and RM800 for Sabah and Sarawak is no longer sufficient to ensure a decent livelihood for the worker and his family given the large increases in the cost of living. While for public sector workers get also Cost of Living Allowances(COLA), the majority of the workers are in the private sector do not get COLA. Using also the fact that the Malaysian government has declared that households earning less than RM3,000-00 are in need of financial assistance, it is only logical that minimum wages be increased for all workers to at least RM1,500.
COLA should also be made a legal right for worker, especially for the lower income worker. Minimum wage rates should also be reviewed at least every 6 months, taking into account the speedily increasing cost of living and the monies required to ensure a decent livelihood for the worker and the family.
14. THE RIGHT TO UNEMPLOYMENT BENEFITS
In this day and age when employment is precarious, there is a need for the government to put in place unemployment benefits to assist workers temporarily out of a job and their families. Even if out of job, and deprived of an income, regular payments for rental, basic amenities, car and house loans, children’s education, etc is required of the unemployed worker. Without financial assistance in the form of an unemployment benefit, the lives of the unemployed worker and their families will be seriously affected. This safety net for workers is something that is available in many countries, including also neighboring Thailand.
15. NON-DISCRIMINATION BASED ON GENDER
While our Federal Constitution guarantees equality, courts have found that the obligation not to discriminate workers based on gender is only on the government and statutory bodies – not on private sector employers. This goes against the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) which Malaysia has ratified. The laws must be amended to ensure that all employers do not discriminate workers based on gender or any other forms of discrimination.
16. OCCUPATIONAL SAFETY AND HEALTH AT THE WORKPLACE
The Department of Occupational Safety and Health (DOSH) recorded 1,248 workplace accidents in 10 sectors in the first five months of 2013, which resulted in 68 worker deaths, 81 permanent disabilities and 1,099 injuries not resulting in permanent disabilities.
In 2010, a total of 1426 cases of occupational disease and poisoning have been reported to the Occupational Health Division as compared with 791 cases reported in the previous year, whereby only about half were successfully investigated. Amongst the diseases reported were noise induced hearing loss (NIHL), occupational skin diseases and occupational lung diseases. There is still a general low awareness about occupational diseases, more so when it becomes evident long after the worker has left the workplace – hence an under-reporting of occupational diseases occurs. For migrant workers who have returned to country of origin, there yet no effective mechanism of complaint or access to justice when it comes to occupational disease.
Malaysia must increase awareness of workers about occupational disease, and be committed to active enforcement to ensure occupational safety and health at the workplace. Hospitals and medical practitioners should also inform workers with diseases or medical conditions that could have been related to their workplace of this fact, and of where they can lodge complaints and access justice.
Noting that many employers also provide workers accommodation, there must be law stipulating the minimum standards of worker housing that would protect the health and safety of workers. Migrant workers who came into Malaysia with a clean bill of health have been subsequently sent back by reason of diseases like tuberculosis(TB) that could have most likely been contracted by reason of cramped worker housing or workplace, and as such the list of occupational disease need to be reviewed to include also diseases that could have been contracted by reason worker working or even poor worker housing conditions.
17. WORKER RIGHTS IN LAW FOR ALL WORKERS
Noting that in Malaysia, most workers are ignorant of worker and trade union rights, a fact brought about also by reason that worker and trade union rights are not taught in schools or colleges, it is thus necessary that minimum worker rights are provided for and protected by law.The laws that provide for minimum worker rights should ensure that these rights are enjoyed by all workers, not just workers earning RM2,000 and below or just certain classes of workers. Domestic workers, like all other workers, should also have the right to enjoy all minimum worker rights provided for by law.
18. DO NOT SIGN AGREEMENTS THAT WILL ERODE OR STAGNATE WORKER RIGHTS
Malaysia signs or will still sign Free Trade Agreements and other Treaties, like the Trans-Pacific Partnership Agreement (TPPA) without being open and transparent of the contents of the said agreements, and without consultation with the people. Some of these agreements, it is now known, contain clauses that will in effect not just erode but also stagnate worker rights. One such clause is the Investor Protection Clause, which protects investors allowing them to sue governments if the government does anything in the future which would mean employers having to expend more money, or do things that may affect the businesses profits. As such, if and when Malaysia in the future decides to improve matters like worker rights, worker safety, public health and environmental protection, requiring businesses to thus expend monies which will impact profits, Malaysia risk being sued and this may deter Malaysia from improving rights and working conditions of workers in Malaysia.
It must be noted that in no way is the above a comprehensive listing all demands or issues that affect worker and trade union rights, but it is a listing of some of the fundamental issues and calls that must be acted on, and not be allowed to swept aside with the lapse of time, control of the media and other means.
The obligation to recognize and protect worker and trade union rights is not just on the Malaysian government, but also on business, corporations, employers, countries from where persons who own or control businesses come from, countries from where the workers come from, consumers of products and services provided, other businesses that have a link with an employer by being within the supply chain or otherwise, and generally everyone in our global community. It is an unacceptable attitude to say it is alright to compromise on worker rights and standards as available in one’s country or even businesses, for so long as one complies with the Malaysian law.
Ruggie’s"Guiding Principles on Business and Human Rights: Implementing the United Nations 'Protect, Respect and Remedy' Framework", is just but one of the standards and guidelines, that should be adopted and followed by both governments, businesses and employers. It is not just sufficient to ratify or sign United Nations(UN) or International LabourOrganisation(ILO) Conventions and Instruments but not do the needful to put into effect these commitments in Malaysia.
We call on the Malaysian government to immediately act to ensure that all the above demands are given effect to ensure justice for workers and trade unions in Malaysia. The rights and welfare of workers and their families must be a priority of any government, and this also include creating protection mechanisms like unemployment benefits when workers are out of work.
We call for the immediate reinstatement of all union and worker leaders including Abdul Jamil Lalaludeen and Chen Ka Fatt from NUBE, Ismail Nasaruddin from NUFAM, Wan Noorulazharfrom EIUWR, and RusainiMamat from NUTEAW.
We also call for Malaysia to immediately ratify ILO Conventions 87, Freedom of Association and Protection of the Right to Organise and Convention, and other important worker conventions. We also call for Malaysia to give full effect to the ILO and UN Conventions that it has ratified including also ILO Convention 98, Right to Collective Bargaining.
Senator Syed Shahir bin Syed Mohamud
Mohd Roszeli bin Majid
For and on behalf the 47 organisations listed below
Asia Pacific Forum on Women , Law and Development ( APWLD)
Asian Muslim Action Network (AMAN) Indonesia
Center for Orang Asli Concerns (COAC)
Clean Clothes Campaign
Club Employees Union Peninsular Malaysia
CWI Malaysia (Committee For A Workers International Malaysia)
Community Action Network(CAN)
Damn the Dams
Food Not Bombs-Kuala Lumpur
Human Rights Ambassador for Salem-News.com , UK
Jaringan Rakyat Tertindas (JERIT)
Kesatuan Eksekutif AIROD (KEA), Malaysia
Kesatuan Eksekutif Canon Opto
Kesatuan Pekerja-Pekerja Polyplastics Asia Pacific (KPPAP)
Knowledge and Rights with Young people through Safer Spaces (KRYSS)
MADPET(Malaysians Against Death Penalty and Torture)
MAP Foundation Thailand
National Union of Flight Attendants Malaysia (NUFAM)
National Union of Hotel, Bar and Restaurant Workers (NUHBRW), Malaysia
Network of Action for Migrants in Malaysia(NAMM)
Paper Products Manufacturing Employees’ Union of Malaysia (PPMEU)
Parti Rakyat Malaysia(PRM)
Parti Sosialis Malaysia(PSM)
Pax Romana –ICMICA
Peoples ' Green Coalition,
Persatuan Komuniti Prihatin Selangor dan KL (PRIHATIN)
Persatuan Sahabat Wanita Selangor
PINAY, Quebec, Canada
Radanar Ayar Rural Development Association
Sahabat Rakyat Working Committee
SALT (School of Acting Justly Loving Tenderly and Walking Humbly)
Saya Anak Bangsa Malaysia (SABM)
Suara Rakyat Malaysia (SUARAM)
Tenaga Nasional Junior Officers Union (TNBJOU)
Think Centre, Singapore
WH4C (Workers Hub For Change)
Workers Assistance Center, Inc. Philippines
Yayasan LINTAS NUSA - Batam – Indonesia
Youth Section of The KL & Selangor Chinese Assembly Hall (Pemuda KLSCAH)
Bread for All, UK