Monday, March 23, 2015

Pekerja boleh dapatkan bantuan guaman untuk menuntut keadilan..

Resolutions Adopted at the 69th Annual General Meeting of the Malaysian Bar Held at Renaissance Kuala Lumpur Hotel (Saturday, 14 Mar 2015) 


Resolution 3

Motion for the Provision of Legal Aid and Assistance to Workers”, proposed by Charles Hector Fernandez, dated 5 Mar 2015

Whereas:

1)  Workers in Malaysia whose rights are violated have the right to lodge claims with the Human Resource Department (HRD) (formerly known as Labour Department), the Industrial Relations Department (IRD) or other available avenues – but workers need legal advice and assistance to be able to effectively determine and document their claims, which would also include identifying and preparing the requisite evidence, be it documentary evidence or available witnesses, to support their claim. Workers generally do not have the capacity, legal knowledge or know-how to be able to do this.

2)  Less than 5% of workers in the private sector are unionized, and as such the majority of the about 13 million workers in Malaysia, of which about 2.9 million are migrant workers, will not have even have access to union assistance. Most unions also do not have the capacity and legal knowledge needed to assist workers with their claims.

3)  After the lodging of complaints, if the matter cannot be resolved by conciliation, in the HRD, it proceed to a hearing before the Labour Court – whereby proceedings are akin to any court proceedings, whereby the worker have the right to be represented by a lawyer. Most employers are currently represented by lawyers but most workers are not. This is an unjust situation.

4)  The worker claims at the HRD generally is small and not very large, and employing the services of a lawyer would mean paying more than the amount claimed for, or a significant percentage of the total claim. Lawyers ordinarily will not likely to take up such cases.

5)  At present, when a worker is successful in claim at the HRD or Labour Court (HR Court), what he will get is only the amount that the employer should have originally paid him but failed to. In proceeding with the claim, the worker loses monies in terms of transport and even lost days of work. Hence, at the end of the day, the worker loses out. When an employer cheats the workers, by, amongst others, the non-payment of monies due, the law should provide deterrence in the form of maybe requiring the said employer to pay double or triple the amount of payable to the worker.

6)  The Bar Council Legal Aid Centres has the capacity and the ability to assist, provide legal assistance and even representation for workers from the point before the worker lodges any complaints/claims to the point of the final settlement of the claim, and this legal aid should be provided to all workers, including migrant workers, especially those whose basic wages do not exceed RM3,000. 

7)  National Legal Aid Foundation, at present, does not extend its services to claims for worker rights.

We hereby resolve:

(1)  That Malaysian Bar, through its Legal Aid Centres, extends the services of providing advice, assistance and legal representation for workers from the point of intending to file a complaint at the Human Resource Departments (Labour Offices) or other avenues of justice to the full settlement of the said cases.

(2)  The Malaysian Bar shall also do the needful to make the National Legal Aid Foundation extend its services to also worker rights violations.

(3)  The Bar Council also do the needful to create awareness of, and if possible, provide training on, worker rights, including how to use all available channels to access for justice for workers, including providing necessary training for lawyers, workers and trade unions.

(4)  That the Bar Council shall call upon Malaysia to review all existing labour legislation, also with a view of providing more deterrent penalties for employers and just remedies for workers who have been exploited or cheated by employers. 
 

4 workers die after lift crash at Putrajaya construction site – Bernama

4 workers die after lift crash at Putrajaya construction site – Bernama


Four foreign national workers died when a lift at the site of a high-rise condominium under construction in Precinct 15 in Putrajaya crashed from the 13th floor today.

In the 10.45am accident, three Indonesian workers died at the scene, while a Bangladeshi worker died at Hospital Putrajaya at 3pm while undergoing treatment.

Putrajaya CID chief DSP Zaihairul Idrus said the three Indonesians, in their 20s, and the Bangladeshi worker, in his 40s, believed to be the elevator operator, died due to severe head and body injuries.

The bodies of the Indonesians were also sent to the Putrajaya Hospital. Zaihairul said the lift is believed to have crashed after its braking system reportedly failed.

Several bags of cement estimated to weigh about 1,200 kilogrammes were also in the lift, he said.

Police have classified the case as sudden death and have notified the Indonesian Embassy and the Bangladesh High Commission about the deaths.

Pending an investigation into the accident, work at the site has been temporarily stopped, he said. – Bernama, March 23, 2015.
 
- See more at: http://www.themalaysianinsider.com/malaysia/article/4-workers-die-after-lift-crash-at-putrajaya-construction-site-bernama#sthash.M3iiJOMi.dpuf

Wednesday, March 11, 2015

MTUC Says Employers Must Stop Turning Regular Employees into Precarious Short-Term Contract Employees



Media Statement – 1/3/2015

MTUC Says Employers Must Stop Turning Regular Employees into Precarious Short-Term Contract Employees

Malaysian Trades Union Congress (MTUC) is shocked that some employers are unconscionably ‘forcing’  regular employees until retirement to become precarious short-term contract employees. Workers are literally given no choice in the matter, and threats of termination have apparently been used to compel workers to abandon their existing security and rights as a regular employee.

Many of these workers are without unions, and hence do not have the capacity to resist – and so easily are these individual workers oppressed by such immoral employers. 

In a recent case, that came to the attention of MTUC, some of these were apparently regular employees for over 15 years – and suddenly they have been ‘tricked’ into abandoning their existing better rights as a  regular employee, and accepting precarious short–term employment contracts. In this case, the workers felt that they had no choice but to tender their resignation as directed or ‘ordered’ by their employers, and to thereafter sign new short-term employment contracts. The workers were, of course, afraid of losing their jobs and income if they did not do what they were asked to do, and so many have just signed these letters of resignation, and these new precarious employment agreements. These immoral practices are also happening at other workplaces. Workers are being made to sign agreements where rights and benefits enjoyed before by workers are taken away.

There is currently no effective legal remedy available in the labour laws of Malaysia to stop employers cheating workers out of their rights as secure regular employees – a worker right that is so necessary for the welfare and wellbeing of the worker and their families. Now, after the signing away of their rights, without the benefit of advice from unions or lawyers, it is almost impossible to get justice. If these workers were to resist employer demands, they would most likely be terminated, and the process of claiming reinstatement in Malaysia is just too long and expensive for most workers – and these exploited workers is denied justice. Justice delayed is justice denied.

MTUC urges the Malaysian government to put in place laws that will prevent employers from using any such means or schemes, including agreements, that at the end of the day will result in workers losing better rights they did, or now, enjoy, and ending up with lesser rights. Cheating of workers of their existing better rights must stop. All forms of precarious employment relationship and practices, which make workers more easily exploitable, must also be abolished.

MTUC also calls on workers faced with such threats and pressure to immediately seek advice from MTUC, trade unions or lawyers first. Do not sign any such resignation letters or new employment contracts with first getting legal advice. 

Workers alone can so easily be cheated and oppressed, and it is essential for workers to stand together in solidarity to resist any such cheating or injustice. MTUC calls on all workers in Malaysia to form and join trade unions, and stand together to resist such attempts by employers to cheat and deprive workers of existing better rights like regular employment. 

N. Gopalkishnam
Secretary-General
Malaysian Trades Union Congress (MTUC)

Thursday, February 26, 2015

MTUC and Trade Unions Can Help End Human Trafficking and Worker Exploitation

MTUC and Trade Unions Can Help End Human Trafficking and Worker Exploitation


23 February 2015

Malaysian Trade Union Congress (MTUC) verily believes that strong effective trade unions can tackle the problem of trafficking in human persons, more so when in Malaysia, the main problems is the exploitation of workers not sexual exploitation or the removal of human organs.

MTUC welcomes the United Nations Special Rapporteur on Trafficking in Persons who will be in Malaysia from 23 to 28 February 2015, at the invitation of the Malaysian government. We note that Ms Joy Ngozi Ezeilo had recently indicated that she was committed to continue consulting with, amongst others, workers unions in the struggle to eliminate human trafficking.

Malaysia’s Anti-Trafficking in Persons Act 2007 also do now clearly acknowledge that “trafficking in persons” or “traffics in persons” includes ‘… forced labour or services, slavery or practices similar to slavery, servitude, any illegal activity…’

No one can fight worker exploitation and protect workers’ rights better than the workers themselves, and this can be best be done by trade unions. This Malaysian Act, as it is now, unfortunately, is lacking as it only focuses on rescue and assistance, but does not help victims access to justice and get their civil and labour law remedies including monies still owing to them by employers, compensation and other damages.

The trade union movement, until 1948 was strong when more than 50% of workers were members of trade unions, was stifled or ‘busted’ through the use of laws and other means by the British Colonial government. All unions were thereafter required to apply for registration, and many failed to get registered. MTUC arises after this massive crackdown on the trade union movement in 1948, but we have never managed to regain the strength of the past in terms of membership. Today less than 5% of workers in the private sector are unionized.

National independence did not bring about the restoration of trade union’s strength, and in fact there have been further restrictions placed on trade unions. Only sector of industry based national, regional or state Trade Unions were permitted to exist. Then, the government promoted the formation of in-house unions – whereby the risk is that such unions are more easily employer influenced or even controlled unlike national and regional unions.

For a long time, most workers in Malaysia were generally regular employees until retirement, and almost all workers at a workplace were employees of the said workplace. With the recent change in policy in 2005, the Malaysian government allowed employers to enter agreements with third parties, now known as contractors for labour, who supplied workers that did not become employees of the workplace, now commonly known as ‘outsourced workers’. This new class of workers could not rely on the rights and protection accorded by Collective Bargaining Agreements (CBA), which are agreements between the union representing employees and the employer. This left these workers vulnerable to exploitation, and denied of the full protection that could have been provided by trade unions.

‘Contractor-based labor arrangements of this type-in which the worker may technically be employed by the recruiting company-create vulnerabilities for workers whose day-to-day employers generally are without legal responsibility for exploitative practices.’. This was also one of the observations made in the US State Department Trafficking in Persons Report 2014, which downgraded Malaysia to Tier 3 from the previous standing of Tier 2 Watch List.

MTUC reiterates its position that all workers in a workplace should be employees of the workplace, with the ability to be able to enjoy the full benefits of being a union member at that workplace, including all the rights and benefits provided for in applicable CBAs. Today, in some workplaces, these class of vulnerable workers can even make up half the total workforce. MTUC reiterates its call for the abolition of the contractor for labour system.

Local workers in Malaysia are today indebted, not to the employer but to financial institutions and others, by reason of home and transport loans, all of which requires monthly payments. The Malaysian government can be said to be somewhat responsible for this situation of indebtedness. Migrant workers are indebted, having expended about RM5,000 when they came to Malaysia to work. This situation of indebtedness makes workers vulnerable, and more disempowered to stand up against exploitation.

Malaysia, through laws and policies, have limited the areas in an employment relationship where unions can be involved in, and also the kinds of industrial actions that unions can undertake to promote and protect worker rights. Strikes and industrial actions have been made difficult. The fact that there have been almost no strikes for past few decades is used with pride to woo foreign investors. The limited option that Unions now have is to picket and campaign – or just lodge complaints with the relevant authorities but sadly the whole process of adjudication and determining disputes takes far too long to the detriment of workers and unions.

A disturbing trend of late has been a growing number of attacks by employers on union leaders and members, where disciplinary action and termination is taken for involvement in what really are legitimate union activities. Union leader issues a media statement, and he is terminated because the employer says that the issuance of such statements by an employee a misconduct. For the participation in pickets, union leaders and members end up facing disciplinary proceedings and termination. Union members have even been terminated for participation in MTUC advocacy campaign to get prospective parliamentarians to commit to the promotion and protection of worker rights. These are all legitimate union activities and should never be considered employment misconducts.

It is sad that the government has chosen to be silent and do nothing yet about these acts of union busting.

Wrongful dismissal cases can take years, and many workers just cannot afford to resort to this remedy. Some employers, being aware of this choose to simply terminate unionist and workers – thus effectively eliminating worker leaders, weakening unions and instilling further fear on workers who would have stood up for their rights or fight exploitation.

The Malaysian government should immediately put a stop to such ‘union busting’ activities, by legislating what are employment misconducts. Union activities can never be considered employment misconducts. It must also be stressed that for the purpose of guaranteeing meaningful and effective trade union rights, the government must ensure that disproportionate penalties is never used to dissuade trade union representatives from seeking to express and defend their members’ interests.

It is most sad that many of these companies that are doing this are government-linked companies (GLC) or government owned businesses. Such companies should really be setting the best example for businesses by protecting worker and trade union rights.

When a Union decides to increase its membership fee, it cannot put into effect this decision until the Registrar of Trade Union approves, and many a time the Registrar does not. Unions must be given full right to amend their Constitution and Rules, and put them into effect immediately. The Registrar should only be notified, and not vested with powers to approve or disapprove decisions of the majority of members of the Union.

Unions must be able to operate freely with the ability to be able to represent the best interest of workers in all matters concerning the employment relationship and working condition, including necessary actions to promote and protect worker and trade union rights. The impediments now placed on workers to use strike and industrial action as a means of struggling with employers need to be removed. If and only if, matters cannot be resolved by both parties, should the government come in to help bring along a resolution of the dispute and even then such resolution be it through mediation, arbitration or courts should be done speedily.

Malaysia, like many governments today are also employers or have vested interest in businesses, but as government, it must always realise that its first duty must be to the people, of which there are now about 13 million workers. If one were to include the family and dependents of workers that would be a significant majority of the people in Malaysia.

Trade unions, if liberated from the legal shackles that bind it today, can and will be an effective means to promote and protect the rights of workers, and also to end exploitation of workers and hence human trafficking in Malaysia.

N. Gopal Kishnam
Secretary General

Source: MTUC Website

Tuesday, February 17, 2015

Wujudkan Skim Bantuan Untuk Golongan Hilang Pekerjaan Secara Mengejut - MTUC


Wujudkan Skim Bantuan Untuk Golongan Hilang Pekerjaan Secara Mengejut - MTUC

KUALA LUMPUR, 12 Feb (Bernama) -- Kongres Kesatuan Sekerja Malaysia (MTUC) meminta kerajaan mewujudkan dengan segera skim bantuan kecemasan untuk mereka yang hilang pekerjaan secara mengejut.

Setiausaha agungnya N. Gopal Krishnan berkata langkah itu bertujuan mengelak pekerja terbabit dan keluarga mereka terjerumus ke lembah kemiskinan.

"Seperti banjir baru-baru ini, kehilangan pekerjaan berlaku dengan serta-merta serta tanpa diduga dan pekerja terjejas serta keluarga mereka memerlukan bantuan kecemasan untuk menghadapi keadaan itu sebelum boleh kembali berdikari," katanya dalam kenyataan di sini hari ini.

Bantuan itu, kata beliau, adalah bersifat sementara, mungkin bagi tempoh tidak lebih enam hingga 12 bulan, tempoh yang diperlukan bagi mereka yang hilang punca pendapatan untuk mencari pekerjaan baharu.

Skim bantuan kehilangan pekerjaan terdapat di banyak negara, termasuk Thailand, kata Gopal Krishnan.

Beliau berkata Program Bantuan Kehilangan Pekerjaan Thailand, yang wujud sejak 2004, membolehkan mereka yang hilang pekerjaan kerana ditamatkan perkhidmatan, menerima 50 peratus daripada gaji bulanan bagi tempoh tidak lebih 180 hari dalam setahun.

Bagaimanapun, syarat sewajarnya perlu diwujudkan seperti pemohon perlulah bersedia berusaha untuk mencari pekerjaan atau mengikuti latihan kemahiran, kata Gopal Krishnan.

"Di Malaysia, adalah wajar bantuan bulanan ini berjumlah 50 peratus daripada gaji atau RM1,000, yang mana lebih tinggi," katanya.

Gopal Krishnan berkata MTUC menyertai Persekutuan Majikan-majikan Malaysia menyeru para majikan supaya tidak membuang pekerja berikutan kemerosotan pertumbuhan ekonomi yang dijangka berlaku tahun ini.

Katanya kesatuan sekerja bersedia berbincang dengan majikan bagi mencari penyelesaian konkrit untuk manfaat pekerja dan majikan dalam menghadapi keadaan sukar.

-- BERNAMA -

Thursday, February 12, 2015

MTUC: Have emergency aid for 'suddenly-unemployed' workers

*The full statement can be found at the MTUC Official Website


MTUC: Have emergency aid for 'suddenly-unemployed' workers
Published on: Friday, February 13, 2015

Kuala Lumpur: The Malaysian Trades Union Congress (MTUC) has called on the government to immediately to put in place an emergency relief scheme for the suddenly unemployed as they seek new employment. 

Its Secretary-General, N. Gopal Krishnan said the move would prevent the workers and their families from sliding down to poverty. 

"Like the recent floods, unemployment can also come suddenly and unexpectedly, and affected workers and their families will need some emergency help to survive the situation and get back on their feet," he said in a statement here Thursday. 

This assistance, he said, would be temporary in nature, lasting possibly for a period of maybe, not more than six to 12 months, being the time required for the out-of-job worker to find a suitable new employment.

Unemployment assistance scheme was present in many countries, including Thailand, noted Gopal Krishnan. 

He said the Thailand Unemployment Assistance Programme – in operation since 2004 – provided workers who lost their jobs as a result of termination or were laid-off, to receive 50 per cent of wages for not more than 180 days within one year.

There were, of course, conditions which stated applicants must be ready to take necessary efforts to seek employment, and even undergo whatever required skills training, he added. 

"In Malaysia, reasonably such monthly assistance could be 50 per cent of wages or RM1,000, whichever is higher," he said. 

Gopal Krishnan said MTUC joined the Malaysian Employers Federation in calling on employers not to dismiss their employees, following the expected slowdown in the economic growth this year. 

He added that trade unions would be able to sit down with employers and work out concrete solutions that would benefit both worker and employer during the turbulent period. – Bernama - Daily Express, 13/2/2014, MTUC: Have emergency aid for 'suddenly-unemployed' workers


MTUC wants emergency financial assistance for ‘suddenly-unemployed’ workers
MTUC
MTUC

KUALA LUMPUR, Feb 12– The Malaysian Trades Union Congress (MTUC) has called on the government to immediately to put in place an emergency relief scheme for the suddenly unemployed as they seek new employment.

Its secretary-general, N. Gopal Krishnan said the move would prevent the workers and their families from sliding down to poverty.

“Like the recent floods, unemployment can also come suddenly and unexpectedly, and affected workers and their families will need some emergency help to survive the situation and get back on their feet,” he said in a statement here today.

This assistance, he said, would be temporary in nature, lasting possibly for a period of maybe, not more than six to 12 months, being the time required for the out-of-job worker to find a suitable new employment.

Unemployment assistance scheme was present in many countries, including Thailand, noted Gopal Krishnan.

He said the Thailand Unemployment Assistance Programme – in operation since 2004 – provided workers who lost their jobs as a result of termination or were laid-off, to receive 50 per cent of wages for not more than 180 days within one year.

There were, of course, conditions which stated applicants must be ready to take necessary efforts to seek employment, and even undergo whatever required skills training, he added.

“In Malaysia, reasonably such monthly assistance could be 50 per cent of wages or RM1,000, whichever is higher,” he said.

Gopal Krishnan said MTUC joined the Malaysian Employers Federation in calling on employers not to dismiss their employees, following the expected slowdown in the economic growth this year.

He added that trade unions would be able to sit down with employers and work out concrete solutions that would benefit both worker and employer during the turbulent period.–Bernama - ABN News, 12/2/2015, MTUC wants emergency financial assistance for ‘suddenly-unemployed’ workers


MTUC's Full Statement as found in the MTUC Website

MTUCMTUC CALLS FOR EMERGENCY FINANCIAL ASSISTANCE FOR WORKERS OUT OF WORK

12 February 2015
 
Malaysian Trade Union Congress (MTUC) urges the government to immediately put in place an emergency relief scheme for the suddenly unemployed as they seek new employment. Like the recent floods, unemployment can also come suddenly and unexpectedly, and affected workers and their families will need some emergency help to survive the situation and get back on their feet.

The worker in Malaysia, if he/she were to lose their job, requires immediate emergency financial assistance whilst he looks for another employment. Today, the worker is burdened with monthly financial obligations like food, clothing, basic amenities (water, electricity, sewage bills, telecommunication and television), healthcare, transportation and children’s education. Additionally, most workers have monthly financial obligations to make payments towards home and car loans.

Due to the lack of a good, efficient and affordable public transport system in most parts of Malaysia, the worker has been forced into having to purchase a car, whereby on an average this entails an average monthly payment of RM500 to the loan provider. Likewise, with the Malaysian government’s push for workers to buy their own homes, many have bought houses and this too means monthly loan payments. Many workers also buy furniture and household appliances through hire-purchase schemes.

As such, if a worker is suddenly wrongfully dismissed, it creates great financial problems to the worker and their families, and there is an urgent need to put in place an emergency unemployment assistance scheme as is now present in many countries, including neighbouring Thailand. This assistance would be temporary in nature, lasting possibly for a period of maybe not more than 6 -12 months, being the time required for the out of job worker to find a suitable new employment. Without such emergency financial assistance, the unemployed can very easily slide into abject poverty – losing their home, having their car towed away, their furniture and household appliance re-possessed.

The Thailand’s Unemployment Assistance program which has been operational since 2004, provides ‘for unemployment resulted from termination of employment or laid-off, the worker will receive 50% of wages for not more than 180 days within 1 year’. There were of course conditions that the said applicant be ready to make all necessary efforts to find employment, and even undergo whatever required skills training.

In Malaysia, reasonably such monthly assistance could be 50% of wages or RM1,000, whichever the higher. There is already speculation that Malaysia maybe facing difficult time, and there is a possibility that some workers may be out of a job.

MTUC joins the Malaysian Employers Federation (MEF) in calling on employers not to dismiss their employees following the expected slowdown in economic growth this year (Bernama, 26/1/2015), and reiterates the importance of trade unions especially in difficult times. Trade Unions would be able to sit down with employers and work out concrete solutions that will benefit both worker and employer whist manoeuvring turbulent periods.

To ensure workers are kept employed, the Malaysian government now provides financial assistance to companies to conduct trainings during slow periods so that workers will continue to be in employment. This may work in some cases but not all – as we still see workers being terminated and retrenched, and these need urgent temporary financial assistance immediately for the wellbeing of these workers and their families.

This assistance can reliably only come from the government, and it is proposed that this is done through SOCSO/PERKESO. The employer, being mostly companies, is unreliable because many just end up with no monies in their coffers even to pay out back-wages or even termination benefits.

MTUC urges that Malaysia immediately put in place this necessary social protection for workers that find themselves suddenly with no employment and income, will prevent these workers and their families from sliding down the slippery slope of poverty.

N. Gopal Kishnam Secretary General

Thursday, December 11, 2014

37 kumpulan dan kesatuan sekerja bimbang kesan Akta Mas yang baru kepada pekerja dan kesatuan MAS

Kini, 37 kumpulan dan kesatuan sekerja telah endorse kenyataan ...

Media Statement – 3/12/2014

Malaysian Airlines(MAS) Employees and Trade Union Rights at risk by new law being rushed through

We, the undersigned 37 organisations, groups and trade unions are appalled with the Malaysian government’s current attempt to pass a law that will seriously undermine worker and trade union rights of employees in the Malaysian Airline System Berhad (MAS), the operator of Malaysia’s national carrier. 

Not only will the consequence of the new law be loss of employment of all employees of MAS and its subsidiaries, but also the end of the existing trade unions and associations representing the employees of MAS. The law also opens the possibility of loss of regular employment until retirement, to be replaced by precarious forms of employment like fixed term contracts or other even more precarious forms of labour practices which even evades direct employment relationship by using of workers supplied by third parties.

Malaysian Airline System Berhad (Administration) Bill 2014 was tabled and 1st reading was on 26/11/2014, the 2nd reading was on 27/11/2014 and was speedily passed by the Dewan Rakyat on 27/11/2014. Now, it is on the agenda of the first day of the Senate sitting on 1/12/2014, and scheduled for second reading the following day. There was really no time for anyone, including parliamentarians, to even study it, let alone comment or object to this Bill before it was speedily rushed through and passed in the Lower House of our Malaysian Parliament.

Now, the object of the Malaysian government is clear – they want the national carrier, MAS, now owned by the Malaysian Airline System Berhad, a government linked company, that is having financial problems to be taken over by a new legal entity which will be known as Malaysian Airlines Berhad in an effort to save the airline. 

We may have no objections to MAS and its subsidiaries being taken over by the Malaysian government, or vide a government owned legal entity provided that the rights of the workers and their trade unions are respected and preserved. The current Bill, however, seems to totally disregard the rights and welfare of existing employees of MAS and its subsidiaries, or their unions. 

Workers, unlike assets, cannot be transferred from one legal entity to another new legal entity. Thus, all the employees of MAS will naturally be terminated when the present MAS seeks to exist, and the Bill is silent on whether the new entity, Malaysian Airlines Berhad, will employ all these MAS employees without loss of tenure and benefits – or will they be abandoned with no employment?

The Bill makes it most clear that Malaysian Airlines Berhad(MAB) will be a new entity, and will not be an ‘assignee or transferee or a successor  employer’(Clause 26). MAB shall also not ‘be liable for any obligation relating to any retirement plan or other post-employment benefit plans in respect of the employees  or  former  employees…’, It shall also not be ‘liable for any sum which is calculated by reference to  a  period  of  time  prior  to  Malaysia  Airlines Berhad becoming  the  employer  of  the  person  in  question.’
 
‘The  Malaysia  Airlines  Berhad,  the  appointer  and  the Administrator  shall  not  be  named  as  a  party  in  any  claim or  application  made  or  joined  as  a  party  in  any  proceeding commenced  or  continued  by  or  on  behalf  of  any  employees  or former  employees  of  the  Administered  Companies  pursuant  to the  Industrial  Relations  Act  1967  [Act  177],  Employment  Act 1955 [Act 265], Sabah Labour Ordinance 1950 [Sabah Cap. 67], Sarawak Labour Ordinance 1952 [Sarawak Cap. 76] or the Trade Unions Act  1959  [Act  262].’ This means that MAB or the Administrator will not step into the shoes of MAS, or be liable, even in cases, including pending cases, between employees/trade unions and MAS. This will result in not just in loss of rights under existing labour laws, but also will result in employees and trade unions having to bear all loss of monies, time and effort sustained this far in the pursuance of justice.

MAB will be able to employ whoever and under what terms and conditions, as is stated in Clause 25, which states, ‘Malaysia Airlines Berhad may, in its  sole  discretion, offer employment to any person who immediately before the date of that offer is in the employment or service of the Administered Companies on such terms and conditions as the Malaysia Airlines Berhad  may  determine.’. The LIFO (Last In First Out) principle when it comes to employee reduction in cases of retrenchment can be ignored here, and there is every possibility that those worker and union leaders, and workers who stand up for rights, may all just not be employed by MAB.

Now, most of the 20,000 employees in MAS enjoy stable regular employment until retirement, but now the new MAB may use precarious forms of employment like short-term contracts, or even use the contractor for labour system to get third parties to supply workers without entering into a direct employment relationship with these workers at the airline. 

The Bill, as it stands also will see the end of all trade unions of current employees of MAS, most of which   being in-house union of MAS employees, and also the end of enforceability of all collective bargaining agreements(CBA) with MAS. There seem to be an implied indication that future employees of MAB will enjoy the right of freedom of association and have trade unions. 

The provision in the Bill may mislead some into believing that the existing trade unions of MAS employees will continue to exist once MAB takes over, but clearly this is not the case, Clause 28 is talking only about ‘any trade union duly recognized by the Malaysia Airlines Berhad’ and ‘any  association  recognized  by  the  Malaysia  Airlines Berhad’ – which implies that employees may have to once again form new unions and once again go through the process of seeking MAB’s recognition. Hence, this can be perceived to be a ‘union busting’ exercise done by way of the enactment of a new law.

Whilst Clause 14 says that ‘…any person is under a contract or obligation to provide goods or services or both…’ if retained, may be ‘at the same rate  as  would  have  been  paid’ by MAS may also cover employees but alas considering the later clauses that deal specifically with employees, MAB, even if they do employ former employees of MAS may not be paying the same wages. MAB will have the legal authority to stipulate new wages, benefits and terms. 

Usually when a company is wound-up, what is due and payable to the employees is amongst the first to be settled, and as such this Bill is even more detriment to employees of MAS as MAB is freed of all these obligations to workers. Employees who are terminated will also most likely not be able to recover retrenchment/termination benefits provided for in law as MAS, even if it still exists, may most likely be devoid of capacity, assets and monies, and MAB, according to this Bill, clearly has no obligation to be responsible for MAS’s obligations to its workers.

The secrecy and the blitz manner in which this Bill has been tabled, passed and being made law is also wrong, when there really should have been prior discussion and agreements especially with regard the 20,000 over employees of MAS and their trade unions, who now are in a precarious position uncertain even about the future wellbeing and livelihood of these workers and their families.

We call for:-
a)      The immediate suspension of the process of making the Malaysian Airline System Berhad (Administration)  Bill  2014 into law, or the putting into force of this Act, until all matters concerning the rights, future employment security, wellbeing and livelihood of the about 20,0000 employees of MAS and their family is resolved and provided for. The future of the existing employee trade unions and rights must also be resolved.

b)      The Malaysian government respect and make worker and trade union rights a priority in this exercise to try to save the national carrier, MAS, for after all employees can reasonably not be blamed for poor management that have put MAS in this financial predicament.

c)       The Malaysian government to guarantee that the right to regular employment until retirement will not be sacrificed in favour of precarious employment relationship and practices to the detriment of workers, and their unions in this process of saving Malaysia’s national carrier.

Charles Hector
Mohd Roszeli bin Majid
Pranom Somwong

For and on behalf of the following 37 civil society groups, trade unions and organizations

Angkatan Rakyat Muda Parti Rakyat Malaysia (ARM-PRM)
Cambodian Human Rights and Development Association- ADHOC
CAW (Committee for Asian Women)
Community Action Network (CAN), Malaysia
CWI Malaysia (Committee For A Workers International  Malaysia)
Hawaii Center for Human Rights Research & Action  (HCHR2A) 
Human Rights Ambassador for Salem-News.com, UK 
MADPET (Malaysians Against Death Penalty and Torture)
Malaysian Physicians for Social Responsibility
Migrant Care, Indonesia
Migrante International
MTUC (Malaysian Trade Union Congress)
MTUC Sarawak on behalf of 28 affiliates union in Sarawak
National Union of Flight Attendants Malaysia (NUFAM)
National Union of Transport Equipment & Allied Industries Workers (NUTEAIW)
Network of Action for Migrants in Malaysia (NAMM)
Parti Rakyat Malaysia(PRM)
Pax Romana-ICMICA Asia
Perak Women for Women Society (PWW)
Persatuan Kesedaran Komuniti Selangor
Persatuan Sahabat Wanita, Selangor
Pusat KOMAS (KOMAS)
School of Acting Justly, Loving Tenderly and Treading humbly (SALT)
Tenaga Nasional Junior Officers Union (TNBJOU)
Workers Hub For Change (WH4C)

ALIRAN
Kesatuan Pekerja-Pekerja Mitsui Copper Foil
MHS Employees Union
Sahabat Rakyat Working Committee
Clean Clothes Campaign
Association of Maybank Executives
Knowledge and Rights with Young People through Safer Spaces (KRYSS)
National Union of Journalist(NUJ) Cawangan Utusan Melayu
Kesatuan Eksekutif AIROD
MTUC Selangor dan Wilayah Persekutuan
MTUC Pahang 

Club Employees Union Peninsular Malaysia

See also posts:- 

All MAS employees set to lose their jobs when the MAS Admin Bill becomes law, and a new entity MAB takes over the national carrier?

MAS Admin Bill - even all existing Unions in MAS are at risk?

MAS Bill - Hansard for 27/11/2014 not out - Senators may be forced to debate the Bill today without benefit of knowing what happened in Dewan Rakyat?

Wednesday, December 3, 2014

Malaysian Airlines(MAS) Employees and Trade Union Rights at risk by new law being rushed through

Media Statement – 3/12/2014

Malaysian Airlines(MAS) Employees and Trade Union Rights at risk by new law being rushed through

We, the undersigned 24 organisations, groups and trade unions are appalled with the Malaysian government’s current attempt to pass a law that will seriously undermine worker and trade union rights of employees in the Malaysian Airline System Berhad (MAS), the operator of Malaysia’s national carrier. 

Not only will the consequence of the new law be loss of employment of all employees of MAS and its subsidiaries, but also the end of the existing trade unions and associations representing the employees of MAS. The law also opens the possibility of loss of regular employment until retirement, to be replaced by precarious forms of employment like fixed term contracts or other even more precarious forms of labour practices which even evades direct employment relationship by using of workers supplied by third parties.

Malaysian Airline System Berhad (Administration) Bill 2014 was tabled and 1st reading was on 26/11/2014, the 2nd reading was on 27/11/2014 and was speedily passed by the Dewan Rakyat on 27/11/2014. Now, it is on the agenda of the first day of the Senate sitting on 1/12/2014, and scheduled for second reading the following day. There was really no time for anyone, including parliamentarians, to even study it, let alone comment or object to this Bill before it was speedily rushed through and passed in the Lower House of our Malaysian Parliament.

Now, the object of the Malaysian government is clear – they want the national carrier, MAS, now owned by the Malaysian Airline System Berhad, a government linked company, that is having financial problems to be taken over by a new legal entity which will be known as Malaysian Airlines Berhad in an effort to save the airline. 

We may have no objections to MAS and its subsidiaries being taken over by the Malaysian government, or vide a government owned legal entity provided that the rights of the workers and their trade unions are respected and preserved. The current Bill, however, seems to totally disregard the rights and welfare of existing employees of MAS and its subsidiaries, or their unions. 

Workers, unlike assets, cannot be transferred from one legal entity to another new legal entity. Thus, all the employees of MAS will naturally be terminated when the present MAS seeks to exist, and the Bill is silent on whether the new entity, Malaysian Airlines Berhad, will employ all these MAS employees without loss of tenure and benefits – or will they be abandoned with no employment?

The Bill makes it most clear that Malaysian Airlines Berhad(MAB) will be a new entity, and will not be an ‘assignee or transferee or a successor  employer’(Clause 26). MAB shall also not ‘be liable for any obligation relating to any retirement plan or other post-employment benefit plans in respect of the employees  or  former  employees…’, It shall also not be ‘liable for any sum which is calculated by reference to  a  period  of  time  prior  to  Malaysia  Airlines Berhad becoming  the  employer  of  the  person  in  question.’
 
‘The  Malaysia  Airlines  Berhad,  the  appointer  and  the Administrator  shall  not  be  named  as  a  party  in  any  claim or  application  made  or  joined  as  a  party  in  any  proceeding commenced  or  continued  by  or  on  behalf  of  any  employees  or former  employees  of  the  Administered  Companies  pursuant  to the  Industrial  Relations  Act  1967  [Act  177],  Employment  Act 1955 [Act 265], Sabah Labour Ordinance 1950 [Sabah Cap. 67], Sarawak Labour Ordinance 1952 [Sarawak Cap. 76] or the Trade Unions Act  1959  [Act  262].’ This means that MAB or the Administrator will not step into the shoes of MAS, or be liable, even in cases, including pending cases, between employees/trade unions and MAS. This will result in not just in loss of rights under existing labour laws, but also will result in employees and trade unions having to bear all loss of monies, time and effort sustained this far in the pursuance of justice.

MAB will be able to employ whoever and under what terms and conditions, as is stated in Clause 25, which states, ‘Malaysia Airlines Berhad may, in its  sole  discretion, offer employment to any person who immediately before the date of that offer is in the employment or service of the Administered Companies on such terms and conditions as the Malaysia Airlines Berhad  may  determine.’. The LIFO (Last In First Out) principle when it comes to employee reduction in cases of retrenchment can be ignored here, and there is every possibility that those worker and union leaders, and workers who stand up for rights, may all just not be employed by MAB.

Now, most of the 20,000 employees in MAS enjoy stable regular employment until retirement, but now the new MAB may use precarious forms of employment like short-term contracts, or even use the contractor for labour system to get third parties to supply workers without entering into a direct employment relationship with these workers at the airline. 

The Bill, as it stands also will see the end of all trade unions of current employees of MAS, most of which   being in-house union of MAS employees, and also the end of enforceability of all collective bargaining agreements(CBA) with MAS. There seem to be an implied indication that future employees of MAB will enjoy the right of freedom of association and have trade unions. 

The provision in the Bill may mislead some into believing that the existing trade unions of MAS employees will continue to exist once MAB takes over, but clearly this is not the case, Clause 28 is talking only about ‘any trade union duly recognized by the Malaysia Airlines Berhad’ and ‘any  association  recognized  by  the  Malaysia  Airlines Berhad’ – which implies that employees may have to once again form new unions and once again go through the process of seeking MAB’s recognition. Hence, this can be perceived to be a ‘union busting’ exercise done by way of the enactment of a new law.

Whilst Clause 14 says that ‘…any person is under a contract or obligation to provide goods or services or both…’ if retained, may be ‘at the same rate  as  would  have  been  paid’ by MAS may also cover employees but alas considering the later clauses that deal specifically with employees, MAB, even if they do employ former employees of MAS may not be paying the same wages. MAB will have the legal authority to stipulate new wages, benefits and terms. 

Usually when a company is wound-up, what is due and payable to the employees is amongst the first to be settled, and as such this Bill is even more detriment to employees of MAS as MAB is freed of all these obligations to workers. Employees who are terminated will also most likely not be able to recover retrenchment/termination benefits provided for in law as MAS, even if it still exists, may most likely be devoid of capacity, assets and monies, and MAB, according to this Bill, clearly has no obligation to be responsible for MAS’s obligations to its workers.

The secrecy and the blitz manner in which this Bill has been tabled, passed and being made law is also wrong, when there really should have been prior discussion and agreements especially with regard the 20,000 over employees of MAS and their trade unions, who now are in a precarious position uncertain even about the future wellbeing and livelihood of these workers and their families.

We call for:-
a)      The immediate suspension of the process of making the Malaysian Airline System Berhad (Administration)  Bill  2014 into law, or the putting into force of this Act, until all matters concerning the rights, future employment security, wellbeing and livelihood of the about 20,0000 employees of MAS and their family is resolved and provided for. The future of the existing employee trade unions and rights must also be resolved.

b)      The Malaysian government respect and make worker and trade union rights a priority in this exercise to try to save the national carrier, MAS, for after all employees can reasonably not be blamed for poor management that have put MAS in this financial predicament.

c)       The Malaysian government to guarantee that the right to regular employment until retirement will not be sacrificed in favour of precarious employment relationship and practices to the detriment of workers, and their unions in this process of saving Malaysia’s national carrier.

Charles Hector
Mohd Roszeli bin Majid
Pranom Somwong

For and on behalf of the following 24  civil society groups, trade unions and organizations

Angkatan Rakyat Muda Parti Rakyat Malaysia (ARM-PRM)
Cambodian Human Rights and Development Association- ADHOC
CAW (Committee for Asian Women)
Community Action Network (CAN), Malaysia
CWI Malaysia (Committee For A Workers International  Malaysia)
Hawaii Center for Human Rights Research & Action  (HCHR2A) 
Human Rights Ambassador for Salem-News.com, UK 
MADPET (Malaysians Against Death Penalty and Torture)
Malaysian Physicians for Social Responsibility
Migrant Care, Indonesia
Migrante International
MTUC (Malaysian Trade Union Congress)
MTUC Sarawak on behalf of 28 affiliates union in Sarawak
National Union of Flight Attendants Malaysia (NUFAM)
National Union of Transport Equipment & Allied Industries Workers (NUTEAIW)
Network of Action for Migrants in Malaysia (NAMM)
Parti Rakyat Malaysia(PRM)
Pax Romana-ICMICA Asia
Perak Women for Women Society (PWW)
Persatuan Kesedaran Komuniti Selangor
Persatuan Sahabat Wanita, Selangor
Pusat KOMAS (KOMAS)
Tenaga Nasional Junior Officers Union (TNBJOU)
Workers Hub For Change (WH4C)