Kes Guppy Plastic - Diskriminasi berasaskan jantina masih boleh dilakukan kepada pekerja sektor swasta

 Kes Guppy Plastic ada dua isu - di mana ini telah dibincang dan diberi keputusan melalui dua kes

1- Pembuangan kerja - mereka yang cuba menubuhkan union/atau ahli Union

2 -Diskriminasi - di mana kepimpinan union perempuan dibuang kerja (atau di anggap bersara) di mana umur persaraan perempuan adalah 50, dan umur persaraan lelaki adalah 55. Keadaan ini adalah nyata diskriminasi berasaskan jantina - yang bercanggah dengan prinsip 'Equality' yang secara khusus juga menghalang diskriminasi berasaskan jantina....Tetapi, kini Mahkamah negara ini membuat keputusan bahawa peruntukan atau keperluan 'equality' dan tidak dibenarkan diskriminasi adalah hanya untuk pekerja sektor awam - bukan pekerja sektor swasta. Ini nyata DISKRIMINASI.

Berikut adalah sedikit latar belakang kes ini yang saya dapat daripada Facebook Bicara Pekerja, dan salinan penghakiman kes di Mahkamah Tinggi mengenai isu pertama ... salinan alasan penghakiman kes di peringkat Mahkamah Tinggi mengenai isu diskriminasi sedang saya mencari pada masa ini... 

Kawan-kawan, sedikit latarbelakang tentang kes diskriminasi pekerja-pekerja Guppy Plastik:

Isu Perjuangan Umur Persaraan Pekerja-Pekerja Guppy Plastic Industries S/B

1. Gan Soh Eng, 61
2. Janama a/p Muniandy, 64
3. Iyyamah a/p Irtchumanan, 65
4. Pereyarka a/p Velesamy, 64
5. Danalachumy a/p Sinian, 63
6. Tolasiamah a/p S.A.Samy, 63
7. Marri a/p Perumal, 65
8. Letchmi a/p Suppiah, 62

Kronologi Peristiwa Penting :

10 Jan 2000: Surat Pekeliling dari Kesatuan Pekerja-Pekerja Guppy Plastic Industries (KPPG) kepada semua pekerja, memberi nasihat agar jangan menandatangani Buku Panduan Syarat-Syarat & Peraturan Pekerjaan tanpa memahami dengan jelas kandungan buku tersebut. Juga dinasihatkan untuk memberitahu kesatuan sekiranya pihak majikan memaksa sesiapa untuk menandatangani Buku Panduan tersebut.

10 Jan 2000: Aduan di bawah Seksyen 8, 59(1) dan 4(1) Akta Perhubungan Perindustrian 1967 oleh KPPG kepada Jabatan Perhubungan Perusahaan mengenai Buku Panduan Syarat-Syarat & Peraturan Pekerjaan yang mencabuli hak pekerja dan ahli kesatuan sekerja.

29 Jun 2001: 20 pekerja mengadu kepada KPPG bahawa pihak majikan telah memecat mereka dengan 24 jam notis atas alasan mereka sudah mencapai umur persaraan.

2 Julai 2001: Surat aduan kepada pihak majikan meminta pekerja-pekerja tersebut diambil semula untuk kerja. Surat tersebut juga menegaskan pekerja-pekerja Guppy tidak bersetuju dengan kandungan Buku Panduan Syarat-Syarat & Peraturan Pekerjaan.

23 Julai 2001: Surat kepada majikan daripada KPPG mengenai pemecatan pekerja-pekerja berumur 51-53 tahun secara tidak sah. Surat ini juga menyentuh tentang surat KPPG kepada pihak majikan bertarikh 9 & 10 January 2001 membantah isu umur persaraan dan perkara-perkara lain. Ia juga menyentuh tentang mesyuarat bersama antara pihak majikan, Jabatan Buruh, Jabatan Perhubungan Perindustrian, Kementerian Sumber Manusia dan KPPG mengenai bantahan pekerja terhadap syarat umur persaraan. Ia juga menyentuh tentang aduan dari pekerja bahawa majikan memaksa mereka untuk menandatangani Buku Panduan Syarat-Syarat & Peraturan Pekerjaan.

25 Oct 2001: KPPG menulis surat kepada Jabatan Perhubungan Perusahaan Penang untuk membantah pelaksanaan Buku Panduan Syarat-Syarat & Peraturan Pekerjaan yang bercanggah dengan Akta Pekerjaan 1955 dan Perlembagaan Persekutuan Negara. Antara isu-isu tersebut ialah berkaitan Notis Penamatan, Waktu Bekerja, Umur Persaraan dan kenaikan gaji tahunan.

25 Nov 2001: Surat dari KPPG kepada Jabatan Perhubungan Perusahaan membantah pelaksanaan Buku Panduan Syarat-Syarat & Peraturan Pekerjaan oleh pihak syarikat Guppy. Sebanyak 32 perkara di bawa ke perhatian Pengarah JPP termasuk isu umur persaraan.

8 Jan 2002: Surat dari Dato Dr. Toh Kin Woon (EXCO Negeri Pulau Pinang) kepada Pengarah Jabatan Perhubungan Perusahaan meminta campurtangan menyelesaikan aduan pekerja-pekerja Guppy Plastic Industries membantah pelaksanaan Buku Panduan Syarat-Syarat & Peraturan Pekerjaan.

2 Ogos 2005: Pernyataan Kes yang difail oleh IRO bagi pihak pekerja-pekerja (8 orang) yang dihentikan kerja atas alasan mencapai umur persaraan, di Mahkamah Industri:

(i) 8 orang pekerja dibuang kerja pada I Julai 2001 melalui surat bertarikh 18 Jun 2001. Mereka telah bekerja sebagai ‘operator pengeluaran’, ‘cleaner’, ‘general worker’ yang telah bekerja sejak tahun 1990/1997 di syarikat plastic Guppy. Malah salah seorang dari mereka berumur 50 tahun ketika dilantik, manakala yang lain dalam lingkungan 40an. Gaji terakhir mereka adalah dalam lingkungan RM800 sebulan.

(ii) Tiada terma umur persaraan dalam kontrak kerja semasa dilantik bekerja. Diberi keyakinan bahawa mereka boleh bekerja sehingga terdaya.

(iii) Surat tawaran pekerjaan hanya diminta ditandatangani sekitar tahun 1999 dan bukan semasa di ambil kerja. Dalam surat tawaran ini tiada terma mengenai umur persaraan pekerja.

(iv) Sekitar Nov 1997, Kesatuan Pekerja-Pekerja Guppy Plastic telah di tubuhkan dan menerima pendaftaran oleh Jabatan Hal Ehwal Kesatuan Sekerja pada 27 April 1998. Sembilan orang pekerja ini adalah ahli Kesatuan Sekerja.

(v) Sejak pihak Kesatuan Pekerja menuntut ‘pengiktirafan’ (30 Mei 1998), pihak syarikat bertindak melumpuhkan kesatuan dengan memangsakan AJK-AJK kesatuan dan ahli-ahli aktifnya secara berperingkat-peringkat.

(vi) Pada Disember 1999, kesemua 9 orang dan pekerja-pekerja lain telah diberi Buku Panduan Syarat-Syarat & Peraturan Pekerjaan. 9 orang pekerja ini dipaksa oleh majikan untuk menandatangani satu surat sebagai persetujuan menerima kandungan terma-terma dalam buku tersebut. Pekerja terbabit telah memberitahu perkara ini ke perhatian pihak Kesatuan.

(vii) Pihak Kesatuan telah membuat aduan kepada YB Menteri Sumber Manusia, Jabatan Perhubungan Perushaan, Jabatan Buruh dan juga kepada pihak majikan, Guppy Plastic Industries mengenai Buku Panduan Syarat-Syarat & Peraturan Pekerjaan yang mencabuli hak pekerja dan hak kesatuan sekerja.

(viii) Pihak kesatuan juga menulis surat kepada majikan membantah tindakan pembuangan kerja.

(ix) 8 orang pekerja bersama pihak kesatuan telah membuat aduan pembuangan ini di Jabatan Perhubungan Perusahaan (JPP). Pada 6 Julai 2001, pihak majikan mendesak 8 orang pekerja ini membuat surat pengakuan bahawa Pengerusi Kesatuan telah memaksa mereka membuat aduan di JPP. Pihak kesatuan telah membuat aduan polis terhadap pihak syarikat yang melemparkan tuduhan-tuduhan palsu terhadap Kesatuan Sekerja Guppy Plastic.

3 Julai 2008: Keputusan Kes Mahkamah Perusahaan [No. 26 (14)/4-244/05, Award No. 1147] dibuat di bawah seksyen 30 Akta Perhubungan Perusahaan 1967, memihak pihak pekerja.

13 Ogos 2008: Permohonan untuk perintah certiorari oleh pihak majikan (Goh Boon King, perayu) untuk membatalkan keputusan di atas. Antara argument-argumen yang dibentangkan ialah:

(i) Tidak setuju dengan kesimpulan (Award No. 1147) bahawa umur persaraan 50 tahun bagi pekerja-pekerja wanita adalah amalan buruh yang tidak adil. Yang gagal di cabar ialah ‘umur persaraan biasa’ di sektor industry plastic ketika itu ialah 50 tahun bagi pekerja wanita dan 55 tahun bagi pekerja-pekerja lelaki.

(ii) Pengerusi Mahkamah Perusahaan tidak mengambil kira fakta bahawa Pihak Menuntut (pekerja-pekerja) telah ‘bersetuju’ dan ‘mengesahkan’ segala terma-terma dan syarat-syarat yang terkandung di dalam Buku Panduan Syarat-Syarat & Peraturan Pekerjaan dan telah terus bekerja. Juga telah menerima bayaran gratuiti persaraan apabila bersara.

22 Oct 2008: Kebenaran diberi kepada pihak majikan untuk memohon suatu perintah certiorari di Mahkamah Tinggi

7 Ogos 2009: Afidavit jawapan dari pihak pekerja (responden). Antara jawapan ialah:

‘menentukan polisi umur yang berbeza antara pekerja lelaki dan perempuan iaitu 50 tahun bagi pekerja wanita dan 55 tahun untuk pekerja lelaki adalah merupakan satu diskriminasi’

13 April 2010: Keputusan Yang Arif Dato’ Aziah Binti Ali, Mahkamah Tinggi Malaya di KL – menyebelahi pihak majikan

20 April 2010: Notis Rayuan difailkan oleh peguam pihak pekerja (perayu).

Jan & Sept 11: Surat Peringatan dari peguam pihak pekerja kepada Mahkamah meminta tarikh kes.

31 Oct 2011: Penyerahan Memorandum kepada Presiden Mahkamah Rayuan Malaysia YAA Tan Sri Dato Seri Md. Raus: untuk mempercepatkan tarikh perbicaraan kes.

12 Jan 2012: Perbicaraan Kes di Mahkamah Rayuan [Rujukan Kes:
W2-02-1194-10]. Kes ditunda ke 21 Mar 2012.

21 Mar 2012: Pekerja kalah di Mahkamah rayuan.

Sekian

 Source: Facebook, BICARA PEKERJA, sumbangan Sivaranjani Manickam

 

ROSHAMIZA MUHAMAD & ORS v. GUPPY PLASTIC INDUSTRIES SDN BHD & ANOR
HIGH COURT MALAYA, KUALA LUMPUR
MOHAMAD ARIFF MD YUSOF J
[PERMOHONAN SEMAKAN KEHAKIMAN NO. R3(2)-25-234-2006]
14 DECEMBER 2009

GROUNDS OF DECISION

This was a judicial review application in relation to an award of the Industrial Court where the Industrial Court upheld the decision of the employer to dismiss the Applicants on the ground of misconduct after a short disciplinary enquiry.

The grounds for the judicial review application and the reliefs prayed appear in the application for judicial review and the statement under Order 53 rule 3(2), and it is not necessary to repeat them here. Suffice to state the Applicants applied for an order of certiorari to quash the entire award of the Industrial Court (Award Number 965 of 2006); [2006] 2 LNS 0965 which had dismissed the claim of unlawful dismissal without just cause and excuse. The Applicant also applied for a consequential order in the event this Court should allow the application for certiorari; in this respect the Applicants applied for any necessary consequential reliefs, or alternatively an order of mandamus to remit their claim to the Industrial Court to be reheard.

I allowed the application for judicial review for the substantive order of certiorari as prayed in prayer (a) of Enclosure 1, with a further order that an order of mandamus be issued to remit the matter back to the Industrial Court for the industrial to decide on the appropriate remedy other than dismissal. I made no order as to costs, given the circumstances, namely misconduct was proven but the issue turned on whether the outright dismissal of the Applicants was proper in law.

In summary, I was of the view that, given the facts and the total circumstances of the case, the dismissal the Claimant was wholly disproportionate and award did not disclose the Industrial Court Chairman had addressed her mind as to the harshness or severity of the punishment, and in so doing the learned Industrial Court Chairman had committed a jurisdictional error. I refer to the High Court case of Sunmugan Subramaniam v. JG Containers (M) Sdn Berhad & Another [2000] 6 CLJ 521, which applied the doctrine of proportionality in a dismissal case. The High Court in Sunmugam Subramaniam, supra, drew on earlier principles stated in the celebrated case of R Rama Chandran v. The Industrial Court of Malaysia & Another [1997] 1 CLJ 147 where the Federal Court expressly referred to the doctrine of "proportionality" as a possible fourth ground of review which called for development. The High Court in Shunmugan Subramaniam, in applying the doctrine of proportionality to the facts, stated thus:

"A perusal of the award would reveal that the Industrial Court in this instant case had totally failed to perform its duty in the second limb of its twofold function as set out in Milan Auto. In other words, the Industrial Court failed to address his mind as regards the harshness or severity of punishment. Thus, the Industrial Court had committed a jurisdictional error of law... Moreover, the Industrial Court erred in law in dismissing the Applicant's claim because it failed to apply the doctrine of proportionality." (See page 535 and 536 of the report)

I respectfully agreed with this sentiment and application of the law. On the facts of the present judicial review application, there was an element of disproportionate action taken by the employer and on this the learned Industrial Court Chairman had failed to sufficiently address her mind on this important aspect of industrial law. See also the guidelines established in the persuasive Indian Supreme Court decision in RM Parmar v. Gujarat Electricity Board [1983] 1 LLJ 261 where Thakkar CJ held:

"In imposing punishment on an erring employee an enlightened approach informed with the demands of the situation and the philosophy and spirit of the times requires to be made. It cannot be a matter of the ipse dixit of the disciplinary authority depending on his whim or caprice. Be it administration of criminal law on the exercise or disciplinary jurisdiction in departmental proceedings, punishment is not and cannot be of the "end" in itself. Punishment for the sake of punishment cannot be the motto. Whilst deliberating upon the jurisprudential dimension the following factors must be considered:

(1) In a disciplinary proceeding for an alleged default of an employee punishment is imposed not in order to seek retribution or to give vent to feeling of wrath.

(2) The main purpose of punishment is to correct the fault of employee concerned by making him more alert in the future and to hold out or warning to the other employees to be careful in the discharge of their duties so that they do not expose themselves to similar punishment. And the approach to be made is the approach parents make towards an erring or misguided child.

(3) It is not expedient in the interest of the administration to visit every employee whom fault is established with the penalty of dismissal and to get rid of them. It would be counter-productive to do so for it would be futile to expect to recruit employees who are so perfect that they would never commit any fault.

(4) In order not to attract the charge of arbitrariness it has to be ensured that the penalty imposed is commensurate with the magnitude of the fault. Surely one cannot rationally justly impose the same penalty for giving a slap as one would impose for homicide."

These guidelines were referred to and applied in Sunmugan Subramaniam as well (see pages 534 and 535 of the report)

See also the persuasive Indian decision of Vasant Tukaram Mandavkar v. Life Insurers Corporation of India & Others [1998] III LLJ (Supp) 599, where the High Court of Bombay made reference to the need to have a careful application of mind to the facts and circumstances, including the past record of the Petitioner, before an order of dismissal should be imposed.

Counsel for the Applicants made it clear in the course of submission that the applicants were not challenging the finding of guilt, or the findings of the Industrial Court that the Applicants were untruthful witnesses. The issue here was whether the Applicants were victimised for their union activity, and since the Industrial Court Chairman had considered their victimisation as an irrelevant consideration, whether her decision to uphold the employer's decision to dismiss them could be supported in law. The three Applicants were, at all material times prior to the dismissal, factory workers (a line leader, and packing operators) who were at the same time principal office bearers of an in-house union known as Kesatuan Pekerja Pekerja Guppy Plastic Industries Sdn Bhd. According to the employer, seven office bearers of the union, including the Applicants, were found to have been engaged in illegal and unlawful activities which included giving false information about the company to third parties for publication which affected the image of the company, by distributing leaflets containing false information, and by carrying out the union activities during normal office hours which disrupted the work of other workers on the company's premises. In point of fact, the leaflets said to have been produced and distributed by the union office bearers were printed by a third party. All in all, though five charges levelled against these factory workers, only the three applicants were found guilty on the first, second and fifth charges, and promptly dismissed.

The details of the charges of found on pages 4 and 5 of the Award. Suffice to say, the Industrial Court found the Applicants not guilty of the first charge, but affirmed the finding of guilt on the second and fifth charges. It was noted by the learned Industrial Court Chairman that there was no domestic enquiry held because COW 2 had testified that the Applicants as Claimants had each admitted to committing allegations one, two and five but not allegations three and four.

It was the case for the Applicants in the Industrial Court that they were victimised for their union activity. This was expressly pleaded in the statement of case, which appears on page 62 of Enclosure 3, reading:

"11. The Claimant shall contend that they were dismissed without just cause or excuse.

12. The Claimants shall further contend that the decision to dismiss them was arbitrary, capricious and are acts of victimisation motivated by mala fides related to the claimant's involvement in trade union activities."

The Applicants expressly referred to the statement made by the General Manager of a company, who appeared as COW 1, in which he was questioned and he replied an agreed that he "went after the union". See the notes of proceedings produced in Enclosure 7, page 48:

"Q: The union has been corresponding, communicating from late 1997.

Why is it that after this letter the whole committee were suspended?

A: Because of the five charges spelt out - to find out whether true or not - yes suspend the entire AJK to investigate.

Q: So you went after the union?

A: Yes."

In conclusion, the learned Industrial Court Chairman found the argument that their action taken was "to nip the union in the bud" as "irrelevant to the court's consideration". It is also noted that at the material time the union had not been accorded recognition under section 9 of the Trade Unions Act. The facts, however disclosed, that the union had lodged a recognition claim but the company had refused to accord recognition. 

The in-house union had earlier applied to the Registrar of Trade Unions and the proposed in-house union was approved and registered under the Trade Unions Act 1959. When the disciplinary action was taken therefore, the in-house union had been involved in an application for recognition from the employer. This was the overall scenario behind the dismissal of the Applicants by the employer.

Although the court was exercising judicial review jurisdiction and it is an accepted principle of law that findings of fact on the evidence by the Industrial Court should not be interfered with by the High Court, the argument and ground mounted by the Applicants in this judicial review application extended beyond the narrow confines of interfering with findings of fact, but encroached upon the equally important area of "irrationality" and "proportionality". 

Given the right of association accorded to workers under the Federal Constitution, I believe it right and proper to assess the reasonableness and proportionality of the decision to dismiss, against the admitted evidence of the employer's representative that he went "after the union". In any event, the evidence did not disclose any sufficient attention being given to the Applicants' otherwise unblemished record and long service. I agreed with the position taken by counsel for the Applicants that the learned Industrial Court Chairman had adopted a cursory approach to the question whether the conduct complained of was serious enough to warrant an immediate dismissal. They had argued that they were distributing the leaflets which originated from a third party in the belief that the contents were true. In the circumstances, I was of the view that the punishment of an outright dismissal was unduly harsh and motivated by an extraneous factor namely to nib the in-house union activities in the bud.

In this connection, it might be useful to refer to some persuasive passages in a leading case by the Constitutional Court of South Africa, ie, Z Sidumo & Congress of South African Trade Unions v. Rustenburg Platinum Mines Ltd, Commission for Conciliation, Mediation and Arbitration & Another [2007] ZACC 22. Although not strictly binding on the Malaysian Court, the juristic reasoning of the Constitutional Court of South Africa is of very persuasive significance. I quote the relevant passages:

"[72] In deciding how commissioners [the South African equivalent of the Industrial Court] should approach the task of determining the fairness of the dismissal, it is important to bear in mind that security of employment is a core value of the Constitution... This is the protection afforded to employees who are vulnerable. Their vulnerability flows from the inequality that characterises employment in modern developing economics...

[75] It is a practical reality that in the first place it is employer who hires and fires. The act of dismissal forms the jurisdictional basis for a commissioner, in the event of an unresolved dismissal dispute, to conduct an arbitration in terms of the LRA [the South African Labour Relations Act]. The Commissioner determines whether the dismissal is fair.

There are therefore no competing "discretions". Employer and commissioner each play a different part. .. the decision to dismiss belongs to the employer but the determination of its fairness does not. Ultimately, the Commissioner's sense of fairness is what must prevail and not the employer's view. An impartial third party determination on whether or not a dismissal is fair is likely to promote labour peace ...

[77] Employees are entitled to assert their rights ... The state is obliged to provide the means to ensure that constitutional and labour law rights are protected and vindicated."

The above juristic principles are worth emulating, coming as they do from such an esteemed institution as the Constitutional Court of South Africa. Security of employment is a core value of the Constitution and any arbitral tribunal provided with jurisdiction under the labour law legislation to adjudicate between an employer and employee should approach its jurisdiction on the basis that the position in relation to the determination of the fairness of dismissal is within the jurisdiction of the arbitral tribunal, not the employer. In this light, the arbitral tribunal should not place undue emphasis on the employer's decision to dismiss, but must proceed further to enquire whether in the total circumstances of the case, the decision to dismiss is "fair", bearing in mind the core values of the Constitution.

On the facts of this particular judicial review application, and bearing in mind the constitutional right to organise and form a trade union as a component element of the freedom of association, any decision of the employer to dismiss an employee just because an employee is a trade union office bearer should be carefully examined for legal validity under administrative law. In the circumstances of this particular judicial review application, I was of the view the position of the Industrial Court Chairman to affirm the dismissal of the employer to dismiss the Applicants should be quashed and the matter be remitted back to the Industrial Court to determine what would be a more appropriate punishment given the circumstances.

Dated: 14 DECEMBER 2009.

(MOHAMAD ARIFF MD YUSOF)

JUDGE

HIGH COURT MALAYA KUALA LUMPUR

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

By Aliran, on 28 July 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. 

Source: ALIRAN Website