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.
Source: Malaysian Bar Website
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