Kenyataan bersama yang dikeluarkan 64 organisasi termasuk 23 Kesatuan Sekerja Malaysia
Media Statement- 4
August 2015
Repeal MAS Law That Suspends Or Deny Existing Worker And Trade
Union Rights And Access To Justice – Laws that deny worker rights to assist
businesses should never be enacted
We,
the undersigned 64
civil society organizations, trade unions and concerned groups, are disturbed
by the Malaysian government’s unjust use of an Act of Parliament to suspend
and/or deny existing worker rights in law, including also access to justice
mechanisms, for the benefit of a private business and employer, being the
Malaysian Airlines System Berhad(MAS Bhd), now wholly owned private company by
Malaysia’s sovereign wealth fund, Khazanah Nasional Berhad, a company.
Malaysia
tabled and passed speedily the Malaysian Airline System Berhad (Administration)
Act 2015 [Act 765], which came into force on 20/2/2015. This Act is most unjust
to workers and trade unions of employees of the airline.
The
Act, in section 11, states that “…on the appointment of the Administrator, a
moratorium shall take effect during which… (e) no proceedings and no
execution or other legal process in any court or tribunal may be commenced or
continued with, and no distress may be levied, against the Administered
Companies or their property except with the prior written consent of the
Administrator;” – whereby the Administered company includes MAS Bhd, its wholly
owned subsidiaries and some partially owned subsidiaries. The Administrator was
appointed on or about 25/5/2015, and the period of administration could last
for a maximum period of 2 years commencing from the date of the appointment of
the Administrator.
What
is disturbing is that when administration and moratorium ends, all monies,
assets and business of MAS Bhd would most likely be transferred to a new legal
entity Malaysian Airline Berhad(MAB). MAS Bhd would most likely be left an
empty shell.
Worker Claiming Rights Cases Against MAS Bhd – Stopped and May Not
Proceed
There
are currently many cases initiated and filed, now pending before access to
justice mechanisms, including tribunals and courts between workers and MAS Bhd,
the employer, claiming wrongful dismissal and/or other worker
rights, or between trade unions and MAS Bhd. The effect of the moratorium
is that all these actions and cases will stop, and not proceed further until
administration of MAS Bhd ends.
At
the end, when moratorium is lifted, MAS Bhd would most likely be an empty shell
– with no work and no money.
Hence, it will be workers and trade unions that will suffer. Workers and Trade
Unions do not just lose their right to justice, but also will have to shoulder
additional loses, including all the monies utilized for lawyer and court fees,
time and others. For many workers, it may also mean loss of wages for the
days they could not work because they had to attend at relevant departments,
tribunal or court in their pursuit for justice. Hence, not only will workers
and trade unions be denied justice, but will suffer even more injustice by
reason of this anti-worker legislation.
Right To Join Parties To Satisfy Worker Claims Against MAS Bhd
Denied
Normally,
when the employer has lost the ability to provide remedies, damages or
compensation to satisfy the claims of the worker, to ensure justice, the worker
can proceed with an application to join third parties to the suit, possibly the
owners (Khazanah Nasional) or others.
This
MAS Act now unjustly prevents this ability to join parties, in amongst
others, in section 25(2), which states that “ 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].’
In
fact, section 25(1) says clearly, amongst others, that ‘…the Administered
Companies, the Administrator, appointer or the Malaysia Airlines Berhad shall
not—(a) be regarded as the successor, assignee or transferee or a
successor employer to the Administered Companies; (b) be liable
for any obligation relating to any retirement plan or other post-employment
benefit plans in respect of the employees or former employees of the
Administered Companies or any predecessor of the Administered Companies that
exists prior to the assumption of control or appointment; or (c) be liable
for any sum which is calculated by reference to a period of time prior to the
Malaysia Airlines Berhad becoming the employer of the person in question…’
Same Owner of both MAS Bhd and new Malaysian Airline Berhad(MAB)
Considering
that the it is Khazanah Nasional that is the sole owner of MAS Bhd, and also
the new company MAB, clearly all that is happening is really nothing other than
the ‘same person changing shirts’ – and justice would demand that the new
entity MAB or the owner, Khazanah, should be justly taking over the obligation
and responsibility of MAS Bhd especially for cases involving worker and trade
union rights.
The
new MAB and MAS Bhd, both owned by Khazanah, really is nothing other that the
same owner forming a new company to escape responsibility and liability to
workers, is also supported by the
following:-
a. Christoph Mueller, the new chief executive of MAS Bhd was
appointed on 1/5/2015, would later assume the same position with MAB. Same
CEO for MAS Bhd, and new MAB?
b. When the employees of MAS Bhd received their termination
letters in early June 2015, those that were offered employment by the new MAB,
were offered a different termination package from those not offered employment
in MAB. Those offered employment in MAB, which was to take effect
from 1/9/2015, were asked to continue coming in to work in MAS Bhd, while the
others, about 6,000, were asked to stop coming in to work with the assurance
they will continue to receive normal salary but could not commence employment
with another employer before 31/8/2015 unless they first get approval of MAS
Bhd’s Human Resource Department. For many airline employees, other than basic
wages, income from allowances and such if they are working makes up sometimes
50% or more of their monthly take home income. Rightly, all employees of MAS
Bhd, irrespective of whether they will be later employed in MAB, should have
received the same benefits and ex-gratia on termination by MAS Bhd.
In
the name of justice, MAB or Khazanah or the Malaysian government should really
take over the obligation of any or all claims of employees and trade unions
against MAS Bhd.
Avoiding Just Principles of Lay-Off and Termination
When
an employer wants to reduce staff, they would justly retrench the number of
workers they no longer need – and there are just requirements that need
to be complied in any retrenchment exercise like the ‘Last In First Out’(LIFO)
principle. Here, this is avoided by MAS Bhd simply terminating all employees on
31/8/2015. Justly, the about 6,000 who were no longer required to come into
work since June, should have been laid off then and there and paid all their
entitlements.
Union Busting?
With
the termination of all employees of Malaysia Airlines Systems Bhd (MAS Bhd), it
would also mean the demise of about 7 in-house trade unions.
The
only national trade union, the National Union of Flight Attendants Malaysia,
managed to show support of 62.73% of the qualified employees, and obtain
the Minister’s order that made it a recognized union in MAS Bhd. Rather
than accept this, MAS Bhd went for judicial review challenging the
Minister’s decision. NUFAM alleges that only 2 out 10 executive committee
members of the Union, who are employees in MAS Bhd have been offered employment
in the new MAB.
As
such, this ‘restructuring exercise of the airline’ and this new law can also
be considered a means of union busting.
Loss
of Regular Employment Until Retirement
Many
workers who are regular employees until retirement in MAS Bhd, who have been
offered employment in the new MAB find that they will now become precarious
employees on short-term contracts, some even on 3 or 6 months employment
contracts. There is no law in Malaysia that stipulates that short-term contract
employees will continue as employees if the work they were hired to do still
exist. Short-term and other precarious forms of employment also would likely
deter union formation or involvement, deter workers from claiming rights and
facilitate easier exploitation of workers.
Ignoring
Worker and Families Financial Security and Wellbeing
Workers
in Malaysia have families and dependents, and also many now have monthly
loan-repayment obligations, and justly they should be provided secure regular
employment until retirement, whereby they still could be terminated for
misconducts, or laid off where the employers has to reduce jobs.
Whilst
Malaysia says that it is concerned about the airline business, it has demonstrated
a serious lack of concern for the welfare and wellbeing of workers.
We
therefore urge:-
That
the said Malaysian Airline System Berhad(Administration) Act 2015 be repealed,
and the effect this Act has had on workers and trade unions be reversed. No law
should be enacted to suspend/deny worker rights for selected employers;
That
all pending cases with regard to labour matters, be it with workers or unions,
shall be justly resolved or settled forthwith by MAS Bhd, and its owners
Khazanah Nasional;
That
for all worker and trade union cases against MAS Bhd, MAB and Khazanah
Nasional shall agree to be joined in as parties and assume obligations of MAS
Bhd to workers;
That
if the Malaysian Airlines is desirous of reducing the number of employees, it
be done by letting go employees in compliance with the Last In First Out(LIFO)
principle and other established just legal principles;
That
if the Malaysian Airlines is to be taken over by another entity, like the
Malaysian Airlines Berhad(MAB), workers should be employed by MAB as secure
regular employees and not by means of precarious forms of employment like
short-term contracts;
That
Malaysia considers the rights, welfare and wellbeing of workers and their
families are just as important, if not more, than the wellbeing and profits of
government-owned or linked businesses.
Charles Hector
Syed Shahir bin Syed Mohamud
Mohd Roszeli bin Majid
Pranom Somwong
For and on behalf the 64
organisations, trade unions and groups listed below
ALIRAN
Airlines Workers' Union Sarawak
Alternative ASEAN Network on Burma
(Altsean-Burma)
Asia Monitor Resource Centre(AMRC),
Hong Kong
Centro de Reflexión y Acción
Laboral, CEREAL (Labour Studies and Action Centre), México
Center for Orang Asli Concerns
(COAC), Malaysia
Clean Clothes Campaign
Club Employees Union Peninsular
Malaysia
Committee for Asian Women
CWI Malaysia (Committee For Workers’
International, Malaysia)
Daeduck Employees Union-Ind., CEPZ,
Rosario, Cavite, Philippines
Eagle Ridge Golf Course and
Residential Estate Employees Union, Cavite, Philippines
Electronic Industry Employees Union
(EIEU) Southern Region, Peninsular Malaysia
Electronic Industry Employees
Union(EIEU) Northern Region, Peninsular Malaysia
Garment and Allied Workers Union,
Haryana, India
Globalization Monitor
Hye Sung Workers Union, CEPZ,
Rosario, Cavite, Philippines
Institut PEREMPUAN (Indonesia)
Jaringan Kampung Orang Asli
Semenanjung Malaysia(JKOASM)
Kesatuan Pekerja-Pekerja Perodua
Kesatuan Pekerja-Pekerja Mitsui
Copper Foil(MCFEU)
Kesatuan Pekerja-Pekerja MHS
Aviation Berhad(MHSEU)
Kesatuan Eksekutif AIROD
Kesatuan Pekerja-pekerja Perodua
Engine Manufacturing Sdn. Bhd
Kesatuan Pekerja-Pekerja Perusahaan
Otomobil Nasional Sdn Bhd (KPP Proton)
Knights For Peace, International
MADPET (Malaysians Against Death
Penalty and Torture)
Network of Action for
Migrants in Malaysia(NAMM)
Nagkakaisang Manggagawa ng
Keyrin(trade union), CEPZ, Rosario, Cavite, Philippines
North South Initiative
Malaysian Humanist and Rationalist
Movement ("myHARAM")
Malaysian Trade Union Congress(MTUC)
Metal Industry
Employees' Union(MIEU), Malaysia
MAP Foundation, Chiangmai, Thailand
Masyarakat Akar Rumput (MAKAR
Indonesia)
Migrante International
Myanmar Ethnic Rohingya Human Rights
Organization Malaysia (MERHROM)
National Union of Transport
Equipment & Allied Industries Workers (NUTEAIW)
National Union of Flight Attendants
Malaysia (NUFAM)
National Union of Hotel, Bar and
Restaurant Workers (NUHBRW)
National Union of Journalist (NUJ)
Cawangan Utusan Melayu
National Union of Tobacco Industry
Workers(NUTIW)
National Union Employees in
Companies Manufacturing Rubber Products(NUECMRP)
Non-Metallic Mineral Products
Manufacturing Employees Union (NMMPMEU)
NUBE (National Union of Banking
Employees)
Paper Products Manufacturing
Employees’ Union of Malaysia (PPMEU)
Parti Rakyat Malaysia (PRM)
Peoples Service Organization (PSO)
Perak Women for Women Society (PWW)
PERMAS (Persatuan Masyarakat
Selangor & Wilayah Persekutuan)
Persatuan Sahabat Wanita Selangor
Persatuan Kesedaran Komuniti
Selangor
Persatuan Komuniti Prihatin Selangor
dan Kuala Lumpur
PINAY (Filipino Women's Organization
in Quebec), Canada
Pusat KOMAS
Railwaymen's Union of Malaysia (RUM)
Sahabat Rakyat (人民之友)
School of Acting Justly, Loving
Tenderly and Treading humbly (SALT)
Solidarity of Cavite Workers,
Cavite, Philippines
Tenaga National
Berhad Junior Officers Union (TNBJOU)
Tenaganita
Workers Assistance Center, Inc
(WAC),
WH4C (Workers Hub For
Change)
Yayasan LINTAS NUSA Batam –
Indonesia
