Withdraw unjust proposed amendments to Employment Act , says 107 groups

Withdraw unjust proposed amendments to Employment Act

By Aliran, on 28 October 2011

More than a hundred civil society groups from across the region have endorsed a statement opposing these amendments, which they feel will undermine the employer-employee relationship and erode workers’ rights.

The relationship between employer and employee will be compromised
with these amendments

We, the undersigned 107 organisations, groups and networks, are disturbed that the Malaysian government has proceeded to table (and got it passed speedily in Parliament on 6 October 2011) the Employment (Amendment) Bill 2011 despite protests from workers, trade unions and civil society.

The proposed changes to the Employment Act would be most detrimental to worker rights, trade unions and the existing just direct two-party employment relationship between worker and end-user (the principal). Malaysia’s action goes contrary to justice. In many countries, employers have been wrongly trying to avoid/disguise employment relationships by way of contracts/agreements and triangular relationships, and Malaysia rather than fighting against this negative trend is now trying to legalise it, hence showing itself to be anti-worker and anti-union.

We note also that the amendments would result in discrimination at the workplace, as many workers in factories, plantations or any other workplaces would end up being no longer employees of the owner-operators of those workplaces, also referred to as the principals or end-users, but would remain employees of the suppliers of workers, known as ‘contractors for labour’. Workers doing the same work at the factory would be treated differently in terms of wages, work benefits and even rights by reason of the fact that their employers are different. This will also go against the Malaysian Federal Constitution that guarantees equality of persons. We advocate that all workers working at factories or other workplaces are entitled to be treated equally in terms of wages, work benefits, rights, union rights, reliance on collective agreements and other entitlements.

The proposed amendments would also destroy direct employment relationships between the owner-operators of the workplace, being the principals, and the workers that work there producing the products or providing the services from which the principals derives their profits. A just employment relationship dictates that all workers should be employees of the owner-operator employers – and not of some third-party labour suppliers, whether known as ‘contractors for labour’, outsourcing agents or by any other name.

The relationship must be a direct relationship, to the exclusion of all third parties, between the employers who need workers to do the work to produce the goods of their business for profits and the workers directly who provide the necessary labour as required in exchange for fair wages and other benefits. The availability of short-term employment contracts is another reason why there is no need to legalise triangular or other employment relationships in Malaysia through the creation of the ‘contractors for labour’.

To fight for decent wages and rights, and to be able to negotiate and get better working conditions and other work benefits, workers at a workplace would generally come together collectively or as a union to be able to negotiate from a stronger position with their employers, and this would result in agreements or ‘collective agreements’ between employers and workers (or their unions). If the proposed amendments become law, then many workers at factories would effectively lose their right to be able to form or become members of trade unions at their respective workplaces or the right to directly and effectively negotiate with their principals, who effectively controls their work places, working conditions and benefits.

If the proposed amendments become law, effectively it will also weaken existing workers and unions, by reducing their negotiating power – for now when a strike or a protest is called, there will be other workers of other third party employers who will continue to work normally thus making the workers’ struggle for better rights almost impossible. This proposed amendment is a ‘union-busting’ exercise and allows employers to use ‘divide and rule’ tactics to counter the legitimate demands of their workers and avoid the employers’ obligations and responsibilities. Another unjustifiable proposed change is the delay of payment of overtime and work on rest days by a month.

With regard to sexual harassment, the new provision provides only for an inquiry by the employer even when the alleged perpetrator is a member of the management, a partner, shareholder and/or director of the employer’s business. It provides no clear right of appeal to the Labour Courts or the High Court. Note that other workers’ rights violations are currently all dealt with by the definitely more independent Labour Department or Industrial Relations Department. The remedy for the victim of sexual harassment is also absent, save maybe the right to resign without the need to give the required notice when the perpetrator is a sole proprietor.

The Malaysian Trades Union Congress (MTUC), which represents over 800000 workers of member unions and is the accepted workers’ representative in Malaysia, picketed calling for the withdrawal of the amendments on 3 October 2011. Apparently despite the Minister assuring them that the amendments would only be tabled at the end of the month, they were suddenly rushed and passed in Parliament on 6 October 2011.

Malaysia has the Private Employment Agencies Act 1971, whereby these agencies rightfully get workers for employers, who then pay them a fee for the service, and once workers are received by the employer, these workers immediately become employees of the said employer. The amendments will creates a new kind of labour supply companies, which will continue as employers of the workers even after they start working at the workplace of the principal. This is unacceptable. All companies in the business of finding workers for companies that need workers to produce their products or for their business must be private employment agencies and must never assume or retain the role of employers.

As the Bill still needs to be passed by the Senate and receive royal assent before it becomes law, we call on the Malaysian government to act in the best interest of workers and their unions and immediately withdraw these unjust proposed amendments to the Employment Act 1955.

We call on Malaysia to immediately discontinue its policy of recognising outsourcing agents and act immediately against the practices of some employers and outsourcing agents that try to avoid/disguise their employment relationships to the detriment of workers and unions.

We call on countries and regional bodies, companies, the ILO, trade unions and individuals to do what is necessary to ensure that workers’ and union rights, not just of local but also migrant workers, are protected in Malaysia, and that the employment relationship continues to be between owner-operator end-user employers who actually need workers to do work and the workers that work there to the exclusion of any third party labour suppliers or ‘contractors for labour’.

Charles Hector

Pranom Somwong

For and on behalf of the 107 organisations listed below:-

1. Abra Migrant Workers Welfare Association – Hong Kong (AMWWA)
2. Abra Tinguian Ilocano Society – Hong Kong (ATIS-HK)
3. ALIRAN, Malaysia
4. All Women’s Action Society (AWAM), Malaysia
5. Asian Migrants Center (AMC), Hong Kong
6. Asia Monitor Resource Centre (AMRC), Hong Kong
7. Asia Pacific Mission for Migrants (APMM)
8. Asia Pacific Forum on Women, Law and Development (APWLD)
9. Asian Migrants’ Coordinating Body – Hong Kong (AMCB)
10. Association for Community Development-ACD, Bangladesh
11. Association of Concerned Filipinos in Hong Kong (ACFIL-HK)
12. Association of Indonesia Migrant Workers in Indonesia (ATKI-Indonesia)
13. Australian Council of Trade Unions (ACTU)
14. BAYAN Hong Kong
15. Building and Wood Worker’s International (BWI) Asia Pacific
16. Burma Campaign, Malaysia
17. Cambodian Human Rights and Development Association (ADHOC)
18. Cambodian League for the Promotion and Defense of Human Rights (LICADHO)
19. Center for Indonesian Migrant Workers (CIMW)
20. Center for Trade Union and Human Rights (CTUHR)
21. Clean Clothes Campaign (CCC)
22. Coordination of Action Research on Aids and Mobility (CARAM-ASIA)
23. Committee for Asian Women (CAW)
24. Community Action Network (CAN), Malaysia
25. Confederation of Voluntary Associations (COVA), Hyderabad, India
26. Cordillera Alliance Hong Kong (CORALL-HK)
27. Democratic Party For A New Society (DPNS), Burma
28. Dignity International, Malaysia
29. Education and Research Association for Consumers Malaysia (ERA Consumer Malaysia)
30. Filipino Friends Hong Kong (FFHK)
31. Filipino Migrants Association – Hong Kong (FMA)
32. Filipino Migrant Workers’ Union – Hong Kong (FMWU)
33. Filipino Women Migrant Workers Association – Hong Kong (FILWOM-HK)
34. Foundation for Women, Thailand
35. Friends of Bethune House (FBH), Hong Kong
36. GABRIELA Hong Kong
37. GABRIELA Philippines
38. Good Shepherd Sisters, Malaysia
39. Health Equity Initiatives (HEI), Malaysia
40. Housing Rights Task Force, Cambodia
41. Human Rights Education Institute of Burma (HREIB)
42. Human Security Alliance (HSA)
43. International Metalworkers’ Federation (IMF)
44. IMA Research Foundation, Bangladesh
45. INFID (International NGO Forum on Indonesian Development )
46. Institute for National and Democratic Studies (INDIES)
47. International Trade Union Confederation (ITUC)
48. Jakarta Legal Aid Institute, Indonesia
49. JERIT, Malaysia
50. Karmojibi Nari , Bangladesh
51. Kalyanamitra, Indonesia
52. Kav La’Oved , Israel
53. Kilusang Mayo Uno Labor Center
54. Komite Independen Pemantau Pemilu (Independent Committee for Election Monitoring), Indonesia
55. Legal Support for Children and Women (LSCW), Cambodia
56. LLG Cultural Development Centre, Malaysia
57. Malaysians Against Death Penalty and Torture (MADPET)
58. Malaysian Election Observers Network (MEO-Net)
59. MakeItfair
60. MAP Foundation, Thailand
61. Maquila Solidarity Network, Canada
62. May 1st Coalition for Worker & Immigrant Rights, NY-USA
63. Migrant CARE, Indonesia
64. Migrant Forum in Asia (MFA)
65. Migrant Trade Union, Korea (MTU)
66. Migrante International
67. National Alliance of Women Human Rights Defenders, Nepal
68. Network of Action for Migrants in Malaysia (NAMM)
69. National League For Democracy (Liberated Area )[ NLD(LA)], Malaysia
70. Pakistan Rural Workers Social Welfare Organization (PRWSWO)
71. Peduli Buruh Migran, Indonesia
72. Penang Watch, Malaysia
73. People’s Green Coalition
74. Pergerakan Indonesia
75. Perkumpulan PRAXIS, Indonesia
76. Persatuan Kesedaran Komuniti, Selangor (EMPOWER)
77. Persatuan Masyarakat Selangor & Wilayah Persekutuan (PERMAS)
78. Persatuan Sahabat Wanita Selangor
79. Pinatud a Saleng ti Umili (PSU)
80. Pusat KOMAS, Malaysia
81. Quê Me: Action for Democracy in Vietnam
82. Saya Anak Bangsa Malaysia (SABM)
83. Sedane Labour Resource Center/(Lembaga Informasi Perburuhan Sedane), Indonesia
84. Serikat Buruh Migran Indonesia (SBMI)
85. Shan Women Action Network (SWAN), Thailand
86. Silicon Valley Toxics Coalition
87. Solidaritas Perempuan (Women’s Solidarity for Human Rights), Indonesia
88. SOS(Save Ourselves), Malaysia
89. Suaram, Malaysia
90. Tenaganita, Malaysia
91. Thai Committee for Refugees Foundation (TCR)
92. The Filipino Women’s Organization in Quebec, Canada
93. The GoodElectronics Network
94. Think Centre (Singapore)
95. UNIMIG (Union Migrant Indonesia)
96. United Filipinos in Hong Kong (UNIFIL-MIGRANTE-HK)
97. United Pangasinan in Hong Kong (UPHK)
98. Urban Community Mission (UCM Jakarta), Indonesia
99. Vietnam Committee on Human Rights
100. WARBE Development Foundation, Bangladesh
101. Women Forum for Women, Nepal
102. Women Legal BUREAU, Philippines
103. WOREC, Nepal
104. Workers Assistance Center, Inc (WAC), Philippines
105. Workers Hub For Change (WH4C)
106. Yasanti
107. Yayasan LINTAS NUSA (Batam Indonesia)

Employment Amendments - All about making labour suppliers employers - not about protecting 'contract worker' rights

Interestingly the Minister gives us the impression that he is acting at the request of the National Union of Plantation Workers (NUPW) to prevent abuses faced by workers in the plantation sector...and in Parliament he tells us about a paper presented by the said NUPW at the ILO-Asia Pacific Regional Seminar in New Delhi in 1997 (hello that is about 18 years ago... and can we see the paper, Minister) and then he talks about ILO Resolutions in 1997 and 1998 about 'contract workers' - I am sure that they are not at all talking about the proposed changes of employment relationship in Malaysia which is the main objection to the proposed amendments something that became important to ILO that resulted in a passing of an ILO Resolution in 2006 only...

Pindaan ini telah dicadang dan disokong oleh National Union of Plantation Workers (NUPW) yang mana amalan membekalkan pekerja oleh kontraktor tenaga kerja memang sedia berlaku sejak dahulu sehingga kini terutama di sektor perladangan. NUPW semasa membentangkan kertas kerja di ILO-Asia Pacific Regional Seminar di New Delhi, pada tahun 1997 menyatakan bahawa pendaftaran kontraktor tenaga kerja akan dapat meningkatkan ketelusan dalam sistem ini, memudahkan urusan penguatkuasaan undang-undang buruh, dapat mengurangkan insiden-insiden penindasan hak-hak pekerja yang dibekalkan oleh kontraktor tenaga kerja tersebut.

Pertubuhan Buruh Antarabangsa (ILO) pada tahun 1997 dan 1998 juga telah membincangkan isu contract labour dengan panjang lebar dan telah mencadangkan konvensyen dan recommendation mengenai contract labour. Antara lain, cadangan konvensyen tersebut menggariskan tanggungjawab negara-negara anggota ILO untuk mempromosikan hak sama rata di antara contract labour dengan pekerja-pekerja yang lain. Oleh yang demikian, cadangan pindaan ini adalah selaras dengan saranan ILO demi melindungi hak dan kepentingan golongan pekerja yang digaji melalui sistem ini.

I have not seen NUPW come out and confirm that they did request the Minister do this.... and is NUPW still alive and active anymore. I believe that they are no more in MTUC and to many they have become 'dormant'...Remember that the organization that represents workers in Malaysia is the MTUC and they are protesting the amendment...

Anyway, this amendment is not confined to workers in the plantation sector only but will affect all workers in Malaysia - not just in the private sector but also the government/public sector. [Remember, they can amend specific provisions with regard to workers in specific sectors - eg. there is one section on Domestic Workers in the Act now...]

Soon you will have workers working in the Ministry of Human Resources who are not government employees - but employees of some ABC Sdn Bhd (a 'contractor for labour'). That is the future scenario - and when that does happen then, our BN government will just turn around and say that the Malaysian Employment Act allows that.....

And, Mr Minister - the issue is not about protection of contract workers rights for there is no need for this for the rights of all workers including contract workers are already protected by the Employment Act .... there is no need for amendments...

Contract workers - well are not all workers contract workers? Or are you referring to to just those workers on fixed-term or short-term contracts, as compared to workers with security of tenure until retirement....anyway, all these workers rights are already protected by the Employment Act - no need for amendment...

The only purpose of this amendment is (1) to create 'contractors for labour', and legitimize 'illegal' outsourcing labour and/or labour supplier companies, and to (2) make these suppliers of workers into employers, whilst removing the employer obligations from principals/end-users/owner-operators of factories, plantations and workplace ...

{the problem with the Malay language is that both the word 'worker' and 'employee' when translated is 'pekerja' - so if people are debating in parliament, it can be misleading and confusing - ....

33a. (1) A contractor for labour who intends to supply or undertakes to supply any employee shall register with the Director General in the prescribed form within fourteen days before supplying the employee.

All employment agencies, labour suppliers or even 'contractors for labour' were restricted to supplying workers (not their employees) to principals (or end-users or owner-operator of workplaces) then it will be OK.... If the government is concerned - an obligation could be placed on these employment agencies, labour suppliers or even 'contractors for labour' to INFORM the DG of any workers supplied and to whom....

PETALING JAYA: The Malaysian Trades Union Congress (MTUC) will hold a nationwide protest next month against what it calls the “legalisation” of modern-day slavery.

This follows a provision in the recently passed Employment (Amend-ment) Act that allows lea­sing of staff.

MTUC deputy president Mohd Jafar Abdul Majid said workers risk being victimised under the new provision in the Act.

“Allowing companies to source workers through suppliers also pose socio-economic hazards.

“We strongly object to such practices, which promote modern-day slavery,” he said.

Mohd Jafar said it was a matter of grave concern as the rights of workers would be eroded.

“They (the sourced workers) cannot secure permanent jobs and they cannot join unions as they are not directly employed by the company.

“They may also find it difficult to secure bank loans for housing and other purposes, as it would not be clear if their real employer is the supplier or the company that hired them,” he said.

He also questioned how the authorities would stop the suppliers from tapping into the workers’ earnings.

Mohd Jafar said the MTUC welcomes amendments in the Act that benefit the workers but is “fiercely against” the particular provision that erodes the rights of workers.

He said although the amendment had been passed in Parliament, the Human Resources Minister could use his discretion to postpone the implementation.

Mohd Jafar said MTUC will proceed with its plan to hold a nation-wide protest on Nov 3 if the authorities continue to turn a deaf ear to the matter.

Human Resources Minister Datuk Seri Dr S. Subramaniam had said the amendment to the Act enabled registration of third-party labour suppliers so that action could be taken against any mistreatment of outsourced labour.

The Employment (Amendment) Bill was originally tabled in Parliament in July last year but withdrawn to further refine the amendments.

It was re-tabled at the Dewan Rakyat recently and passed.

The amendments, among others, defined the role of the contractor for labour (to clarify the relationship between principal, contractor and sub-contractors who supply labour), special provisions to address sexual harassment at the workplace, payment for overtime and work on rest days and public holidays.

The amendments also provide for payment of wages, including for maids through bank accounts, and maternity leave benefits for all female employees. - Star, 17/10/2011,MTUC protests ‘legalisation’ of modern-day slavery

Source: http://charleshector.blogspot.com/

Groups working for Foreign Domestic Workers Recommendations to the ASEAN Intergovernmental Commission on Human Rights (21/10/2011)

Foreign Domestic Workers Recommendations to the
ASEAN Intergovernmental Commission on Human Rights (21/10/2011)

We, the migrant domestic workers groups, NGOs and regional networks, present our recommendations to the ASEAN Intergovernmental Commission on Human Rights (AICHR) on the rights of all women foreign domestic workers, documented and undocumented.

Firstly, we would like to express our appreciation for the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers. However, we are concerned that large numbers of migrants are currently excluded from its protection and therefore strongly urge the inclusion of undocumented migrants and families of all migrants.

We call on AICHR to inform all ASEAN member states of the critical importance of the ILO Convention and Recommendations concerning Decent Work for Domestic Workers (No 189) particularly Thailand, Malaysia, Myanmar/Burma and Singapore, and to persuade all ASEAN member states to ratify the Convention within the coming year.

We express our disappointment over the slow pace by which ASEAN member states are ratifying the UN International Convention for the Protection of Migrant Workers and Members of Their Families (1990). We therefore urge AICHR to persuade ASEAN Member States, especially destination countries to also immediately ratify this International Convention.

Following our consultations, we also make the following recommendations. We strongly urge AICHR:

1. To promote the reform of national laws of all ASEAN member states and all regional policies and regulations to recognise domestic work as work.

2. To support the development of mechanisms which provide access to justice for migrants across and beyond borders. These would include among other specialised services, interpretation services, legal assistance, and temporary shelters and the right of migrants to stay and work during legal process.

3. To work with governments to develop social security systems which include migrants.

4. To uphold migrants’ rights to decent work, including the right to change employers, to just wages, to maternity leave, to healthcare and to rest days.

5. To establish national and regional mechanisms and bodies to help ensure that policies and legislation comply with international treaties/conventions.

6. Regarding the recruitment and employment processes, to work towards the abolition of labour outsourcing companies, recruitment agencies and labour suppliers. To ensure employment relationship be by direct hiring[1] that is most beneficial to migrant workers.

7. To ensure that all ASEAN member states provide equal and adequate access to health care and treatment for migrants and their families and remove all mandatory health and pregnancy testing and immediately call a halt to the practice of terminating employment contracts and deporting migrant workers based on health and/or pregnancy status.

8. To promote and protect migrants’ rights to mobility and freedom of movement.

9. To promote and protect migrants’ rights to organize and freedom of association.

10. Arrest, detention and deportation for immigration irregularities should be avoided where possible, but in cases where deportation of migrants is carried out, we call on AICHR to monitor the process to ensure the dignity and safety of migrants during these processes.

11. AICHR and ASEAN member states must ensure the right of every migrant to hold their own passport and documents (travel, identity cards, work permits, contract, etc.). To ensure migrants’ right to be heard and due process. There should not be any termination or cancelation of visas and other legal documents without the presence of the holder (migrant).

12. To ensure that migrants who have been trafficked are entitled to protection and empowerment services. There should be no deportation or detention of victims of trafficking, witnesses and other migrants affected by raids. AICHR and ASEAN member states should ensure the victim’s right to stay and work and ensure their access to adequate remedies and compensation.

13. Lastly, we call on AICHR to urge ASEAN member states to promote women’s livelihood options both at home and abroad, and to ensure that women have access to education and resources and choices in employment.

On behalf of:

United Foreign Domestic Workers Rights
ACHIEVE (Action for Health Initiative) (Philippines)
CARAM Cambodia
Tenaganita(Malaysia)
Solidaritas Perempuan (Indonesia)
Workers Hub for Change
Asia Pacific Mission for Migrants
Asia Pacific Forum on Women, Law and Development
MAP Foundation, Thailand
Mekong Migration Network
CARAM Asia
INDIES (Indonesia)
ATKI (Indonesia)
Asian Migrants Coordinating Body
Human Rights Working Group (Indonesia)





For further information, please contact:
Ms Khairiah Makata
CARAM Asia
Email: khairiah@caramasia.org
Phone: +603 2282 7708; +603 2282 1669

Ms Huong Tran
Asia Pacific Forum on Women, Law and Development
Email: huong@apwld.org




[1] ‘Direct hiring’ is defined as the direct employment relationship between employers (owner/operator/end-user /principal employers) AND workers to the exclusion of third parties including labour suppliers.

End all forms of harassment against human rights defenders in Malaysia

Human Rights groups voice their concern

KUALA LUMPUR: The Observatory for the Protection of Human Rights Defenders, a joint programme of the World Organisation Against Torture (OMCT) and the International Federation for Human Rights (FIDH), expresses its concern about the outcome of the judicial case against human rights defender Charles Hector Fernandez, who was sued by a company for publishing information regarding the violation of the rights of 31 Burmese migrant workers in Malaysia.

On August 25, 2011, the case against human rights defender Charles Hector Fernandez before the Shah Alam High Court ended in a settlement between the defender and the company that had sued him for civil “defamation”. According to the settlement, Mr Charles Hector Fernandez will pay 1 Malaysian Ringgit in costs and the same amount in damages to the company, and will publish a half-page apology in the Malaysian daily newspapers The Star and Nanyang Siang Pau.

Mr Charles Hector Fernandez was sued in February 2011 by the Japanese-owned company Asahi Kosei, in Selangor, Malaysia, for publishing information on-line regarding the violation of the rights of 31 Burmese migrant workers by this company.

Asahi Kosei Company was demanding a compensation of USD 3.3 million, in addition to a public apology, with the argument that these 31 Burmese workers have not been under their responsibility, as they were supplied to them by an ‘outsourcing agent’ [1]. The Observatory sent an international mission to observe the trial against Mr Charles Hector Fernandez and to investigate the situation of human rights defenders in Malaysia.

“The case of Charles Hector Fernandez shows how powerful corporate interests are taking on and silencing a human rights defender by his horns. Using exorbitant civil libel claims against human rights defenders reporting alleged corporate abuse sends a dangerous precedent with a chilling effect on the legitimate work of human rights defenders,” said Ms Sudha Ramalingam, following the observation of the trial.

The Observatory is concerned that the human rights defender in this case was left with little choice other than accepting a settlement having the effect of sanctioning his activities as a defender of the rights of migrant workers. For many years, Mr Charles Hector Fernandez has provided vital legal assistance to workers and migrants seeking justice.

The Observatory calls upon the authorities of Malaysia to put an end to all forms of harassment against human rights defenders in the country, including through criminal or civil libel laws, and to ensure full conformity with the United Nations Declaration on Human Rights Defenders and other international and regional instruments ratified by Malaysia.

The Observatory also reminds private actors including business enterprises, of their responsibility of respecting human rights and exercising due diligence to avoid complicity in abusing human rights in countries where they operate. - Herald Malaysia Online, 19/9/2011, Human Rights groups voice their concern

Why 'Sexual Harassment' proposed amendments to Employment Act must be withdrawn?

Why 'Sexual Harassment' proposed amendments to Employment Act must be withdrawn?

Let us look at the proposed amendments regarding 'sexual harassment' to be inserted in the Employment Act, and some of the reasons why these proposed amendments should not be passed are as follows:-

1) Inquiry by the employer? - should it not be by the Labour Department (or some other independent body) with the requisite training and skills to deal with questions of sexual harassment. - This proposed inquiry by the employer is even when the complaint relating to sexual harassment made....(ii) by an employee against any employer; or (iii) by an employer against an employee. (the only exception is when the employer is a sole proprietor.

- If the employer does not inquire - you complain to the Director General of Labour (DG) - and then if the DG feels that there should be an inquiry will direct the employer to conduct an inquiry..Again it is the employer who conducts the inquiry...

2) What happens if the worker is unhappy with the decision of the employer or the outcome of the inquiry - can the worker go for an appeal against the decision or a 'judicial review' in the Labour Court/High Court? Well, it looks like there is NO RIGHT OF APPEAL against the decision of the 'Employer Inquiry" or even the decisions of the DG on sexual harrasment except it falls under 81d(4), being where alleged perpetrator is employer who is a sole proprietor, and the DG has conducted the inquiry.

The amendments are purposely silent about this right of appeal and/or 'judicial review', and since this right of appeal are expressedly provided for certain other provisions in section 77 of the Act (which the new amendment proposes to also amend), we may conclude that there is NO avenue of appeal/judicial review with regards (a) decision of employer not to conduct inquiry; (b) decision of employer following inquiry; (c) decision of DG not to direct employer to conduct inquiry.

Even if there is to be an appeal or judicial review - are we going to only rely on the notes of the employer's inquiry or their grounds of decision - should there not be a re-hearing (or re-trial) before an independent body like a Court?

3) What happens to the perpetrator?

Well, if it is an employee, it is some what clear - but what if it was an employer or some other 3rd party - the amendments say "recommend that the person be brought before an appropriate disciplinary authority to which the person is subject to.." - what does this mean really? Maybe, in a partnership or a company, that authority be the panel of partners or Board of Directors... and what will they do ... impose 'fines"???? Should we not be talking about reporting to police... or is 'sexual harassment' not a crime???

And for perpetrators, both employees or employers..., there is no talk about paying suitable compensation to victims, and/or even making an apology to the victim.

What if the perpetrator is in the supervision or in the management or a director/partner of the company, what is the liability of the company/partnership/sole proprietor to the worker victim? No liability is certainly not acceptable - the should be vicarious liability at least...

Now, they want to introduce 'contractors for labour' - what happens if the perpetrator is an employee of some other employer ( i.e. contractors, sub-contractors or this new 'contractor for labour' (the outsourcing agent), if they allow it) - what will happen? With regard to these 'outsourced workers' of an outsourcing agent - who is sexually harassed by an employee of a factory - so who conducts the inquiry? the employer of the victim or the employer of the perpetrator???

If the harassment is committed by a 'visitor' to the factory on a worker in the factory premises- what happens? Will the factory be liable too? If the victim was an 'outsourced worker'(worker of some 3rd party), will the factory be liable? Is sexual harassment to be treated like 'occupational safety and health' whereby the owner/operator of the workplace is also definitely liable.

4) What happens to the victim?

Well, the victim certainly gets nothing - no compensation or apology from the perpetrator at all, etc - In fact the proposed amendments is totally silent about this except in cases where inquiry conducted by DG when perpetrator is 'sole proprietor' employer, whereby one can laugh at what the victim gets... victim can resign without giving notice, get 1 months notice pay and other benefits like 'termination benefits"....

81e. (1) Where the Director General decides under subsection 81d(4) that sexual harassment is proven, the complainant may terminate his contract of service without notice.

(2) If the complainant terminates the contract of service under subsection (1), the complainant is entitled to—

(a) wages as if the complainant has given the notice of the termination of contract of service; and

(b) termination benefits and indemnity,

as provided for under the Act or the contract of service, as the case may be.

5) Note the unquestionable power vested on the employer (and the DG) not to inquire into the complaint of sexual harassment - " is of the opinion that the complaint of sexual harassment is frivolous, vexatious or is not made in good faith." and this apparently cannot be challenged in court by way of appeal or 'judicial review' except maybe for cases where the alleged perpetrator was a sole proprietor.

77. Appeal against Director General's order to High Court.

(1) If any person whose financial interests are affected is dissatisfied with the decision or order of the Director General under section 69, 69B, 69C or 73 such person may appeal to the High Court.

Proposed Amendment of section 77

25. Subsection 77(1) of the principal Act is amended by substituting for the words “or 73” the words“,73 or subsection 81d(4)”.

One wonders whether a victim of sexual harassment is a '...person whose financial interests' is affected?? If not, then NO right of appeal.

What happens to persons unhappy with decisions made pursuant to subsection 81b(5)...or even 81c(1) or 81d(1)- should they also not have the right to appeal to the High Court under section 77?

6) The biggest worry for the victim of sexual harassment, especially the worker, is whether these amendments to the Act will effectively shut all other doors and avenues to access justice in cases of sexual harassment? Would the victim be compelled to first...or (only use) the clear avenues of access for justice in cases of sexual harassment which will be in this Employment Act only, if amended? Would these 'new' explicit procedures in the Employment Act prevent the taking of a civil suit claiming for compensation and punitive damages...or act to prevent the police investigation or a person being charged in court or even SUHAKAM conducting an inquiry?

If the inquiry finds that A is guilty of sexual harassment - would that be sufficient for criminal prosecution or even a civil case - or will we have to start all over again proving and establishing 'sexual harassment' ?

******************

SELECTED PORTIONS OF THE EMPLOYMENT (AMENDMENT) BILL 2011...

New Part XVa

27. The principal Act is amended by inserting after Part XV the following Part:

“Part XVa SEXUAL HARASSMENT

Interpretation

81a. For the purposes of this Part, “complaint of sexual harassment” means any complaint relating to sexual harassment made—

(i) by an employee against another employee;

(ii) by an employee against any employer; or

(iii) by an employer against an employee.

Inquiry into complaints of sexual harassment

81b.(1) Upon receipt of a complaint of sexual harassment, an employer or any class of employers shall inquire into the complaint in a manner prescribed by the Minister.

(2) Subject to subsection (3), where an employer refuses to inquire into the complaint of sexual harassment as required under subsection (1), he shall, as soon as practicable but in any case not later than thirty days after the date of the receipt of the complaint, inform the complainant of the refusal and the reasons for the refusal in writing.

(3) Notwithstanding subsection (2), an employer may refuse to inquire into any complaints of sexual harassment as required under subsection (1), if—

(a) the complaint of sexual harassment has previously been inquired into and no sexual harassment has been proven; or

(b) the employer is of the opinion that the complaint of sexual harassment is frivolous, vexatious or is not made in good faith.

(4) Any complainant who is dissatisfied with the refusal of the employer to inquire into his complaint of sexual harassment, may refer the matter to the Director General.

(5) The Director General after reviewing the matter referred to him under subsection (4)—

(a) if he thinks the matter should be inquired into, direct the employer to conduct an inquiry; or

(b) if he agrees with the decision of the employer not to conduct the inquiry, inform the person who referred the matter to him that no further action will be taken.

Findings of inquiry by employer

81c. (1) Where the employer conducts an inquiry into a complaint of sexual harassment Received under subsection 81b(1) and the employer is satisfied that sexual harassment is proven, the employer shall—

(a) in the case where the person against whom the complaint of sexual harassment is made is an employee, take disciplinary action which may include the following:

(i) dismissing the employee without notice;

(ii) downgrading the employee; or

(iii) imposing any other lesser punishment as he deems just and fit, and where the punishment of suspension without wages is imposed, it shall not exceed a period of two weeks; and

(b) in the case where the person against whom the complaint of sexual harassment is made is a person other than an employee, recommend that the person be brought before an appropriate disciplinary authority to which the person is subject to.

Complaints of sexual harassment made to the Director General

81d. (1) If a complaint of sexual harassment is made to the Director General, the Director General shall assess the complaint and may direct an employer to inquire into such complaint.

(2) The employer shall inquire into the complaint of sexual harassment when directed to do so under subsection (1) and submit a report of the inquiry to the Director General within thirty days from the date of such direction.

(3) If a complaint of sexual harassment received by the Director General is made against an employer who is a sole proprietor, the Director General shall inquire into such complaint himself in a manner prescribed by the Minister.

(4) Upon inquiry by the Director General of the complaint of sexual harassment under subsection (3), the Director General shall decide if sexual harassment is proven or not and such decision shall be informed to the complainant as soon as practicable.

(5) Notwithstanding subsection (3), the Director General may refuse to inquire into any complaint of sexual harassment received under subsection (3), if—

(a) the complaint of sexual harassment has previously been inquired into by the Director General and no sexual harassment has been proven; or

(b) the Director General is of the opinion that the complaint of sexual harassment is frivolous, vexatious or is not made in good faith.

(6) Where the Director General refuses to inquire into the complaint of sexual harassment received under subsection (3), he shall, as soon as practicable but in any case not later than thirty days after the date of the receipt of the complaint, inform the complainant of the refusal and the reasons for the refusal in writing.

Effects of decisions of the Director General

81e. (1) Where the Director General decides under subsection 81d(4) that sexual harassment is proven, the complainant may terminate his contract of service without notice.

(2) If the complainant terminates the contract of service under subsection (1), the complainant is entitled to —

(a) wages as if the complainant has given the notice of the termination of contract of service; and

(b) termination benefits and indemnity,as provided for under the Act or the contract of service, as the case may be.

Offence

81f. Any employer who fails—

(a) to inquire into complaints of sexual harassment under subsection 81b(1);

(b) to inform the complainant of the refusal and the reasons for the refusal as required under subsection 81b(2);

(c) to inquire into complaints of sexual harassment when directed to do so by the Director General under paragraph 81b(5)(a) or subsection 81d(2); or

(d) to submit a report of inquiry into sexual harassment to the Director General under subsection 81d(2); commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit.

Concluding Remarks:-

1- These proposed amendments is bad is merely a 'feel good' activity for the BN government so that maybe they can happily proclaim that they have dealt with the issue of 'sexual harassment' at the workplace...or is it only at the workplace and does it also extend to outside the workplace especially to worker hostels, etc..?

2- Again the proposed amendments have been hurriedly tabled in Parliament without the required and necessary public consultation and discussion, and in this case it should go beyond the NLAC and should also include other civil society groups including also women rights groups and the Bar Council?

3 - What is worst is that the proposed amendments do not provide justice for the victim - no talk about compensation or damages..

4- What the BN government and Parliament should do is maybe develop and legislate a Sexual Harassment Act, and maybe even make sexual harassment a crime under the Penal Code. For sexual harassment at the workplace, the obligation and duty should be firmly placed on the employer, i.e. the owner/operator of the workplace to ensure as part of an employers obligation to provide an environment for workers that is free from sexual harassment, and if they fail to do this, then these employers/companies (including the Directors and all Partners) must be made personally liable to the victim, and required to do the needful to ensure real justice not to the victim - not "OK, you are a victim of sexual harassment so now you can leave your employment without giving notice and you will get the 1 month's notice pay plus any termination/retrenchment benefits" - this is not justice. Worker victims certainly do not want this - they certainly want to continue to work but in an environment free of sexual harassment - not the right to lose your job.

5 - Immediately withdraw these bad proposed amendments now...

Government That Cares for Workers and Union Must Immediately Withdraw Bill to Amend Employment Act - Syed Shahir

Media Statement – 29/9/2011

A Government That Cares for Workers and Union Must

Immediately Withdraw Bill to Amend Employment Act

It is shocking that the Human Resource Minister Datuk Dr S Subramaniam was reported in Bernama as saying that the decision to amend the Employment Act 1955, was made at the request of the workers, when in truth it is the workers and their unions that do not want these proposed amendments to the law. The Malaysian Trade Union Congress(MTUC) have consistently and strongly opposed the proposed intended amendments, which include the introduction of the contractor for labour, a third party who will come in between the now direct relationship between the owner-operator employer(the principal) and the worker.

The Unions and MTUC objected strongly when this amendments were tabled vide D.R.25/2010 Employment (Amendment) Bill 2010, in July 2010, and we were happy when the government decided to withdraw the proposed amendments in October 2010. It was most disappointing when the government again re-introduced literally the same proposed amendments, with minor irrelevant changes, in June 2011 vide the Employment (Amendment) Bill 2011. The MTUC did again come out even more strongly and threatened to picket at the Parliament on 3/10/2010 if this Bill to amend the Employment Act 1955 was not withdrawn.

The minister is quoted in the news report (Bernama, 28/10/2011, Certain Parties Misunderstood Government's Intention In Amending Employment Act – Subramaniam), as saying that there are "massive abuse of workers in the plantation sector", and the question that the Minister must answer is why and what has been done by the government to stop these abuses. Have actions been taken against employers that abuse these workers?

In Malaysia, at present there are laws, including the Employment Act 1955 to ensure that worker rights are protected and errant employers are penalized. It would be interesting to find out more details of these ‘alleged abuses’, and if certain of these abuses are not yet covered by existing laws, then we could just amend to include these new kind of abuses.

The Minister also said the situation now was "totally unmanaged", and to this the solution would be get more Labour officers who would then be able to proactively enforce the law and ensure that all worker rights are protected, and existing abuses end.

There is a suggestion that the very reason why the government wants to introduce the ‘contractor for labour’, and thereafter make all the workers that they supply to the principal still employees of the said contractor for labour and not the principal is to legalize existing ‘illegal practices’ that have been happening involving some ‘outsourcing agents’ and some employers. Note that when it comes to migrant workers, some employers have indicated that they prefer to be the direct employer and not have to depend on workers of some other 3^rd party, which they say do cost more than direct employment and causes other problems.

The union, including the MTUC is of the position that all workers at a workplace must be employed by the owner-operator of the said workplace, who has the work, who do have the full control and supervision of the workplace and the workers, whereby all these workers would then be able to form and/or join the one union at the workplace, and be able to effectively deal with the said owner-operator employer(the principal) who would also be the one who will have control on all aspects of work, including occupational safety and health matters. The existence of workers of other employers at the workplace would certainly weaken unions and its powers when it comes to collective bargaining with the employer. In all likelihood, the days of permanent employment under principal employers might come to an end and we will be going back to the dark days of indentured and bonded labour as was the case before independence. To us the security of tenure is utmost important.

Having workers of many different employers at a particular workplace would also lead to differential treatment of workers doing the same work, and this is discrimination and will be against Article 8 of the Federal Constitution that guarantees equality.

It must be pointed out that even the International Labour Organisation(ILO) is against the current trend where some employers try to avoid and/or disguise employment relationships. The ILO has even come out with guidelines how to overcome this attempt. It is sad that that Malaysia is going contrary to this spirit, and is trying to legalize these unjust practices, to the detriment of workers and their unions, and beneficial to employers who will then be able to avoid their duties and obligations as employers to ensure rights of workers because their workers are the no more their employees but employees of some ‘contractor for labour’.

Malaysia do have the Private Employment Agencies Act, and as such all those in the business of getting workers and supplying them to employers should be governed by this Act. Now, sadly there exists a couple of hundred ‘outsourcing agents’ that are not governed by this law, which the Malaysian government has taken a lackadaisical attitude and have allowed this entities, which should be really operating as private employment agencies, to operate outside the law. In fact, licences/permits for these outsourcing companies are now being issued not by the Human Resource Ministry which is also odd.

We reiterate our call that the Malaysian government immediately withdraw Employment (Amendment) Bill 2011, and thereafter have necessary open consultation and discussion with workers, unions, and other interested parties before re-tabling any proposed amendment to our employment laws.

Syed Shahir Syed Mohamud

Executive Secretary of National Union of Transport Equipment & Allied Ind.Workers

(Former President of Malaysian Trades Union Congress- MTUC)

Tel. 603- 55192421/55193860. Fax: 603-55106863

Source: The Blogging of Syed Shahir

3rd October 2011 - Malaysian Workers Picket in Front of Parliament

Workers and MTUC say withdraw or we picket & Minister says we do this because workers requested

It is disturbing that the Human Resource Minister and the BN government just do not want to listen to the people, and in these case the workers in Malaysia represented by the strong position taken by the MTUC, i.e. to picket on 3rd October if the proposed Bill to amend the Employment Act is not withdrawn. See earlier post:- MTUC threatens picket 0n 3rd October ...

The recent statement of the Minister as reported indicates that the BN government may be going to railroad this new Bill this coming parliamentary session beginning 3rd October, 2011. This anti-worker anti-union Bill, which is pro-employer, if passed would end just employment relationships that exists today, and introduce the 3rd party, i.e. the entities now known as the 'outsourcing agents' into the equation, who unlike private employment agencies, will continue to be the employer of the workers that they supply to the principal, i.e. the factories, the plantations and the workplaces. There is no restrictions as to numbers or percentages, and soon the majority of workers in a workplace may no longer be employers of the owner-operator of the workplaces, and they will no longer have the duty and obligation to ensure that rights of workers are protected. Once it becomes law, this practice may extend to all sectors including also the civil service - workers working may finally no longer be civil servants but workers of some 3rd party.

To date, our BN government has already eroded too many worker rights:-

a) Security of tenure or permanent employment until retirement is gone with the introduction of fixed duration or short-term employment contracts. In fact many who had the security of employment were 'pushed' towards accepting VSS(Voluntary Separation Schemes), whereby many were re-hired on short-term contracts.

b) For wrongful dismissal, whereby before if the courts come to the conclusion that the worker has indeed been wrongly dismissed, he/she would be reinstated without loss of benefits OR compensated with full salary/benefits for the months he was wrongfully dismissed until the judgment of the court. This was slowly 'taken away' by starting with deducting monies earned in other employment with other employers during the period. Then, they limited the compensation to a maximum of 24 months... and now, there are plans to exclude certain categories of workers from even claiming this, including those workers on fixed term contracts. Wrongful dismissal is wrongful dismissal, and employers who did this must be penalized for this by paying workers full wages (plus benefits) from date of wrongful dismissal until date the court finds for the worker that he/she was wrongfully dismissed.

c) Minimum wages - well, the Malaysian BN government is just not interested in this, even though it has been shown that about 30% of Malaysian workers are earning below poverty wages. At the same time, it speedily removes subsidies, introduces new taxes(Good and Services Tax) and allows for the increase of tariffs/rates for toll, electricity, ASTRO,...resulting in an increased cost of living. Again, these actions are evidence of a government not really interested in the welfare of its workers and its people.

We did have a Ministry that was primarily concerned for the welfare of workers - then there was a name change, and it is now called Ministry of Human Resources - and now, it seems to be more concerned for the welfare and well-being of employers - their 'human resource' issues, and making Malaysia attractive for foreign direct investors. I say it is time for us to demand a new Ministry that will focus its attention for the well-being and welfare of workers.

September 28, 2011 19:14 PM

Certain Parties Misunderstood Government's Intention In Amending Employment Act - Subramaniam

PUTRAJAYA, Sept 28 (Bernama) -- Human Resource Minister Datuk Dr S Subramaniam has expressed regret that certain parties have misunderstood the government's intention in amending the Employment Act 1955.

He said the decision was made at the request of the workers, in particular the National Union of Plantation Workers (NUPW), due to "massive abuse of workers in the plantation sector."

"The whole act is to protect workers but unfortunately some see it from a different angle. They said it will formalise outsourcing of labour, and by doing so, reduce permanent jobs," he told a press conference after presenting letters of appointment to members of the National Wages Consultative Council, here today.

He was commenting on MTUC's decision to picket in front of Parliament when it sits on Monday if the government continues with its plans to amend labour laws.

The amendment bill was first tabled in Parliament on July 8, 2010 but was withdrawn on Oct 12, due to last minute views from various parties about amending the term 'sub-contractor for labour' to 'contractor for labour.'

Dr Subramaniam said the situation now was "totally unmanaged," and thus, there had been a lot of abuses on the ground.

"We hope all parties understand this and assist us in this very noble objective of making sure workers get correct representation and their welfare is protected. When we are so positive in our outlook, we actually get hurt when people look at what we are doing from a negative viewpoint," he said.

-- BERNAMA - Bernama, 28/10/2011, Certain Parties Misunderstood Government's Intention In Amending Employment Act - Subramaniam

MTUC (representing workers) pickets at Malaysian Parliament - 3/10/2011

MTUC representatives picketed at Parliament demanding the withdrawal of the Bill to amend the Employment Act 1955...

(Free Malaysia Today photo of MTUC Picket at Parliament on 3/10/2011)

Employment(Amendment) Bill 2011 - the Bill and why must oppose?