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strongly and threatened to picket at the Parliament on 3/10/2010 if this Bill to amend the Employment Act 1955 was not withdrawn.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 3rd 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)
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