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)