No Gender Bias if Women Forced To Retire 5 years earlier?

Court decision supports discrimination against women - retirement age.

I am totally shocked at the outcome - more so when Malaysian Constitution guarantees equality - and more so that there will be no discrimination based on gender has been particularly guaranteed. (We need to consider the full judgment of the court to get the full details - now we rely only on the news report)

Shocking also, the appeal of these female workers was dismissed with cost of RM10,000 - and what would that be, from an ordinary workers perspective, about 10 or more months wages. Costs in these kind of cases, should never be ordered - more so when it involves matters of public interest, and here it was certainly involved matters of public interest like - Is it OK to discriminate against women workers when it comes to retirement age?

Court rules no gender bias in workers’ retirement age

UPDATED @ 03:07:25 PM 21-03-2012

By Clara Chooi

March 21, 2012

PUTRAJAYA, March 21 — The Court of Appeal today dismissed an application by female workers claiming gender discrimination in being forced to retire earlier than male colleagues.

A three-man bench led by Datuk K. N. Segara upheld a 2010 High Court ruling on the 11-year-old case, which had overturned an initial Industrial Court’s 2008 decision in favour of the eight plastic industry workers.

They were forced to retire in June 2001 after the company, Guppy Plastic Industries, enforced a then-new employee handbook rule stipulating a retirement age of 50 for female employees and 55 for male employees.

When reading the panel’s judgement before the court today, Segara discarded the appellants’ argument for discrimination, saying the case was a straightforward matter based on facts.

The panel agreed that the Industrial Court had in 2008 erred in its judgement when it failed to take into consideration relevant factors presented before it, such as the respondent’s submission of several Collective Agreements (CAs) from other firms in the same industry that stipulated the same retirement ages for both male and female employees.

“It is our unanimous view that the appeal should be dismissed.

“We are entirely in agreement with the High Court judge that the Industrial Court had erred by failing to take into consideration the relevant factors and taking into consideration the irrelevant factors,” he said.

The Industrial Court, Segara added, had failed to consider whether it was “fair and reasonable” for Guppy Plastic to “adapt to industry norms for the retirement ages of male and female employees as implemented by other companies”.

The group of workers, upon hearing the decision, stood up to leave the courtroom before the end of the panel’s judgement, as a sign of protest.

The appellants’ counsel, Ragunath Kesavan had earlier raised Article 8(2) of the Federal Constitution and the Committee on the Elimination of Discrimination against Women or “Cedaw” convention of which Malaysia is a member, to argue his case for gender discrimination.

He told the court that during the hearing before the Industrial Court, Guppy Plastics had not furnished medical proof or a report from the Department of Occupational Safety and Health (DOSH) to support its argument that women above 50 are physically unfit to resume their duties.

The Industrial Court, he added, had then decided there was discrimination in the difference between the retirement ages for men and women and said the burden laid on the company to prove their reason for the retirement policy.

Ragunath added that it was also discovered that upon the retirement of its employees, Guppy Industries had “re-hired” 90 per cent on an annual contract basis.

This, he said, meant the “re-hired” workers would no longer be entitled to the benefits offered to them when they were full-time employees.

“There is a big difference when you take away a person’s right as a permanent employee than a contract worker,” he pointed out.

The respondent’s counsel later told the court that the matter did not involve gender bias, pointing out that at the time the company’s retirement policy was introduced, Article 8(2) of the Federal Constitution had not yet been amended to include the word “gender”.

“There is no government guideline on how to fix a retirement age. Neither is it against public policy. So the company did what’s best, which is to refer to industry practices,” the counsel said.

The appeal was dismissed with costs at RM10,000.

Speaking to reporters later, Ragunath expressed disappointment, saying the court should have been at the forefront of standing up for constitutional rights. - Malaysian Insider, 21/3/2012, Court rules no gender bias in workers’ retirement age

Malaysian Bar says NO to 'contractor for labour' and advocates just employment relationship

Malaysian Bar at their 66th Annual General Meeting on 10/3/2012 adopted unanimously a Resolution for a just employment relationship. worker and trade union rights in Malaysia. They oppose the 'contractor for labour' or the presence of any third party in an employment relationship that should be between employer (being the principal or owner of the workplace...) and the workers who work there...

Resolution on maintaining a just employment relationship, worker and trade union rights in Malaysia

Motion proposed by Charles Hector and seconded by Francis Pereira, dated 1 Mar 2012

(As amended)

Whereas:

(1) There has been a withering away of the rights of workers and/or their unions in Malaysia over the past years, and the most recent of this is the employment relationship, where Malaysia is in the process of amending (or has amended) the Employment Act 1955 vide the Employment (Amendment) Bill 2011, the result of which would be the legalisation of the “contractor for labour”, a third party, in an employment relationship which justly should be a two-party direct relationship between owner/operators of workplaces and their workers, who reasonably must be their direct employees.

(2) What the Malaysian government has done, earlier through policy and practice and now being legalised through the amendment of the Employment Act 1955, which was passed at the Dewan Rakyat on 6/10/2011 and the Senate on 22/12/2011, goes contrary also to international standards and principles concerning Decent Work and worker rights.  Avoiding employment relationship was being done by various means, agreements and contracts, which have been criticised even by the International Labour Organisation (“ILO”). Sadly, Malaysia goes even further by legalising evasion of employment relationships.

(3) Employment relationship in Malaysia, as also evident in our Employment Act, prior to this new amendment, was a two-party relationship between employer and worker (employee) between whom there will be a contract of service, whereby “the person or class of persons employed, engaged or contracted with to carry out the work shall be deemed to be an employee or employees and (a) the principal or owner of the agricultural or industrial undertaking, constructional work, trade, business or place of work; or (b) the statutory body or local government authority, shall be deemed to be the employer”.  Sadly, the Minister had the power to create exceptions to this general principle.

(4) The current amendments to the Employment Act 1955 now statutorily recognises a new third party in the employment relationship, being the “contractor for labour”, who unlike Private Employment Agencies, continue to remain the employer of workers that they supply to the principal or owner of the workplace, and as such the said principal or owner of the workplace effectively can avoid becoming employer of the workers working for them, and hence all employer obligations.

(5) This practice of using workers of third parties, without the entry of an employment relationship and/or contract of service, even though there was no provision in law that specifically allowed this, started on or about 2005 with essentially migrant workers through what was known as “outsourcing agents”, but as of 2010, it was no more just migrant workers but also local workers including those from Sabah and Sarawak.

(6) This new reality causes discrimination amongst workers, with regard to wages and other benefits, including also the right to join existing unions and/or to benefit from Collective Agreements, being agreements between worker-employees and their employers – the principal or owners of the workplace.

(7) In some workplaces, the workers who still are employees of the principal or owners of the workplace is about 50% or less, the rest workers there being  workers supplied to work by third parties, at a workplace. This results in an effective weakening of trade unions and their bargaining powers when it comes to collective agreements, including their struggle for better wages and work conditions.  The law does not provide any restrictions as to the number of non-employees at a workplace, and as such this may lead to a situation where even all workers in workplaces may one day be no more employees of the owner or principal of the workplace.

(8) Given the reality, that the workplace and all workers therein is still under the effective control and supervision of the principal or owners of the workplace, matters related to work and work condition, so many workers at the workplace, now treated as not employees of the principal or owner of the workplace, is deprived the right that any worker must have to be able to fight for better working conditions and work-related rights.  The third party suppliers really have no effective control or ability when it comes to improving working conditions and matters at the workplace.

(9) The reality today is also that these principals or owners of workplaces are getting workers from not one, but many different suppliers of workers (“contractors for labour”), which again would result in further discrimination. 

(10) The reality also is that suppliers of workers (“contractors for labour”) are supplying workers to many different workplaces, in many different sectors, and as such even if the workers (now considered) employees of these suppliers were to try to form a union, it is near impossible given this reality.  They also cannot join existing regional or national trade unions in Malaysia, given the fact that in Malaysia, unions are registered based on sectors, and it will be difficult for these worker/employees of the third party to form or join existing unions, given also that the flexibility of the situation that can result in overnight changing of which sectoral unions that they can join.  Effectively, these workers if they are employees of these suppliers have lost their basic freedom of association and the right to form and/or join trade unions.  Prior to this any new employee of the workplace can easily form/join trade unions, irrespective of whether they are local or migrant workers.

(11) The Private Employment Agency, as provided for in the Private Employment Agencies Act 1971, does the service of finding workers for workplaces, and once the workers are supplied, these workers automatically are employees of the principal or owners of the said workplace, and the private employment agency is paid a statutorily fixed rate for their services. This is certainly a better practice, not detrimental to a just employment relationship and worker rights. All suppliers of workers must be private employment agencies, confined to the providing of service of supplying workers, and not be made into employers themselves of the workers after they have supplied them to the principal or owners of workplaces.

(12) It must be pointed out that the Employment Act 1955 amendments were proceeded with and passed in both houses of Parliament, despite the fact that there was strong opposition and protest from workers, trade unions including the Malaysian Trades Union Congress and the International Trade Union Confederation (“ITUC”), and civil society groups.

We hereby resolve:

(1) That the Malaysian government immediately repeal the amendments to the Employment Act 1955 with regard to the employment relationship and the contractor for labour, introduced vide Employment (Amendment) Bill 2011, and pending repeal not put into effect the said amendments.

(2) That the Malaysian government do the needful to maintain existing 2-party employment relationships between principals or owners of workplaces as employers, and workers that work in the said workplaces as employees of the said principals and owners.

(3) That the Malaysian government promotes and protect worker and trade union rights in Malaysia, and not permit any form or discrimination at the workplace or related to work amongst workers doing the same work and/or working at workplaces of principals or owners.

(4) The Malaysian Bar takes the stand that labour suppliers and/or contractors of labour should never be or continue to be employers of workers after they are supplied, accepted and start working at the workplaces of principals or owners. Thereafter, these workers shall be employees of the principal or owners of the workplace.

(5) That the Malaysian Bar continues to struggle for the promotion and protection of worker and trade union rights in Malaysia, including for just employment relationship, basic living wages and freedom of association consistent with the Principles of Decent Work and other universally recognised standards and principles.

The motion, as amended, was unanimously carried.

Source: Malaysian Bar Website

Syed Shahir : Proposal To Restrict ‘Contractor For Labour’ to certain sectors unacceptable – Abolish ‘CFL' and ‘Outsourced Workers’ – 8/3/2012]

Minister’s Proposal To Restrict ‘Contractor For Labour’ Amendments to Plantation and Agricultural Sector Unacceptable – Abolish ‘Contractor for Labour’ and ‘Outsourced Workers’. [Media Statement – 8/3/2012]

Media Statement – 8/3/2012

Minister’s Proposal To Restrict ‘Contractor For Labour’ Amendments to Plantation and Agricultural Sector Unacceptable – Abolish ‘Contractor for Labour’ and ‘Outsourced Workers’.

What we need is the repeal of all the provisions amending the Employment Act 1955, that came in vide Employment (Amendment) Bill 2011, that was passed by the Dewan Rakyat on 6/10/2011 and thereafter the Senate on 22/12/2011. The objections to the said amendments was not just with regards to the ‘contractor for labour’ and/or outsourced workers in our factories and workplaces that are not employees of the said workplace, but also other matters including the 1 month delay allowed for employers to pay overtime of monthly waged workers and the proposed sexual harassment provisions.

It was reported that the Human Resource Minister Human Resource Minister Datuk Dr S. Subramaniam had announced on 6/3/2012 that the “contractor for labour” amendment, that is sections 31, 33(a), 69 and 73 in the Employment Act (EA) 1955 will now only apply to the plantation and agricultural sector, and that all other sectors will be exempted. [The Sun Daily, 6/3/2012, Amendments apply only to plantation and agricultural sectors (Updated)]. It is already in our law, and today the Minister says this but tomorrow, possibly after the next General Elections, he will extend it to other sectors and/or classes of workers, and all this may be done quietly, for after all it does not have to go through Parliament.

The Minister misses the point totally for the objection of workers and trade unions is to ‘contractors for labour’, which have been called many names including ‘outsourcing agents/companies’, manpower/labour suppliers, ‘outside contractors’ or 3rd parties who have been supplying workers, now commonly called ‘outsourced workers’ to employers, being principals or owners of workplace, statutory and government bodies, without these workers thereafter becoming employees of the said principal or owners of the workplace - hence having no rights to be members of (or form) union of the said workplace and/or the respective regional or national trade union, and hence not being able to benefit from Collective Agreements. Why? It is because the said principals or owners of workplaces do not consider these ‘outsourced workers’ as their own employees – and a Collective Agreement is generally and agreement between employer and their worker-employees. This practice, we believe, have been going on since about 2005.

What we end is the end of this practice of using ‘outsourced workers’, employees of some 3rd party (the ‘contractor for labour’) at workplaces, and this phenomena is now involving not just migrant workers but also local Malaysian workers. It is disturbing that today in some of the factories, the number of these ‘outsourced workers’ is about 50% or more, and this naturally affect worker-employees of the said workplace and their unions. Effectively, it is weakening and destroying worker and/or union bargaining powers with employers who are becoming less and less dependent on their own employees. It will jeopardize our struggle for better wages, benefits, rights and better working conditions. This can be called a union busting practice that today is supported and endorsed by this Barisan Nasional government.

A reading of the Employment Act 1955 will show that it always did advocate a permanent direct employment relationship between employers and workers, to the exclusion of 3rd party labour/manpower suppliers, brokers and ‘contractors for labour’. 

Our laws have also always been clear as to who is employer and who is employee whereby it says that ‘the person or class of persons employed, engaged or contracted with to carry out the work shall be deemed to be an employee or employees and a) the principal or owner of the agricultural or industrial undertaking, constructional work, trade, business or place of work; or (b) the statutory body or local government authority, shall be deemed to be the employer’. Clearly, ‘contractors for labour’ including outsourcing agents/companies, manpower/labour suppliers, brokers, private employment agencies or other 3rd parties were never meant to be and should never be employers certainly not of workers already accepted and working for the principal or owner of workplaces. 

The Minister’s proposal hopes that workers in Malaysia will abandon our brethren workers in plantation and agricultural sector, happy that workers in their own sectors will not be affected. This will not happen for workers in Malaysia are united and will stand united, committed that it should not apply to workers of any sector or class. 

We reiterate that the government must also abolish the current already existing practice of this ‘outsourced workers’ provided by 3rd parties. Employers can use the services of private employment agencies to find them workers, but once the workers are supplied by these agencies, these workers must be employees of the place where they work – not treated and discriminated against as workers only - not employees. It is most disturbing that today, the practice of using ‘outsourced workers’ supplied by ‘contractors for labour’ may have even expanded to Government-Linked Companies(GLCs), and soon may very well extend to statutory and government bodies as well.

We call again for the immediate repeal of the provisions of the Employment Act, inserted vide the Employment (Amendment) Bill 2011, and an immediate end to the practice of ‘outsourced workers’ and ‘contractors for labour’ in Malaysia. Current ‘outsourced workers’ must be made employees of principals or owners of workplaces, and given same rights and benefits as other employees therein, including the right to form and/or join trade unions.

Pending repeal, we urge the government to not put into effect the amendments made to our Employment Act 1955 vide Employment (Amendment) Bill 2011.

All workers in Malaysia in all sectors should be treated equally without any discrimination, certainly not as being proposed by our Human Resource Minister now, which we believe is also contrary to Malaysia’s Federal Constitution that guarantees equality to all persons, and certainly discrimination at the workplace is not an exception provided for in our Constitution.

Workers united will stand together and never abandon any class or group of workers in Malaysia.

Syed Shahir Syed Mohamud
Executive Secretary of National Union of Transport Equipment & Allied Ind.Workers
(Former President of Malaysian Trades Union Congress- MTUC)

In plantation, what happens is 'outsourcing of work' - DIFFERENT from the usage of 'outsourced workers' by Plantations

The National Union of Plantation Workers(NUPW) was at one time one of the biggest trade unions in Malaysia, but today it is almost dead. Why? Because of outsourcing of work to 3rd party contractors generally.  

This is DIFFERENT from this issue of 'Contractor For Labour' and  the using of 'outsourced workers' by Plantation companies without making them their employees, hence not capable to join NUPW or benefit from Collective Agreements...

In the Plantation sector, what Plantation companies did was 'outsourcing of work' 

- The weeding work of the plantation was given to outside contractors, who then came and used their own workers to fulfill their contractual obligations.

- The work of tapping and bringing in the liquid rubber was similarly outsourced to one or more contractors, who then will use their OWN workers to do the tapping and rubber milk collections and then deliver to a specific collection point, where these are collected and then sent to the factories for processing

- The same system was also used with regards to oil palm

- In some plantations (the smaller ones usually), the Plantation companies staff/employee have been reduced to a handful - who are there just to ensure/confirm amount of rubber milk/scrap delivered or oil palm fruit delivered.

- Some plantation companies may have even outsourced their factories as well...

Now - this is NOT an issue of the 'contractor for labour' or a case where 3rd party labour/manpower suppliers are supplying plantation companies with 'outsourced workers' who then do the work (just like what an employee did before) under the control and supervision of the Plantation company...for this is what the MTUC, workers, unions and civil society is objecting to..

Note that some of the bigger plantation companies, however may be using 'outsourced workers' supplied by 'contractors for labour' - without assuming the obligation and duties of an employer. This is what the MTUC, workers and unions are protesting..

The Malaysian government did not disclose this differences which is material...and while there is currently no protest to 'outsourcing work' to outside contractors, there is still a strong protest about the using of 'outsourced workers' by the principal or plantation owners without assuming  their rightful role, duty and obligation as EMPLOYER - hence avoiding employment relationship.

With regard these contractors, who get and do this 'outsourced work' - did the pre-amendment Employment Act 1955 cover them and their workers - YES, it did, just like any other employer-employee situation. Note that the duty of maintaining employee registers is already there in the law, likewise the duty with regard to SOCSO, EPF, etc. If the Minister says that these workers were being denied their rights, then the fault lies in the Ministry and the Labour Departments for not enforcing existing laws...NUPW's concern was that many of the employees of these smaller contractors who had got 'outsourced work' from Plantation Companies were not getting their worker rights as provided in law...and the solution was enforcement - not amending the law, which really is done for a very different pupose, i.e. to legitimize 'contractors for labour, to further the avoidance of employment relations - by stating in the Act that the workers supplied remain employees of the 'contractor for labour' and not become employees of the principal or owner of the workplace.

[*The word employee and worker in Malay is 'Pekerja' - this confusion assisted the government.

**By always using the term 'contract workers' (or 'pekerja contract') confusing between workers of contractors, those under fixed term contracts, etc - again there was confusion - for the issue was really about the workers referred to commonly as 'outsourced workers' - being the one's supplied by 3rd party who do not become employees of the place of work. Why did the government not use 'outsourced workers' - but persisted to use 'contract workers'? Was it intentional for the reason to confuse.

*** The other confusing term used was 'outsourced' - for 'outsourcing of work' is already an accepted term - Why call the 'contractors for labour' - outsourcing agents/companies? Why call the workers supplied 'outsourced workers'? Would it not have been clearer calling them labour/manpower suppliers and the workers supplied by these 3rd parties.

Governments to confuse use certain words to confuse - and likewise even the Opposition MPs in the debate about the amendment got 'confused' - read the Hansard(minutes of the Dewan Rakyat proceedings) and the confusion is apparent]

SOCSO Benefits - should it not justly apply for all Workers in Malaysia?

Social Security - this is generally a scheme that assists workers (and/or their families and dependents) in the event that the worker dies or injures himself/herself while at work, while on the way and back from work, or suffers from some occupational disease. Today, it also covers many workers totally, irrespective of whether it was a work-related accident or occupational disease. 

Under the Social Security Act - the worker who suffers total/partial disability is assisted by a sort of 'pension scheme' where he/she will be paid monthly a certain sum to ensure his/her and their families welfare, and in the event of death, the family gets some assistance - on-going assistance from the Social Security Board.

BUT, when it comes to migrant workers and some others, who are not covered by the Social Security Act but the Workmens Compensation Act, the situation is very different and the pay-offs of compensation is all one off payments. For accidents, it operates live personal injury accidents, where you have to lose some digits - so, when there permanent partial disability without really any loss of limbs, one may not get anything. These pay-offs, not being permanent 'pension-like' payments also is unjust and detrimental for the worker and their families livelihood thereadter - and as such this is a DISCRIMINATION that must be addressed.

With regards a Malaysian worker under SOCSO, the kind of pay-offs are seen in the article below, but note the same does not happen for those under the Workmen's Compensation Act..

Widower of six gets Socso benefits

Posted on March 2, 2012 by Steven Chen

Mohd Johan Hassanushi, 47, a widower of six children will be receiving money from the Socso pension scheme after his wife died early this year while she is still under employment in a supermarket.

The pension benefits will be awarded to the husband since his wife was a contributor of Socso prior to her death and in such a case, she is covered by the Socso insurance and protection scheme.

Batu Pahat district Socso office manager, Jumak Abdullah said, widower Mohd Johan Hassanushi will be receiving a pension of RM786.30 monthly from Socso effective January, 2012 after his wife, Yohani Mohamad Akhiak, 43, passed away.

Yohani was a contributor of Socso for four years before she passed away on Janaury 2, 2012 after succumbing to a severe form of viral infection.

The Socso pension benefits will have to be shared between Mohd Johan and his six children which is RM5.24 a day for Mohd Johan and RM3.50 a day for the children, said Jumak Abdullah.

On top of that, the children can also enjoy the pension benefits if they were to continue their education up to tertiary level or up to the age of twenty-four.

Prior to all this, Socso has also given the family a sum of RM1,800 for the funeral expenses.

Jumak Abdullah urged Socso contributors and employers to contact the Socso office for assistance in the event of any death and or accident that occurs in their workplace.

Picture taken from: hornbillunleashed.files.wordpress.com - Malaysiakini's Komunitikini, 2/3/2012, Widower of six gets Socso benefits