Government-Owned MAB, the new Malaysian Airlines Operator, Must Recognize Unions and Not Deny Freedom of Association (62 Groups)

Joint Statement – 19/11/2015

Government-Owned MAB, the new Malaysian Airlines Operator, Must Recognize Unions and Not Deny Freedom of Association.

We, the 62 undersigned trade unions, civil society organisations and groups are shocked that Malaysian government owned Malaysian Airline Berhad (MAB), the company that took over Malaysian Airlines, chose to ignore the application for recognition by the National Union of Flight Attendants Malaysia(NUFAM). 

In Malaysia, before a Union can proceed to negotiate and enter into a Collective Bargaining Agreement(CBA), the employer needs to recognize the said Trade Union.  MAB’s failure to immediately recognize NUFAM reflects badly on Malaysia who has the duty to respect worker rights especially the freedom of Association, which is also a right enshrined in the Malaysian Federal Constitution.

In accordance to the existing law, NUFAM applied to MAB for recognition vide a letter dated 11/9/2015.

Section 9(3) Industrial Relations Act 1967 states that, ‘…An employer or a trade union of employers upon whom a claim for recognition has been served shall, within twenty-one days after the service of the claim- (a) accord recognition; or (b) if recognition is not accorded, notify the trade union of workmen concerned in writing the grounds for not according recognition…’

MAB did not even have courtesy of replying to NUFAM within the stipulated 21 days, which can be considered conduct unbecoming especially of a Malaysian government owned company. 

As required by law, vide letter delivered on 6/10/2015, NUFAM then reported the matter in writing to the Director General for Industrial Relations to take such steps or make such enquiries to ascertain the ‘… the competence of the trade union of workmen concerned to represent any workmen or class of workmen…’ in MAB, and to determine ‘…by way of secret ballot, the percentage of the workmen or class of workmen, in respect of whom recognition is being sought, who are members of the trade union of workmen making the claim. The result of the secret ballot must demonstrate that more than 50% of the qualified employees are for the Union, whereby those that never had the opportunity to vote are taken as being against the Union.

More than 40 days has lapsed, and the DG for Industrial Relations has not yet responded to NUFAM. Given that many employees are hired as fixed-term contract employees, speedy efficient action is required by the authorities. Delay prejudices workers.

Even when Unions in Malaysia are successful in demonstrating that they have the support of more than 50% of all qualified employees in a secret ballot, and the Minister decides that recognition is to be accorded by the employer, some employers are challenging this decision in court and as a result rights that come with recognition is put on hold for many years to the detriment of workers and their union. 

When the Malaysian Airlines was previously operated by Malaysian Airlines Systems Berhad(MAS Bhd), NUFAM succeeded at  the secret ballot and the Minister decided that NUFAM is recognized by MAS Bhd. Unfortunately, MAS Bhd commenced a Judicial Review action in court challenging the Minister’s decision, and this case is still pending.

Union Busting – Creating a New Legal Entity

Private sector companies have been known to in the past form a new separate legal entity, and then transfer assets and business from the existing company to this new entity, thereby killing existing unions – forcing workers to start all over again to form, register and get recognition of unions in the new entity. This strategy is also used to get rid of worker leaders and workers brave enough to fight exploitation.

It is disappointing that the Malaysian government is using a similar ‘union busting’ strategy for government owned and/or government-linked companies (GLCs). 

Malaysian Airlines Systems Berhad(MAS Bhd) was the company running the Malaysian Airlines with about 20,000 employees. What was done was that MAS Bhd apparently transferred their assets and the airline business to a newly created separate legal entity, Malaysian Airlines Berhad(MAB), and terminated  about 20,000 MAS Bhd Employees. 

MAB, the new company that took over the Malaysian Airlines, employed new employees, amongst them some 14,000 ex-MAS Bhd employees. All the in-house trade unions that existed in MAS Bhd were effectively killed.

Now, MAB is free of trade unions. 

NUFAM may be the first union that is seeking recognition from MAB – whereby recognition is needed to better represent their worker members in MAB and to enter into a Collective Bargaining Agreement.

Moratorium on all court action involving MAS Bhd

To make matters worse, Malaysia passed a new law – Malaysian Airline System Berhad (Administration) Act 2015, which amongst others, effectively prevented speedy access to justice through the courts. A moratorium was put in place preventing court actions involving MAS Bhd from proceedings. When the moratorium is finally lifted, it would likely be too late. Justice delayed is justice denied.

Malaysian Government Owns The Old And New Company

Malaysian government, vide its strategic investment fund Khazanah Nasional, owns both MAS Bhd and this new MAB. Hence, it is the current Barisan Nasional government under Prime Minister Najib Tun Razak that is now possibly guilty of union busting. The denial of speedy recognition of NUFAM and possibly other unions by the new Malaysian Airline Berhad(MAB) can be said to be anti-worker and anti-trade union conduct.

Malaysian Trade Union Laws are oppressive and anti-worker.

WE CALL FOR

-          The Immediate recognition by Malaysian Airline Berhad(MAB), a Malaysian owned company, of National Union of Flight Attendants Malaysia(NUFAM);

-          The Malaysian government to ensure that all government owned and/or government-linked companies(GLCs) set the highest standards when it comes to respecting worker and trade union rights in Malaysia;

-          That Malaysia immediately ratifies ILO Convention No. 87 Freedom of Association and Protection of the Right to Organise Convention, 1948, which is one of 8 fundamental core conventions;

-          That Malaysia immediately amend and/or repeal trade union laws that are not compliant with international standards especially freedom of association. 

Charles Hector

Mohd Roszeli bin Majid

Pranom Somwong

For and on behalf the 62 organisations, trade unions and groups listed below

ALIRAN

Asia Monitor Resource Centre (AMRC)

Association of Maybank Executives

BPSLU (Batangas Pier Stevedores and Dockworkers Labor Union), Philippines

Center for Trade Union and Human Rights (CTUHR), Philippines

Centro De Reflexión Y Acción Laboral (CEREAL), México

Clean Clothes Campaign(CCC)

Committee for Asian Women (CAW)

CBBRC (Crispin B. Beltran Resource Center), Philippines

Daeduck Employees Union- Ind. , Philippines

Eagle Ridge Employees Union, Philippines

Electronic Industry Employees Union (EIEU) Southern Region, Peninsular Malaysia

GoodElectronics Network

Hyesung Workers Union-Ind., Philippines

IDEAL （Institute for Development of Alternative Living）

Institut Rakyat

Inverclyde Advice and Employment Rights Centre, Scotland

Jaringan Kampung Orang Asli Semenanjung Malaysia /JKOASM

Jaringan Orang Asal SeMalaysia

Jawatankuasa Bertindak Kuala Lumpur Tak Nak Insinerator

Kalikasan People's Network for the Environment, Philippines

Kesatuan Eksekutif AIROD

Kesatuan Eksekutif Canon Opto

Kesatuan Pekerja-Pekerja Mitsui Copper Foil(MCFEU)

Knowledge and Rights with Young people through Safer Spaces(KRYSS)

LINTAS NUSA - Batam Indonesia

MADPET (Malaysians Against Death Penalty and Torture)

Malaysian Youth and Students' Democratic Movement (DEMA)\

Malaysia Physicians for Social Responsibility

MAP Foundation for the Health and Knowledge of Ethnic Labour, Thailand

Migrant CARE

Myanmar Migrants Rights Centre

Nagkakaisang Manggagawa ng Keyrin Electronics-Ind. , Philippines

NAMM(Network of Action for Migrants in Malaysia)

National Union Employees in Companies Manufacturing Rubber Products (NUECMRP)

National Union of Flight Attendants Malaysia(NUFAM)

National Union of Journalist (NUJ) Cawangan Utusan Melayu

National Union of Transport Equipment & Allied Industries Workers (NUTEAIW)

North South Initiative

Paper Products Manufacturing Employees’ Union of Malaysia (PPMEU)

Parti Rakyat Malaysia(PRM)

Pax Romana ICMICA

People & Planet

Perak Women for Women Society

PERMAS (Persatuan Masyarakat Selangor & Wilayah Persekutuan)

Persatuan Kesedaran Komuniti Selangor (EMPOWER)

Persatuan Komuniti Prihatin Selangor dan Kuala Lumpur

Persatuan Sahabat Wanita Selangor (PSWS)

Projek Dialog, Malaysia

Sahabat Rakyat 人民之友

Samahan ng mga Manggagawa sa Eagle Ridge Golf Course and Residential Estate, Philippines

SAVE Rivers

SAWO (Sabah Women's Action Resource Group)

Selangor and KL Hokkien Association Youth Section

Solidarity of Cavite Workers, Philippines

Tenaga Nasional Junior Officers Union (TNBJOU)

Tenaganita

The Alternative ASEAN Network on Burma(Altsean-Burma)
Workers Assistance Center, Inc (WAC) , Philippines

WH4C (Workers Hub For Change)

Yayasan Chow Kit

Yayasan LINTAS NUSA - Batam Indonesia

64 Groups: Repeal MAS Law That Suspends Or Deny Existing Worker And Trade Union Rights And Access To Justice

Media Statement-    4 August 2015

Repeal MAS Law That Suspends Or Deny Existing Worker And Trade Union Rights And Access To Justice – Laws that deny worker rights to assist businesses should never be enacted

We, the undersigned 64 civil society organizations, trade unions and concerned groups, are disturbed by the Malaysian government’s unjust use of an Act of Parliament to suspend and/or deny existing worker rights in law, including also access to justice mechanisms, for the benefit of a private business and employer, being the Malaysian Airlines System Berhad(MAS Bhd), now wholly owned private company by Malaysia’s sovereign wealth fund, Khazanah Nasional Berhad, a company.

Malaysia tabled and passed speedily the Malaysian Airline System Berhad (Administration) Act 2015 [Act 765], which came into force on 20/2/2015. This Act is most unjust to workers and trade unions of employees of the airline.

The Act, in section 11, states that “…on the appointment of the Administrator, a moratorium shall take effect during which… (e) no proceedings and no execution or other legal process in any court or tribunal may be commenced or continued with, and no distress may be levied, against the Administered Companies or their property except with the prior written consent of the Administrator;” – whereby the Administered company includes MAS Bhd, its wholly owned subsidiaries and some partially owned subsidiaries. The Administrator was appointed on or about 25/5/2015, and the period of administration could last for a maximum period of 2 years commencing from the date of the appointment of the Administrator. 

What is disturbing is that when administration and moratorium ends, all monies, assets and business of MAS Bhd would most likely be transferred to a new legal entity Malaysian Airline Berhad(MAB). MAS Bhd would most likely be left an empty shell.

Worker Claiming Rights Cases Against MAS Bhd – Stopped and May Not Proceed 

There are currently many cases initiated and filed, now pending before access to justice mechanisms, including tribunals and courts between workers and MAS Bhd, the employer,   claiming wrongful dismissal and/or other worker rights, or between trade unions and MAS Bhd. The effect of the moratorium is that all these actions and cases will stop, and not proceed further until administration of MAS Bhd ends.  

At the end, when moratorium is lifted, MAS Bhd would most likely be an empty shell – with no work and no money. Hence, it will be workers and trade unions that will suffer. Workers and Trade Unions do not just lose their right to justice, but also will have to shoulder additional loses, including all the monies utilized for lawyer and court fees,  time and others. For many workers, it may also mean loss of wages for the days they could not work because they had to attend at relevant departments, tribunal or court in their pursuit for justice. Hence, not only will workers and trade unions be denied justice, but will suffer even more injustice by reason of this anti-worker legislation.

Right To Join Parties To Satisfy Worker Claims Against MAS Bhd Denied

Normally, when the employer has lost the ability to provide remedies, damages or compensation to satisfy the claims of the worker, to ensure justice, the worker can proceed with an application to join third parties to the suit, possibly the owners (Khazanah Nasional) or others. 

This MAS Act now unjustly prevents this ability to join parties, in amongst others, in section 25(2), which states that “ The Malaysia Airlines Berhad, the appointer and the Administrator shall not be named as a party in any claim or application made or joined as a party in any proceeding commenced or continued by or on behalf of any employees or former employees of the Administered Companies pursuant to the Industrial Relations Act 1967 [Act 177], Employment Act 1955 [Act 265], Sabah Labour Ordinance 1950 [Sabah Cap. 67], Sarawak Labour Ordinance 1952 [Sarawak Cap. 76] or the Trade Unions Act 1959 [Act 262].’

In fact, section 25(1) says clearly, amongst others, that ‘…the Administered Companies, the Administrator, appointer or the Malaysia Airlines Berhad shall not—(a) be regarded as the successor, assignee or transferee or a successor employer to the Administered Companies; (b) be liable for any obligation relating to any retirement plan or other post-employment benefit plans in respect of the employees or former employees of the Administered Companies or any predecessor of the Administered Companies that exists prior to the assumption of control or appointment; or (c) be liable for any sum which is calculated by reference to a period of time prior to the Malaysia Airlines Berhad becoming the employer of the person in question…’

Same Owner of both MAS Bhd and new Malaysian Airline Berhad(MAB)

Considering that the it is Khazanah Nasional that is the sole owner of MAS Bhd, and also the new company MAB, clearly all that is happening is really nothing other than the ‘same person changing shirts’ – and justice would demand that the new entity MAB or the owner, Khazanah, should be justly taking over the obligation and responsibility of MAS Bhd especially for cases involving worker and trade union rights. 

The new MAB and MAS Bhd, both owned by Khazanah, really is nothing other that the same owner forming a new company to escape responsibility and liability to workers, is also supported by the following:-

a.      Christoph Mueller, the new chief executive of MAS Bhd was appointed on 1/5/2015, would later assume the same position with MAB. Same CEO for MAS Bhd, and new MAB?

b.      When the employees of MAS Bhd received their termination letters in early June 2015, those that were offered employment by the new MAB, were offered a different termination package from those not offered employment in MAB. Those offered employment in MAB, which was to take effect from 1/9/2015, were asked to continue coming in to work in MAS Bhd, while the others, about 6,000, were asked to stop coming in to work with the assurance they will continue to receive normal salary but could not commence employment with another employer before 31/8/2015 unless they first get approval of MAS Bhd’s Human Resource Department. For many airline employees, other than basic wages, income from allowances and such if they are working makes up sometimes 50% or more of their monthly take home income. Rightly, all employees of MAS Bhd, irrespective of whether they will be later employed in MAB, should have received the same benefits and ex-gratia on termination by MAS Bhd.

In the name of justice, MAB or Khazanah or the Malaysian government should really take over the obligation of any or all claims of employees and trade unions against MAS Bhd.

Avoiding Just Principles of Lay-Off and Termination

When an employer wants to reduce staff, they would justly retrench the number of workers they no longer need – and there are just  requirements that need to be complied in any retrenchment exercise like the ‘Last In First Out’(LIFO) principle. Here, this is avoided by MAS Bhd simply terminating all employees on 31/8/2015. Justly, the about 6,000 who were no longer required to come into work since June, should have been laid off then and there and paid all their entitlements.

Union Busting?

With the termination of all employees of Malaysia Airlines Systems Bhd (MAS Bhd), it would also mean the demise of about 7 in-house trade unions. 

The only national trade union, the National Union of Flight Attendants Malaysia, managed to  show support of 62.73% of the qualified employees, and obtain the Minister’s order that made it  a recognized union in MAS Bhd. Rather than accept this, MAS Bhd  went  for judicial review challenging the Minister’s decision. NUFAM alleges that only 2 out 10 executive committee members of the Union, who are employees in MAS Bhd have been offered employment in the new MAB. 

As such, this ‘restructuring exercise of the airline’ and this new law can also be considered a means of union busting.

Loss of Regular Employment Until Retirement

Many workers who are regular employees until retirement in MAS Bhd, who have been offered employment in the new MAB find that they will now become precarious employees on short-term contracts, some even on 3 or 6 months employment contracts. There is no law in Malaysia that stipulates that short-term contract employees will continue as employees if the work they were hired to do still exist. Short-term and other precarious forms of employment also would likely deter union formation or involvement, deter workers from claiming rights and facilitate easier exploitation of workers.

Ignoring Worker and Families Financial Security and Wellbeing

Workers in Malaysia have families and dependents, and also many now have monthly loan-repayment obligations, and justly they should be provided secure regular employment until retirement, whereby they still could be terminated for misconducts, or laid off where the employers has to reduce jobs.

Whilst Malaysia says that it is concerned about the airline business, it has demonstrated a serious lack of concern for the welfare and wellbeing of workers.

We therefore urge:-

That the said Malaysian Airline System Berhad(Administration) Act 2015 be repealed, and the effect this Act has had on workers and trade unions be reversed. No law should be enacted to suspend/deny worker rights for selected employers;

That all pending cases with regard to labour matters, be it with workers or unions, shall be justly resolved or settled forthwith by MAS Bhd, and its owners Khazanah Nasional;

That for all worker and trade union cases against MAS Bhd,  MAB and Khazanah Nasional shall agree to be joined in as parties and assume obligations of MAS Bhd to workers;

That if the Malaysian Airlines is desirous of reducing the number of employees, it be done by letting go employees in compliance with the Last In First Out(LIFO) principle and other established just legal principles;

That if the Malaysian Airlines is to be taken over by another entity, like the Malaysian Airlines Berhad(MAB), workers should be employed by MAB as secure regular employees and not by means of precarious forms of employment like short-term contracts;

That Malaysia considers the rights, welfare and wellbeing of workers and their families are just as important, if not more, than the wellbeing and profits of government-owned or linked businesses.  

Charles Hector

Syed Shahir bin Syed Mohamud

Mohd Roszeli bin Majid

Pranom Somwong

For and on behalf the 64 organisations, trade unions and groups listed below

ALIRAN

Airlines Workers' Union Sarawak

Alternative ASEAN Network on Burma (Altsean-Burma)

Asia Monitor Resource Centre(AMRC), Hong Kong

Centro de Reflexión y Acción Laboral, CEREAL (Labour Studies and Action Centre), México

Center for Orang  Asli Concerns (COAC), Malaysia

Clean Clothes Campaign

Club Employees Union Peninsular Malaysia

Committee for Asian Women

CWI Malaysia (Committee For Workers’ International, Malaysia)

Daeduck Employees Union-Ind., CEPZ, Rosario, Cavite, Philippines

Eagle Ridge Golf Course and Residential Estate Employees Union, Cavite, Philippines

Electronic Industry Employees Union (EIEU) Southern Region, Peninsular Malaysia

Electronic Industry Employees Union(EIEU) Northern Region, Peninsular Malaysia

Garment and Allied Workers Union, Haryana, India

Globalization Monitor

Hye Sung Workers Union, CEPZ, Rosario, Cavite, Philippines

Institut PEREMPUAN (Indonesia)

Jaringan Kampung Orang Asli Semenanjung Malaysia(JKOASM)

Kesatuan Pekerja-Pekerja Perodua

Kesatuan Pekerja-Pekerja Mitsui Copper Foil(MCFEU)

Kesatuan Pekerja-Pekerja MHS Aviation Berhad(MHSEU)

Kesatuan Eksekutif AIROD

Kesatuan Pekerja-pekerja Perodua Engine Manufacturing Sdn. Bhd

Kesatuan Pekerja-Pekerja Perusahaan Otomobil Nasional Sdn Bhd (KPP Proton)

Knights For Peace, International

MADPET (Malaysians Against Death Penalty and Torture)

Network of Action for Migrants in Malaysia(NAMM)

Nagkakaisang Manggagawa ng Keyrin(trade union), CEPZ, Rosario, Cavite, Philippines

North South Initiative

Malaysian Humanist and Rationalist Movement ("myHARAM")

Malaysian Trade Union Congress(MTUC)

Metal Industry Employees' Union(MIEU), Malaysia

MAP Foundation, Chiangmai, Thailand

Masyarakat Akar Rumput (MAKAR Indonesia)

Migrante International

Myanmar Ethnic Rohingya Human Rights Organization Malaysia (MERHROM)

National Union of Transport Equipment & Allied Industries Workers (NUTEAIW)

National Union of Flight Attendants Malaysia (NUFAM)

National Union of Hotel, Bar and Restaurant Workers (NUHBRW)

National Union of Journalist (NUJ) Cawangan Utusan Melayu

National Union of Tobacco Industry Workers(NUTIW)

National Union Employees in Companies Manufacturing Rubber Products(NUECMRP)

Non-Metallic Mineral Products Manufacturing Employees Union (NMMPMEU)

NUBE (National Union of Banking Employees)

Paper Products Manufacturing Employees’ Union of Malaysia (PPMEU)

Parti Rakyat Malaysia (PRM)

Peoples Service Organization (PSO)

Perak Women for Women Society (PWW)

PERMAS (Persatuan Masyarakat Selangor & Wilayah Persekutuan)

Persatuan Sahabat Wanita Selangor

Persatuan Kesedaran Komuniti Selangor

Persatuan Komuniti Prihatin Selangor dan Kuala Lumpur

PINAY (Filipino Women's Organization in Quebec), Canada

Pusat KOMAS

Railwaymen's Union of Malaysia (RUM)

Sahabat Rakyat (人民之友)

School of Acting Justly, Loving Tenderly and Treading humbly (SALT)

Solidarity of Cavite Workers, Cavite, Philippines

Tenaga National  Berhad Junior Officers Union (TNBJOU)

Tenaganita

Workers Assistance Center, Inc (WAC),

WH4C (Workers Hub For Change)

Yayasan LINTAS NUSA Batam – Indonesia

Trafficking – Not Just about Prostitution but also worker exploitation

Trafficking – Not Just about Prostitution but also worker exploitation

Many of us wrongly believe that trafficking in persons is only about prostitution – but this is not true as it includes also the exploitation of workers. 

 

Trafficking in persons is defined internationally as constituting three elements: (a) an “action”, being recruitment, transportation, transfer, harbouring or receipt of persons; (b) a “means” by which that action is achieved, for example threat or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power or a position of vulnerability and the giving or receiving of payments or benefits to achieve the consent of a person having control over another person; and (c) a “purpose” of the intended action or means, namely exploitation. Note, the consent of the victim to the intended exploitation is irrelevant.

Likewise in Malaysia, the Anti-Trafficking in Persons Act 2007 defines "trafficking in persons" or "traffics in persons"  means the recruiting, transporting, transferring, harbouring, providing or receiving of a person for the purpose of exploitation;, and "exploitation" means all forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, any illegal activity or the removal of human organs;

We will be looking at specifically at worker exploitation in Malaysia, including forced labour or services. Forced or compulsory labour is defined as "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily." Forced labour refers to situations in which persons are coerced to work through the use of violence or intimidation, or by more subtle means such as accumulated debt, retention of identity papers or threats of denunciation to immigration authorities.

The Local Worker – A Victim of Trafficking?

The local worker in Malaysia can comes under the threat of dismissal, or a delay in promotion or wage increase. They are discouraged from claiming their legal rights or standing up for rights. Even trade union leaders are not saved from such ‘intimidation’ – and some find that they are overlooked for promotion and wage increase exercises when their fellow workers, not union leaders or active union members, get promoted or wage increases. Unionist are also targeted for disciplinary action and dismissal for the carrying out of legitimate activities like the issuance of media statements, picketing, involvement in campaigns for the promotion and protection of worker rights and such matters, which reasonably should be considered as legitimate union activities.

If union members are so intimidated and under the menace of such penalties, what more with the ordinary worker who is not unionized? The lodging of a complaint to the relevant authorities about non-payment of wages, overtime and violation of other rights results in not just intimidation but even disciplinary action and even termination.

Overtime work, which as a matter of principle requires the consent of the worker, is no more in many workplaces. Workers feel that they have no choice but to do as the employer ‘orders’ – and in Malaysia, the current legal limit for overtime work is about 4 hours a day, which means that workers may end up working for about 12 hours daily.

Some workers, who are not feeling well, and wanting to go see a doctor are simply told that they can go see a doctor if and only they can find a replacement for themselves in their shift.

With the increased usage of short-term contracts, usually less than a year in duration, the possibility of being exploited increases and the ability or desire to stand up for rights diminishes. In Malaysia, the law does not set the limit of time a worker should be on probation, and so one may be on probation for years and when on probation, it is easier for employers to immediately terminate and further the rights of a probationer is far less than the rights of a confirmed worker. Workers in precarious forms of employment relationship are more easily exploited.

Debts today may not be moneys owed to the employer, but to third parties as most workers in Malaysia are indebted to banks in connection with home or car loans, and this indebtedness that require monthly payments makes them even more exploitable by employers. Malaysian Trade Union Congress (MTUC) recently called a temporary unemployment assistance scheme to be set up, which is a good proposal and will reduce vulnerability of Malaysian workers.

Migrant Workers – More Vulnerable to Exploitation

If a Malaysian goes out, and discovers suddenly he has forgotten his National Registration Identity Card(NRIC) or maybe his driving licence, he is stressed out worrying about being stopped by the police or an enforcement officer. He is worried about arrest and possible fines. A local worker, familiar with the local language, can quite easily call a friend/family member and be able to escape arrest or further detention – maybe not the fine.

Now, in the case of the migrant worker, it is worse. It is common practice that many employers or their agents hold on to the passport and work permits of their migrant worker. They justify holding these documents as a means of preventing their migrant workers from running away, and this is unacceptable and is against the law. When the police or enforcement officer stops a migrant, he wants to see the original passport and work permit (and not some photocopy or a worker identification card), and so the migrant worker may get arrested and detained – and the one who has the ‘power’ to secure the release is the employer or agent holding these documents. The migrant worker ends up languishing in detention for days, maybe even weeks. Some allege that it may have been their own employer or agent who called the enforcement officers to get them into trouble.

In Malaysia, where there are about 2.9 million documented migrant workers, and where the government admits that there are an equivalent number or more of undocumented migrants in the country, the threat of being arrested and detained is very real.

Bound to work for one employer only

If the employer is an exploitative employer or a cheat, or the working conditions are bad and intolerable, the local worker have the choice of escaping this reality and finding employment elsewhere but this is not so for the migrant worker who is bound by the work permit that allows him to work for one employer. Most migrants, when they come to Malaysia are already are in debt having expended about RM5,000 – so really the option of just going back to the country of origin when one finds oneself in a situation of exploitation is not an option.

There is the possibility of varying the work permit and allowing such exploited workers to work with another better employer but alas this does not happen in most cases, and further the process of doing this is too onerous for the poor migrant. Thus, the migrant worker have no choice but continue to work in the exploitative situation, or alternatively some just choose to run away and continue to work as an undocumented migrant in Malaysia until he is caught and deported, or manages to leave Malaysia illegally.

It would be interesting if the Malaysian government provides us with the numbers of ‘illegal migrants’ arrested, who previously were really documented migrant workers. It would be good to also know why these chose to become undocumented.

Access to Justice – Flawed and Ineffective

The law provides several avenues for access to justice to workers but alas the efficiency and/or speed in which it works are disappointing. Justice delayed is justice denied. As mentioned earlier, many employers just terminate employees that lodge complaints, and for the migrant worker, this would also mean that the employer will take steps to terminate the work permit – hence depriving the migrant worker the right to continue to remain and/or work legally in Malaysia. All access to justice mechanisms and labour tribunals insist on the physical presence of the worker-complainant, and in the case of migrant workers, to remain would mean arrest, detention, imprisonment, whipping and deportation, all complaints, cases and even proceedings in court will come to an end because of the absence of the complainant. Even those who remain, they would be now ‘illegal’ and they will not come out of fear for turning up may lead to immediate arrest.

Malaysia should really provide us with statistics of how many migrant workers have lodged complaints, and what has happened to these. In fact, maybe statistics should also be provided as to how many local workers have lodged complaints, and what has happened to this. How many of these workers were terminated after they lodged complaints and how many just gave up and never turned up after that? Analysis of such data would help us improve and make Malaysia less exploitative for workers.

Remedies in Law not a Deterrent to Exploitation

If one were to look at remedies provided in law, it is pathetic and certainly cannot be considered a deterrent to exploitation. For example, a worker who has been denied 3 months wages, at the end of the day after going through the process and winning will only get the equivalent of that 3 months wages he was denied. Is this justice?

Going through the process for justice would have cost the worker monies in terms of transport, lost work-days wages, monies for legal representation, etc and thus many workers will just elect not to waste time and monies claiming rights. Maybe, the law need be amended to ensure that employers would have to pay workers three times the value of monies wrongfully denied, plus maybe a further order of damages.

In the labour tribunals, both parties are not required to pay cost of the winning party, but now there is that possibility of applying for a Judicial Review to the High Court if one is dissatisfied with the decision of the tribunal, and here it will become unaffordable to workers and unions and there is always the risk of being ordered to pay high costs, and of course there is the additional cost of lawyers and court fees.

Malaysia – A Facilitator to Trafficking?

The government need to seriously consider the state of affairs and do the needful, for we certainly do not want Malaysia to be found responsible for creating an environment that enables the easy exploitation of workers, both local and foreign.

The US State Department Trafficking in Persons Report 2014, downgraded Malaysia to Tier 3 from the previous standing of Tier 2 Watch List. Amongst others, the report had this to say:- ‘Many Malaysian recruitment companies, known as “outsourcing companies,” recruit workers from foreign countries. Contractor-based labor arrangements of this type—in which the worker may technically be employed by the recruiting company—create vulnerabilities for workers whose day-to-day employers generally are without legal responsibility for exploitative practices.’. Well, these ‘outsourcing companies’ were recruiting both local and migrant workers, and such ‘outsourced workers’ find themselves in a precarious position as they could not even benefit from the rights accorded to union members in the workplaces. Usage of such workers do directly weaken existing trade unions and their members making them more susceptible to exploitation, and reducing their bargaining powers for better rights and working conditions.

Malaysia needs to be more diligent in promoting and protecting worker rights, and stopping all forms of worker exploitation and ‘trafficking of human persons’. Access to justice systems and relevant laws need to be amended to ensure speedy remedies for workers, protection for workers against discrimination or termination just for trying to claim rights or exercising their rights. Migrant workers will not be made ‘illegal’ or deported, but be allowed to work and stay legally, until all their valid claims against employers and others are properly heard and settled.

Active enforcement to ensure rights are respected and exploitation ends must be made a priority. It was shocking to hear from the Deputy Human Resources Minister Datuk Seri Ismail Abd Muttalib  in September 2014 that only 3 employers out that 10,000 employers in the private sector have yet to implement the Minimum Wage Scheme since it was enforced on 1st January have been taken to court. (Malay Mail, 20/9/2014, Malaysia Nearly 10,000 employers yet to implement Minimum Wage Scheme)

We look forward when there is no more exploitation of workers, and Malaysia can no longer be considered a place where there is trafficking in human persons.

Charles Hector

Note: The above article (now edited) was  earlier published in Malaysian Insider on 19/2/2015