WORKERS HUB 4 CHANGE

17 venues of MTUC protest 0n 3/11/2011 to show discontent over amendments to Employment Act

2011-11-02T01:04:00.001-07:00

The protest will take place tomorrow(3/11/2011) from 5pm to 6.30pm at the following locations in Kuala Lumpur and Selangor: Jalan Raja Laut; Jalan Barat (Petaling Jaya); Rawang (near Perodua); Shah Alam (near Proton); Seksyen 15 (Shah Alam); Bukit Raja; Teluk Panglima Garang (Banting).

Other locations are: MTUC Building, Ipoh, Perak; Jalan Perai, Penang (near the Prai industrial estate); Kedah; Jalan Ayer Keroh, Malacca.

Seremban, Negeri Sembilan; Jalan Sekudai, Johor Baru, Johor; Kota Baru, Kelantan (in front of the Federal Building); Kuala Terengganu, Terengganu (field near Pantai Batu Buruk); Kuantan, Pahang (field in front of Pahang State Mosque).

It will be held at the Sultan Iskandar Building in Kuching, Sarawak, and the Tang Shopping Complex in Kota Kinabalu, Sabah.

MTUC protest tomorrow

17 venues picked to show discontent over amendments to Employment Act

Wednesday, November 2nd, 2011 10:32:00

PETALING JAYA: The Malaysian Trades Union Congress (MTUC) will carry out its nationwide protest tomorrow to ensure its discontent with amendments made to the Employment Act is heard.

MTUC secretary-general Abdul Halim Mansor told The Malay Mail yesterday the protest would be held at various locations nationwide and that police had been informed.

“We are the workers' umbrella. We have no political agenda but are only voicing our concern and unhappiness with amendments made to the Employment Act," he said.

"Our dispute is not with our employers but in taking away our rights as workers through the amendments.

“We have informed the police, including the IGP and State police chiefs, on the locations and time of our protest. It will be peaceful and we will deploye our officers to ensure the discipline."

Earlier this week, Human Resources Minister Datuk Dr S. Subramaniam said the protest was illegal as it did not fall into the context of dispute between employers and employees.

To this, Abdul Halim said: “The question of whether this protest is halal or haram should not even be made."

MTUC expects a turnup of 500 of its members at each of the 17 locations throughout the country to protest against the amendments to the Act.

Abdul Halim said he did not think there would be any problem with the police as "they have always been supportive” of MTUC.

On whether the protest would affect rush-hour traffic, he said the MTUC officers at each location would maintain discipline. He also hoped police would help with the traffic flow and ensure safety of protesters.

The MTUC's main complaint against the amendments is its belief it is "a return to slavery" and that investors will only hire Malaysians as contract workers instead of permanent staff.

On the other hand, the Human Resource Ministry insisted the amendments protect the rights of workers.

MTUC is an umbrella body comprising 390 of the 692 labour unions nationwide has a total of 802,323 members.

The amendments to the Act were approved by Parliament on Oct 6.

The protest will take place tomorrow from 5pm to 6.30pm at the following locations in Kuala Lumpur and Selangor: Jalan Raja Laut; Jalan Barat (Petaling Jaya); Rawang (near Perodua); Shah Alam (near Proton); Seksyen 15 (Shah Alam); Bukit Raja; Teluk Panglima Garang (Banting).

Other locations are: MTUC Building, Ipoh, Perak; Jalan Perai, Penang (near the Prai industrial estate); Kedah; Jalan Ayer Keroh, Malacca.

Seremban, Negeri Sembilan; Jalan Sekudai, Johor Baru, Johor; Kota Baru, Kelantan (in front of the Federal Building); Kuala Terengganu, Terengganu (field near Pantai Batu Buruk); Kuantan, Pahang (field in front of Pahang State Mosque).

It will be held at the Sultan Iskandar Building in Kuching, Sarawak, and the Tang Shopping Complex in Kota Kinabalu, Sabah. - Malay Mail, 2/11/2011, MTUC protest tomorrow

Don’t legalize discrimination at work place (Free Malaysia Today, 28/10/2011)

2011-11-02T01:00:00.000-07:00

Don’t legalize discrimination at work place

Teoh El Sen | October 28, 2011

Civil rights groups here and overseas want the Malaysian government to withdraw 'unjust' amendments to the Employment Act 1955

PETALING JAYA: More than a 100 civil society groups locally and abroad have called for the government to withdraw ‘unjust’ amendments to the Employment Act 1955, ahead of a nationwide Malaysian Trade Union Congress(MTUC) picket on the same issue next week.

In a joint press statement 107 civil society groups expressed concern over the government’s actions to “speedily” table and passed the the Employment (Amendment) Bill 2011 on Oct 6 at the Dewan Rakyat, despite protests from various groups against it.

“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),” said the group, which included the International Trade Union

Confederation (ITUC), representing 175 million workers in 153 countries and territories and has 308 national affiliates.

A spokesman for the group Charles Hector said: “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 legalize it, hence showing itself to be anti-worker anti-unions.”

The groups noted that the amendments went against the Federal Constitution, which guaranteed equality of persons, as it would result in “discrimination at the workplace”.

“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,” said the statement.

The statement stressed that workers in the same workplace should be treated equality— in terms of wages, work benefits, rights, union rights, and so on.

‘Destroying’ ties

The civil groups also said the proposed amendments would also “destroy” direct employment relationships between owner-operator of workplaces.

“A just employment relationship dictates that all workers should be employees of the owner-operator employer not some other third party labour supplier, whether they be known as ‘contractor for labour’, outsourcing agent or by any other name.”

It stressed that such a “relationship” must be a direct relationship, and should exclude all third parties.

“The availability of short-term employment contracts is another reason why there is no need to legalize triangular or other employment relationships in Malaysia through the creation of the ‘contractor for labour’ (system),” it added.

If the amendments become law, then workers would also lose their rights to form or be members of the trade union at the workplace.

This will subsequently affect their right to directly and effectively negotiate with the principal who effectively controls the work place, working conditions and benefits.

‘Union busting’ policy

This would also weaken existing workers and unions, by reducing their negotiating power, and in turn make workers’ struggle better rights wll become “almost impossible”.

“This proposed amendment is a ‘union busting’ exercises and allows employers to utilize ‘divide and rule’ tactics to counter legitimate demands of their workers and avoid employer obligations and responsibilities,” said the groups.

The groups also said the amendments further made unjustifiable changes to delay in overtime payment and work on rest days, as well as issues regarding sexual harrassment.

“With regard to sexual harassment, the new provision provides only for inquiry by an employer even when the alleged perpetrator is a member of the management, a partner, shareholder and/or director of the employer’s business, and provides no clear right of appeal to the Labour Courts or the High Court.”

“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.”

Discontinue policy

Currently, worker rights violations are all dealt with by the “definitely more independent” Labour Department or Industrial Relations Department.

“We call on Malaysia to immediately discontinue its policy of recognizing outsourcing agents, and act immediately against practices of some employers and outsourcing agents that try to avoid or disguise employment relationships to the detriment of workers and unions,” said the statement.

The proposed 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 this unjust proposed amendments to Employment Act 1955.”

It said that the country currently 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 create a new kind of labour supply company who will continue as employers of the workers even after they start working at the workplace of the principal, and this is unacceptable,” said the statement.

It also explained that all companies in the business of finding workers for companies must never assume or retain the role of employers.

The groups also called on countries and regional bodies, companies, International Labour Organisation (ILO), trade unions and persons to “do the needful to ensure that worker and union rights, not just of local but also migrant workers, are protected in Malaysia” - Free Malaysia Today, 28/10/2011,Don’t legalize discrimination at work place

** For the full statement see:- 107 Groups: Malaysia Must Protect Worker and Union Rights, and withdraw proposed unjust amendments to Employment Act - Labour Suppliers Should Not Be Employers (28/10/2011)

Malaysia Must Protect Worker and Union Rights, and withdraw proposed unjust amendments to Employment Act - Labour Suppliers Should Not Be Employers

2011-11-02T00:57:00.000-07:00

Media Statement – 28/10/2011 (107 Groups), now 115 on 2/11/2011

Malaysia Must Protect Worker and Union Rights, and withdraw

proposed unjust amendments to Employment Act

- Labour Suppliers Should Not Be Employers -

We, the undersigned 115 organizations, groups and networks are disturbed that the Malaysian government has proceeded to table, and get it passed speedily on 6/10/2011 at the Dewan Rakyat (House of Representative) 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 2-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 legalize it, hence showing itself to be anti-worker anti-unions.

We note also that the amendments would result in discrimination at the workplace, as many workers at a factory, plantation or any workplace would end up being no longer employees of the owner-operator of the said workplace, also referred to as the principal or end-user, but would remain employees of the supplier of workers, known as ‘contractor 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 a factory or workplace are entitled to be treated equally in terms of wages, work benefits, rights, union rights, reliance on collective agreements and other entitlements.

The proposed amendment would also destroy direct employment relationships between owner-operator of workplaces, being the principal, and the workers that work there producing the product or providing the services from which these principals derive their profits. A just employment relationship dictates that all workers should be employees of the owner-operator employer not some other third party labour supplier, whether they be known as ‘contractor for labour’, outsourcing agent or by any other name. The relationship must be a direct relationship, to the exclusion of all third parties, between the employer who needs 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 legalize triangular or other employment relationships in Malaysia through the creation of the ‘contractor 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 employers, and this would result in agreements or ‘collective agreements’ between employers and workers (or their unions). If the amendments proposed become law, then many workers at the factory would effectively lose their rights to be able to form or be members of the trade union at the workplace, or the right to directly and effectively negotiate with the principal who effectively controls the work place, working conditions and benefits.

If the proposed amendment becomes law, effectively it will also weaken existing workers and unions, by reducing their negotiating power for now when a strike or a protest in called, there will be other workers of other third party employers who will continue to work normally thus making worker struggle for better rights almost impossible. This proposed amendment is a ‘union busting’ exercises and allows employers to utilize ‘divide and rule’ tactics to counter legitimate demands of their workers and avoid employer obligations and responsibilities. Another unjustifiable proposed changed 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 inquiry by employer even when the alleged perpetrator is a member of the management, a partner, shareholder and/or director of the employer’s business, and provides no clear right of appeal to the Labour Courts or the High Court. Note that other worker rights violations are currently all dealt with by the definitely more independent Labour Department or Industrial Relations Department. 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 Trade Union Congress (MTUC), which represents over 800,000 workers of member unions, who is also is the accepted workers representative in Malaysia, picketed calling for the withdrawal of the amendments on 3/10/2011, and apparently despite the Minister assuring them that the amendment will only be tabled at the end of the month, was suddenly rushed and passed at the Lower House of Malaysia’s Parliament on 6/10/2011.

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 who will continue as employers of the workers even after they start working at the workplace of the principal, and 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 said 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 this unjust proposed amendments to Employment Act 1955.

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

We call on countries and regional bodies, companies, ILO, trade unions and persons to do the needful to ensure that worker and union rights, not just of local but also migrant workers, are protected in Malaysia, and that the employment relationship continue 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 115 Organisations listed below:-

Abra Migrant Workers Welfare Association - Hong Kong (AMWWA)

Abra Tinguian Ilocano Society - Hong Kong (ATIS-HK)

ALIRAN, Malaysia

All Women's Action Society (AWAM), Malaysia

Asian Migrants Center (AMC), Hong Kong

Asia Monitor Resource Centre (AMRC), Hong Kong

Asia Pacific Mission for Migrants (APMM)

Asia Pacific Forum on Women, Law and Development (APWLD)

Asian Migrants' Coordinating Body - Hong Kong (AMCB)

Association for Community Development-ACD, Bangladesh

Association of Concerned Filipinos in Hong Kong (ACFIL-HK)

Association of Indonesia Migrant Workers in Indonesia (ATKI-Indonesia)

Association of Migrant Child & Family, Bangladesh.

Australian Council of Trade Unions (ACTU)

BAYAN Hong Kong

Building and Wood Worker's International (BWI) Asia Pacific

Burma Campaign, Malaysia

Cambodian Human Rights and Development Association (ADHOC)

Cambodian League for the Promotion and Defense of Human Rights (LICADHO)

Center for Indonesian Migrant Workers (CIMW)

Center for Trade Union and Human Rights (CTUHR)

Clean Clothes Campaign (CCC)

Coordination of Action Research on Aids and Mobility (CARAM-ASIA)

Committee for Asian Women (CAW)

Community Action Network (CAN), Malaysia

Confederation of Voluntary Associations (COVA), Hyderabad, India

Cordillera Alliance Hong Kong (CORALL-HK)

Democratic Party For A New Society (DPNS), Burma

Dignity International, Malaysia

Education and Research Association for Consumers Malaysia (ERA Consumer Malaysia)

Filipino Friends Hong Kong (FFHK)

Filipino Migrants Association - Hong Kong (FMA)

Filipino Migrant Workers' Union - Hong Kong (FMWU)

Filipino Women Migrant Workers Association - Hong Kong (FILWOM-HK)

Foundation for Women, Thailand

Friends of Bethune House (FBH), Hong Kong

GABRIELA Hong Kong

GABRIELA Philippines

Good Shepherd Sisters, Malaysia

Health Equity Initiatives (HEI), Malaysia

Housing Rights Task Force, Cambodia

Human Rights & Legal Aid (LHRLA) Pakistan

Human Rights Education Institute of Burma (HREIB)

Human Security Alliance (HSA)

International Metalworkers' Federation (IMF)

IMA Research Foundation, Bangladesh

INFID (International NGO Forum on Indonesian Development)

Institute for National and Democratic Studies (INDIES)

International Trade Union Confederation (ITUC)

Jakarta Legal Aid Institute, Indonesia

JERIT, Malaysia

Karmojibi Nari , Bangladesh

Kalyanamitra, Indonesia

Kav La'Oved , Israel

Kilusang Mayo Uno Labor Center

Komite Independen Pemantau Pemilu (Independent Committee for Election Monitoring), Indonesia

Lawyers for Human Rights & Legal Aid (LHRLA) Pakistan

Legal Support for Children and Women (LSCW), Cambodia

LLG Cultural Development Centre, Malaysia

Malaysians Against Death Penalty and Torture (MADPET)

Malaysian Election Observers Network (MEO-Net)

MakeItfair

MAP Foundation, Thailand

Maquila Solidarity Network, Canada

May 1st Coalition for Worker & Immigrant Rights, NY-USA

Migrant CARE, Indonesia

Migrant Forum in Asia (MFA)

Migrant Trade Union, Korea (MTU)

Migrante International

MTUC (Malaysian Trade Union Congress)

National Alliance of Women Human Rights Defenders, Nepal

Network of Action for Migrants in Malaysia (NAMM)

National League For Democracy (Liberated Area )[ NLD(LA)], Malaysia

Pakistan Rural Workers Social Welfare Organization (PRWSWO)

Peduli Buruh Migran, Indonesia

Penang Watch, Malaysia

People's Green Coalition

Pergerakan Indonesia

Perkumpulan PRAXIS, Indonesia

Persatuan Kesedaran Komuniti, Selangor (EMPOWER)

Persatuan Masyarakat Selangor & Wilayah Persekutuan (PERMAS)

Persatuan Sahabat Wanita Selangor

Pinatud a Saleng ti Umili (PSU)

Pusat KOMAS, Malaysia

Quê Me: Action for Democracy in Vietnam

Saya Anak Bangsa Malaysia (SABM)

Sedane Labour Resource Center/(Lembaga Informasi Perburuhan Sedane), Indonesia

Serikat Buruh Migran Indonesia (SBMI)

Shan Women Action Network (SWAN), Thailand

Silicon Valley Toxics Coalition

Solidaritas Perempuan (Women's Solidarity for Human Rights), Indonesia

SOS(Save Ourselves), Malaysia

Suaram, Malaysia

Tenaganita, Malaysia

Thai Committee for Refugees Foundation (TCR)

The Filipino Women's Organization in Quebec, Canada

The GoodElectronics Network

The International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF)

Think Centre (Singapore)

UNI Apro, Singapore

UNI Global Union

UNIMIG (Union Migrant Indonesia)

United Filipinos in Hong Kong (UNIFIL-MIGRANTE-HK)

United Pangasinan in Hong Kong (UPHK)

Urban Community Mission (UCM Jakarta), Indonesia

Vietnam Committee on Human Rights

WARBE Development Foundation, Bangladesh

Women Forum for Women, Nepal

Women Legal BUREAU, Philippines

WOREC, Nepal

Workers Assistance Center, Inc (WAC), Philippines

Workers Hub For Change (WH4C)

War on Want , United Kingdom

Yasanti

Yayasan LINTAS NUSA (Batam Indonesia)

Withdraw unjust proposed amendments to Employment Act , says 107 groups

2011-10-28T07:27:00.000-07:00

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:-

Abra Migrant Workers Welfare Association – Hong Kong (AMWWA)
Abra Tinguian Ilocano Society – Hong Kong (ATIS-HK)
ALIRAN, Malaysia
All Women’s Action Society (AWAM), Malaysia
Asian Migrants Center (AMC), Hong Kong
Asia Monitor Resource Centre (AMRC), Hong Kong
Asia Pacific Mission for Migrants (APMM)
Asia Pacific Forum on Women, Law and Development (APWLD)
Asian Migrants’ Coordinating Body – Hong Kong (AMCB)
Association for Community Development-ACD, Bangladesh
Association of Concerned Filipinos in Hong Kong (ACFIL-HK)
Association of Indonesia Migrant Workers in Indonesia (ATKI-Indonesia)
Australian Council of Trade Unions (ACTU)
BAYAN Hong Kong
Building and Wood Worker’s International (BWI) Asia Pacific
Burma Campaign, Malaysia
Cambodian Human Rights and Development Association (ADHOC)
Cambodian League for the Promotion and Defense of Human Rights (LICADHO)
Center for Indonesian Migrant Workers (CIMW)
Center for Trade Union and Human Rights (CTUHR)
Clean Clothes Campaign (CCC)
Coordination of Action Research on Aids and Mobility (CARAM-ASIA)
Committee for Asian Women (CAW)
Community Action Network (CAN), Malaysia
Confederation of Voluntary Associations (COVA), Hyderabad, India
Cordillera Alliance Hong Kong (CORALL-HK)
Democratic Party For A New Society (DPNS), Burma
Dignity International, Malaysia
Education and Research Association for Consumers Malaysia (ERA Consumer Malaysia)
Filipino Friends Hong Kong (FFHK)
Filipino Migrants Association – Hong Kong (FMA)
Filipino Migrant Workers’ Union – Hong Kong (FMWU)
Filipino Women Migrant Workers Association – Hong Kong (FILWOM-HK)
Foundation for Women, Thailand
Friends of Bethune House (FBH), Hong Kong
GABRIELA Hong Kong
GABRIELA Philippines
Good Shepherd Sisters, Malaysia
Health Equity Initiatives (HEI), Malaysia
Housing Rights Task Force, Cambodia
Human Rights Education Institute of Burma (HREIB)
Human Security Alliance (HSA)
International Metalworkers’ Federation (IMF)
IMA Research Foundation, Bangladesh
INFID (International NGO Forum on Indonesian Development )
Institute for National and Democratic Studies (INDIES)
International Trade Union Confederation (ITUC)
Jakarta Legal Aid Institute, Indonesia
JERIT, Malaysia
Karmojibi Nari , Bangladesh
Kalyanamitra, Indonesia
Kav La’Oved , Israel
Kilusang Mayo Uno Labor Center
Komite Independen Pemantau Pemilu (Independent Committee for Election Monitoring), Indonesia
Legal Support for Children and Women (LSCW), Cambodia
LLG Cultural Development Centre, Malaysia
Malaysians Against Death Penalty and Torture (MADPET)
Malaysian Election Observers Network (MEO-Net)
MakeItfair
MAP Foundation, Thailand
Maquila Solidarity Network, Canada
May 1st Coalition for Worker & Immigrant Rights, NY-USA
Migrant CARE, Indonesia
Migrant Forum in Asia (MFA)
Migrant Trade Union, Korea (MTU)
Migrante International
National Alliance of Women Human Rights Defenders, Nepal
Network of Action for Migrants in Malaysia (NAMM)
National League For Democracy (Liberated Area )[ NLD(LA)], Malaysia
Pakistan Rural Workers Social Welfare Organization (PRWSWO)
Peduli Buruh Migran, Indonesia
Penang Watch, Malaysia
People’s Green Coalition
Pergerakan Indonesia
Perkumpulan PRAXIS, Indonesia
Persatuan Kesedaran Komuniti, Selangor (EMPOWER)
Persatuan Masyarakat Selangor & Wilayah Persekutuan (PERMAS)
Persatuan Sahabat Wanita Selangor
Pinatud a Saleng ti Umili (PSU)
Pusat KOMAS, Malaysia
Quê Me: Action for Democracy in Vietnam
Saya Anak Bangsa Malaysia (SABM)
Sedane Labour Resource Center/(Lembaga Informasi Perburuhan Sedane), Indonesia
Serikat Buruh Migran Indonesia (SBMI)
Shan Women Action Network (SWAN), Thailand
Silicon Valley Toxics Coalition
Solidaritas Perempuan (Women’s Solidarity for Human Rights), Indonesia
SOS(Save Ourselves), Malaysia
Suaram, Malaysia
Tenaganita, Malaysia
Thai Committee for Refugees Foundation (TCR)
The Filipino Women’s Organization in Quebec, Canada
The GoodElectronics Network
Think Centre (Singapore)
UNIMIG (Union Migrant Indonesia)
United Filipinos in Hong Kong (UNIFIL-MIGRANTE-HK)
United Pangasinan in Hong Kong (UPHK)
Urban Community Mission (UCM Jakarta), Indonesia
Vietnam Committee on Human Rights
WARBE Development Foundation, Bangladesh
Women Forum for Women, Nepal
Women Legal BUREAU, Philippines
WOREC, Nepal
Workers Assistance Center, Inc (WAC), Philippines
Workers Hub For Change (WH4C)
Yasanti
Yayasan LINTAS NUSA (Batam Indonesia)

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

2011-10-23T11:12:00.000-07:00

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)

2011-10-23T11:04:00.000-07:00

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

2011-10-06T14:12:00.000-07:00

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?

2011-10-05T22:06:00.000-07:00

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

2011-10-05T22:03:00.000-07:00

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

2011-10-05T21:55:00.000-07:00

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?

ITUC - Malaysia: Japanese Firm Must Drop Defamation Charges Against Human Rights Defender

2011-08-17T04:20:00.000-07:00

Malaysia: Japanese Firm Must Drop Defamation Charges Against Human Rights Defender

and Respect the Rights of Migrant Workers

16 August 2011: On February 14, 2011, the Malaysian subsidiary of Japanese electronics firm Asahi Kosei filed a $3.2 million defamation suit against human rights defender Charles Hector after he posted on his blog reports he received from Burmese migrant workers detailing violations of their labour and human rights at the company.

The International Trade Union Confederation (ITUC) calls on the company to drop the charges, which appear to have no purpose other than to silence critics by threat of financial ruin. Further, the lawsuit has the potential to chill the speech of other workers and worker advocates who would otherwise speak out against violations of fundamental rights committed by other domestic and multinational corporations in Malaysia. The ITUC also calls upon Asahi Kosei (M) Sdn Bhd to hire its workers directly, rather than through an outsourcing agency, and to respect Malaysian and international standards on both labour and migration.

Thirty-one Burmese migrants working at Asahi Kosei (M) Sdn Bhd alleged being paid wages lower than what was promised when they agreed to migrate to Malaysia; numerous illegal (and large) wage deductions; loss of cooking utensils, electricity and even accommodation for raising employment-related grievances; and being threatened with termination and deportation of workers when they lodged complaints about these violations. Hearing this, Mr. Hector intervened on the workers’ behalf, seeking additional information and a reply to the workers’ allegations from the company. Hearing no reply, Mr. Hector posted the allegations to his blog on 8 February to pressure the company to address workers’ complaints. The company filed suit against him six days later.

One argument that the company has put forward is that it is not responsible for the workers, as they are actually supplied to the company through a third-party. Although Asahi Kosei (M) Sdn Bhd does not pay the workers directly, the workers at the factory are under their direct control and supervision, and use the tools and equipment of the factory. There is little question that Asahi Kosei (M) Sdn Bhd is, under an objective assessment of the arrangement, the employer – regardless of the contract. Indeed, ILO Recommendation 198, which sets forth criteria for ascertaining the existence of an employment relationship, suggests that an employment relationship does exist in this case. Further, we understand that the outsourcing company through which Asahi Kosei (M) Sdn Bhd procured the migrant workers was not legally registered in Malaysia under the law regulating private employment agencies.

The court dates for Mr. Hector have been set for 23-26 August. The ITUC adds its voice to urge that the company immediately drop its defamation claim against Mr. Hector. The ITUC also calls upon the company to respect the rights of workers, regardless of their contractual status, and strongly encourages it to hire workers directly. Further, the ITUC calls upon the Malaysian authorities to investigate the labour violations alleged and to take action accordingly.

Source: International Trade Union Confederation Website

2011-08-15T20:24:00.000-07:00

Asahi Kosei libel suit against Malaysian labour activist Charles Hector - some responses

2011-08-07T21:54:00.000-07:00

Asahi Kosei libel suit against Malaysian labour activist Charles Hector - June 2011

In February 2011 the Malaysian subsidiary of Japanese machine parts manufacturer, Asahi Kosei, sued Malaysian labour activist Charles Hector for defamation for statements the activist had posted on his blog and Twitter page regarding the plight of Burmese workers at the company's factory. The trial has been set for 28-29 June. In the intervening period a number of NGOs criticised the company calling upon it to drop the lawsuit and address the concerns that Hector raises.

On 23 June Human Rights Watch issued a statement about the case, which was reported by the Associated Press. That article states that Asahi Kosei was invited to comment, but declined:

"Company chastised for suing Malaysia rights lawyer", Sean Yoong, AP, 23 Jun 2011

"...The Malaysian subsidiary of Japanese machine components maker Asahi Kosei has sued Charles Hector for defamation and is demanding...$3.3 million...in damages. Hector alleged on his blog in February that 31 Myanmarese factory workers for the company had experienced unlawful salary deductions and were threatened with deportation...Human Rights Watch complained about the large sum the company is seeking, saying it could 'intimidate labor and human rights defenders all over Malaysia.'...Asahi Kosei's representatives in Malaysia declined to comment, saying they want to wait for the High Court in Malaysia's central Selangor state to hear the case. The company contends it was not responsible for the workers because they were supplied by an employment agency and were not under the company's direct payroll at its factory on the outskirts of Kuala Lumpur. The company also said in its lawsuit that it was not aware of any attempted deportation of the workers..."

On 27 June, the eve of the opening of the trial, the NGO Article XIX made this plea to the Malaysian Court to consider Hector's rights to freedom of expression:

"Malaysian Blogger Defamation Case: Cause for Concern", Agnes Callamard, Article XIX, 27 Jun 2011

"Ahead of Malaysia human right defender and blogger - Charles Hector’s defamation trial on 28-29 June 2011, ARTICLE 19 calls on the Malaysian Court to consider the case in line with international freedom of expression standards. Given the fundamental importance of the right to freedom of expression, and its recognition in Article 10 of the Malaysian Constitution, ARTICLE 19 urges the Court to ensure that Malaysian defamation law is interpreted, to the extent possible, in a manner that respects Hector’s freedom of expression..."

The following is a selection of earlier NGO criticism of the company:

"International Campaign for Responsible Technology concerned by Asahi Kosei", Ted Smith, Coordinator, International Campaign for Responsible Electronics, 24 Mar 2011

"To: Asahi Kosei Japan Co. Ltd... I am writing to you regarding the flagrant human rights violations undertaken by Asahi Kosei against Malaysian labor activist Charles Hector...Before any posting [by Hector regarding the situation of the Burmese workers], an email was sent to the company for clarification/verification, which contained also these words, “If there is anything that you would like to correct, kindly revert to me immediately. An urgent response would be appreciated. Failing to hear from you, I would take it that the allegations of the workers are true.” The company did not respond, and subsequently commenced a legal suit six days later. The punitive lawsuit...accentuates the harsh reality of Burmese migrant workers in Malaysia...It is a matter of public interest to ensure the grievances of any persons whose human rights have been violated are heard. Without it, there is no access to justice...I would appreciate a reply acknowledging receipt of this letter...Sincerely, Ted Smith..."

"Malaysian Bar unanimously supports rights defender sued by Asahi Kosei", Aliran, 19 Apr 2011

“...the Malaysian Bar unanimously carried a motion in support of human rights defender Charles Hector....In the motion, the Malaysian Bar refers to... the Declaration on Human Rights Defenders...The Bar also references Malaysian law...The motion states that public interest places an obligation on any person that knows of any human rights violations to not just stand by but to take the necessary steps to see that such violations end, and to ensure that the victims do get justice. The Bar declares that ‘...it is best that the company does not continue to go after the ‘whistle blower’ but rather to commence the necessary investigations and...ensure that all rights of workers that work in the company are not violated, and justice is upheld’... [Includes full text of the motion]

"Stop legal action against Malaysian human rights lawyer and blogger",

FORUM-Asia

, 27 Apr 2011

"The Asian Forum for Human Rights and Development (FORUM-ASIA) received information regarding a law suit being filed against Mr. Charles Hector Fernandez, a Malaysian human rights lawyer, activist and blogger over defamation...FORUM-ASIA believes that Mr. Charles Hector merely highlighted on his blog complaints of the 31 Burmese migrant workers and the allegation that they were paid far less than what was promised. Mr. Hector acted on behalf of the workers who are not familiar with their rights in Malaysia and helped them in lodging a complaint with SUHAKAM, the Human Rights Commission of Malaysia...The defamation charges and the lawsuit filed against Charles Hector hinder him in his work as a human rights defender, advocating the rights of the 31 Burmese migrant workers. Rather than investigating and ensuring that workers’ rights are protected, Asahi Kosei (M) Sdn. Bhd. chose to sue the person who highlighted these violations..."

Source: Business & Human Rights Resource Centre

http://www.business-humanrights.org/Documents/asahikoseilibelsuit

NON OF COMPANY INVOLVED HAS DONE THE RIGHTS THINGS PLEASE TAKE ACTION BY SIGNING THE PETITION HERE :

https://www.change.org/petitions/ford-chrysler-and-sony-dont-buy-from-factories-that-fight-against-human-rights

AND HERE:

http://www.thepetitionsite.com/319/--if-gte-mso-9xml-wworddocument-wviewnormalwview-wzoom0wzoom-wtrackmoves-wtrackformatting/

The full trial is now fixed for August 24-26 2011

Migrant Workers(Documented) 2010 - 1,817,817 from Indonesia, Bangladesh, Nepal, Burma...

2011-08-07T21:49:00.000-07:00

Migrant Workers(Documented) 2010 - 1,817,817 from Indonesia, Bangladesh, Nepal, Burma...

Appreciation to Senator Ramakrishnan, who have send me recent statistics on migrant workers in Malaysia, that was obtained as a response to a Parliamentary question raised. The answer is in Bahasa Melayu - and the rough English Translations are mine.

Like Senator Rama, I do hope that other Members of Parliaments(MPs), Senators and State Assembly Persons will also share the information to the general public when they get it from the government through Parliamentary questions and other means. If it concerns human rights, workers and migrants, just send it to me at chef@tm.net.my and/or easytocall@yahoo.com, and I will certainly help make this information public by highlighting it in my blog, etc..

We still need to fight for all written questions and their answers to be made available to the public on the Parliamentary Website - now it is not, and this is an improvement we should have towards greater transparency and accountability. Too many answers given by the government to elected people's reps end up in files - and the information just do not reach the public. Use your blogs MPs, Senators, ADUN - sent it out to people who will get it out to the public... Pakatan Rakyat can also compile and publish all written questions and answers...

PEMBERITAHUAN PERTANYAAN DEWAN NEGARA SESI JULAI 2011

Notice of Question in the Malaysian Senate's session July 2011

PERTANYAAN : BERTULIS

Question : Written

DARIPADA : Y.B. SENATOR DR. S. RAMAKRISHNAN

From

Soalan/Question

Dr. S. Ramakrishnan minta MENTERI DALAM NEGERI menyatakan:

Dr S. Ramakrishnan asks the Home Minister to state:-

(a) statistik pekerja asing mengikut negara asal mereka dan sektor pekerjaan kerana terdapat pendatang asing ini yang menyalahgunakan pas pelajar dan pas lawatan sosial dengan melakukan pekerjaan yang tidak bermoral seperti pelacur dan pengemis; dan

statistics of migrant workers according to their country of origin and sector of work as there are foreign migrants that abuse their student passes and social visit passes by doing immoral work like prostitutes and beggars, and

(b) apakah tindakan kerajaan untuk membanteras perniagaan secara haram yang dilakukan oleh pendatang asing ini di negara kita.

what is the government action to curb illegal businesses done by foreign migrant in our country

Jawapan

Answer

Saya mengucapkan terima kasih kepada Yang Berhormat Senator di atas soalan yang dikemukakan.

I wish to thank the Senator for the question that has been submitted

Mengikut statistik daripada Jabatan Imegresen Malaysia, bermula dari 1 Januari 2010 sehingga 31 Disember 2010, terdapat seramai1,817,817 warganegara asing yang memegang Pas Lawatan Kerja Sementara (PLKS) yang aktif.

According to the statistics obtained by the Malaysian Immigration Department, begining 1 January 2010 until 31 December 2010, there are 1,817,817 foreign nationals that are holding Social Visit (Temporary Employment) Passes that are active.

Warganegara asing hanya dibenarkan bekerja dalam enam (6) sektor seperti berikut:

Foreign nationals are only permitted to work in six(6) sectors as follows:

i. Pembantu rumah [Domestic Worker]

ii. Pembinaan [Construction]

iii. Pembuatan [Manufacturing]

iv. Perkhidmatan [Services]

v. Perladangan [Plantations]

vi. Pertanian [Agriculture]

Lima buah negara sumber yang mempunyai pekerja asing paling ramai di Malaysia dari 1 Januari 2010 sehingga 31 Disember 2010 adalah seperti berikut:

Five(5) source countried that have the most number of migrant workers in Malaysia as from 1 January 2010 until 31 December 2010 are as follows:-

Negara Sektor	INDONESIA	BANGLADESH	NEPAL	MYANMAR	INDIA
Pembantu rumah	189,391	64	63	114	497
Pembinaan	151,333	50,303	3,050	12,221	3,488
Pembuatan	127,127	144,332	209,446	116,478	7,982
Perkhidmatan	28,587	22,002	26,502	19,368	38,648
Perladangan	214,594	20,480	2,032	3,462	16,954
Pertanian	81,777	82,294	10,323	8,861	27,543
Jumlah	792,809	319,475	251,416	160,504	95,112

English table

Country Sector	INDONESIA	BANGLADESH	NEPAL	MYANMAR	INDIA
Domestic Workers	89,391	64	63	114	497
Construction	151,333	50,303	3,050	12,221	3,488
Manufacturing	127,127	144,332	209,446	116,478	7,982
Services	28,587	22,002	26,502	19,368	38,648
Plantations	214,594	20,480	2,032	3,462	16,954
Agriculture	81,777	82,294	10,323	8,861	27,543
Total	792,809	319,475	251,416	160,504	95,112

Berhubung dengan tindakan untuk membanteras perniagaan secara haram oleh pendatang asing di negara kita, perkara ini adalah di bawah bidang kuasa Kementerian Perumahan dan Kerajaan Tempatan yang mengeluarkan lesen untuk sesuatu perniagaan.

With regard the actions to curb illegal businesses by foreign migrants in our country, this is under the jurisdiction of the Housing and Local Government Ministry that issues licences for a particular business.

Company chastised for suing Malaysia rights lawyer (AP)

2011-06-29T11:44:00.000-07:00

Associated Press

Company chastised for suing Malaysia rights lawyer

By SEAN YOONG , 06.23.11, 05:33 AM EDT

KUALA LUMPUR, Malaysia -- A company's multimillion-dollar lawsuit against a rights lawyer who complained about how it treated migrant workers in Malaysia could scare activists across the country into silence, an international rights group warned Thursday.

The Malaysian subsidiary of Japanese machine components maker Asahi Kosei has sued Charles Hector for defamation and is demanding 10 million ringgit ($3.3 million) in damages. Hector alleged on his blog in February that 31 Myanmarese factory workers for the company had experienced unlawful salary deductions and were threatened with deportation.

Hearings are scheduled to begin June 28.

Human Rights Watch complained about the large sum the company is seeking, saying it could "intimidate labor and human rights defenders all over Malaysia."

"A company's right to protect its reputation should not become a way to cut off important discussions of matters of public concern," the New York-based group said in a statement.

Asahi Kosei's representatives in Malaysia declined to comment, saying they want to wait for the High Court in Malaysia's central Selangor state to hear the case.

Activists have long voiced concerns about the living conditions of hundreds of thousands of migrant laborers who mainly have menial jobs in Malaysian factories, plantations, construction sites and restaurants. Most are from poorer countries in Asia such as Indonesia, the Philippines and Bangladesh.

"Migrant workers frequently receive low wages, suffer from dirty and dangerous working conditions, and are prohibited from changing employers," Human Rights Watch said.

Asahi Kosei did not appear to dispute Hector's claim of rights abuses involving the workers but asserted he was wrong about the company's relationship with the workers, Human Rights Watch said.

The company contends it was not responsible for the workers because they were supplied by an employment agency and were not under the company's direct payroll at its factory on the outskirts of Kuala Lumpur. The company also said in its lawsuit that it was not aware of any attempted deportation of the workers.

The Malaysian Bar Council, which comprises thousands of lawyers, expressed support earlier this year for Hector, saying Asahi Kosei's lawsuit was "a deplorable and coercive act." - Forbes.com, 23/6/2011, Company chastised for suing Malaysia rights lawyer

Outsourcing Agents and their Practices: An ‘Illegality’ and Injustice That Must End

2011-06-22T11:41:00.000-07:00

Outsourcing Agents and their Practices: An ‘Illegality’ and Injustice That Must End

-Employment Relationships Must Respects Worker Rights Guaranteed By Law -

A worker who works in a factory, under the supervision and control of the employer using the tools provided by the factory or workplace, just like every other worker in the factory, and is remunerated for the work he does at the factory, is alleged to be not employed by the owner of the factory or the workplace but by some third party.

In Malaysia, we have the outsourcing agent and/or outsourcing company (hereinafter referred to as ‘outsourcing agents’), and they supply workers to factories, plantation companies, construction companies and all sorts of different workplaces to people who own and control these workplaces (hereinafter referred to as ‘company’), and the workers supplied allegedly remain the workers of the outsourcing agents, and not become the workers of the company that they work at. This practice is odd, and differs from the practice employed by private employment agencies and/or ‘head hunters’.

For the work done, the factory pays this outsourcing agent party a sum of monies which is calculated based on the days/hours of work, overtime, work on rest day and/or public holidays and which shift the said individual worker worked. The outsourcing agent, after taking their share pays the worker their wages. As an example, for an 8 hour day the worker works, the company pays the outsourcing agent RM40, and he pays the worker the sum of RM20 only, whereby sometimes the outsourcing agent may be taking more than 50% of what the company pays for the work done by the worker. The more the worker works, the more the outsourcing agent gets.

In Malaysia, is that these practices that previously were used for migrant workers, is now also being used for local workers, including workers from Sarawak and Sabah. Many employers, rather that going for direct employment are starting to use workers supplied by these outsourcing agents, in order to avoid employment relationships with their workers, and thus also the duties and obligations imposed by law on employers, including ensuring that workers do enjoy minimum legally guaranteed rights as provided for in Employment Act 1955 and other laws in Malaysia. Outsourcing agents have been marketing this practice saying that in this way companies need focus only on their business, without having to worry about their workers.

In this article, we would be considering, amongst others, (a) whether the outsourcing agent is legal , (b) whether what is being practiced by these outsourcing agents, companies and workers is legal, and (c) proposals about how to bring about more just situation especially for all workers in Malaysia.

Dawn of the ‘outsourcing’ concept

On 5/7/2005, the Cabinet Committee on Migrant Workers decided to allow the employment of migrant workers using the outsourcing concept[i] . It was not just about the supply of migrant workers to company, but also the outsourcing of the management of certain matters related to the employment of migrant workers including accommodation, transportation, paying wages, medical examination and also the obligations to get the necessary insurance coverage for these workers. It was primarily intended for smaller companies who may lack the necessary resources to manage migrant workers full time, and also for bigger companies who may have a sudden need for extra workers by reason of peak seasonal harvest. There was no indication about any usurping of the role of employer from the companies these workers were supplied to, but it was more about outsourcing some of the obligations an employer of migrant workers had.

But alas, the practices of these outsourcing agents seems to have gone far beyond what was envisioned, and they started giving the false impression that companies that used these workers did in fact avoid employment relationships, and would not be compelled to adhere to any of the duties and obligations of employers as per law, including ensuring that all these workers enjoyed the full rights provided for workers in Malaysian law.

The intention of the government seem to have been not to make these outsourcing agents employers, but mere suppliers of workers, who may also possibly assist employers with some of their obligations to their migrant workers. The employer’s responsibility would still be with the company, and these outsourcing agents would be just agents of the employers taking care of, amongst others, accommodation, transportation, medical check-ups, getting the necessary insurances for workers and payment of wages. Our Deputy Prime Minister, after chairing the cabinet committee on foreign labour and illegal foreign workers, was reported in May 2010 as saying "We feel that employers are the people who should be responsible for their foreign workers. Outsourcing companies are only responsible for bringing them in. After that, employers must assume full responsibility."[ii]

The government of the day is also bound by existing law, and decisions that they do make that are contrary to existing law will still be null and void ab initio. Likewise, any actions that are done in reliance of such decisions are also null and void.

Legality of Outsourcing Agents

What outsourcing agents do is basically is find and supply workers to companies, who then work at the company, and that would make a outsourcing agent a ‘contractor for labour’. When we look at the Employment Act 1955, we find that there is no provision for ‘contractor for labour’, only ‘sub-contractors for labour’ which is defined as “… any person who contracts with a contractor or sub-contractor to supply the labour required for the execution of the whole or any part of any work which a contractor or sub-contractor has contracted to carry out for a principal or contractor, as the case may be”[iii] This does not assist in legalizing outsourcing agents as they supply workers to the company, the principal not a contractor or a sub-contractor.

The Malaysian government came to a realization that these outsourcing agents were illegal, and tried to introduce ‘contractors for labour’ into our employment laws, vide D.R.25/2010 Employment (Amendment) Bill 2010, that was tabled in Parliament in July 2010. But following protests from many quarters including the trade union movement [iv], the said Bill was withdrawn in October 2010[v]. In any event, even if that Bill had become law, it would not have had any retrospective effect and could not have legalized, what was now already admitted indirectly by the government as being illegal. Hence, outsourcing agents are still illegal today.

Another act of relevance would be the Private Employment Agencies Act 1981, and the definition section[vi] could have covered outsourcing agents. Migrant workers could also be covered as the definition of worker[vii] does not distinguish between local or foreign worker. What is good about this law is that the fees[viii] are fixed by law, and it is cannot be arbitrarily decided by Employment Agencies. Even if, these outsourcing agents came into being pursuant to this Act, then still what they are practicing in respect the monies that they are getting from workers and/or their employers would certainly be a breach of this law.

Legality of the Practices of Outsourcing Agents and Companies

With the advent of our Employment Act 1955, dawned a new era of a more just employment relationship and worker rights in Malaysia. Third parties and middle men involvement in employment relationships ended, and the only permitted relationship was a direct employer-worker employment relationship.

The Act also provided for a secure permanent employment relationship until retirement, which could be prematurely ended by very clear ways, being, the resignation of the worker, the closure of the company, the cessation or changes in the company’s operations that brought about redundancy and hence retrenchment and/or lay-offs, and by reason of a misconduct committed by the worker whereby termination would first require due process – a domestic inquiry. Even in cases of retrenchment not because of closure, there is an onus placed on the employer to find some other suitable alternative work in the company before ending the employment relationship. The law also provides for termination and lay-off benefits, whereby the quantum depends on the number of years of employment.

Employment Act 1955 also introduced minimum worker rights and employer obligations, and if an employment contract (contract of service) or an agreement provide for less favourable terms than what is provided by this law, then the more favourable terms in Employment Act prevails.[ix]

In the case of the practices employed by some outsourcing agents and companies, workers seem to be paid only for the day/hours that they work, but they do not get the other rights like paid one rest day per week, paid annual leave, paid public holidays, paid sick/hospitalization leave and maternity leave and benefits, and as such this is contrary to law.

These practices also often result in discrimination at the workplace, whereby workers supplied by these outsourcing agent are also treated differently and worse than other workers at the same company, and this, I believe, is also contrary to Article 8 of the Federal Constitution which guarantees equality to all persons.[x] This concern about non-discrimination at the workplace is something that Parliament felt important so much so to insert by amendment prohibition against discrimination on the basis of whether one is a local worker or migrant worker.[xi] Surely, this current discrimination against workers supplied by outsourcing agents, who are both local and migrant workers, is something that Malaysia will not be able to stomach.

As mentioned earlier, there can be no more middle-person in an employment relationship, and as such this also makes the practices of employment agents and companies also wrong in law.

Negative implication to workers and their unions

The practices employed by some outsourcing agents and companies is also detrimental to other workers and/or their unions, as this will certainly decrease the bargaining powers when it comes to disputes between employers and workers, and also when ironing out new collective agreements. For the company, outsourcing workers are taken as not being their workers, hence they would also most likely not be allowed to form and/or join unions, or participate in any negotiations and worker actions to get better terms and conditions for workers in the company.

Even when these workers supplied by outsourcing agents do complain and claim their rights, it so easy for the company to ‘terminate’ and get rid of them. No due process is needed, and all they need to do is get the outsourcing agent to take the worker away as the company no longer wants the said worker.

A strike and/or a protest also would also become less effective as more and more workers working at companies are getting supplied by outsourcing agents, and these workers are just too scared to stand up for rights for fear of losing their jobs at the company which can be done easily without any requirement of due process or domestic inquiries.

Attempts to evade employment relationship is not peculiar to Malaysia

The use of various arrangements and practices to evade or disguise employment relationship is something that is happening in many countries, and is a serious concern that has even led the International Labour Organisation (ILO) to respond by coming out with R198 Employment Relationship Recommendation, 2006.

ILO’s wants, amongst others, to “combat disguised employment relationships in the context of, for example, other relationships that may include the use of other forms of contractual arrangements that hide the true legal status, noting that a disguised employment relationship occurs when the employer treats an individual as other than an employee in a manner that hides his or her true legal status as an employee, and that situations can arise where contractual arrangements have the effect of depriving workers of the protection they are due… Where there has been an attempt to disguise the employment relationship, there is a particular danger that workers will be deprived of the protections due to them.[xii]

ILO also has labored to provide guidelines that could be used counter or unmask attempts to evade employment relationships so that worker rights can continue to be recognized and protected.

Unmasking The Disguises – Examples from other jurisdictions

In United Kingdom, in the Dacas case[xiii], which involved a worker, an employment agency [Brook Street] that supplied the worker, and the end user [Wandsworth Borough Council (the Council)], the Court of Appeal had this to say:-

The totality of the triangular arrangements may lead to the necessary inference of a contract between such parties, when they have not actually entered into an express contract, either written or oral, with one another. Although there was no express contract between the applicant [worker] and the end-user [the Council] in this case, that absence does not preclude the implication of a contract between them…. There may be an implied contract, which may be characterised as a contract of service or as a contract for services…. That control was exercised by the Council, which supplied her clothing and materials and for whom she did the work. The fact that Brook Street agreed to do some things that an employer would normally do (payment) does not make it the employer…

The Court of Appeal in the Cable & Wireless PLC case[xiv] confirming earlier case law in favour of implying a contract of employment as a matter of necessity (Dacas v. Brook Street Bureau (UK) Ltd. [2004] IRLR 359), the Court of Appeal enforced a mutuality test having two elements for deciding who is an employee in situations where there is a chain of relationships and triangular relationships. The two elements are, on the one hand, an obligation to provide work and, on the other hand, an obligation to perform it coupled with control; it does not matter whether the arrangements for paying are made directly or indirectly (as in the facts of this case, through an intermediary firm that paid invoices submitted to it). An implied contract did exist between the worker and the end user, because the Cable & Wireless company was obliged to provide Mr. Muscat with work and Mr. Muscat was obliged attend the premises and do the work subject to the control of the company’s management.[xv]

In Canada, perhaps the most frequently cited “test” of who is an “employee” in Canadian employment jurisprudence was first articulated by Lord Wright in a Privy Council decision in Montreal v. Montreal Locomotive Works Ltd. et al., [1937] 1 D.L.R. 161 at p. 169 (P.C.), where he stated: “In earlier cases, a single test, such as the presence or absence of control, was often relied on to determine whether the case was one of master and servant, mostly in order to decide issues of tortious liability on the part of the master or superior. In the more complex conditions of modern industry, more complicated tests have often to be applied. It has been suggested that a fourfold test would in some cases be more appropriate, a complex involving (1) control; (2) ownership of the tools; (3) chance of profit; (4) risk of loss. Control in itself is not always conclusive.... In many cases, the question can only be settled by examining the whole of the various elements which constitute the relationship between the parties.”[xvi]

The Japanese courts have judged that there exits an employment relationship when the actual work circumstance lends itself to an employment relationship regardless of the provisions of the contract (SAGA TV Case: Fukuoka High Court Judgment 7 July 1983, Hanrei Jiho No.1084, p.126; SEN-EI Case: Saga District Court Takeo Branch Judgment 28 March 1997, Rodo Hanrei No.719, p.38).[xvii]

Following these decisions, the courts in Malaysia, I believe, would most likely come to a similar conclusion that it is the company that is the employer, not the outsourcing agent.

When Immigration Department and official documents clouds the truth

In Malaysia, one other document that attempts to disguise employment relationship is the Multiple Entry Visa or Work Pass/Visa issued by the Immigration Department to the migrant worker which now states that the worker is employed as ‘Outsourced Worker’ in which sector with ‘[name of the outsourcing agent]’ at ‘[address of the outsourcing agent]’. It is also interesting that in the past, if migrant workers were found to be working at another company and address, they would most likely be arrested and action taken against them because they have violated the conditions of the work pass/visa.

Surely, this document issued by a Department under the Ministry of Home Affairs, not even the Human Resource Minister, can be relied on for the determination of who is the real employer of a particular worker.

‘Illegal’ Unjust Practices Must End

It is sad that this practice of outsourcing agents and companies, that have attempted to avoid employment relationships have been allowed to exist for so long without any legal challenge. This was most probably because earlier on most of these ‘outsourced workers’ had been migrant workers, and even if they tried to claim their rights, they would have most likely been terminated and sent back quickly to their home country. Sadly, there is still no clear provision in Malaysia’s Employment Act 1955, like the one found in the Industrial Relations Act 1967[xviii] , that prohibits employers from discriminating against and/or terminating workers that resort to claiming their rights, be it to the employer or by utilizing some other legal avenue of access to justice like the Labour Department. It is a good thing though that same Labour Departments, when they do receive complaints from even ‘outsourced workers’ do consider the company as employer, and the outsourcing agent as agent.

The lack of transparency in our government is also a problem, for even this decision to allow this ‘outsourcing’ concept by the Cabinet Committee in July 2005 comes to light in a report only in 2007. Malaysia should try emulating neighboring Thailand, where every Cabinet decisions are immediately published and made available to the public as Cabinet Resolutions.

Malaysian Trade Union Congress (MTUC)[xix], and other groups have been calling for an end to outsourcing agents and their practices for many years but to no avail. Workers and unions are losing out, as the Malaysian government becomes more pro-employer. The government do have meetings with employers and workers representatives, being the Malaysian Employers Federation (MEF) and MTUC[xx], but today whilst workers are still being represented by one organization, whilst employers are represented by many more organisations, and this certainly unjust to workers.

The outsourcing practices certainly benefits employers to the detriment of workers. Government’s statement about 10 months ago that employers should be fully responsible for their workers, not outsourcing agents have not been followed up with necessary actions and enforcement to end these continuing practices that attempt to avoid and/or disguise employment relationships.

The Way Forward

It is sad that there may be over 200 outsourcing agents in Malaysia, which as was pointed earlier are not only illegal in being, but also by reason of the practices they employ. Short of eliminating them completely, the only solution may be to bring them under the Private Employment Agencies Act, which would mean that their role is would be restricted to just supplying workers to companies, who would then enter into a transparent direct employment relationship with these workers.

Statements of intentions alone is insufficient. What we need is immediate action for the good of all workers in Malaysia, both local and migrant workers, to ensure that justice be done. As a caring nation that upholds the law, what is illegal and unjust must be reaped out and trashed.

Charles Hector

23 March 2011

[i] Contracts of Employment in Malaysia and the role of Trade Unions by Bruno Periera, citing as source the Report of the Round Table Conference on Migrant Workers in Malaysia 5/4/2007 ISMK-KSM. The reference of the Minutes of the Cabinet Committee on Migrant Workers was 33^rd (JKK-PA) Bil. 2/2005.

[ii] New Straits Times, 21/5/2010, Higher levies for foreign workers

[iii] Section 2(1) Employment Act 1955

[iv] Labour law amendments by Syed Shahir Syed Mohamud (ALIRAN Monthly) Syed Shahir Syed Mohamud is president of the Malaysian Trades Union Congress. (MTUC) delivered this speech at a public forum ‘Labour Law Amendments? – What does it mean to you?’, organized by the Bar Council in Kuala Lumpur on 21 August 2010..

[v] Star,13/10/2010, Employment Bill withdrawn

[vi] Section 3 Private Employment Agencies Act 1981 , private employment agency" means - (a) an employment agency conducted with a view to profit, that is to say, any person, company, institution, agency or other organisation which acts as intermediary for the purpose of procuring employment for a worker or supplying a worker for an employer with a view to deriving either directly or indirectly any pecuniary or other material advantage from either employer or worker; the expression does not include newspapers or other publications unless they are published wholly or mainly for the purpose of acting as intermediaries between employers and workers; (b) an employment agency not conducted with a view to profit, that is to say, the placing services of any company, institution, agency or other organisation which, though not conducted with a view to derive any pecuniary or other material advantage, levies from either employer or worker from the above service an entrance fee, a periodical contribution or any other charge;

[vii] Section 3 Private Employment Agencies Act 1981, "worker" means any person who works for hire or reward, whether as apprentice or not, and includes any person seeking such work.

[viii] Section 14(1) Employment Agencies Act 1981, “No private employment agency shall charge for any service rendered a fee other than or in excess of that prescribed in the Schedule and for every fee received a receipt shall be issued.” And currently, it is (iv)Placement Fees (i) Fee charged for local placement Not more than 20% of initial month's pay (ii) Fee charged for overseas placement Not more than 25% of initial month's pay; Provided where employers have already paid the agency for the services rendered, the worker shall not be charged on placement.

[ix] Section 7 and 7A Employment Act 1955

[x] Art 8(1) Federal Constitution - All persons are equal before the law and entitled to the equal protection of the law.

[xi] Section 60L Employment Act 1955

[xii] see also The Employment Relationship: An annotated guide to ILO Recommendation No. 198.

[xiii] Dacas v. Brook Street Bureau (UK) Ltd. [2004] IRLR 359 (Court of Appeal)

[xiv] Cable & Wireless PLC v. Muscat [2006] IRLR 355

[xv] Paragraph copied almost in toto from The Employment Relationship: An annotated guide to ILO Recommendation No. 198

[xvi] Paragraph copied almost in toto from The Employment Relationship: An annotated guide to ILO Recommendation No. 198

[xvii] The Employment Relationship: An annotated guide to ILO Recommendation No. 198

[xviii] Industrial Relations Act 1967, Section 5(1) “…No employer or trade union of employers, and no person action on behalf of an employer or such trade union shall -… (c) discriminate against any person in regard to employment, promotion, any condition of employment or working conditions on the ground that he is or is not a member or officer of a trade union; (d) dismiss or threaten to dismiss a workman, injure or threaten to injure him in his employment or alter or threaten to alter his position to his prejudice by reason that the workman - (i) is or proposes to become, or seeks to persuade any other person to become, a member or officer of a trade union; or (ii) participates in the promotion, formation or activities of a trade union;..”

[xix] Malaysian Insider, 15/7/2008, MTUC wants licences of companies outsourcing foreign workers withdrawn, "MTUC has repeatedly called on the government to ban the foreign workers outsourcing system which has subjected workers brought into the country to extreme hardship.”

[xx] MTUC represents less than 8% of the total workforce, and only a few of the 1.9 million migrant workers are members of unions.

[An article from Malaysian Bar's Praxis April-June 2011 Issue]

ILO Convention No. 189 - Convention Concerning Decent Work For Domestic Workers

2011-06-16T22:33:00.001-07:00

100th ILO annual Conference decides to bring an estimated 53 to 100 million domestic workers worldwide under the realm of labour standards

The government, worker and employer delegates at the 100th annual Conference of the International Labour Organization (ILO) on Thursday, 16 June adopted a historic set of international standards aimed at improving the working conditions of tens of millions of domestic workers worldwide.

Press release | June 16, 2011

GENEVA, (ILO News) – The government, worker and employer delegates at the 100^th annual Conference of the International Labour Organization (ILO) on Thursday, 16 June adopted a historic set of international standards aimed at improving the working conditions of tens of millions of domestic workers worldwide...

...Conference delegates adopted the Convention on Domestic Workers (2011) by a vote of 396 to 16, with 63 abstentions and the accompanying Recommendation by a vote of 434 to 8, with 42 abstentions. The ILO is the only tripartite organization of the UN, and each of its 183 Member States is represented by two government delegates, and one employer and one worker delegate, with an independent vote.

The two standards will be the 189th Convention and the supplementing 201^st Recommendation adopted by the Labour Organization since its creation in 1919...(full text of press release below)

CONVENTION CONCERNING DECENT WORK FOR DOMESTIC WORKERS

The General Conference of the International Labour Organization,

Having been convened at Geneva by the Governing Body of the International Labour Office, and having met in its 100th Session on 1 June 2011, and

Mindful of the commitment of the International Labour Organization to promote decent work for all through the achievement of the goals of the ILO Declaration on Fundamental Principles and Rights at Work and the ILO Declaration on Social Justice for a Fair Globalization, and

Recognizing the significant contribution of domestic workers to the global economy, which includes increasing paid job opportunities for women and men workers with family responsibilities, greater scope for caring for ageing populations, children and persons with a disability, and substantial income transfers within and between countries, and

Considering that domestic work continues to be undervalued and invisible and is mainly carried out by women and girls, many of whom are migrants or members of disadvantaged communities and who are particularly vulnerable to discrimination in respect of conditions of employment and of work, and to other abuses of human rights, and

Considering also that in developing countries with historically scarce opportunities for formal employment, domestic workers constitute a significant proportion of the national workforce and remain among the most marginalized, and

Recalling that international labour Conventions and Recommendations apply to all workers, including domestic workers, unless otherwise provided, and

Noting the particular relevance for domestic workers of the Migration for Employment Convention (Revised), 1949 (No. 97), the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), the Workers with Family Responsibilities Convention, 1981 (No. 156), the Private Employment Agencies Convention, 1997 (No. 181), and the Employment Relationship Recommendation, 2006 (No. 198), as well as of the ILO Multilateral Framework on Labour Migration: Non-binding principles and guidelines for a rights-based approach to labour migration (2006), and

Recognizing the special conditions under which domestic work is carried out that make it desirable to supplement the general standards with standards specific to domestic workers so as to enable them to enjoy their rights fully, and

Recalling other relevant international instruments such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the United Nations Convention against Transnational Organized Crime, and in particular its Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children and its Protocol against the Smuggling of Migrants by Land, Sea and Air, the Convention on the Rights of the Child and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and

Having decided upon the adoption of certain proposals concerning decent work for domestic workers, which is the fourth item on the agenda of the session, and

Having determined that these proposals shall take the form of an international Convention;

adopts this sixteenth day of June of the year two thousand and eleven the following Convention, which may be cited as the Domestic Workers Convention, 2011.

Article 1

For the purpose of this Convention:

(a) the term “domestic work” means work performed in or for a household or households;

(b) the term “domestic worker” means any person engaged in domestic work within an employment relationship;

(c) a person who performs domestic work only occasionally or sporadically and not on an occupational basis is not a domestic worker.

Article 2

1. The Convention applies to all domestic workers.

2. A Member which ratifies this Convention may, after consulting with the most representative organizations of employers and workers and, where they exist, with organizations representative of domestic workers and those representative of employers of domestic workers, exclude wholly or partly from its scope:

(a) categories of workers who are otherwise provided with at least equivalent protection;

(b) limited categories of workers in respect of which special problems of a substantial nature arise.

3. Each Member which avails itself of the possibility afforded in the preceding paragraph shall, in its first report on the application of the Convention under article 22 of the Constitution of the International Labour Organisation, indicate any particular category of workers thus excluded and the reasons for such exclusion and, in subsequent reports, specify any measures that may have been taken with a view to extending the application of the Convention to the workers concerned.

Article 3

1. Each Member shall take measures to ensure the effective promotion and protection of the human rights of all domestic workers, as set out in this Convention.

2. Each Member shall, in relation to domestic workers, take the measures set out in this Convention to respect, promote and realize the fundamental principles and rights at work, namely:

(a) freedom of association and the effective recognition of the right to collective bargaining;

(b) the elimination of all forms of forced or compulsory labour;

(d) the elimination of discrimination in respect of employment and occupation.

3. In taking measures to ensure that domestic workers and employers of domestic workers enjoy freedom of association and the effective recognition of the right to collective bargaining, Members shall protect the right of domestic workers and employers of domestic workers to establish and, subject to the rules of the organization concerned, to join organizations, federations and confederations of their own choosing.

Article 4

1. Each Member shall set a minimum age for domestic workers consistent with the provisions of the Minimum Age Convention, 1973 (No. 138), and the Worst Forms of Child Labour Convention, 1999 (No. 182), and not lower than that established by national laws and regulations for workers generally.

2. Each Member shall take measures to ensure that work performed by domestic workers who are under the age of 18 and above the minimum age of employment does not deprive them of compulsory education, or interfere with opportunities to participate in further education or vocational training.

Article 5

Each Member shall take measures to ensure that domestic workers enjoy effective protection against all forms of abuse, harassment and violence.

Article 6

Each Member shall take measures to ensure that domestic workers, like workers generally, enjoy fair terms of employment as well as decent working conditions and, if they reside in the household, decent living conditions that respect their privacy.

Article 7

Each Member shall take measures to ensure that domestic workers are informed of their terms and conditions of employment in an appropriate, verifiable and easily understandable manner and preferably, where possible, through written contracts in accordance with national laws, regulations or collective agreements, in particular:

(a) the name and address of the employer and of the worker;

(b) the address of the usual workplace or workplaces;

(d) the type of work to be performed;

(e) the remuneration, method of calculation and periodicity of payments;

(f) the normal hours of work;

(g) paid annual leave, and daily and weekly rest periods;

(h) the provision of food and accommodation, if applicable;

(i) the period of probation or trial period, if applicable;

(j) the terms of repatriation, if applicable; and

(k) terms and conditions relating to the termination of employment, including any period of notice by either the domestic worker or the employer.

Article 8

1. National laws and regulations shall require that migrant domestic workers who are recruited in one country for domestic work in another receive a written job offer, or contract of employment that is enforceable in the country in which the work is to be performed, addressing the terms and conditions of employment referred to in Article 7, prior to crossing national borders for the purpose of taking up the domestic work to which the offer or contract applies.

2. The preceding paragraph shall not apply to workers who enjoy freedom of movement for the purpose of employment under bilateral, regional or multilateral agreements, or within the framework of regional economic integration areas.

3. Members shall take measures to cooperate with each other to ensure the effective application of the provisions of this Convention to migrant domestic workers.

4. Each Member shall specify, by means of laws, regulations or other measures, the conditions under which migrant domestic workers are entitled to repatriation on the expiry or termination of the employment contract for which they were recruited.

Article 9

Each Member shall take measures to ensure that domestic workers:

(a) are free to reach agreement with their employer or potential employer on whether to reside in the household;

(b) who reside in the household are not obliged to remain in the household or with household members during periods of daily and weekly rest or annual leave; and

Article 10

1. Each Member shall take measures towards ensuring equal treatment between domestic workers and workers generally in relation to normal hours of work, overtime compensation, periods of daily and weekly rest and paid annual leave in accordance with national laws, regulations or collective agreements, taking into account the special characteristics of domestic work.

2. Weekly rest shall be at least 24 consecutive hours.

3. Periods during which domestic workers are not free to dispose of their time as they please and remain at the disposal of the household in order to respond to possible calls shall be regarded as hours of work to the extent determined by national laws, regulations or collective agreements, or any other means consistent with national practice.

Article 11

Each Member shall take measures to ensure that domestic workers enjoy minimum wage coverage, where such coverage exists, and that remuneration is established without discrimination based on sex.

Article 12

1. Domestic workers shall be paid directly in cash at regular intervals at least once a month. Unless provided for by national laws, regulations or collective agreements, payment may be made by bank transfer, bank cheque, postal cheque, money order or other lawful means of monetary payment, with the consent of the worker concerned.

2. National laws, regulations, collective agreements or arbitration awards may provide for the payment of a limited proportion of the remuneration of domestic workers in the form of payments in kind that are not less favourable than those generally applicable to other categories of workers, provided that measures are taken to ensure that such payments in kind are agreed to by the worker, are for the personal use and benefit of the worker, and that the monetary value attributed to them is fair and reasonable.

Article 13

1. Every domestic worker has the right to a safe and healthy working environment. Each Member shall take, in accordance with national laws, regulations and practice, effective measures, with due regard for the specific characteristics of domestic work, to ensure the occupational safety and health of domestic workers.

2. The measures referred to in the preceding paragraph may be applied progressively, in consultation with the most representative organizations of employers and workers and, where they exist, with organizations representative of domestic workers and those representative of employers of domestic workers.

Article 14

1. Each Member shall take appropriate measures, in accordance with national laws and regulations and with due regard for the specific characteristics of domestic work, to ensure that domestic workers enjoy conditions that are not less favourable than those applicable to workers generally in respect of social security protection, including with respect to maternity.

Article 15

1. To effectively protect domestic workers, including migrant domestic workers, recruited or placed by private employment agencies, against abusive practices, each Member shall:

(a) determine the conditions governing the operation of private employment agencies recruiting or placing domestic workers, in accordance with national laws, regulations and practice;

(b) ensure that adequate machinery and procedures exist for the investigation of complaints, alleged abuses and fraudulent practices concerning the activities of private employment agencies in relation to domestic workers;

(c) adopt all necessary and appropriate measures, within its jurisdiction and, where appropriate, in collaboration with other Members, to provide adequate protection for and prevent abuses of domestic workers recruited or placed in its territory by private employment agencies. These shall include laws or regulations that specify the respective obligations of the private employment agency and the household towards the domestic worker and provide for penalties, including prohibition of those private employment agencies that engage in fraudulent practices and abuses;

(d) consider, where domestic workers are recruited in one country for work in another, concluding bilateral, regional or multilateral agreements to prevent abuses and fraudulent practices in recruitment, placement and employment; and

(e) take measures to ensure that fees charged by private employment agencies are not deducted from the remuneration of domestic workers.

2. In giving effect to each of the provisions of this Article, each Member shall consult with the most representative organizations of employers and workers and, where they exist, with organizations representative of domestic workers and those representative of employers of domestic workers.

Article 16

Each Member shall take measures to ensure, in accordance with national laws, regulations and practice, that all domestic workers, either by themselves or through a representative, have effective access to courts, tribunals or other dispute resolution mechanisms under conditions that are not less favourable than those available to workers generally.

Article 17

1. Each Member shall establish effective and accessible complaint mechanisms and means of ensuring compliance with national laws and regulations for the protection of domestic workers.

2. Each Member shall develop and implement measures for labour inspection, enforcement and penalties with due regard for the special characteristics of domestic work, in accordance with national laws and regulations.

3. In so far as compatible with national laws and regulations, such measures shall specify the conditions under which access to household premises may be granted, having due respect for privacy.

Article 18

Each Member shall implement the provisions of this Convention, in consultation with the most representative employers’ and workers’ organizations, through laws and regulations, as well as through collective agreements or additional measures consistent with national practice, by extending or adapting existing measures to cover domestic workers or by developing specific measures for them, as appropriate.

Article 19

This Convention does not affect more favourable provisions applicable to domestic workers under other international labour Conventions.

Article 20

The formal ratifications of this Convention shall be communicated to the Director-General of the International Labour Office for registration.

Article 21

1. This Convention shall be binding only upon those Members of the International Labour Organization whose ratifications have been registered with the Director-General of the International Labour Office.

2. It shall come into force twelve months after the date on which the ratifications of two Members have been registered with the Director-General.

3. Thereafter, this Convention shall come into force for any Member twelve months after the date on which its ratification is registered.

Article 22

1. A Member which has ratified this Convention may denounce it after the expiration of ten years from the date on which the Convention first comes into force, by an act communicated to the Director-General of the International Labour Office for registration. Such denunciation shall not take effect until one year after the date on which it is registered.

2. Each Member which has ratified this Convention and which does not, within the year following the expiration of the period of ten years mentioned in the preceding paragraph, exercise the right of denunciation provided for in this Article, will be bound for another period of ten years and, thereafter, may denounce this Convention within the first year of each new period of ten years under the terms provided for in this Article.

Article 23

1. The Director-General of the International Labour Office shall notify all Members of the International Labour Organization of the registration of all ratifications and denunciations that have been communicated by the Members of the Organization.

2. When notifying the Members of the Organization of the registration of the second ratification that has been communicated, the Director-General shall draw the attention of the Members of the Organization to the date upon which the Convention will come into force.

Article 24

The Director-General of the International Labour Office shall communicate to the Secretary-General of the United Nations for registration in accordance with Article 102 of the Charter of the United Nations full particulars of all ratifications and denunciations that have been registered.

Article 25

At such times as it may consider necessary, the Governing Body of the International Labour Office shall present to the General Conference a report on the working of this Convention and shall examine the desirability of placing on the agenda of the Conference the question of its revision in whole or in part.

Article 26

1. Should the Conference adopt a new Convention revising this Convention, then, unless the new Convention otherwise provides:

(a) the ratification by a Member of the new revising Convention shall ipso jure involve the immediate denunciation of this Convention,notwithstanding the provisions of Article 22, if and when the new revising Convention shall have come into force;

(b) as from the date when the new revising Convention comes into force, this Convention shall cease to be open to ratification by the Members.

2. This Convention shall in any case remain in force in its actual form and content for those Members which have ratified it but have not ratified the revising Convention.

Article 27

The English and French versions of the text of this Convention are equally authoritative.

Source: ILO Website

*****

Press release | June 16, 2011

“We are moving the standards system of the ILO into the informal economy for the first time, and this is a breakthrough of great significance,” said Juan Somavia, ILO Director-General. “History is being made.”

Conference delegates adopted the Convention on Domestic Workers (2011) by a vote of 396 to 16, with 63 abstentions and the accompanying Recommendation by a vote of 434 to 8, with 42 abstentions. The ILO is the only tripartite organization of the UN, and each of its 183 Member States is represented by two government delegates, and one employer and one worker delegate, with an independent vote.

The two standards will be the 189th Convention and the supplementing 201^st Recommendation adopted by the Labour Organization since its creation in 1919. The Convention is an international treaty that is binding on Member States that ratify it, while the Recommendation provides more detailed guidance on how to apply the Convention.

The new ILO standards set out that domestic workers around the world who care for families and households, must have the same basic labour rights as those available to other workers: reasonable hours of work, weekly rest of at least 24 consecutive hours, a limit on in-kind payment, clear information on terms and conditions of employment, as well as respect for fundamental principles and rights at work including freedom of association and the right to collective bargaining.

Recent ILO estimates based on national surveys and/or censuses of 117 countries, place the number of domestic workers at around 53 million. However, experts say that due to the fact that this kind of work is often hidden and unregistered, the total number of domestic workers could be as high as 100 million. In developing countries, they make up at least 4 to 12 per cent of wage employment. Around 83 per cent of these workers are women or girls and many are migrant workers.

The Convention defines domestic work as work performed in or for a household or households. While the new instruments cover all domestic workers, they provide for special measures to protect those workers who, because of their young age or nationality or live-in status, may be exposed to additional risks relative to their peers, among others.

According to ILO proceedings, the new Convention will come into force after two countries have ratified it.

“Bringing the domestic workers into the fold of our values is a strong move, for them and for all workers who aspire to decent work, but it also has strong implications for migration and of course for gender equality,” Mr. Somavia said.

In its introductory text, the new Convention says that “domestic work continues to be undervalued and invisible and is mainly carried out by women and girls, many of whom are migrants or members of disadvantaged communities and who are particularly vulnerable to discrimination in respect of conditions of employment and work, and to other abuses of human rights.”

Michelle Bachelet, Executive Director of UN Women, in her address to the Conference Committee, said that the deficit of decent work among domestic workers “can no longer be tolerated,” adding that UN Women would support the process of ratification and application of the new ILO instruments.

“We need effective and binding standards to provide decent work to our domestic workers, a clear framework to guide governments, employers and workers,” said Halimah Yacob, the Workers Vice-Chair from Singapore. She noted that the collective responsibility was to provide domestic workers with what they lacked most: recognition as workers; and respect and dignity as human beings.

Paul MacKay from New Zealand, the Employers Vice-Chair declared: “We all agree on the importance of bringing domestic work into the mainstream and responding to serious human rights concerns. All employers agree there are opportunities to do better by domestic workers and the households and families for whom they work”.

“Social dialogue has found its reflection in the results achieved here,” concluded the Chair of the Committee, Mr. H.L. Cacdac, Government delegate from the Philippines, when he closed the discussion.

“This is a truly major achievement,” said Manuela Tomei, Director of the ILO’s Conditions of Work and Employment Programme, calling the new standards “robust, yet flexible.” Ms. Tomei added that the new standards make clear that “domestic workers are neither servants nor ‘members of the family’, but workers. And after today they can no longer be considered second-class workers.”

The adoption of the new standards is the result of a decision taken in March 2008 by the ILO Governing Body to place the elaboration of an instrument on the agenda of the Conference. In 2010, the Conference held its first discussion and decided to proceed with the drafting of a Convention supplemented by a Recommendation adopted today. -ILO Press Release, 16/6/2011, 100th ILO annual Conference decides to bring an estimated 53 to 100 million domestic workers worldwide under the realm of labour standards

Western Digital workers speak out....

2011-05-31T19:43:00.000-07:00

'Model employer' in breach of work rules?

Aidila Razak
May 31, 11
11:42am

EXCLUSIVE Tired of living in fear of extortion and detention because they have no work permits in Malaysia, Indonesian migrant workers hired by electronics giant Western Digital are now speaking out.

A group that claims to represent those affected had hung up a banner near the factory last Saturday, showing their friends in handcuffs, and demanding action.

But Western Digital was having none of this and had the banner taken down within hours. Asked why, the men dressed in company-issued jackets refused to comment.

A winner of the 'Best Employer in Asia 2009' award, Western Digital is today accused of not providing work permits to at least 1,000 workers who have been employed for about two years in Malaysia.

Indonesian publication Tempo Interaktif reported in March that company officials had met with Indonesian embassy representatives in Kuala Lumpur to explain the situation involving some 6,000 workers in all.

It quoted embassy officials as saying that the company had claimed to be dealing with the problem in batches, and that it had only realised the problem when informed by the diplomatic mission.

But employee Ully Suryana (all names have been changed to protect identities) begged to differ. She said the workers were recruited through an agency in Indonesia that had a direct agreement with Western Digital in relation to work permits.

“Under the agreement, Western Digital said it will hang on to our passports but give us work permits so that we can move freely,” she said when met.

This could not be further from the truth.

Ully, a fresh-faced youth in her early 20s, claimed that the Immigration Department had raided one hostel some time ago and detained everyone in it because they did not have work permits.

Only last week, five workers were detained, still in pyjamas, for the same reason. They spent three nights in a lock-up cell before being released without being given a reason.

'RM200 bribe to authorities'

Widia, also in her 20s, believes that the company had something to do with the release.

“The human resources officer told us that the company cannot do anything if we are caught by the police, but can help if we run into trouble with immigration,” said Widia, who approached Malaysiakini to air her grouses.

Angrily, she said that this 'solution' means little to her as she had to pay RM200 to the authorities, to elude spending the night behind bars.

She said RM200 is more than the 'usual' RM50 demanded by the authorities, which could include police and immigration officers and Rela personnel. The workers make RM450 a month in basic salary.

“We complain to human resources (department) but they (just) get angry with us.

"They say, 'Why did you leave Selangor?' or 'Who told you to be rude to police?'… as if it's our fault, when they are the ones in the wrong,” said the diminutive Ully.

She claimed that Western Digital has advised them to wear their work-place identity tag at all times, but the authorities have rejected these as proof of having entered the country legally.

“So we are now like captives. We can only move from our hostels and the factory, and have to wear our tags even to take the trash out,” she said.

But the women who were recently detained were arrested at a farmer's market just five to 10 minutes' walk from their hostels, proving that even the limited distance they are 'allowed' to roam is unsafe.

“I came because I wanted work experience and to save some money, but I don't care about the money now. I've even offered to buy back the remainder of my three-year contract so I can go home, but they've refused,” added Ully.

When contacted, Western Digital reserved comment pending the likely issuance of a statement.

Parasites of workers’ sweat and toil (ALIRAN Monthly)

2011-05-29T23:28:00.000-07:00

Parasites of workers’ sweat and toil

By admin, on 18 May 2011

[Translate]

More employers are now turning to labour outsourcing agents for workers, prompting Charles Hector to call for a restoration of a proper employer-employee relationship.

sulekha.com

Workers’ rights in Malaysia are slowly being eroded by a government that places more importance on the well being of companies and corporations, rather than workers, be it local or foreign. One such phenomenon is the rise in the practice of workers being supplied to employers by outsourcing agents and companies, whereby the supplied workers do not enter into an employment relationship with employers that own and control the workplace.

One wonders whether the usage of the term ‘outsourced’ was intentional as it is so easily taken to be all right as the practice of outsourcing work is now a common occurrence accepted generally. In Malaysia, for instance, most of the banks have already outsourced internet banking, phone banking and even cheque processing and clearance to other companies.

The material difference between outsourced work and outsourcing agents/companies is that the latter are dealing with human workers – not specific types of work. On the request of companies and owners that have factories, plantations, agricultural undertakings and other workplaces, outsourcing agents supply human workers, who then work at these workplaces without allegedly entering into any working relationship with the employers that own the place where they work. For the work done by these outsourced workers, the workplace owners would pay these outsourcing agents who in turn will pay the outsourced workers after of course keeping a portion for themselves. The more hours the workers toil, the more these outsourcing companies earn.

Private employment agencies and ‘outsourcing’ of labour companies

Private employment agencies and/or ‘head hunters’, who also do get workers and supply them to companies and owners of workplaces, are very different in that once the workers are accepted at the workplace, an employment relationship is entered into with the employers. The employment agencies get paid by the workers and/or the employers a certain fee, known as a placement fee. Private employment agencies are governed by the Private Employment Agencies Act 1981, and the fee that can be charged is also fixed. For a local placement, the fee is 20 per cent of the initial month’s pay, and for an overseas placement it is 25 per cent.

In contrast, ‘outsourcing’ agents and companies parasite on the fruits of the sweat and toil of these workers indefinitely. These workers at the workplace, doing usually the same work as all other workers in the factory, would also be naturally discriminated not only with regard to wages and other employment benefits guaranteed by Malaysian law, but also be deprived of the right to be members of unions that exist at these workplace. The negotiating power of the other workers and the local unions will thus be weakened when it comes to collective agreements.

Malaysian workers are also now victims of ‘outsourcing’ agents

For a long time, many Malaysians, apart from unions such as the MTUC, have not paid much attention to this development, which seeks to avoid employment relationship. It is an affront to justice, as it involves only foreign migrant workers. Today, many local workers, including those from Sabah and Sarawak, are also falling into this sub-class of workers,

Some companies have stopped direct employment preferring to get even local workers through outsourcing agents and companies in an attempt to avoid employment relationships.

Employment Act 1955 – historical victory for workers in Malaysia

In 1955, the then British administration saw fit to do away with all these kinds of bad employment practices and other forms of precarious employment, including indentured labour, bonded labour, the kanggani system, forced labour, ‘slavery’, the middle man (or ‘contractor for labour’) and this was a good thing for workers. The Employment Act 1955 also clearly established four very important principles in employment relationships in Malaysia:

Job security, including security of tenure until retirement age;
Legally guaranteed minimum worker rights, which included working hours, fully paid rest days, annual leave, public holidays, sick and hospitalisation leave, maternity leave, overtime rates, termination and lay-off benefits, and wages.
Due process to deal with worker misconduct and/or termination. Termination can only be by reason of just cause or excuse, and there has to be a domestic inquiry, where the worker has a right to be heard.
Access to justice, including the right to lodge complaints with the Labour Department (Labour Courts), and the Industrial Relations Department (Industrial Courts).

Return of bad employment practices to the detriment of workers

Over the past few years, slowly a new employment practice crept in: outsourcing agents and companies, who supply workers to different employers – individuals, businesses or companies – to work at the workplaces of these employers. Unlike the private employment agencies, these outsourcing agents and companies do not stop at just supplying the workers, collecting their placement fees and leaving, but continue to take significant portions of wages paid to these workers by the employers.

As an example, an employer may pay a remuneration of RM36 for the work done by a particular worker for nine hours. The outsourcing agents take RM16 and gives the workers only about RM20. The same happens with regard to overtime and Sunday or public holiday work payments. Just taking this RM16 per worker per normal day’s work, an outsourcing agent and company can make almost RM500,000 per month for 100 workers supplied. Some of these outsourcing agents and companies bring in thousands of workers and earn millions of ringgit living off the sweat and toil of workers. The employer, who does not consider these workers their own workers, would happily end up discriminating against these workers in terms of wages, work benefits and other worker rights.

Termination is also easily done, without the need for any due process. All that employers need to do is tell the outsourcing agent and company that they do not want worker A, and worker A will be taken away and another may be sent in their place. Generally, these workers only get paid for the days or hours that they work. They will not get the legally guaranteed workers’ rights, including paid rest days, paid annual leave, 10 paid public holidays per year, paid maternity leave and other benefits, and paid sick and hospitalisation leave.

Outsourcing agents’ practices are illegal

What is most disturbing is the fact that what is practised by these outsourcing agents and companies and their employers may be illegal under present laws in Malaysia, especially the laws with regard to employment.

These outsourcing agents and companies are really, what one would call ‘contractors for labour”. Our current Employment Act does not allow such ‘contractors for labour’. The current law, however, does allow for ‘sub-contractors for labour’, which is defined as “any person who contracts with a contractor or sub-contractor to supply the labour required for the execution of the whole or any part of any work which a contractor or sub-contractor has contracted to carry out for a principal or contractor, as the case may be.

The definition clearly does not include ‘contractor for labour’, and cannot legalise outsourcing agents (and/or the practices employed by them) and some employers today.

Government’s attempts to legalise outsourcing of labour companies thwarted

The Malaysian government finally came to a realisation and tried to legalise the ‘middle man’ in an employment relationship through D.R.25/2010 Employment (Amendment) Bill 2010, which was tabled in parliament in July 2010. The proposed amendments included a definition for ‘contractor for labour’ to mean a person who contracts with a principal, contractor or sub-contractor to supply the labour required for the execution of the whole or any part of any work which a contractor or sub-contractor has contracted to carry out for a principal or contractor, as the case may be.

But this time the Malaysian trade union movement and members of the public strongly protested the move and finally the government withdrew the bill in October 2010 (The Star,13 October 2010, ‘Employment Bill withdrawn’). This meant that what was acknowledged as being illegal is still illegal today.

In my opinion, the only Act that may assist matters is the Private Employment Agencies Act 1981. This means that once workers are supplied to employers, an employment relationship is created, and the employer is now responsible for all these workers, and will have to ensure that all rights and benefits recognised in law are provided to all these workers. One may want to consider this given the fact that we may now have over 200 ‘illegal’ outsourcing of labour companies in Malaysia.

Guarantee of equality in Malaysia extends also to workers

Article 8 of the Federal Constitution, which applies to all persons not just citizens, guarantees equality. This means that workers who do the same work are certainly entitled to the same wages and other work benefits as all other workers at the workplace. Note also that the Employment Act 1955 provides specifically that there should not be any discrimination based on whether one is a citizen or a foreign worker.

The past and better practice of employing foreign workers

Previously, when employers faced a shortage of workers, they needed to first seek the approval of the relevant body governing the particular sector. In the construction sector it was the Construction Industry Development Board(CIDB). The employer would have to satisfy the board that efforts have been made to get local workers and indicate the number of foreign workers that it would require to employ. Upon getting approval, the employer would start identifying and getting these foreign workers. For this purpose, they may use the services of agents in the country of origin and sometimes also agents in Malaysia. Some companies, would even go to the country of origin to conduct interviews and tests to ensure that the workers that they bring in have the necessary skills and aptitude for the work.

The contracts of employment will then usually be signed with the workers in the country of origin and then the process begins to obtain the required work pass/visa from the Malaysian immigration authorities, and then the workers are brought into Malaysia. Malaysia also imposes a levy that employers need to pay for every worker brought in, and the workers are also required to have a clean bill of health before they are allowed into country. In some countries, such as India, the government of India also gets involved through the Protector of Emigrants (POE), and a standard employment agreement is signed by the workers before an agent of the POE, while the employer signs the agreement in front of the staff of the Indian High Commission in Malaysia.

In short, under this system there was no ‘third party’ and when the workers arrived, they came as workers of the employer, and were entitled to all the protections accorded under Malaysian law for workers.

The legality of ‘fixed term contracts’ of employment is also questionable

With the advent of migrant workers into Malaysia, what also happened was the creation of a new employment relationship. This took the form of fixed-term contracts usually for a period of at least three years only – something that was really not permissible under the existing Employment Act 1955, which generally provided for employment until retirement. Earlier termination of the employment contract was only possible by resignation of the worker, lay-off/retrenchment and termination due to closure of the employer’s business or change in the manner of operations that made some workers redundant or due to termination after due inquiry into serious misconduct committed by the worker.

The employment laws have not yet been amended to provide for ‘fixed term contracts’, including clear remedies for earlier terminations of these fixed-term contracts. Even now, the lay-off and termination benefits provided for in our Employment Act looks at length of service as a factor in the calculation of benefits, a clear indication of the intention of the Act that the employment relationship should be until retirement. As such, for effective remedies, workers under fixed-term contract may have to look at laws outside existing employment laws, like the Contract Act for effective remedies, and their access to justice may have to be the civil courts.

Domestic workers and the emergence of recruitment agents

When the demand and need for domestic workers arose, it became impractical for employers to personally do all that was required for the employment of one or two domestic workers and they had to rely on licensed recruitment agents here in Malaysia. The same was the case when there was an increase in the number of smaller employers requiring just a few workers, usually in small shops and restaurants.

July 2005 – Government allows employment through ‘outsourcing’ concept

Then, suddenly in July 2005, the government decided to allow for the employment of workers through the outsourcing concept. But it must be pointed out that the government intended for these outsourcing companies to merely supply workers to employers, and not to become the employers of these workers.

Government never wanted the ‘outsourcing companies’ to be the employers

Deputy Prime Minister Muhyiddin Yassin clearly stated that “employers are the people who should be responsible for their foreign workers. Outsourcing companies are only responsible for bringing them in. After that, employers must assume full responsibility” (New Straits Times, 21 May 2010, ‘Higher levies for foreign workers’).

Clearly, what has been practised by outsourcing agents and companies, and employers is not only illegal, but also something that clearly goes against the intention of the Malaysian government. No employer can today escape an employment relationship with its workers by simply stating that these are not my workers but are those that are supplied by some ‘outsourcing’ agent or company. As employers, they are not only obligated to ensure that all workers’ rights are recognised and respected, but they also have to fulfil all obligations that the law places on the employers.

With regard to migrant workers, employers have the additional obligations of not only providing accommodation but also providing social security protection. Such protection will not just cover the workplace but the workers’ entire stay in the country. The Workmen’s Compensation (Foreign Workers’ Compensation Scheme) (Insurance) Order 1998 provided for additional benefits for not only death and personal injury sustained in an accident which arises out of and in the course of employment but also accidents that occur outside working hours. This is also clear indication that when it comes to migrant workers, the employer’s obligation to these workers’ welfare extends well beyond the workplace and working hours.

Poor enforcement and inadequate laws allowed injustice to continue

Poor enforcement and inadequacies in the present government’s administration are much to blame for this. All matters concerning workers and employment matters should rightly come under the Ministry of Human Resources. Today, when migrant workers claim their rights, employers can very easily just terminate them and immediately send them back to their home country. All that they need to do is go and tell the Immigration Department that they want to cancel the workers’ pass/visa, and the Immigration will do that without even talking to the migrant worker to find out whether they really want to leave before the end of their fixed-term contract or determining whether there are any outstanding labour issues, such as non-payment of wages and other claims/matters outstanding. They do not even check to determine whether there are any complaints lodged with the Labour Department, the police and/or the Human Rights Commission.

Sometimes, employers may just rush workers off to the airport and put them on board a plane back to their home country. The employers and/or their agents then go to the Immigration Department and say that the workers had gone back, and the Immigration Department happily cancels the visa/pass. A better practice would be that if workers are to be sent back especially before the expiry of their contract period, they should be personally interviewed by the Labour Department, using an interpreter. Such an interview should not be in the presence of their employer or agent and should establish that there are no outstanding unsettled claims and/or pending action, and if the Labour Officer is satisfied, he or she should issue and sign a certificate to that effect. .

Sadly, the Employment Act 1955 has no provision that makes it an offence for employers to discriminate against and/or terminate workers who have lodged complaints with the Labour Department, Industrial Relations Department, the police and/or the Malaysian Human Rights Commission. It is useless to have mechanisms for access to justice without the right laws to prevent employers from lodging complaints against workers for complaining.

Maybe the new Whistle Blowers Protection Act 2010 can be relied on, but it is best that the Employment laws are also amended to clearly prevent employers from acting against the interest of justice and making a mockery of existing laws.

Attempting to avoid the employment relationship a global phenomenon

The practice of trying to avoid the employment relationships and the duties and obligations that come with it are not just a phenomenon in Malaysia, but is happening worldwide. The international community frowns against such bad practices which affects worker rights, and even the International Labour Organisation (ILO) came up with a Resolution Concerning the Employment Relationship, and thereafter The Employment Relationship Recommendation No. 198. In 2007, ILO came out with a 75 page document entitled, “The Employment Relationship: An annotated guide to ILO Recommendation No. 198”

For a long time, it was only foreign migrant workers that were affected by the unjust practices of outsourcing agents and companies, and employers but today it also involves local Malaysian workers, many of whom are from Sabah and Sarawak. To be fair, some employers prefer to directly employ their migrant workers, which is still possible in Malaysia, but is becoming more difficult as some immigration officers are pushing them to go to the outsourcing agents/companies to get their workers.

Too many workers have been denied justice in Malaysia

This matter has never been brought to court because most affected workers then were mainly migrant workers, who were terminated and sent back would not be able to commence or even maintain action. Even if they had made complaints or commenced action, the complainants and/or the plaintiffs under the law are required to be in court for cases to proceed.

So many workers in Malaysia have been denied justice while violators of human rights and workers’ rights continue to prosper.

The government of the day and Malaysians should strive even harder to ensure justice for all in Malaysia, irrespective of whether they are citizens or foreigners, poor or rich. One thing that must be done immediately is to end the unjust practices of outsourcing agents and some bad employers.

Charles Hector, an Aliran member, is a human rights lawyer based in Pahang.