Why 'Sexual Harassment' proposed amendments to Employment Act must be withdrawn?

Why 'Sexual Harassment' proposed amendments to Employment Act must be withdrawn?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

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

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

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

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

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...

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.