Friday, March 9, 2012

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

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

Media Statement – 8/3/2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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