Friday, December 13, 2013

43 groups call on Malaysian Airlines to revoke suspension of Union President

* 2 weeks after he received the letter of suspension, Ismail was terminated apparently with not even a domestic inquiry

Joint Statement – 3/12/2013- now 43

MAS Must Immediately Revoke Suspension of Union President Ismail Nasaruddin
Worker Right Issue Should Be Resolved By Negotiations Not ‘Union Busting’

We, the 43 undersigned civil society groups, trade unions and organizations are disturbed by the news that Malaysian Airlines, a government linked company, has suspended the president of the National Union of Flight Attendants Malaysia (NUFAM), Ismail Nasaruddin in connection with a statements made to the media by the Union, which amongst others suggested that MAS’s Chief Executive Officer (CEO),  Ahmad Jauhari Yahya who was appointed in 2011, should resign. Ismail was allegedly suspended without allowances with immediate effect starting Nov 8 following a news report quoting him that was published on the same day.

According to a news report, ‘…NUFAM Secretariat said it is calling on the prime minister to review Jauhari's contract and remove him as the CEO of MAS, which is a government appointed position, unhappy that there has been no changes in resolving the cabin crew's problems…’ (The Sun Daily, 8/11/2013, NUFAM calls for resignation of MAS' CEO).

Amongst the alleged grievances being raised by NUFAM, which represents 3,500 cabin crew at Malaysia Airlines (MAS), as was contained in the said Sun Daily report are:-

· New policy imposed by MAS on a weight control ruling where cabin crew are told to reduce their weight to achieve a certain body mass index within three to six months. Failure to do so would result in an automatic transfer to ground work. The new rule is also a blanket policy and affects all cabin crew members including those who have just returned from maternity leave and may find it difficult to drastically lose weight within a short time frame;

· Cabin crew who joined in 2004 or later are no longer able to enjoy the transport services provided by the airline for pick-up from home, and Ismail said this is unfair to those who joined in 2004 or later, as they had signed contracts that included transportation as part of the benefits; and

· That the MAS management have allegedly cut costs drastically which affected the cabin crew resulting also a failure to review allowances and salaries.

We are especially concerned with this ‘weight control ruling’ which certainly is discriminatory against women, especially to those returning from pregnancy. Increase of body mass index sometimes may be beyond the control of a human being, and this really should not be used to affect their employment.

NUFAM alleges that it wants MAS to sit down with the Union to discuss and negotiate a new Collective Bargaining Agreement (CBA/CA) but apparently MAS is not interested to do so at this moment, citing as reason some judicial review.

Now, MAS has commenced disciplinary actions against Ismail Nasaruddin, and according to a Malaysiakini report, it is allegedly because MAS said Ismail had acted in contradiction with his duties as a chief steward of the airline by issuing the statement. (Malaysiakini, 14/11/2011, MAS suspends chief steward for criticising CEO)

Now, clearly the statements were made by Ismail in his capacity as President of the Union, representing some 3,500 workers, and as such he has the duty and obligation to fight for the rights of workers and that includes applying pressure on the employer and even calling for the removal of any of such employer’s officers or even Directors who is standing in the way of a prompt resolution of the dispute. Unlike employers, every day that a worker’s issues is not resolved, it is the workers that will continue to suffer. A prompt resolution is best and just.

No worker, group of workers or unions should be barred from making public statements to the media or otherwise in the struggle for worker rights and human rights. This right is clearly acknowledged in the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, commonly known today as the UN Human Rights Defender Declaration.

We condemn the action of Malaysian Airlines (MAS) in commencing disciplinary actions against a Union leader, and urge MAS to immediately stop this and revoke the suspension of Ismail Nasaruddin.

We call on MAS to immediately sit down, negotiate and resolve these outstanding worker issues with the trade union rather than resorting to ‘union busting’ strategies which include disciplinary actions against  worker and union leaders who dare to fight for worker rights.

We call on the Malaysian government to immediately to act, given the fact of the much influence it has in a government-linked company like MAS, to ensure that justice is done for Ismail Nasaruddin, the Union and its members.

Senator Syed Shahir bin Syed Mohamud
Charles Hector
Mohd Roszeli bin Majid
Pranom Somwong

For and on behalf of the following 43 civil society groups, trade unions and organizations

Asia Pacific Forum on Women, Law and Development (APWLD)
Cambodian Human Rights and Development Association (ADHOC)
Center for Orang Asli Concerns (COAC)
CWI Malaysia (Committee For A Workers International  Malaysia)
Damn the Dams
Dignity International-Asia
Friends of Burma
Human Rights Ambassador for, United Kingdom
Jaringan Rakyat Tertindas(JERIT)
Kesatuan Eksekutif AIROD (KEA)
Kesatuan Pekerja-Pekerja Polyplastics Asia Pacific
Kesatuan Sekerja Industri Elektronik Wilayah Selatan Semenanjung Malaysia (KSIEWSSM)
MADPET (Malaysians Against Death Penalty and Torture)
Malaysians for Beng Hock
Malaysia Youth & Students Democratic Movement (DEMA)
MTUC Pahang
National Union of Hotel, Bar and Restaurant Workers (NUHBRW)
Network of Action For Migrants in Malaysia (NAMM)
Paper and Paper Products Manufacturing Employees Union (PPPMEU)
Philippine Alliance of Human Rights Advocates (PAHRA)  
Parti Rakyat Malaysia (PRM)
Parti Sosialis Malaysia (PSM)
Partido ng Manggagawa (Labor Party-Philippines) 
Pax Romana-ICMICA Asia
Peoples' Green Coalition
Persatuan Kesedaran Komuniti Selangor (EMPOWER)
Persatuan Sahabat Wanita, Selangor
Sahabat Rakyat Working Committee
Sarawak Dayak Iban Association[SADIA]
Tenaga Nasional Junior Officers Union (TNBJOU)
The Filipino Women's Organization in Quebec
WIRDA (Women’s Institute Research Development and Advancement), Malaysia
Women’s Centre for Change Penang
Workers Hub For Change (WH4C)
Yayasan LINTAS NUSA – Batam, Indonesia

Saya Anak Bangsa Malaysia (SABM)

Law and Society Trust.Colombo Sri Lanka
ITUC(International Trade Union Confederation)
Senator Syed Shahir bin Syed Mohamud - Senator in the Malaysian Parliament
Charles Hector - Human Rights Defender and lawyer;
Mohd Roszeli bin Majid Vice President (Private Sector) Malaysian Trade Union Congress(MTUC), and also the President of the TNB Junior Officers Union;
Pranom Somwong - Workers Hub For Change (WH4C), Asia  Pacific  Forum on Women , Law and Development ( APWLD);

Friday, November 1, 2013

CCC & WH4C Submission on Migrant Workers for the 17th Session of the Universal Periodic Review of Malaysia

MALAYSIA submission on Migrant Workers for the 17th Session of the Universal Periodic Review
Submitting organisations:

Name of Organization:
Clean Clothes Campaign (CCC)
Postbox 11584
1001 GN Amsterdam
the Netherlands
tel: +31 20 4122785

Contact person:
Tessel Pauli

Urgent Appeals Coordinator
+31 20 4122785

The Clean Clothes Campaign (CCC) is dedicated to improving working conditions and supporting the empowerment of workers in the global garment and sportswear industries. Established in 1989, the CCC has worked to help ensure that the fundamental rights of workers are respected. We educate and mobilise consumers, lobby companies and governments, and offer direct solidarity support to workers as they fight for their rights and demand better working conditions.

The CCC is an international alliance that works to improve conditions and support the empowerment of workers in the global garment industry. The CCC has national campaigns in 15 European countries with a network of 250 organisations worldwide, and international secretariat based in Amsterdam. Members and partners include trade unions and non-governmental organisations (NGOs) covering a broad spectrum of perspectives and interests, such as women’s rights, consumer advocacy and poverty reduction. 

Name of Organization:
Workers Hub for Change (WH4C)
Lot 3585A, Kampung Lubuk Layang,
Batu 3, Jalan Mentakab,
28000 Temerloh,
Phone numbers: 609 2777 267/ 6019 2371 300
Fax number: 6092777261

Coordinators: Pranom Somwong and Charles Hector


WH4C was started in 2007 by a group of concerned persons, working for human rights and worker rights, especially migrant worker rights. Our work has been primarily with Burmese, Nepali and Vietnamese migrants in Malaysia. We also do have a history of working with migrants from Indonesia, India, Bangladesh, Pakistan and Thailand .WH4C is a member of Asia Pacific Forum on Women, Law and Development (APWLD), the region’s leading network of feminist organisations and women. APWLD has consultative status with the Economic and Social Council of the United Nations.WH4C is an active partner of the global labour rights networks of the Clean Clothes Campaign (CCC) and GoodElectronics Network. 

Executive summary

This submission focuses on the rights of migrant workers to equal treatment at work (including equal remuneration and freedom of association), and non-discrimination with regard to hiring procedures,  access to healthcare and access to remedy. 

The Migrant Worker Rights coalition welcomes the support given by Malaysia to the recommendation 50  listed by the Working Group A/HRC/11/30, in which Bangladesh recommended Malaysia to continue its effort to protect the rights and interests of foreign workers. However, the submission calls the attention to the fact that Malaysia has introduced legislation that in its implementation discriminates against migrant workers. In particular reference is made to:  legislation that transfers the burden of paying the costs of levy from employers to migrant workers (paragraph 4-6), requires migrant workers to pay for high healthcare insurance (paragraph 7-8), and other deductions (paragraph 9-10), which results in lower take-home wages than local workers for equal work   legislation and practices that deny migrant workers from equal access to redress, in particular when visa and permits are revoked by the employer and migrant workers lose their rights to stay in the country and remain party in any form of conflict resolution, or court procedure (paragraph 11)   legislation and practices that discriminate against migrant workers with regard to their access to healthcare (paragraph 12), the prices they have to pay for healthcare (paragraph 13) and the compensation they are entitled to in case of occupational diseases and accidents (paragraph 14)  legislation and practices that discriminate against migrant workers with regard to hiring practices, in particular mandatory health tests (paragraph 15-16)  legislation whose negative implications affect migrant workers more than local workers, and restrains their rights to freedom of association and collective bargaining (paragraph 17-20)

MALAYSIA submission on Migrant Workers for the 17th Session of the Universal Periodic



1.  Scope of international obligations


a.  Malaysia should immediately ratify the United Nations Convention on the   Protection of the Rights of All Migrant Workers and Members of Their Families. 

b.  Malaysia should immediately ratify the ILO Conventions, including the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), Right to Organise and Collective Bargaining Convention, 1949 (No. 98), Workers' Representatives Convention, 1971 (No. 135) 


Migrants, refugees and asylum-seekers

* This submissions raises in particular recent developments that undermines human rights and justice of migrant workers, workers generally and trade unions in Malaysia, which have been a concern of civil society including trade unions, reflected also in Joint Statements and other protest actions


1.  There is today about  2.3 million  documented migrant workers in Malaysia, who has a labour force of about 12 million.

2.  Article 8 of the Federal Constitution of Malaysia provides that “All Persons are equal before the law and is entitled to equal protection of the law” and by the use of term “person” as opposed to ‘citizen’  makes it most clear that this guarantee of rights extends also to all persons, including migrant workers, be they documented or undocumented. Section 60L of the Employment  Act 1955 also prohibits discrimination in  respect of the terms and conditions of his employment on the basis that one is a migrant worker (foreign worker).

3.   Despite these laws and the support by Malaysia given to recommendation 50 listed by the Working  Group A/HRC/11/30, in which Bangladesh recommended Malaysia to continue its effort to protect the rights and interests of foreign workers, Malaysia has introduced legislation that in its implementation discriminates against migrant workers. 


All are equal before the law and are entitled without any discrimination to equal protection of the law (Art. 7 UDHR)

Everyone, without any discrimination, has the right to equal pay for equal work. (Art. 23(2) UDHR)

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. (Art. 10 UDHR)

4.  Undersigned welcomes that Malaysia has introduced national legislation [Minimum Wages Order 2012  ] to ensure the right to Minimum Wages for Malaysian workers, including migrant workers, as of January 2013. However, undersigned express their  strong concerns that vide a Cabinet decision dated 30 January 2013, the Malaysian  government allowed employers to recover levy from any migrant worker employed. The levy is paid by employers for every migrant worker they employ, to discourage the employment of migrant workers over local workers. Malaysian Labour Director-General Datuk Ismail Abdul Rahim was reported saying that, “…The rationale behind getting employers to bear the levy was to discourage them from employing foreigners…”1.

However, as a consequence of the Cabinet decision, the  burden of the levy has been  transferred to migrant workers, and in effect migrant workers risk to receive lower renumeration for equal work Khalid Atan, the President of the Malaysian Trade Union Congress(MTUC) said, “…if workers were asked to pay the levy, the minimum wages policy would not benefit them at all, as whatever little increase in salary they enjoyed, would be wiped out with the levy payment…”2.

The undersigned seek to ask if this discriminative practice will be canceled and the obligation to pay levy will return with the employers, in order to ensure that minimum wages are paid to all workers.

5.  A Joint Statement entitled ‘Minimum Wages For All Workers, Including Migrant Workers -  No to Wage Deduction to recover Levy Payable By Employers  –‘  which was endorsed by 83 civil society groups and trade unions was issued on 5/2/2013 (see appendix)

6.  This discrimination against migrant workers in Malaysia is compounded by the fact that they are now suddenly imposed with an additional unjust burden, not before they decide to enter an agreement with their employers and come to Malaysia to work, but in the midst of their employment in Malaysia. The actions of Malaysia relieve employers the burden of breaching employment contracts, an act which would have allowed the migrant worker a legal remedy which would naturally be to the benefit of the workers preventing employers to suddenly vary contractual obligations to the detriment of their employees.  The undersigned seek to ask if Malaysia can guarantee that migrant workers' right to continuation of their employment contract is respected, as well as effective access to legal remedy.

7.  Despite the existing legislation under the Employees Social Security Scheme, which stipulates that employers should bear the costs of providing for their workers' healthcare, the  Ministry of Health (MOH) has implemented the Foreign Workers Health Insurance Protection Scheme (FWHIPS) with effect from 1 January 2011. Under FWHIPS, every foreign worker is required to take an insurance policy under the Foreign Workers Hospitalisation and Surgery Scheme (FWHSS) with a health insurance protection of RM10,000 per year. The premium of RM120 per year for the insurance policy has to be borne by the foreign workers themselves3

.  For example, in the  electronics industry, this amount has to be covered from the 450-700 RM that migrant workers bring home from a six days a week of twelve hours a day (this includes a one-hour break) job4

.  The undersigned seek to ask how this new requirement relates to Malaysia's support to recommendation 50 to protect the rights and interests of foreign workers in the last UPR of Malaysia. 

9.  Discrimination also occurs to migrant workers when Malaysia fails to prevent (or facilitates) the wrongful deduction from wages of migrant workers matters that are by law not permitted for workers like the deduction of recruitment agency fees/payments and accommodation, all of which requires not just consent of the workers but also the permission from the Malaysian government. Malaysia’s failure is the omission to act against this practice, or the giving of permission irrespective of the fact that the worker disagrees.

10.  Undersigned note that the above mentioned discrimination on terms of remuneration is in clear breach with the recognition that employers should bear the additional costs of employment of migrant workers in a situation where it is employers that seek out migrant workers in their country of origin to come to work for them in Malaysia    not a case that migrant workers come on their own to Malaysia to find work.


c.  Malaysia must evaluate the legislation and regulations that have a negative impact on the wages of migrant workers, and abolish any measures that are discriminatory with respect to the right to equal pay for equal work. 

d.   Malaysia should guarantee that migrant workers' remuneration will be compliant with the Minimum Wages Act and is not withered away by any deduction of wages to recover levy, recruitment fees or accommodation fees which should reasonably  be borne by employers. 

e.   Malaysia must ensure that migrant workers rights as workers are not eroded by new laws and policies in favour of employers, going against general principals and protection accorded to workers. Obligation for healthcare of migrant workers, especially when it is occupation related or as a result of an industrial accident must be borne by employers or existing social security law and practice.

f.  Malaysia must revoke the practice of granting special permissions to employers of migrant workers to make what is generally unlawful deductions from wages, unlawful advances and changes to work conditions and rights, including the ability to require migrant workers beyond the maximum limit of 48 hours a week (or 8 hours per day), on rest days and even public holidays.


Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations (…) (art. 10 UDHR)

11.   Undersigned have noted numerous occasions when migrant workers have been terminated by their employers, after they had lodged complaints against their employers' discriminative practices at avenues of redress provided by law. Termination of employment subsequently caused the termination of their visas/permits, thereby allowing for their legal presence in Malaysia to be terminated. Since legal presence is required to use further legal mechanisms to claim their rights, the access to redress and justice has been denied for migrant workers in these cases. In addition, undersigned have noted that many workers whose work permits/passes are terminated, have been arrested, detained, imprisoned, whiped and deported if they had chosen to remain in Malaysia to pursue their case.


g.   Malaysia should give effect to ‘equal protection of law’, by not canceling work permits/passes in case migrant workers have submitted a complaint to any court , institution, or mediation body, thus denying migrants the right to legally remain in    Malaysia and proceed with their rightful claims through the legally provided avenues of justice. No migrant should be made ‘illegal’ (undocumented) and/or deported when there is a pending unsettled claim or case involving the said migrant.

h.   Malaysia should ensure that migrant workers who lodge the complaint on abuse and exploitation are provided with the necessary support and assistance to seek remedies, such as legal aid, interpretation assistance temporary shelters and the right of migrants to stay and work during legal process.


Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. (art 22 UDHR)

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, (…) medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. (art 25 (1) UDHR)

12.   Migrant workers lack access to medical facilities and health care. For example, a study in the electronics sector shows that all factories under investigation lacked a medical facility on the factory grounds. If workers are injured or ill they go to a panel clinic near the factory. Workers have a medical card (provided by the factory) with which medical costs up to MYR 25 can be covered. However, additional costs should be paid for by the worker. Migrant workers are not entitled to any paid sick leaves.5

13.   However, discrimination is practiced against migrant workers when they seek healthcare at public hospitals and clinics. For example, the payment required by Malaysians when they visit an hospital seeking treatment, is RM1 (for seeing a doctor) or RM5 (for seeing a specialist). For migrant workers, it starts with RM50 (for seeing a doctor). the deposit payable by Malaysians who require to be warded, vary between 15 and 1.100 RM. However, for migrant workers the same treatment costs between 800 and 2.200 RM6 The rates are fixed by the government: the governing Act is Akta Fee 1951 (Fee Act 1951), and the rates now is as per Perintah Fee (Perubatan) 1982 [Fee(Medical) Order 1982]. 

14.   Whilst the social security of local workers are covered by the Social Security Act, migrant workers are covered by the lesser Workmen’s Compensation Act 1952, which results in discrimination between migrant and local workers regarding their health  care costs.  The Workmen's Compensation Act, unlike the Social Security Act does not provide for continuous regular support and assistance until death for a worker who is a victim of an industrial accident or occupational disease. The Workmen’s Compensa tion Act only provides for a one-off payment to the victim and/or their dependents where death has resulted from the injury/disease, that is a lump sum equal to sixty months' earnings or RM18,000, whichever is the less. In addition, the maximum amount of fees and cost that is payable by an employer under the Workmen’s Compensation Act, for ward charges (including surgical ward) is limited to RM300, for operation fees it is limited to RM250, for X-Ray Fees it is limited to RM100 and for other electric  therapeutic charges it is limited to RM100. The rates stipulated are outrageously low given the fact that government hospitals and clinics charge migrant workers first class rates, and the lowest deposit for a migrant worker who needs to be warded is RM400, and if it was a surgical case, it is RM800-00. Operation charges can range from RM50 to RM3,000 depending on the type of operation. Ultrasound cost RM100. Radiology charges range from RM50-RM600. Lab charges range from RM5 to RM100 depending on the  type of tests, and usually there will be quite a lot of tests needed.


Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status...” (Article 2 UDHR)

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”  ( Article 2(1) ICCPR )

15.  Before  migrant workers can obtain a  work permit to Malaysia, they are subjected to medical screenings. This entails a discriminatory practice, as local workers are not required to obtain these screenings.  There is no specific legislation relating  to HIV/AIDS or laws that make screening of blood products mandatory. Neither are there specific laws for the protection of the rights of infected persons, although the constitution and other laws may be invoked in cases where such persons have suffered  rights violations.

For example, HIV and selected other tests  (TB, STDs, Hepatitis A, Hepatitis B, Leprosy, Urine Cannabis, Urine Opiates, Cancer, Epilepsy, Psychiatric Illness, Pregnancy ,Hepatitis B, VDRL/TPHA and Malaria)  are  part of medical screenings, mandatory  for incoming prospective foreign workers and for the annual renewal of work permits. The purpose is to detect unfit or pregnant migrant workers whom will be disqualified and deported back to their countries of origin. These mandatory testing  violates the principle of  confidentiality:  the Foreign Worker's Medical Examination Monitoring Agency (FOMEMA) is in charge of medical screenings and notifies the Immigration Department of the HIV test results; the Immigration Department then informs  the employer.  This has led  to discrimination, loss of livelihood and even violence against the workers concerned. In most of cases the migrant worker is not the first person to learn about the results, but it is the outsourced agent or their employer  who receives the notification of the result of medical checkup.

16.  Mandatory HIV testing of  migrants is in clear contradiction of the ILO Code of Practice on HIV/AIDS and the World of Work In consonance with the Code of Practice, and on the specific topic  of migrant workers, the ILO Committee of Experts has stated that “the refusal of entry or repatriation on the grounds that the worker concerned is suffering from an infection or illness of any kind which has no effect on the task for which the worker has been recruited, constitutes an unacceptable form of discrimination” . The study shows that migrant workers or potential migrant workers who test positive for HIV frequently disappear from the system, whether they were tested prior to their departure or after they had entered the receiving country and were deported following detection of their HIV status.


i.   Lift requirements of compulsory or mandatory health and HIV testing of migrant workers at all points of the migratory process as a condition for employment;

j.  End   policies and practices of deportation of migrants on the basis of their HIV  status or for other health conditions, such as pregnancy


Right to form and to join trade unions for the protection of his interests (Art. 23(4) UDHR)

17.  Malaysia denies migrant workers the right to form trade unions, as this right is only accorded to citizens. Similarly migrant workers are denied the right to hold office in any trade unions. Migrant workers, however did have the right to join trade unions, and enjoy the rights and benefits contained in any Collective Bargaining Agreement between the union and the employer. 

18.  In 2005, Malaysia, vide the Cabinet Committee on Foreign Workers in its meeting on 5 -July  2005 agreed to the recruitment of foreign workers through labour outsourcing companies (now known as ‘Contractor for Labour’ in the amended Employment Act that came into force on 1 April 2012, which also gave statutory recognition to this practice). 

Although there is no longer an employment relationship between the principal (owner of the production facility and manager of the production processes) and the worker, the worker remains working under the direct supervision and control of the principal. These workers thereby become a sub-class of workers that do the same work as other employees but do not enjoy the same remuneration or benefits as other employees. The trend started with migrant workers but today has been extended to local workers. However, migrant workers remain the most affected.

19.  As trade unions in Malaysia are sectoral or industry specific, migrant workers whose ‘employer’ now is a contractor for labour, who supplies workers to many different sectors and industries, do not longer have the right to join as member to a sectoral union, or enjoy the benefits from any collective bargaining agreement that covers their workplace. 

The undersigned seek answers as to how Malaysia will guarantee the right to form and join trade unions and profit from collective bargaining agreements for migrant workers under the “contractor for labour” act, as the formation of trade unions in such situations of employment is almost impossible. 

20.   A primary reason for the creation of the ‘contractor for labour’ and the  introduction of labour outsourcing is to stifle workers and trade unions capacity to demand and   negotiate for better rights and benefits. The MTUC Memorandum to the HR Minister   dated October 7, 2008 refers to an interview with Datuk Ishak Mohamed, the   Enforcement Director of the Immigration Department that was published in New Straits   Time, July 20, 2008, where he, amongst others, said, ‘…outsourcing is good as it will   attract foreign direct investment. Investors do not want unions to be formed in their   establishments. Through outsourcing, it would be difficult for unions to be formed as   outsourcing company, and not the factory, would be the employer…’ is indicative of the   intention of the Malaysian government


k.  Malaysia must immediately abolish the ‘contractor for labour’ and the practice of outsourcing labour, hence restoring direct employment relationship between principals, bring owners and operators of workplace and their workers, which effect restore the right of workers, including migrant workers to be members of trade unions, and enjoy the full benefits of Collective Bargaining Agreements. 

l.  Malaysia, by restoring direct employment relationship, assures that all are employees of the principal, will also result in discrimination between workers doing the same work.

m.  Malaysia must amend the laws governing the formation of and existence of trade unions, so that all workers, including migrant workers have the right to form trade unions and also hold office(and be elected into the committee) of Trade Unions

End Notes
1   Source: Star, 16/4/2009, Employers can deduct levy from wages, again

2   Star, 10/1/2013, MTUC: Don't give in to employers' demand on foreign workers levy.

3  There is an understanding that the Government has waived foreign workers in the plantation sector from the scope of  FWHIPS. From

4 Worker Hub for Change conducted field research for SOMO(2013): Outsourcing Labour. Migrant labour rights in Malaysia’s electronics industry,

5  Worker Hub for Change conducted field research for SOMO(2013): Outsourcing Labour. Migrant labour rights in  Malaysia’s electronics industry,


Thursday, October 3, 2013


Joint Statement – 2/10/2013


We, the  112  undersigned  civil society groups, trade unions and organizations are shocked that the Malaysian government, after the recent General Election has resorted to charging human rights defender Lena Hendry on 19 September 2013 for being involved in the screening of a documentary "No Fire Zone: The Killing Fields of Sri Lanka" at a human rights event in Kuala Lumpur on  9 July 2013.

Lena Hendry was charged for an offence under the Film Censorship Act 2002, in connection with the screening of a video  which  was not  vetted and approved by the Film Censorship Board of Malaysia. If convicted, she faces the sentence of a ‘…fine of not less than five thousand ringgit and not more than thirty thousand ringgit or to imprisonment for a term not exceeding three years or to both…’ She is charged under Section 6 of the Act that makes it an offence to, amongst others, to produce, manufacture, have in one’s possession, circulate, distribute and display such film or film-publicity material which has not been approved by the Board. This may include video material ranging from family videos, videos of political and human rights material including recordings of forums and speeches, videos about citizen rights including the right to free and fair elections or worker rights, and even videos about rights violations in other countries including Palestine.

A ‘…videotape, diskette, laser disc, compact disc, hard disc and other record of a sequence of visual images, being a record capable of being used as a means of showing that sequence as a moving picture, whether or not accompanied by sound…”, is also included in the definition of ‘film’ as provided for in Section 3 of the Film Censorship Act. It is absurd that in Malaysia, the law requires one to get approval of the Malaysia’s Film Censorship Board for all such material.

The Act is also discriminatory as it does not apply, amongst others, to “...any film sponsored by the Federal Government or the Government of any State...”. The government does not need to obtain approval from the Censorship Board, but everyone else is expected to do so.

At present, the practice of getting approval from the Film Censorship Board usually applies to films screened in cinemas and cineplexes to a paying audience. Even when it comes to television, it is believed that there may be no pre-requirement for getting approval from the Censorship Board for all that is shown except for feature movies.

The charging of Lena Hendry in September 2013 by the Malaysia government is seen as an effort to limit access to information and alternative views particularly those highlighting human rights violations and alternative perspectives. This violates individual and civil society and public rights to information, freedom of expression and opinion.

If the screening and usage of such material incites a criminal act, or violates another person’s rights, there are existing laws to address this. There is no requirement for any prior government approval or ‘censorship’.

In Reporters Without Borders’ 2013 World Press Freedom Index, Malaysia has fallen to its lowest-ever position because of the decreasing access to information. Malaysia embarrassingly dropped 23 places, and now ranks 145 out of 179.

Article 1 of the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms states clearly that “Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at  national and international levels.” 

Lena Hendry, has the right to ‘…freely  publish, impart or disseminate to others views, information and knowledge on all human rights and fundamental freedoms…’, and that should include the right to use films, documentaries and other video materials.

To advocate a policy or a law that says that film or video material must be pre-approved by the government before it can be used is in itself a violation of principles of human rights and the UN Human Rights Defender Declaration.

Therefore, we

a)      Call on the Malaysian Government to immediately and unconditionally drop the criminal charges against Lena Hendry;

b)    Call for the repeal of provisions in the Film Censorship Act 2002 that obligates persons to seek approval of the government vis-à-vis the Film Censorship Board before a film, videotape, diskette, laser disc, compact disc, hard disc and other record of a sequence of visual images can be used;

c)    Call on the Malaysian government to recognize, promote and respect human rights, including those contained in the UN Human Rights Defenders Declaration

Charles Hector
Pranom Somwong

For and on behalf the 112 organisations listed below

All Women’s Action Society (AWAM), Malaysia
Angkatan Rakyat Muda (ARM), Malaysia
Aksi  For Gender, Social And Ecological Justice, Indonesia
ASEAN Youth Assembly
Asia Pacific Forum on Women, law and Development (APWLD)
Academy of Tamil Studies, Malaysia
Boat People SOS
Burma Partnership
Cambodian Human Rights Association ( ADHOC )

Campaign for a Life of Dignity for All (KAMP), Philippines
Civil Right Committee of Kuala Lumpur and Selangor Chinese Assembly Hall, Malaysia
Center for Orang  Asli Concerns (COAC), Malaysia
Centre of Education. Research and Development (CEDAR) Malaysia
Centre for Independent Journalism, Malaysia
Child Development Initiative Malaysia
Committee for a Workers' International (CWI), Malaysia
Community Action Network, Malaysia
Community Resource Centre
Council of Temples Malaysia

Dapur Jalanan Kuala Lumpur
Dignity International
Empower Foundation, Thailand
Federation of Indian Non-Governmental Organisations
Foundation for Women, Thailand
Friends of Burma, Chiang Mai
Gabungan Pertubuhan-pertubuhan Masyarakat India Selangor
Gender and Development Advocates (GANDA) Filipinas
Group of Concerned Citizens Malaysia

Human Rights Ambassador for, UK
Human Rights Working Group (HRWG) Indonesia
Indian Malaysian Active Generation (IMAGE) Malaysia
Islamic Renaissance Front (IRF) , Malaysia
JERIT, Malaysia
Kelab Bangsar Utama, Malaysia
Kesatuan Kebangsaan Pekerja Pekerja Perusahaan Alat Alat Pengangkutan Dan Sekutu(NUTEAIW)
Kesatuan Sekerja Industri Elektronik Wilayah Selatan Semenanjung Malaysia (KSIEWSSM)
Kuala Lumpur Indian Entrepreneurs and Professionals
Law and Society Trust, Colombo Sri Lanka

LLG Cultural Development Centre, Malaysia
MADPET (Malaysians Against Death Penalty and Torture)
Malaysian Association of Indian University Graduates
Malaysian Dravidian Association
Malaysians for Beng Hock
Malaysian Hindu Youth Council
Malaysian Indian Business Association
Malaysian Indian Development & Unity Association
Malaysian Indian Entrepreneurs and Professionals
Malaysian Indian Historical Association

Malaysia Indian Progressive Educational Society
Malaysian Indian Youth Development Foundation
Malaysian Physicians for Social Responsibility
Malaysia Youth & Students Democratic Movement
Malaysia Tamil Artiste Association
MAP Foundation, Thailand
MARUAH, Singapore
Migrant CARE
MTUC(Malaysian Trade Union Congress) Pahang
National Union of Bank Employees, Malaysia (NUBE)

Nationwide Human Development And Research Centre Malaysia
Network of Action for Migrants in Malaysia ( NAMM)
Network for Democracy and Development
Parti Rakyat Malaysia(PRM)
Parti Sosialis Malaysia (PSM)
Pax Romana ICMICA
Peace Institute of Cambodia
Peace Women Across the Globe Indonesia
Peoples' Empowerment Foundation (PEF), Thailand
Peoples Service Organisation (PSO) , Malaysia

Perkumpulan Tafena Tabua, Kupang - Indonesia
Persahabatan Semparuthi Johore, Malaysia 
Persatuan Alumni PBTUSM KL & Selangor
Persatuan Kesedaran Komuniti Selangor (EMPOWER)
Persatuan Masyarakat Selangor & Wilayah Persekutuan (PERMAS)
Persatuan Sahabat Wanita, Selangor (PSWS), Malaysia
Projek Dialog, Malaysia
SABM Melbourne, Australia
Sahabat Rakyat Working Committee, Malaysia

SALT(School of Acting Justly Loving Tenderly and Treading Humbly), Malaysia
Sarawak Dayak Iban Association
Saya Anak Bangsa Malaysia (SABM)
Selangor Indian Entrepreneurs and Professionals
Semparuthi Iyakkam Malaysia
Sisters In Islam, Malaysia
SUARAM (Suara Rakyat Malaysia)
Tenaganita, Malaysia
The Asian Muslim Action Network (Aman) Indonesia
The Association of Women Lawyers, Malaysia

The Filipino Women's Organization in Quebec, Canada
VIVAT International-Indonesia
WH4C (Workers Hub For Change)
Women's Centre for Change (WCC) Penang
Women's Network for the Advancement and Peace, Thailand
Women's Rehabilitation Center (WOREC) Nepal
World Tamil Federation – Malaysian Chapter
Writer Alliance for Media Independence (WAMI), Malaysia
Yaung Chi Oo Workers Association, Thailand
Yayasan LINTAS NUSA Batam - Indonesia

Youth for Peace Cambodia
Advocacy and Policy Institute (API), Cambodia
Labour Behind the Lablel, United Kingdom
Forum for Democracy in Burma
Bersihkan Malaysia Perth, Australia
Women's Aid Organisation, Malaysia
WAC, Phillipines
Housing Rights Task Force, Cambodia.
NLD LA Malaysia

Tourism Employees Association of Maldives" (TEAM)
CEREAL (Centro de Reflexión y Acción Laboral)