Memorandum
To Yab Datuk Seri Abdullah Ahmad Badawii
Perdana
Menteri Malaysia
On
Serious Problems Facing Trade Unions And Workers
In the wake of 1998 economic crisis MTUC and the Trade
Unions played a major role in containing the numerous problems
and issues resulting from company closures, merger of banks, loss
of thousands of jobs, wage cuts, unfair dismissals and even maintained
a moratorium on collective agreements in a number of companies.
Subsequent events show that many employers do not seem to appreciate
these concession and cooperation.
CLAIM FOR RECOGNITION
There seem to be a serious lack of urgency in settling
unions’ claim for recognition. The Human Resources Ministry fails
to comprehend the numerous problems faced by workers at workplaces.
We are witnessing increasing anti union activities
by employers and the situation is worsening. Under Section 9 of
the Industrial Relations Act, union recognition claims should
be settled within 21 days but in practice it is taking as long
as 12 to 18 months. Employers openly defy the labour laws and
often refuse to cooperate with the Industrial Relations Department.
The Human Resources Ministry must accept responsibility
for perpetuating this sad state of affairs: We say this because
7 years ago suitable amendments were drafted and endorsed by employers,
workers, government and adopted by the National Labour Advisory
Council: But up to now no action have been taken. The amendments
intended to empower the Director General of Industrial Relations
and the Human Resource Minister to act against recalcitrant employers.
The delay in the settlement of recognition claims is
further worsened by the YB Minister’s reluctance to invoke the
powers vested in him under Section 9 (5) of the Industrial Relations
Act 1967. If an employer fail to accord recognition within 14
days of notification by DGIR, YB Menteri should make a final decision.
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1. |
RESOLUTION ON TRADE UNION RECOGNITION |
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We the delegates attending
the MTUC Special Labour Convention on 10 January 2004 : |
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Express our deep concern
over the ever increasing delay in settlement of union recognition
claims: Since 1999 the situation has further worsened; |
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Note with regret
Human Resources Ministry’s
failure to enforce the provisions of the Industrial Relations
Act 1967 to resolve disputes speedily;
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Stress the serious
implications on workers and trade unions; |
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Urge YAB Perdana Menteri to direct the Human Resources Ministry to take firm and positive steps
to ensure compliance of the specific provisions under Industrial
Relations Act 1967. |
INORDINATE
DELAY ON SETTLEMENT OF DISMISSAL CASES
Whilst unions are urged to avoid all forms of industrial
action and utilise the conciliation machinery, the Human Resources
Ministry failed to ensure that the process functioned smoothly
and efficiently. As a result a massive backlog amounting to more
than 5000 cases have built up. In the past four years MTUC repeatedly
highlighted the heavy workload imposed on the conciliation officers,
especially at the Industrial Relations Department in Selangor
and Federal Territory. The undue pressure and burden
on the officers resulted in shoddy conciliation. Reports are not
done even after a year of conclusion of conciliation proceedings,
files were misplaced and some cases were reopened because new
officers assigned could not read the notes left by the previous
officer.
Last year YB Menteri Sumber Manusia referred 42 dismissal
cases to the Industrial Court Sarawak, more than 5 years after
the dismissal.
COLLECTIVE AGREEMENT
DISPUTES
Due to lack of time and workload the Industrial Relations
Department is not able to play an efficient and meaningful role
to facilitate amicable settlements. Unions are under tremendous
pressure to avoid going to the Industrial Relations Department
and resort to industrial action.
INDUSTRIAL COURT
According to our survey it takes 12 to 24 months for
a dispute to reach the Industrial Court and it takes another 12 to
24 months for the court to hear and hand down an award. Pending
this frustratingly slow process, some companies change their name,
close down, and cease operation. In such event the court cannot
even serve the award. In some cases, employers are still carrying
on business under different name in the same premises and location
but refuse to accept courts notices.
In Sarawak, the Industrial Court Chairman has heard cases
but has not made a single award since he was appointed 3 years
ago. Whatever awards handed down relate to consent agreements
and cases struck off.
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2. |
RESOLUTION ON INORDINATE DELAY IN SETTLEMENT OF DISMISSAL
CASES |
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We the delegates
attending the MTUC Special Labour Convention on 10 January 2004 : |
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Are perturbed by Human Resource
Ministry’s indifference towards the sufferings of thousands
of workers who are dismissed each year; |
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Human Resource Ministry has failed to take cognizance of the code of conduct for industrial
harmony. |
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We urge YAB Perdana Menteri to take urgent measures to rectify this long standing pressing problem
involving thousands of working families. |
CONSPIRACY
TO CREATE INDUSTRIAL UNREST
MTUC highlighted to the Human Resources Ministry that
retired Human Resources Ministry officials are suspected to be
involved in conspiracy with serving officers to create industrial
unrest in the country.
These former officers mainly from the Department of
Trade Unions and Department of Industrial Relations have linked
up with certain serving officials in the Department of Trade Unions
to obtain latest information on companies and unions involved
in recognition claims and collective bargaining. With relevant
information they approach the employers with a proposal and offer
to remove the union. They advise the employers to adopt a series
of actions which effectively prolong the settlement process.
The group’s action directly undermines, the efforts
of the Industrial Relations department to resolve issues amicably
and help build a more harmonies relations. There is enough evidence
to expose the bad intentions of these so-called consultants. These
vultures make their move only after the DGIR confirm that union
represent a majority and advise the company to recognise the union.
Despite MTUC’s efforts to expose attempts to sabotage
Ministry’s efforts, no action has been taken to address this serious
complain.
In the case of NSG (M) Sdn. Bhd the Department of Trade
Unions carried out a membership check on 8 January
2002 but it took 17 months to notify the results to the employer.
In the case of Ching
Ah Liong membership check was carried out on 18 May 2001 and confirmed that the union represents 73.33% of their employees: Company
has failed to accord recognition and the YB Menteri has not made
a decision on this 4 years old claim.
YB Human Resources Minister’s reluctance to invoke
the provisions of Section 9 (4C) of the Industrial Relations Act
is making the situation worse and is encouraging these anti union
employers to increase union busting activities.
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3. |
RESOLUTION ON ANTIUNION ACTIVITIES |
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We the delegates
attending the MTUC Special Labour Convention on 10 January 2004 : |
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Wish to draw YAB Perdana Menteri’s attention to increasing number of anti union and union busting activities
by employers; |
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Many employers flagrantly violate the provisions Section 4 and 5 of the Industrial Relations Act 1967; |
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HR Ministry’s failure to enforce the provisions guaranteeing worker’s rights has encouraged
more employers to contravene the legal safeguards with impunity.
We are disappointed by HR Ministry’s refusal to act on specific
complaints of collaboration by HR Ministry’s officers to
facilitate union busting activities; |
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Urge YAB Perdana Menteri to direct the HR Ministry to give effect to the provisions stipulated
in the Industrial Relations Act 1967. |
DENIAL OF TRADE UNION RIGHTS
Complaint of denial of trade union rights and union
busting is increasing. Apart from the 30 year old ban on formation
of an independent industrial union for electronics industry workers,
thousands of workers in other industries are also denied their
right to join a union.
The provisions of Section 2 (2) of the Trade Union
Act is interpreted at the whim and fancy of the Director General
of Department of Trade Unions. Classification and or categorisation
of products change with the person holding the post – eg:
The DGTU ruled that the Metal Industry Employees’ Union
(MIEU) cannot represent the employees of Kobe Precision Sdn. Bhd,
Horishige Sdn. Bhd, Soritsu Technology Sdn Bhd, UEDA Plating Sdn.
Bhd, Diamet Klang Sdn Bhd, NSK Microprecision Sdn Bhd, and Kawamura
Sdn. Bhd.
The previous DGTU had allowed several companies producing
exactly the same products to be represented by the MIEU.
DGTU ruled that NUPCIW cannot represent employees of
Shinetsu Polymer Sdn. Bhd whereas the previous DGTU has ruled
that another company producing exactly same products can be represented
by NUPCIW.
DGTU ruled that Non-Metallic Mineral Products Manufacturing
Employees Union (NMEU) cannot represent employees of Syarikat
Premier Bleaching Earth Sdn Bhd whereas the previous DGTU has
allowed NMEU to represent employees of Taiko Bleaching Earth Sdn
Bhd which produces same products. Infact Premier Bleaching is
owned by Taiko Bleaching.
This restrictive provision is increasingly used by
employers to challenge Minister’s decision on recognition claims.
In view of Ministry’s failure to effectively address this problem,
MTUC has now submitted a complaint to the ILO Committee on Freedom
of Association.
Suspicious and
unethical activities by certain officers of the Department of
Trade Unions
At meetings with the Human Resources Ministry, workers
from Gebeng Industrial area complained of unethical conduct of
certain officers of the Department of Trade Unions. They reiterated
their complain at least twice direct to the KSU of Human Resources
Ministry, but no action was taken. These workers even offered
to produce tape recording to prove their complaint. Department
of Trade Unions decision to register in-house unions during the
pendency of claim for recognition by the National Union of Petroleum
and Chemical Industry Workers in Poly Plastic Asia Pacific Sdn.
Bhd in Gebeng is questionable and unethical.
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4. |
RESOLUTION ON DENIAL OF FREEDOM OF ASSOCIATION |
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We the delegates
attending the MTUC Special Labour Convention on 10 January 2004 :
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Highlight that in the
last 4 years, with the collusion of the HR Ministry, many
employers have denied workers the right to join a union
and collectively bargain for better terms and conditions: |
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Disappointed that after
47 years of Merdeka, workers are not given the freedom to
join a union of their choice as guaranteed under article
10 of the Federal Constitution; |
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Reiterate that in the
last 3 years HR Ministry has denied freedom of association
to more than 8,000 workers |
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We deplore HR Ministry’s action in direct contradiction of the Federal Constitution; and |
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Urge YAB Perdana Menteri to direct the HR Ministry to ensure that actions and policies are in
compliance with the provisions of the Federal Constitution. |
SOCSO
– UNSYMPATHETIC AND INCONSIDERATE
Since the appointment of inhouse Doctor two years ago,
Socso has become increasingly unsympathetic and inconsiderate.
They seem to have endless list of reasons to deny assistance to
injured workers.
Socso administrators, including the CEO, treat every
application for assistance with contempt; often they don’t accept
conclusion of their own panel doctors.
MTUC has reports that Socso has rejected close to 100
decisions of medical Boards and Socso
appellate boards.
In the last 12 months Socso has denied compensation
payments to workers disabled due to accidents and occupational
diseases. Instead Socso seem to be happy to spend large sums of
money on legal fees. Whereas disabled Socso members helplessly
watch highly paid Socso lawyers persuade the High Court to reject
their appeal for sympathy and assistance.
MTUC urge YAB Perdana Menteri to appoint a more sympathetic
and caring person to head the Socso.
In a recent case involving a workman who sustained
serious injuries while traveling home on motorcycle after work,
Socso rejected the workman’s claim for compensation, on the grounds
that he did not take a direct route.
He appealed to the Social Security Appellate Board
and the Board ruled in his favour. Socso however rejected Socso
Appellate Boards decision and appealed to the High Court, Johore
Bahru.
Decision of the High Court, Johore Bahru
In rejecting Socso’s appeal the High Court ruled
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In my view a worker unlucky
enough to meet with an accident while going to or returning from
work should be able to make a claim under S. 24 even if he had
interrupted or deviated from his journey for any reason whatsoever
if the objective of his travel is to reach his place of work or
to return home from work, provided the deviation or interruption
was not made in furtherance of some other economic pursuit distinct
and unrelated to his obligation under the contract of employment
he had entered into with the employer as for instance he had in
the course of the journey made a deviation or interruption to
undertake another remunerative part-time work for here it is clear
that the worker was under the circumstances undertaking a distinct
and unrelated pursuit that could not have served the interest
of his employer to whom he was committed to work for and who in
turn had provided for his insurance under the Act.
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On the other side of the coin
he should be held covered even if he had interrupted his journey
home from work to visit a sick relative at the hospital or if
he had stopped at the market to purchase provisions for it cannot
be gainsaid that the main objective of his journey was to reach
home and was not made in furtherance of any other economic pursuit
other than the one which he was already committed to with his
employer.
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Now to revert to the issue
in the instant appeal. It would not have mattered that the worker
had made a detour to send a co-worker home. He should be able
to make the claim given that the objective of his travel was to
return home and the deviation or interruption of the journey was
not made in furtherance of some other economic pursuit distinct
and unrelated to the employment he had committed himself to with
the employer.
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5. |
RESOLUTION ON SOCSO’S UNCARING APPROACH |
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We the delegates
attending the MTUC Special Labour Convention on 10 January 2004 : |
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Highlight that the social
security organization has become increasingly unsympathetic
and inconsiderate: Its administrators, including the CEO
treat applications for assistance with contempt; often they
challenge certifications of their own panel doctors; |
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MTUC is disturbed by ever increasing reports on Socso’s denial of compensation to injured
and disabled Socso members; |
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Express our deep concern over Socso’s eagerness
to spend considerable sums of contributors money on legal
proceedings to challenge their own Socso Appellate Boards
awards infavour of contributors |
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Urge YAB Perdana Menteri to direct the HR Ministry to appoint a more sympathetic and caring
person to head the Socso. |
CONTRACT
WORKERS
In the name of globalization an ever increasing number
of employers, including large multinational corporations, are
turning to contract labour, comprising of domestic and foreign
workers. Even municipalities, local authorities and statutory
bodies are employing contractors. Our finding shows that contract
workers (more than 70% of total construction workers) have no
security of tenure or social protection. Contributions to SOCSO
and EPF in particular, are unheard of and are therefore more vulnerable
in the event of injury, disease or death. In case of job loss
they have no avenue for assistance, as most contracts are mere
verbal agreements. Accompanying growth must be a comprehensive
program for social development that puts people first, unfortunately
the opposite is taking place.
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6. |
RESOLUTION ON CONTRACT WORKERS |
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We the delegates
attending the MTUC Special Labour Convention on 10 January 2004 : |
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Stress the need to
ensure that all workers enjoy security of tenure of employment, |
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Point out that the current
contracting system and practice has completely removed security
of tenure and employees earnings each day has become uncertain;
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Such practice
spreading throughout the country, involving tens of thousands
of workers is threatening employees and their family of
their livelihood; |
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Highlight that even the
limited safeguards under the Employment Act are not enforced;
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Urge YAB Perdana Menteri to direct the Human Resources Ministry to urgently review the Employment
Act so as to provide adequate safeguards, eliminate room
for abuse and ensure that contract workers are accorded
healthcare, social security and old age retirement benefits. |
ABUSE
OF VOLUNTARY SEPERATION SCHEME (VSS)
There was extensive debate from delegates participating
in the Special Labour Convention on 10
January 2004. Delegates cited series of examples where companies and banks have intimidated
employees to accept the so called voluntary separation scheme.
MTUC do not oppose genuine manpower reduction but we are concerned
by the increasing and widespread abuse of the system.
Companies recruit contract workers or foreign workers
soon after getting rid of long serving employees under VSS exercise.
We learn that VSS applications, which are recorded as resignations,
are cited as proof of labour turnover to substantiate their request
for work permits to recruit foreign workers.
We urge YAB Perdana Menteri to direct the Human Resources
Ministry to carry out a special study and draw up a policy guideline
to address this serious problem.
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7. |
RESOLUTION ON VOLUNTARY SEPARATION SCHEME (VSS) |
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We the delegates
attending the MTUC Special Labour Convention on 10 January 2004 : |
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Note that an increasing number of companies, including major banks are abusing the so called VSS to
get rid of employees, especially long serving employees; |
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Regret that the Human Resources Ministry is unwilling to act on complaints of victimizations; |
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Stress the need to
take firm measures to stop powerful employers from abusing
this system; |
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Urge YAB Perdana Menteri to direct the Human Resources Ministry address this issue urgently. |
EPF’s
DEATH AND INCAPACITATION BENEFIT
Effective 1st
July 2000 EPF has reduced the death and incapacitation benefits from a minimum
of RM1000 and maximum of RM30,000 to a flat rate of RM2000 without
any logical reason.
EPF’s reasoning that only the rich benefited from the
higher maximum and whereas the poor only received the minimum,
is most ridiculous and unsubstantiated.
Example 1: Death / Incapacitation Occurs at
age 35 years
(Age on becoming
EPF Member 18 years)
| EPF Credit |
Amount of entitlement prior
to
1/07/2000 |
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On death |
On Incapacitation |
Present Entitlement |
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RM20,000 |
RM9,434 |
RM27,778 |
RM2000 |
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RM10,000 |
RM4,716 |
RM13,889 |
RM2000 |
| RM5,000 |
RM2,358 |
RM6,944 |
RM2000 |
Example 2 :Death / Incapacitation Occurs at
age 35 years
(Age on becoming
EPF Member 22 years)
| EPF Credit |
Amount of entitlement prior to
1/07/2000 |
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On death |
On Incapacitation |
Present Entitlement
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RM85,000 |
RM51,829
(max RM30,000) |
RM151,78570
(max RM30.000) |
RM2000 |
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RM50,000 |
RM30,488
(max RM30,000) |
RM 89,2286
(max RM30.000) |
RM2000 |
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RM30,000 |
RM18,293 |
RM 53,571
(max RM30,000) |
RM2000 |
| RM10,000 |
RM6,098 |
RM17,857 |
RM2000 |
Example 3 :Death / Incapacitation Occurs at
age 25 years
(Age on becoming
EPF Member 18 years)
| EPF Credit |
Amount of entitlement
prior to
1/07/2000
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On death |
On Incapacitation |
Present Entitlement |
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RM10,000 |
RM15,217 |
RM43,750
(max RM30,000) |
RM2000 |
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RM5,000 |
RM7,608 |
RM21,875 |
RM2000 |
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RM3,000 |
RM4,565 |
RM13,125 |
RM2000 |
| RM2,000 |
RM3,043 |
RM8,750 |
RM2000 |
Funds for this scheme comes out of the earnings from
contributors funds and it does not in anyway burden the EPF or
the Government. The reduction demonstrates EPF’s uncaring and
inconsiderate attitude.
Even contributors who died or became incapacitated
prior to 1st July 2000, the effective date of the
reduced benefits, EPF has refused to pay them compensation basedon
enhanced rate that existed.
MTUC propose that EPF restore the benefits that existed
prior to 1st July 2000. The amendment must be back
dated to 1st July 2000 in order to ensure that no
one is deprived of this compensation.
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8. |
RESOLUTION ON THE EPF’S DEATH AND INCAPACITATION
BENEFITS |
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We the delegates
attending the MTUC Special Labour Convention on 10 January 2004 : |
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Reiterate that responding
protests and appeal the former Prime Minister gave a written
assurance letter dated 8 May 2001 that the quantum of compensation
to EPF contributors or their dependants in the event of
Death and Incapacitation will be restored to a minimum of
RM1000 to a maximum of RM30,000. |
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Regret that YAB Perdana Menteri’s promise remain unfulfilled; |
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Urge YAB Perdana Menteri to initiate steps to reinstate the rate of compensation that was in
practice prior to 1 July 2001. |
FOREIGN
WORKERS
LIMIT RECRUITMENT OF FOREIGN
WORKERS
In the light of increasing retrenchment we urge Government
to limit recruitment of foreign workers.
Employment opportunities for Malaysians are becoming
scarce.
Factory closures due to relocation is increasing. Other
than the 15,000 reported cases of retrenchment, a substantial
number of termination, through so called voluntary separation
scheme and loss of employment through fixed term contracts are
not reported.
MTUC is deeply concerned by the increasing unemployment
and HR Minister’s announcement that tens of thousands of foreign
workers will be brought in, shows that he is oblivious of the
actual situation on the ground.
Instead of flooding the country with more foreign workers
Government should find ways to utilise the foreigners who are
already in the country. There are many who were brought in to
work for a 2 to 3 year duration but were prematurely terminated
without adequate compensation: In some cases even wages earned
were not paid for months.
MTUC wish to drew the attention of YAB Datuk Seri’,
to the case of 90 Vietnamese who were abandoned and forced to
eat cats and dogs. They were subsequently sent back at Government’s
expense.
Another case of 30 Vietnamese workers, camping outside
the Vietnamese embassy under deplorable conditions for more than 6 months remained hidden until highlighted
by the media.
We are perturbed by Government’s lack of policy despite
countless reports of exploitation and mistreatment of foreign
workers by Malaysian employers and recruiting agents.
MTUC’S PROPOSAL
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9. |
RESOLUTION ON FOREIGN WORKERS |
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We the delegates
attending the MTUC Special Labour Convention on 10 January 2004 : |
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Express our deep concern
over Human Resources Minister’s series of public announcements
in the past four months, stating his actions to bring in
more than 300,000 foreign workers; |
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Point out that factory
closures and relocation has eliminated thousands of jobs
and severely restricted job opportunities; |
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Disappointed that the Human
Resources Minister is oblivious to the sufferings of unemployed
Malaysians; |
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Highlight the increasing
complaints from Malaysian workers of discriminatory policies
and practices enforced by companies, including major multinational
corporations;
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Urge YAB Perdana Menteri to limit recruitment of foreign workers and direct the Human Resources
Ministry to carry out a detailed study to ascertain employment
situation and determine needs and requirement of foreign
labour. |
APPOINTMENT OF RAJASEGARAN A/L V.N. RAJAH AS CHAIRMAN OF INDUSTRIAL COURT
The qualifications for appointment as a Chairman of
the Industrial Court are set out in Section 23
A of the Industrial Relations Act 1967. Under the said section
a person is qualified for appointment as a Chairman if for the
seven years preceding his appointment, he has been an Advocate
and Solicitor within the meaning of the Legal Profession Act 1976
or a member of the judicial and legal service of the Federation
or of the legal service of a state.
To our knowledge Encik Rajasegaran has never served
as an advocate and solicitor for seven years preceding his appointment.
Therefore we see his appointment as clearly in breach of the Industrial
Relations Act. The requirements are very specific and unambiguous:
Any other interpretation to justify the appointment will lead
to legal challenges causing further delay and disruption of the
proceedings.
We appreciate the steps taken by YB Menteri Sumber
Manusia to fill the vacancies but we urge YAB Perdana Menteri
to ensure that legal requirements are duly complied: Otherwise
Minister’s efforts to speed settlement of cases will go to waste.
We pointed out to YB Menteri Sumber Manusia that either
party appearing before the Court chaired by Encik Rajasegaran
can go through the entire proceedings and later file a challenge
simply questioning the constitution and legality of the court.
We learn that Encik Rajasegaran was called to the Bar
seven years ago, but we are advised that mere admission to the
Bar cannot be interpreted to mean that “he
has been an advocate and solicitor within the meaning of
Legal Profession Act 1976 unless he has fulfilled all requirements
under the Act.
Taking into consideration mere admission and not experience
as a practicing advocate and solicitor will defeat the intention
and specific objective of Section 23 A (1) of the Industrial Relations
Act 1967.
YB Menteri Sumber Manusia has said that before making
the appointment, the matter was referred to the Penasihat Undang-Undang
Kementerian.
On an important matter like this, we feel the question
should be referred to the Attorney General himself.
Meanwhile, we appeal to YAB Perdana Menteri to suspend
the appointment until the Attorney General give a clear interpretation.
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10. |
RESOLUTION ON APPOINTMENT OF INDUSTRIAL COURT CHAIRMAN
IN BREACH OF SECTION 23A OF THE INDUSTRIAL RELATIONS ACT |
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We the delegates
attending the MTUC Special Labour Convention on 10 January 2004 : |
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Disappointed over Human
Resource Minister’s decision to ignore trade unions’ and
Bar Council’s call to review his decision to appoint a corporate
figure as a Chairman of Industrial Court. |
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Point Out that the new
appointment to take effect from 15 January 2004 is clearly in breach of the provisions of Section 23A of the Industrial
Relations Act 1967. |
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Reiterate that the Minister
has not only failed to ensure compliance of the legal requirements
he has also let down workers by ignoring the track record
of the new appointee who has spent most of his working life
advocating employers interests at the expense of workers
and trade unions. |
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We urge YAB Perdana Menteri to review the appointment in order to ensure that court proceedings
are not disrupted by legal challenges. |
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11. |
RESOLUTION ON NUBE INTERNAL DISPUTE |
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We the delegates
attending the MTUC Special Labour Convention on 10 January 2004 : |
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Deeply concerned by
the protracted dispute and its serious implications on the
28,000 NUBE members. |
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Unanimously support the request by NUBE members to convene a special general meeting of members to elect a caretaker
committee to conduct a fresh election of Executive Council;
and |
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Direct MTUC General Council to take urgent measures to facilitate the convening of a Special General
Meeting of NUBE members; |
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Urge the Human Resources Minister not to deregister the union but to direct the Director General of Trade
Unions to guide and assist the members in their effort to
find a conclusive solution. |
GENDER DISCRIMINATION
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FEDERAL COUNSTITUTION – PART
8 (2)
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INDUSTRIAL RELATIONS ACT SECTION
14 & 16
The Malaysian Parliament in its wisdom has passed an
Act of Parliament to amend Article 8 – Equality under Part I of
our Federal Constitution. The
said amendment brought into effect vide Amendment Act A1130 introduced
inter alia into Article 8 (2) of the Federal Constitution the
word “gender” and the amended article 8 (2) reads as follows with
the word “gender” in italics.
“Except as expressly
authorized by this Constitution there shall be no discrimination
against citizens on the ground only on religion, race, descent,
place of birth or gender in any law or in the appointment to any
office or employment under a public authority or in the administration
of any law relating to the acquisition, holding or disposition
of property or the establishing or carrying on of any trade, business,
profession, vocation or employment”.
This amendment which is already long overdue is in
essence a vindication for the long struggle of Malaysia’s, women’s
movement, NGO organizations in support of women rights and MTUC
Women’s Committee, all of whom, have over the years have ceaselessly
lobbied and demanded for Equality for Women.
The hall mark of the amendment is that no discrimination
can now be made on the grounds of ‘gender’ between male, female
citizens of Malaysia. The ramifications of the amendment to women
is as follow :-
“Save and except as authorized by the Federal Constitution,
women in Malaysia shall not be discriminated
on grounds of their gender:-
(i)
by any law; or
(ii)
in appointment to any office
(iii)
employment under a public authority; or
(iv)
in admin of any law relating to the acquisition, holding or disposition
of property; or
(v)
the establishment of carrying out of any trade, business profession, vocation
or employment.
The significance of this amendment is beyond measure
because by inclusion of the word “gender”
in Article 8 of the Federal Constitution, the supreme law
of the country. Parliament has endowed the widest section of Malaysian
society i.e. all Malaysia women to stand on equal footing
with Malaysian men.
But having said the above, the question that now must
be addressed is, how best, can the said amendment be given effect
or brought into practice in our Malaysian reality? Otherwise this
very laudable amendment shall merely remain an illusion and remain
a paper victory hibernating in the legal archives.
Last August MTUC
urged the Industrial Court to take cognizance of the amendment
to the Federal Constitution, and pursuant to its powers, under
Section 16 of the Industrial Relations Act can, either refuse
to take cognizance or amend terms of the Collective Agreement
now before the Industrial Court for cognizance that are contrary
to Section 14 of the Industrial Relations Act on the basis that
the terms are a violation of the amended Article 8 (2) of the
Federal Constitution.
Many companies including large multinational corporations
compel female employees to retire on attaining the age of 50 whereas
male employees are allowed to work until 55 years.
In the Malaysian Airlines System (MAS) female members
of the cabin crew are required to retire on attaining the age
of 40 years and for senior staff at 45 years whereas male members
of the cabin crew are allowed to work until 55.
By virtue of the aforesaid amendment such discriminatory
practice can no longer be practiced. We therefore urge YAB Perdana
Menteri to direct the Human Resources Ministry to ensure compliance
of Article 8(2) of the Federal Constitution.
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12. |
RESOLUTION AGAINST DISCRIMINATORY PRACTICES AGAINST
WOMEN |
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We the delegates
attending the MTUC Special Labour Convention on 10 January 2004 : |
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Note with concern the Malaysian Airlines’ discriminatory policies against women employees. |
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Express dissatisfaction against Human Resources Ministry’s reluctance to act against MAS; |
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We urge YAB Perdana Menteri to direct MAS to stop all discriminatory practices against women employees.
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13. |
RESOLUTION ON NATIONAL LABOUR ADVISORY COUNCIL (NLAC) |
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We the delegates
attending the MTUC Special Labour Convention on 10 January 2004 : |
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Concerned that the National Labour Advisory Council
(NLAC) has been functioning as a mere window dressing in
Malaysia all these years and the Government uses the
NLAC as a living excuse to claim that it has abided by the
requirements of ILO Convention 144 (Tripartite Consultation).
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Pointing Out that Article 5 of the NLAC Constitution
(adopted in 1995) merely states that:
"The Council is responsible for discussing and providing advice
to the Government on all issues pertaining to policy, law
and employment practices.
Its functions include providing ideas and experiences
of the workers, employers and the Government with the view
to resolving labour issues and to also improve the conditions
of employment practices and at the same time increase productivity."
While Clause 3.2 of the Ministry's proposal states that:
"The Council generally discusses all issues pertaining to policy,
law and administrative practices of the Human Resources
Ministry. The Council should also specifically draw the
attention of and advise the Minister accordingly."
Aware that both Article 5 of the NLAC Constitution and Clause 3.2 of
the Ministry's proposal are obviously silent on the following:
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Whether the Minister will
be required to consider and accept the findings and recommendations
of the NLAC;
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If accepted, whether the
Minister will forward the same to the Cabinet for subsequent
decision-making, and then on to Parliament to be debated
and signed into law;
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Upon being signed into law,
whether the Council's findings and recommendations are effectively enforceable.
Reiterates that the decisions of the NLAC should be binding
and legally enforceable.
Proposes that
to effectively show the improved legal status of the Council,
the term "National Labour Advisory Council" be
appropriately re-phrased as "National Labour Council"
to correctly reflect the purpose and spirit of tripartite
consultation as contained in ILO Convention 144. Towards this purpose, Article 2(1) of the
Council's Constitution be amended accordingly.
Urges the Council
to be proactive in its functions and not wait for events
to happen before taking action;
Observing that
while Article 14(1) of the NLAC Constitution states that:
"The Council
should meet as often as possible, not less than two times
in a year, on a date and at a place to be determined by
the Chairman."
Concerned that
the NLAC rarely meets even once a year and that it should
preferably meet at least once every three months to resolve
labour issues expeditiously.
Proposes that
apart from the full composition of the Council, a smaller
tripartite Technical Committee also be formed, and that
it meet whenever necessary to consider and resolve labour
issues at the shortest possible time. |
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14. |
RESOLUTION ON CODE OF CONDUCT FOR INDUSTRIAL HARMONY |
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We the delegates
attending the MTUC Special Labour Convention on 10 January 2004 : |
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Pointing Out
that the Code, though adopted as early as 9 February 1975,
has not been complied with by the employers and is gradually
being forgotten. For instance, Article 19 (Security of Employment)
and Article 20 (Redundancy and Retrenchment) have been breached
in several cases;
Reiterates
that retrenchment should be the last resort after exhausting
all possible avenues of settlement in consultation with
the workers or their unions;
Aware that
in many cases, retrenchment appears to be the first option
rather than the last option, of the employers.
The conventional practice of "Last in, first
out" has also not been implemented, with employers
adopting discretionary approaches, irrespective of seniority,
when making decisions to retrench their workers.
In addition,
many employers have also breached Section 63 of the Employment
Act, which states that they should give adequate written
notice in advance to the Labour Department and to their
workers before embarking on retrenchment exercises. There
have been many cases of certain companies "closing
shop" overnight, leaving workers in the lurch;
Stating that
employers have also resorted to other alternatives such
as outsourcing, voluntary separation schemes (VSS), special
separation packages (SSP), job-sharing, contracting and
employing part-time workers to get around the Code;
Worried that
all these, and more, have caused irreparable damage to job
security and has to be arrested immediately;
Calls upon
the organised labour movement to strongly resist any effort
that aims to undermine job security and by extension, social
stability. |
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15. |
RESOLUTION ON MINIMUM WAGES |
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We the delegates
attending the MTUC Special Labour Convention on 10 January 2004 : |
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Urges the organised
labour movement to continue with its efforts to establish
minimum wages in
Malaysia to ensure that workers are able to live in reasonable comfort and enjoy
quality of life;
Noting that
the MTUC has identified RM900 as the prevailing benchmark
for minimum wages in the country;
Reiterates
that the organised labour movement’s initiatives to establish
a minimum wage that is consistent with the prevailing cost
of living should go ahead unabated, despite employers’ frequent
calls for wages to be determined by market forces. |
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16. |
RESOLUTION ON NATIONAL RETRENCHMENT SCHEME |
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We the delegates
attending the MTUC Special Labour Convention on 10 January 2004 : |
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Recalling that
the MTUC's efforts to set up a National Retrenchment Scheme
(NRS), though agreed to in principle by the former Prime
Minister, has been thwarted by the employers who claim that
it would increase operating costs and render them less competitive
in the market-place;
Recapitulating
that the establishment of social safety nets has been adopted
by the Asia Pacific Cooperation (APEC)
Summit which met in Malaysia in 1998 (paragraph 24 of the APEC Declaration);
Emphasises
that the organised labour movement should continue with
its efforts to establish a National Retrenchment Scheme
(NRS) as a viable social social safety net for our workers
who have been retrenched from employment with little opportunity
for new employment;
Proposes that
the Scheme, to be set up with joint contributions from employers
and workers each contributing 50 cents per worker per month,
be managed by the Social Security Organisation (SOCSO).
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(G. Rajasekaran) |
Senator Zainal Rampak |
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Secretary General |
President |
19 January 2004
