Malaysia is one of Asia's biggest employers of foreign labour. But recently, cases of deaths, abuse and forced labour have come to light. What is going on? Who is protecting these migrant workers?
Chen Voon Shian, now a labour consultant, said any review should be guided
by the need to provide clarity and to meet new challenges.
<p>However, he cautioned against arbitrary changes because extensive amendments
had been made to the Act in 1971 and 1980.</p>
<p>"The principal aim then was to regulate the activities of workers’ organisations,
many of which had been under the influence of communists or their sympathisers,"
he told malaysiakini in an interview.</p>
<p>The ministry has again proposed amendments to the Act, triggering worry that
tighter executive control could be exerted over the labour movement and interpretation
of freedom of association.</p>
<p>While not involved in the drafting of the latest proposals, Chen participated
in previous processes to amend the Act.</p>
<p>He served in the department of trade union affairs for 28 years. This was followed
by a three-year stint as the deputy to the director-general of trade unions
(DGTU) before he retired almost 12 years ago.</p>
<p>He said many of the earlier amendments were designed as "safeguards"
to prevent or curtail disruptive activities that could be prejudicial to national
economic or security interests. These provisions remain "intact to this
day".</p>
<p>"If the proposals are due to perceived economic threats by unionists,
the Act has stringent provisions on strikes, for example, which make it difficult
to organise workers. Furthermore, unionists and unionised workers are bound
by other laws.</p>
<p>"This is where the government must strike a balance between protecting
workers’ rights and economic security."</p>
<p><b>Prevailing ambiguity</b></p>
<p>On the need to amend some provisions, he said this "should aim to correct
defective provisions or remove ambiguity".</p>
<p>"For instance, the territorial restriction on union membership and secret
balloting in a recognition claim has to be changed because this is unfair to
trade unions," he said.</p>
<p>Citing the word ‘similar’ found in provisions seeking trade union recognition,
Chen said this has come to be defined as ‘similar in the opinion of the DGTU’.
It has thus allowed wide discretionary powers in determining "similar trades"
or industries.</p>
<p>"Due to its subjective nature, discretionary powers can be arbitrary and
wide open to abuse," he explained.</p>
<p>"A proper mechanism and clear legal guidelines in the exercise of discretionary
powers should be in place to ensure the veracity of the DGTU’s decision and
to prevent or reduce subjective or erroneous decisions."</p>
<p>This would resolve contention over what constitutes "similar trades"
in allowing trade unions to be recognised as part of the registration process.</p>
<p>Making a distinction was problematic in the case of unions in the electrical
and electronics sectors, where the DGTU refused to recognise a single entity
on grounds that these are dissimilar industries. However, in-house unions are
allowed in the electronics sector.</p>
<p>Chen also said it would be timely to amend the provision on the secret ballot
to determine the stance of the members in a recognition claim, because the process
is unfair to trade unions.</p>
<p>Two standard procedures – verification and secret balloting – are currently
used before trade union recognition claims are approved by the DGTU.</p>
<p>He proposed three ways to modify the balloting process.</p>
<p>"Both parties could agree to conduct a secret ballot or the workers could
be specifically asked if they want to be represented for collective bargaining.
Or, a minimum of 50 percent of eligible workers could be asked to be present
for voting to be validated."</p>
<p>He said the recognition procedure should either be conducted by the department
of trade unions or industrial relations in order to prevent extensive delays.</p>
<p><b>Protective function</b></p>
<p>However, he did not see the need for revision of provisions on the DGTU’s powers
of enforcement over management of union funds because these are sufficiently
stringent at present.</p>
<p>A crucial intention of the Act, said Chen, is to protect union funds from being
misused or misappropriated or used extravagantly.</p>
<p>"The collection and accounting of funds are strictly governed in the Act,
including the purposes for and the manner in which the funds are spent.</p>
<p>"The DGTU is also empowered to freeze a union’s bank accounts or apply
for a court injunction restraining unauthorised or unlawful expenditure of union
funds."<br>
He said the DGTU can get a court order compelling the full return of all monies
that have been unlawfully spent or withheld by any officer, employee or member
of a union.</p>
<p>"To handle allegations of misappropriation, the DGTU can either apply
for an injunction to block the use of the money or apply for an individual to
return the entire sum," he said.</p>
<p>"The Act clearly spells out how funds are to be spent, including the need
for executive council approval where a large sum is involved."</p>
<p>Chen pointed out that there are provisions empowering the DGTU to conduct inspections
on trade unions or into any irregularity or complaint against any union.</p>
<p>Where an offence is believed to have been committed, the DGTU may obtain a
search warrant to conduct a search, inspection or examination on the union’s
premises, seize or detain any article or document found therein.</p>
<p>The question is whether the duty is being discharged effectively, he said in
relation to the government move to enhance the DGTU’s powers under the latest
proposals.</p>
<p>"Any attempt to increase these powers would no doubt incur the wrath of
the trade unions," he noted.
Address: Wisma MTUC,10-5, Jalan USJ 9/5T, 47620 Subang Jaya,Selangor | Tel: 03-80242953 | Fax: 03-80243225 | Email: sgmtuc@gmail.com.com