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?
In the past, I have
written articles highlighting the problems faced by workers in Malaysia and their
trade unions and the restrictive provisions in labour laws. Having done a survey,
however, I discovered that most ordinary workers are not fully aware of their
rights as stipulated in labour laws. Surprisingly, even some of the unionised
workers are not sufficiently aware of their rights.
<P>In this country, out
of nine million private sector workers, fewer than 10 per cent are members of
trade unions. There are certain important reasons for this pathetic situation.
Since Independence in 1957, an UMNO-led ruling coalition has been in power, influenced
by capitalism. Employers, including foreign ones, are by and large not supporting
trade unions. Believe me, trade unions are the only organisations that are capable
of safeguarding and protecting workers’ rights.<BR> <BR><B>Rights of workers</B></P><P>In
this article, I wish to enumerate the rights of private sector workers whose monthly
salary is not more than RM2,000. (At another time, I will elaborate on the rights
of public sector employees and on the unforgivable exploitation of migrant workers.)<BR>
<BR>The most important legislation that stipulates the rights of workers is the
Employment Act 1955. This Act consists of more than 101 sections as well as several
regulations and schedules. But I will list out only the rights of workers as briefly
as possible:</P><P><B>• Right to join trade unions</B></P><P>According to
Section 8 of the Act, you are free to join a trade union and if necessary to form
unions.</P><P><B>• Contract of service</B></P><P>Under Section 10, there
must be a written contract of service, which should also include provision for
termination of service.</P><P>According to Section 12, the notice of termination
of contract is as follows:<BR>a) If the length of employment is less than two
years, the period of notice is four weeks.<BR>b) If it is more than two years
but less than five years, the period of notice is six weeks.<BR>c) If it is more
than five years of service, the period of notice is eight weeks.</P><P>Please
take note that what is mentioned above is the minimum notice of termination according
years of service.</P><P>While an employee is absolutely free to terminate his
employment, an employer has no absolute right to terminate your service. If you
have reason to believe that the termination was unreasonable or motivated by an
act of victimisation, you can challenge the employer under Section 20 of the Industrial
Relations Act.</P><P><B>Remuneration</B></P><P><B>• Payment of Wages</B></P><P>Section
18 says payment of wages should not be later than seven days after the end of
the month. It must be paid in legal tender (ringgit) or through a bank.</P><P><B>•
Remuneration other than wages</B></P><P>The employer may agree to provide you
with accommodation, food, fuel, electricity, water, medical facilities and any
amenity approved by the Director General. The employer may also pay bonus, transport
allowances, vehicle loans, and housing loans. These contributions cannot be regarded
as your right. It is, in fact, one of the ways adopted by sensible employers to
establish cordial relations between the employer and the employees. The net result
will be industrial harmony and an increase in productivity – which in turn will
enhance profit.</P><P><B>Employment of women</B></P><P>Sections 34 to 44 in Part
VIII of the Employment Act refers to the employment of women.</P><P><B>•
Prohibition of night work</B></P><P>No employer shall require a female employee
to work in any industrial or agricultural undertaking between 10 pm and 5 am or
commence work for the day within a period of 11 consecutive hours free from such
work. The Director General, however, may allow exemption from the above practice.
If the employee is dissatisfied with the exemption, she has the right to appeal
to the Human Resources Minister within 30 days. The minister’s decision shall
be final.</P><P><B>• Prohibition of underground work</B></P><P>No female
employee shall be employed in any underground work. Not withstanding the above
provisions, the minister is empowered to introduce changes.</P><P><B>Maternity
protection</B></P><P><B>• Maternity leave</B></P><P>Every female employee
shall be entitled to maternity leave for a period of 60 days. The government is
now considering whether to extend it to more than 80 days. The granting of maternity
leave is practised all over the world; only the period varies from one country
to another.</P><P>In Malaysia, there is yet another condition in order to be eligible
for maternity leave; that is, the employee should be in employment for a period
of 90 days before the confinement</P><P><B>• Maternity allowance</B></P><P>All
female employees are entitled to maternity allowance, which is normally the monthly
salary. Nonetheless, the minister has the authority to decide on the quantum of
the allowance. </P><P>There is another condition for eligibility. If the employee
already has five surviving natural children, then she is not entitled to the allowance
(though she would still be entitled to maternity leave).</P><P><B>• Dismissal
of a pregnant employee</B></P><P>If an employer dismisses a female employee during
the period in which she is entitled to maternity leave – which starts one
month before the date of expected confinement – he commits an offence. All
women employees must bear in mind this legal protection accorded to them for there
are some unscrupulous, merciless employers out there who would violate the law
to save some money.</P><P><B>• Conditions contrary to Part Vlll</B></P><P>Any
condition in a contract of service whereby a female employee relinquishes any
right under this part shall be void and of no effect. Consequently, she shall
be entitled to all the rights granted to her in this part.</P><P><B>Part XII –
Rest days, hours of work, holidays and other conditions of work</B></P><P><B>•
Day of rest (Rest day)</B></P><P>You are allowed a rest day of one whole day in
each week. Where you are allowed more than one rest day in a week, the last of
such rest days shall be the rest day for the purpose of this Part.</P><P><B>•
Work on rest day</B></P><P>If you are a daily rated worker, you are entitled to
one day’s wages for work that does not exceed half a day. If you work the
whole day, you are entitled to two days’ wages.</P><P>In the case of monthly
rated employees, the entitlement is half pay for work that does not exceed half
the normal hours of work. But if you work more than half the normal hours (and
not beyond the normal hours), you are entitled to one day’s salary. (Note:
unlike daily rated employees, monthly rated employees are already getting paid
for rest days and holidays.)</P><P>Further, whether you are daily rated or monthly
rated, if you work beyond normal hours on a rest day, you will be paid at least
double the hourly rate for the extra hours.</P><P><B>• Hours of work</B></P><P>Normally,
you should not be required to work more than eight hours a day or 48 hours a week.
During the eight hours, you are entitled to 45 minutes as meal break. The eight
hours is to be spread out within 10 hours. If you are required to work more than
eight hours a day or more than 48 hours a week, the extra time you worked should
be treated as overtime for which you are entitled to an extra payment of one and
a half times of your hourly pay. Usually, no employer is expected to require you
to work more than 12 hours a day, although he or she could apply to the government
to grant an extension.</P><P><B>• Holidays</B></P><P>In Malaysia, there are
about 16 holidays in a year. Private sector employees, however, are entitled to
only 10 days in a year with pay. Of course, some private sector employers close
their business on all the holidays or allow more than 10 days with pay. If any
holiday falls on a rest day, the next working day following the rest day must
be regarded as a paid holiday.</P><P>If you happen to be on sick leave or annual
leave, you are entitled to another day with pay as a substitution.</P><P><B>•
Work on paid public holidays</B></P><P>If you are required to work on a public
holiday, you are entitled to two days’ wages, even if the period of work
done on that day is less than the normal hours of work. Further, if you went on
to work overtime, you are entitled to three times your hourly rate of pay.</P><P><B>•
Annual Leave</B></P><P>You are entitled to eight days of paid annual leave for
every 12 months’ service if you are in continuous service for less than two
years; 12 days paid annual leave if you have been in service for more than two
years but less than five years; 16 days annual leave if you have been in service
for more than five years. The annual leave shall be on top of rest days and holidays.</P><P><B>•
Prohibition</B></P><P>Section 60 M prohibits an employer from terminating the
service of a local employee for the purpose of employing a foreign employee. I
am not very sure that our employers have been strictly following this reasonable
and justified prohibition.</P><P><B>• Sick Leave</B></P><P>Section 60 F stipulates
that you shall, after examination at the expense of the employers, by a registered
medical practitioner or medical officer, be entitled to paid sick leave of 14
days in a calendar year, if you have been in service for less than two years;
18 days in each calendar year if you have been in service for more than two years
but less than five years; 22 days in each calendar year if you have been in service
for more than five years. </P><P>But if you are hospitalised, then you are entitled
to 60 days’ sick leave in each calendar year. This paid sick leave is inclusive
of any sick leave recommended by a dental surgeon.</P><P><B>• Termination
and lay-off payments</B></P><P>Advances in technology and computerisation have
become unstoppable and, as a result, opportunities for employment have become
increasingly scarce. Employers have resorted to various devices to retrench their
employees.</P><P>According to the Employment Regulations 1980, if you are terminated
and laid-off, you are entitled to the following benefits: </P><P> <FONT COLOR="#666666">•</FONT>
10 days’ wages for every year of employment if you have been employed for
less than two years. <BR> <FONT COLOR="#666666">•</FONT> 15 days’ wages
for every year if you have been employed for more than two years but less than
five years.<BR> <FONT COLOR="#666666">•</FONT> 20 days’ wages for every
year of service if you have been in employment for five years or more. </P><P><BR>The
Employment Act makes no mention of gratuities, bonuses and other fringe benefits.
I wish to reiterate that a vast majority of workers depend entirely on the rewards
for their labour. Once they are deprived of it, poverty grips them and their families.
Our country has no law for unemployment benefits or for old age pensions. Our
nation is sufficiently wealthy with petrol, gas, tin mines, palm oil, rubber and
billions of ringgit of foreign investment. Still, poverty is endemic and corruption
is rampant.<BR> <BR>In this article, I have very briefly listed out the rights
of private sector workers whose monthly salary is not more than RM2,000. Many
employers are motivated by greed. To accumulate wealth, they would resort to exploiting
workers. Individual workers are not strong enough to fight for their rights. The
solution is to form trade unions. Unions can not only protect your rights but
are also in a position to negotiate salary increases (as well as other perks and
fringe benefits) once every three years. Unfortunately, millions of workers are
being deprived of union protection by the pro-capitalist Barisan Nasional government.</P><P>Sometimes,
we hear very pleasing tributes to workers. Our prime minister recently declared:
“The workers are the most vital assets.” His deputy called on workers
“to be progressive, productive, disciplined, honest and trustworthy.”
The president of the Malaysian Employers Federation (MEF) called on employers
“to spread their wealth”. </P><P>Nice words to hear, indeed. But they
ring hollow. I have spent the best part of my life struggling for the emancipation
of workers. I know what I am saying. When the Malaysian Trades Union Congress
(MTUC) asked Mahathir in August 1998 for RM 900 as the minimum wage, his reply
was RM900 was too little; it had to be at least RM1,200 a month! The MTUC has
been asking for a minimum wage for 42 years. It submitted a memorandum to Prime
Minister Abdullah Badawi many months ago listing out the workers’ problems
and asking for a minimum wage of RM900 (not RM 1,200). There has been no reaction
from the PM, I understand.</P><P><B>Watch out for your EPF</B></P><P>You are entitled
to 12 per cent of your salary (not allowances) as Employees Provident Fund contribution
by your employer every month. It accumulates with interest until you retire. This
is the only compulsory saving for your old age. I strongly advise you not to allow
your employer to reduce the quantum of the contribution and you must never agree
to reduce your salary by increasing or introducing new allowances. It is illegal
and an offence and it happens only where workers have no unions.</P><P><B>The
remedy</B></P><P>Nine million workers and their families form more than 80 per
cent of the electorate. The MTUC must guide them to vote for parties that are
committed to social justice, poverty eradication, zero corruption, and freedom.</P><P>Our
struggle should be aimed at establishing an egalitarian society, in which there
is prosperity, unity, harmony and the equitable distribution of wealth for all.
Address: Wisma MTUC,10-5, Jalan USJ 9/5T, 47620 Subang Jaya,Selangor | Tel: 03-80242953 | Fax: 03-80243225 | Email: sgmtuc@gmail.com.com