The practice of waiting for the victims to lodge formal complaints/claims before action is taken must end, as most victimized workers are worried about lodging formal complaints against their employer, more so when they are still in employment for fear of retaliation which may also include dismissal.
The law empowers the Ministry of Human Resources to conduct regular inspections, but a perusal of the Statistics provided by the Ministry shows that there are only inspections, investigations and prosecutions being carried out by the Occupational Safety and Health (OSH) department, there is no statistics about inspections, investigations, prosecution and/or enforcement of the basic worker and trade union rights like payment of wages, overtime, wrongful dismissal, discrimination and such rights.
A perusal of the Ministry of Human Resources quarterly reports, Statistic Pekerjaan dan Perburuhan Siri 13 Bil 3/2017 September (Employment and Labour Statistics) discloses no statistics of workplace inspections to ensure that worker and trade union rights are not being violated, no statistics of investigation and prosecution of employers that have violated labour laws and fundamental worker rights, no statistics of information/complaints received and no statistics of employers found guilty. Only available are matters concerning OSH.
Given the fact that there are statistics on Occupational Safety and Health(OSH) inspections and enforcement, it looks like the Malaysian government and/or the Ministry of Human Resources are not interested in protecting basic worker and trade union rights. After all, the statistics of inspection, investigation, prosecution, conviction and enforcement against employers who breach existing Malaysian labour and trade union laws is information so easily compiled by the Government.
Malaysian Airlines – A wholly government owned company
These 3,200 workers were employees of the Malaysian Airlines, who was owned by a wholly government owned company. The airlines decided to reduce the workforce by 6,000 workers, which justly would have been done vide retrenchment exercise, which would have had to comply with existing just legal principles like Last In First Out (LIFO). However, what the Malaysian government did was to form a new company, and terminate all employees in the previous company – and then re-employed selected workers in the new wholly owned company. This would not be just and a violation of worker rights.
This exercise may also be biggest union busting exercise of recent times, as almost 6 of the trade union were in-house trade unions, and this exercise would effectively kill all these unions.
The airlines employees in Malaysia, did previously have a national union. In February 1979, 22 members of the Airlines Employers Union (AEU) were detained under the ISA after a pay dispute at the state-run Malaysian Airline System (MAS) had led to a work to rule and a government order to deregister the union. Thereafter, only in-house unions existed for employees of the Malaysian Airlines, until the recent registration of National Union of Flight Attendance Malaysia's (NUFAM). However, despite NUFAM succeeded in getting 62.73% of the votes at the secret ballot, and thereafter on August 2013, the Director General of Industrial Relations(DGIR) issued the formal letter acknowledging NUFAM as a recognized union in MAS, the company challenged the decision in court.
Considering the background, this non reference of the claim of these 3,200 Malaysian Airlines(MAS) workers to the Industrial Court by the Minister is all the more unconscionable. If not for that new law, that attempts to not make the new MAS company, owned by the same owners of the old MAS company, the owners and the new MAS company would most likely be found to be liable for the actions of old MAS company. Even, with the new law, the Courts may have found in favour of the workers.
The Minister’s decision of not referring the case to the Courts as such in this case may be tainted with mala fide – an attempt to even prevent the claims of these MAS worker from being considered and determined by the court, where judges are duty bound to uphold the cause of justice without fear or favour – and not follow the agenda and/or intention of even the existing UMNO-BN government.
The reality in Malaysia where worker rights are not protected and promoted, and have been eroding in some cases is embarrassing. When Malaysia recently wanted to be part of the Trans-Pacific Partnership Agreement (TPP), one of the pre-conditions was that Malaysia amends its labour and trade union laws to enable it to be in compliance with international labour standards, whereby there have been moves on the part of the government to do so but alas to date, we have yet to see any proposed amendments.
·Call on Malaysian government to ensure that workers claiming wrongful dismissal seeking reinstatement shall have the right to immediately file their claim at the Industrial Court, and that all administrative hurdles including the Minister’s discretion to refer a case be removed;
·Call for the revocation of the Minister’s decision not to refer this case of the 3,200 Malaysian Airlines(MAS) workers, and that their case immediately be commenced and heard by the Industrial Court. Likewise, all Ministerial decisions not to refer worker cases be revoked, and be forthwith heard by the Industrial Court;
·Call for the repeal of Schedule 2 of the Industrial Relations Act that seeks to, amongst others, limit the worker’s who have been wrongfully dismissed to just 2 years back wages;
Call for the government to expedite administration of justice, including trials, of workers wrongfully dismissed who are claiming reinstatement to end not later than 6 months from the date of claim;
Call for the Malaysian government to proactively protect worker and trade union rights, amongst others, by regular inspections, speedy investigations and enforcement of labour laws and worker rights.
Call on Malaysia to expedite the transformation of existing labour and trade union laws to be in compliance with international human rights and labour standards;
Call on Malaysia to promote and protect worker and trade union rights.