Lawyers at the Malaysian Bar’s AGM have called on the government to ensures that all employers, especially GLCs, respect worker and trade union rights, reports Charles Hector.
At the 68th Annual General Meeting of the Malaysian Bar on Saturday, 15 March 2014, attended by 1,219 members, four resolutions were adopted.
One of those adopted, was the resolution on worker and trade union rights. The resolution adopted is as follows:
Resolution on domestic inquiries, misconduct and respect for worker and trade union rights in Malaysia
(1) It is disturbing how many worker and trade union rights are not protected by law in Malaysia, and the embarrassing failures of government-linked companies (GLCs) to set the best example in protecting and respecting worker and trade union rights.
(2) In May 2013,18 workers from 2 DRB HICOM, a government-linked company, were terminated because they handed over a Malaysian Trade Unions Congress (MTUC) memorandum demanding commitment to worker and trade union rights during the last General Elections. The workers exercised their rights as citizens when they handed this MTUC memorandum outside working hours. Amongst those terminated were union leaders, including the Pahang MTUC branch president.
The misconduct these workers are accused of were:
3) (a) undermining the image or good name of the company orally, in writing or by action,
(b) bringing about or trying to bring about any form of influence or outside pressure in submitting or supporting any external claim related to service, being an individual claim, or claims by other employees.
(b) bringing about or trying to bring about any form of influence or outside pressure in submitting or supporting any external claim related to service, being an individual claim, or claims by other employees.
(4) The second alleged misconduct is absurd, as in fighting against injustice, workers and their unions would certainly try to lobby and get support from fellow workers, members of the public, and others in an effort to end injustice or rights violations.
(5) A Domestic Inquiry was held in the case of the 18 workers, but they were denied the right to be represented by their national union. They were only allowed to be represented by a fellow worker from their workplace. The Collective Bargaining Agreement was between the National Union and the said DRB HICOM companies.
(6) On 29 November 2013, the president of the National Union of Flight Attendants Malaysia (Nufam) was terminated. He had issued a media statement as president of the union, but, Malaysian Airlines (MAS), a GLC, alleged that Ismail Nasaruddin, the union president, had acted in contradiction of his duties as a chief steward of the airline by issuing the statement. (Malaysiakini, 14 November 2011, MAS suspends chief steward for criticising CEO). He was terminated without any Domestic Inquiry.
(7) In February 2014, MAS issued show cause letters to about 30 employees for their alleged participation in an ‘illegal gathering’ at the Human Resource Ministry. This is absurd, as it is a fundamental right for workers and/or their unions to file complaints and make representations to the government, including the Human Resource Minister.
(8) Disciplinary action has also been started against workers for comments made on their union’s closed Facebook pages.
(9) To control workers ability to highlight rights violations and injustice, their freedom of expression, opinion and peaceful assembly, during their free time, seems to be the trend of action taken by employers.
(10) Companies and businesses should never terminate a worker for reasons other than matters that relate to work performance and/or their conduct as a workers save in very exceptional cases. For instance, when a worker is convicted of a criminal offence. The Industrial Relations Act 1967 also prohibits employers from discriminating against, threatening or terminating workers for their involvement in trade unions.
(11) Natural justice also demands that no worker should be terminated without a Domestic Inquiry, and the right to be heard, and defended by a lawyer, a Union representative or a fellow worker of their choice. The Employment Act 1955 only provides for ‘due inquiry’ but this is insufficient to ensure this right is given to all workers. It fails to clarify that this means a Domestic Inquiry, how it is to be conducted, and the right to be represented by a lawyer or Union. The failure of the employer to have a ‘due inquiry’ or Domestic Inquiry is not considered by the Industrial Court in wrongful dismissal cases.
(12) Misconduct is also not clearly defined by, or set out in law, and this is urgently needed given the trend that some employers have been expanding the types of misconduct – even beyond the workplace, infringing on workers’ personal liberties and rights.
(13) Wrongful dismissal cases, affecting workers and their families, take too long to be resolved, sometimes even 10 years; ultimately, the Courts will not order the employees’ reinstatement. This emboldens employers to wrongly terminate workers, especially union or worker leaders, and others claiming their rights, knowing that they have effectively got rid of these workers.
(14) Malaysia, being a member of the international community, must also act in accordance with International Standards including Ruggie’s Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework , where in cases of government-linked companies like MAS and DRB HICOM, the obligation is even greater. The Guiding Principles state that “States should take additional steps to protect against human rights abuses by business enterprises that are owned or controlled by the State, or that receive substantial support and services from State…”.
(15) No worker, group of workers, or unions should be barred from making public statements to the media or otherwise in the struggle for workers 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 Recognised Human Rights and Fundamental Freedoms, commonly known today as the UN Human Rights Defenders Declaration.
We hereby resolve:
(1) That the Malaysian government ensures that all employers, especially Government-Linked Companies (GLC) respect worker and trade union rights;
(2) That the Malaysian government take additional steps to protect against human rights abuses by business enterprises that are owned or controlled by the State, or that receive substantial support and services from State…”; and
(3) That Malaysia immediately ratifies ILO Convention No 87 (Freedom of Association and Protection of the Right to Organise Convention, 1948) and other important labour conventions.
