2012 Annual Survey of Violations of Trade Union Rights - Malaysia
| Publisher | International Trade Union Confederation |
| Publication Date | 6 June 2012 |
| Cite as | International Trade Union Confederation, 2012 Annual Survey of Violations of Trade Union Rights - Malaysia, 6 June 2012, available at: http://www.refworld.org/docid/4fd8893ac.html [accessed 8 June 2013] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
Population: 28,400,000
Capital: Kuala Lumpur
ILO Core Conventions Ratified:
29 (Forced Labour (1930))
98 (Right to Organise and Collective Bargaining (1949))
100 (Equal Remuneration for Work of Equal Value (1951))
105 (Abolition of Forced Labour (1957))
(denounced)
138 (Minimum Age for Employment (1973)); 182 (Worst Forms of Child Labour Convention (1999))
Reported Violations – 2012
Murders: 1
Arrests: 2
Imprisonments: 5
Dismissals: 2
Documented violations – actual number of cases may be higher
Introduction
Malaysia's trade unions operated in an uncertain political atmosphere
during 2011. Legislation to amend the existing employment law was
passed by Malaysia's lower house of Parliament. The amendment, if
enacted, would allow employers to use contract or agency labour to avoid
union representation and other statutory obligations for workers.
Background
According to Malaysia's trade unions, wages in the country have been
depressed, in part because of the availability of cheap migrant labour
particularly in the construction and manufacturing sectors. Malaysia's
unions struggled to win a living minimum wage for all workers. In early
November, the Penang branch of the Malaysian Trade Union Congress (MTUC)
called on all state governments to follow the legislation passed in
Selangor by adopting a minimum wage of RM1,500 for all civil servants.
Key indicators show that Malaysia's economy remained sound. The annual
inflation rate as of December 2011 was 3%. The unemployment rate was 3%
in October of 2011. Gross Domestic Product (GDP) expanded 5.8% in the
third quarter of 2011 over the same quarter in the previous year.
Human rights issues remain a serious concern. In early March, the
Malaysian Home Minister said that the government had caned 29,759
foreign workers between 2005 and 2010 for various immigration offences.
The Malaysian Trade Union Congress (MTUC) condemned this inhuman
treatment and reminded the government that employers, especially those
involved in supplying foreign labour, were often cheating ignorant
foreign workers into believing that they were entering the country
legally.
In late June, authorities arrested 30 activists, including one
opposition MP, and accused them of conspiring to overthrow the
government and to revive communist ideologies. On 9 July, in Kuala
Lumpur, police arrested more than 1,600 people and used tear gas and
water cannons to disperse more than 50,000 protesters marching to demand
electoral reforms. Demonstrators defied a government decree that that
banned the rally.
On 15 September, Malaysian Prime Minister, Najib Razak, said he was
committed to repealing the Internal Security Act (ISA) and the Emergency
Ordinance laws that allow indefinite detention without trial. Razak
also said that police laws would be amended to allow freedom of assembly
according to international norms and that the government would give
more freedom to media groups. Despite the pledges of reform, on 29
November, Malaysia's parliament enacted a ban on street protests. The
law replaces legislation that required a police permit for public
gatherings but contains a range of new restrictions including an
outright ban on street marches.
Trade union rights in law
Changes to Employment Law: On 6 October, Malaysia's lower house of
Parliament, Dewan Rakyat, passed amendments to the Employment Act of
1955 which the Malaysian Trade Union Congress (MTUC) said would erode
protection for workers as employers will no longer be directly
responsible for the welfare of their employees. MTUC President, Mohd
Khalid Atan, said that the organisation is concerned that workers under
contract for labour cannot be organised into unions and noted that
workers will be disadvantaged because of different standards and
conditions for workers in similar positions and by being prevented from
unionising and using their collective strength in negotiations.
Malaysia's upper house of Parliament, Dewan Negara, had not acted on the
amendments by the end of the year.
Link to additional detailed information regarding the legislation on the ITUC website here
In practice
Secret ballot system abused: Workers opt for the union that
is to represent them by mandatory secret ballot. The Immigration
Department and the employers prohibit foreign workers from taking part
in these elections or any union activities. The Department of Industrial
Relations (DGIR), however, includes them in the overall figures for the
purpose of determining union membership. This can heavily dilute the
votes in favour of a union and often results in the denial of union
recognition. Furthermore, according to the Regulations, workers who do
not vote are considered to be against the union. Even those who have
passed away are required to vote.
Inefficient disputes settlement machinery: The disputes
settlement machinery remains grossly inefficient, and cases of
victimisation and unfair dismissals remain unresolved for as long as
five years. Such inordinate delays make a mockery of the legal
protection accorded under the Industrial Relations Act.
Migrant workers face horrifying conditions:
Gross violations of migrant workers' rights have provoked a serious
debate in Malaysia. In October, Cambodia imposed a ban on labour
migration to Malaysia for domestic work following allegations of extreme
abuse. According to Human Rights Watch, "Cambodian women and girls
often have to surrender their passports to their agents or employers,
making it harder for them to leave if they are mistreated. Many work for
14 to 21 hours a day without rest breaks or days off. And many are
forcibly confined to their work places, are not given adequate food, and
are physically and verbally abused. Some have been sexually abused by
their employers. None of the workers Human Rights Watch interviewed said
they had received their full salary." Under Malaysian labour law,
migrant domestic workers are excluded from basic protections, such as a
weekly day of rest, annual leave, and limits on working hours. Amnesty
International also reported that nearly 30,000 migrant workers were
caned between 2005-2010 for various immigration offenses. Caning is
extremely painful, leaving lasting physical scars.
On 14 February, human rights activist Charles Hector was sued for
over USD 3.2 million by electronic firm Asahi Kosei (M) Sdn Bhd for
defamation after he posted on his blog reports he received from Burmese
migrant workers detailing violations of labor and human rights at the
company. The 31 Burmese migrants, who were employed by an employment
agency that supplied the workers to Asahi Kosei, were alleged to have
been paid wages far lower than promised when they agreed to migrate to
Malaysia and faced numerous illegal wage deductions, among other
violations. The facts of the case were not in contention; rather, Mr
Hector was found liable and was forced to issue a retraction because he
had associated the abuses with Asahi Kosei rather than the
subcontractor, even though Asahi Kosei managed the labour of the migrant
workers.
10,000 workers denied collective bargaining rights:
On 28 September, the Malaysian Trade Union Congress (MTUC) submitted a
memorandum to the Ministry of Human Resources Malaysia (MOHR) listing
and detailing the trade unions' struggle to achieve collective
bargaining rights in nine companies involving more than 10,000 workers.
According to the MTUC, as a result of MOHR's failure and inefficiency,
union recognition, which is a prerequisite for collective bargaining
rights, remain unresolved for seven years. The MTUC called for a review
of the regulations which were often applied to delay and deny unions'
claims for recognition.
Many employers refuse to respond to the Department of Industrial
Relations' (DGIR) and Department of Trade Unions' (DGTU) request for
information on their company's industrial activity and a list of their
employees' names, despite the 2008 amendments to the Industrial
Relations Act 1967, aiming to address numerous weaknesses and resolve
recognition claims. In some cases employers even refuse to allow
officers from the DGIR and DGTU to enter the company premises.
Furthermore, after the implementing regulations were drawn up, unions
were not properly informed about the submission requirements of the new
regulations. This, despite the fact that according to the DGIR, the use
of the old form invalidates the claim and then unions have to withdraw
their claim and wait for six months before filing a new one. This rule
is considered illegal by the MTUC.
Many arbitrary rulings from the DGIR invalidated several unions'
claims for recognition. This happened at Renesas Semiconductor (formerly
NEC). Despite showing proof of delivery and the company's confirmation
of receipt, the DGIR has ruled that since the union's claim was hand
delivered by the president of the union, it was deemed invalid. The
union made four unsuccessful attempts to send the claim by mail. The
union subsequently reported to the DGIR that Renesas Semiconductor had
refused to accept delivery.
The Electrical Industry Workers' Union's claim for recognition at the
Formosa Prosonic Manufacturing and Liebherr Appliances companies
remained unresolved for nearly four years and the DGIR claimed that it
was powerless to do anything.
Finally, the MOHR and the DGIR have imposed a ban on picketing or any
form of action to protest against employers' refusal to accord
recognition.
Violations
Migrant workers struggle for rights: Malaysia has a total of
1.9 million registered migrant workers, constituting approximately 21%
of the workforce, making Malaysia the largest importer of labour in
Asia. It is estimated there are another 2 million undocumented migrant
workers. On 1 August, Malaysia implemented an amnesty programme for its
undocumented migrant workers. Under the provisions of the amnesty, those
without documents were to be fingerprinted for a biometrics database
and allowed to stay in Malaysia if they had a job. If they were not
employed, they would be allowed to leave Malaysia by 31 October without
penalty. On 30 May, Malaysia and Indonesia signed a memorandum of
understanding (MoU) on migrant labour that ended a June 2009 moratorium
by Indonesia on sending workers to Malaysia. Under the terms MoU,
Indonesian migrant workers will have the right to retain their
passports, to one day off each week, paid annual leave, and access to
communications. The MoU also provided that the minimum wage for migrant
workers will not be lower than in Indonesia and that overtime will be
paid. On 5 May, Malaysian police arrested two Burmese migrant workers
after they complained of crowded living conditions at an appliance
factory. On 13 July, the Malaysian Trade Union Congress (MTUC) urged the
authorities to investigate a newspaper agent who allegedly abused ten
migrant workers from India and failed to pay them wages. Five out of ten
men were allegedly wrongfully detained and charged in court for working
illegally in the country. The MTUC instituted legal proceedings against
the employer.
Dismissal of union official of the Malaysian newspaper Utusan Malaysia:
On 21 April, Malaysian newspaper Utusan Malaysia (UM) dismissed senior
journalist and President of the National Union of Journalists Malaysia
(NUJ M), affiliated to the International Federation of Journalist (IFJ),
Mr. Ha'ta Wahari, after suspending him on 11 January. The newspaper
dismissed Wahari on charges of tarnishing the newspaper's image when he
publicly expressed concerns about the newspaper's biased news coverage.
UM is owned by UMNO, the dominant political party in Malaysia's ruling
coalition.
Domestic workers face abuse and even death:
On 21 June, Deputy Human Resources Minister, Ms. Maznah Mazlan, told
parliament that a total of 18,716 domestic workers ran away from their
employers' homes last year. In 2010, 247,069 foreign housemaids were
employed in Malaysia, with 76.7% from Indonesia. The Malaysian Trade
Union Congress (MTUC) urged the government to ratify ILO Convention 189
on Domestic Workers in order to effectively address the problems
encountered by migrant domestic workers in the country.
According to an MTUC survey on 510 domestic workers' (mainly
Indonesians and Filipinos) wages and working conditions, 26.4%
complained that they did not get their wages and 7.8% complained that
they were physically and verbally abused. 90% reported that they were
not given a day off, while the remaining 10% who got a day off were not
allowed to leave their homes. In some cases, they were only allowed two
days in a month. Furthermore, 53% were required to work more than 16
hours a day. This also included domestic workers being sent to various
places to work. Despite a significant rise in wage levels, 61% have
reported that their monthly wages are now paid into their bank account.
On 5 June, Indonesian domestic worker, Ms Isti Komariyah, died at the
University Malaya Medical Centre. She had not been paid any salary
since she began work for a couple at Taman Sea Petaling Jaya in December
2008. Police classified the case as murder and detained her employers
in connection with her death. On 6 July, Ms Va Sokhoeun, 38, a domestic
worker from Cambodia sought refuge in the Cambodian embassy in Malaysia.
She claimed that her employer had withheld her pay for seven months and
that she had been sexually assaulted. On 25 July, Cambodian embassy
officials in Malaysia began an investigation into the death of a
Cambodian domestic worker in Penang following allegations made last week
that she was abused.
In August, Malaysian rights' group Tenaganita said
that it had rescued 41 domestic works from Cambodia from abusive
employers.
On 14 October, Cambodia banned its citizens from going to work in Malaysia as domestic workers.
Union president dismissed at Renesas Semiconductor: On 28
August, Renesas Semiconductor (formerly NEC) dismissed the president of
its workers' union for an article he published on his blog. The article
merely reported on the status of the union's claim for recognition.
Yellow union at Maybank – registered by government:
On 30 January, the National Union of Bank Employees (NUBE) claimed
that the government's registration of the in-house union at Maybank
violated Section 12 of the Trade Unions Act of 1959 and called for the
registration to be nullified. Maybank chief executive, Datuk Seri Abdul
Wahid Omar, said that while 61% of Maybank employees in the
clerical/non-clerical category are NUBE members, others had decided to
form the Maybank Non-Executive Union (Mayneu) on 3 January.
On 21 September, NUBE accused Maybank of backing the in-house union
to avoid an 80-month bonus claim for bank employees. In addition, NUBE
Secretary-General J. Solomon said that Maybank's support for Mayneu was a
violation of a High Court stay order on the registration of the
in-house union. On 24 November, Malaysia's High Court dismissed a
defamation suit brought by Maybank against NUBE. The court ruled that
NUBE, as a registered trade union, cannot be sued for defamation. The
court held that Section 21 and 22 (1) of the Trade Unions Act of 1959
was clear that such actions against a trade union in relation to a trade
dispute "is not maintainable in any civil court nor can it be
entertained by any court." The court was satisfied that there was in
fact a "trade dispute" between Maybank and NUBE in reference to the
insufficient bonuses provided for the lower level of staff of the bank.
The court ordered Maybank to pay RM15,000 in costs to the NUBE. In its
suit filed on 22 April, Maybank alleged that NUBE and its
Secretary-General J. Solomon, had published articles containing
defamatory statements against Maybank on the union's website earlier in
the year.
Electronics and pulp workers make gains:
On 27 January, workers, a majority of them women, at ST
Microelectronics in Muar, Johor, voted to join the newly formed
Electronics Industry Workers' Union (Southern Region). The struggle for
union representation started in August 2010, when the union filed for
recognition. ST Microelectronics is an Italian-French electronics and
semiconductor manufacturer headquartered in Geneva, Switzerland.
In July, the Paper & Paper Products Manufacturing Employees'
Union (PPPMEU), International Federation of Chemical, Energy, Mine and
General Workers' Unions (ICEM), gained ground-breaking collective
bargaining agreement language on contract and agency labour (CAL) with
Kimberly Clark at the company's Kluang, Johor, pulp and hygiene products
mill. Kimberly Clark is a global paper products company. The new
language provides that CAL workers are now covered by the provisions of
the collective bargaining agreement.
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