Combating Erosion of Worker and Trade Union Rights
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Combating Erosion of Worker and Trade Union Rights

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Regular employment until retirement are being replaced with short-term employment contracts to now a total evasion of employment relationship. The worker is not employee of the factory - hence no......

Regular employment until retirement are being replaced with short-term employment contracts to now a total evasion of employment relationship. The worker is not employee of the factory - hence no righ to benefit from Collective Agreements, or even enjoy the right to join trade unions.

Eight hours work was a the maximum number of hours that an employer could compel a worker to work - but alas legal protections are being eroded, and now employers can legally make workers to work even more than 48 hours a week...

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  • 1. What rights remain ?8 hours work per day or 48 hours per week?Right to form and join Trade Unions?Minimum Wage?Employment Security?Permanent Regular Employment?Occupational Health and Safety?Maternity Leave & Benefits?………..
  • 2. Erosion of Right to ‘Eight hours work, Eighthours recreation, Eight hours rest’But in 1989, the Malaysian government amended the law allowing for the Minister to waive these rights as to required hours of work, on the application of the employer, but retained the condition that no worker is required to work for more than forty-eight hours in one week, which subsequently was removed by yet another amendment in 1998. Employment (Amendment) Act 1989 Act A716 Employment (Amendment) Act 1998 Act A1026
  • 3. Employment …Not JobRegular, Permanent…not short-term A fundamental right from which so many other rights naturally flow Employment determines where the worker will ‘settle down’, spouse finds employment, children schools,…. Employment – regular permanent employment until retirement, retrenchment, employer’s business closure, termination by reason of misconduct/breach of contract Probation – time for employer to access suitability of worker before confirming permanent employment When laws provide for annual leave, paid sick leave entitlement, retrenchment and lay-off benefits – it all pre-supposes a permanent employment
  • 4. Who should be the EMPLOYER? EMPLOYER Employer - “(a)the principal or owner of the agricultural or industrial undertaking, constructional work, trade, business or place of work; or (b) the statutory body or local government authority” – Employment Act 1955 - owns the factory/workplace, tools of production, need workers production to work at their workplaces producing the employers products for profits as in factories, plantations, farms or carrying out the services that the employer does to make profits or their statutory obligations – banks, restaurants, statutory/government bodies/departments- exercises control and supervision of the workers at the workplaceHAVE WORK – NEED WORKERS – FOR PRODUCTION/SERVICES – FOR PROFIT
  • 5. Who is the EMPLOYEE? EMPLOYEE the person or class of persons employed, engaged or contracted with to carry out the work at the workplace of the principal or owner of the workplace under control and supervision shall be the employee or employees- the person or class of persons employed, engaged or contracted with to carry out the work at the workplace of the principal or owner of the workplace to produce the products or carry on the business/services of the employer for profit and/or to fulfill some statutory, government or other obligations.HAVE LABOUR – NEED WORK – NEED INCOME – FOR LIVELIHOOD
  • 6. EMPLOYMENT RELATIONSHIPEmployer (Principal) ↔ Employee (Worker)- inter-dependent relationship (or mutually dependent relationship)- direct 2-party employment relationshipPrincipal needs workers – and depend directly on workers to work producing products – hence profitsWorker’s power of negotiations – the ability to come together as unions, protest, picket, strike,… which will affect production and profitsHence, EMPLOYERS need to be concerned about WELFARE, RIGHTS, Working conditions, etc…. And will negotiate…
  • 7. The employment relationship is a legal notion widely used in countries around the world to refer to the relationship between a person called an employee. (frequently referred to as a worker.) and an employer for whom the employee performs work under certain conditions in return for remuneration. It is through the employment relationship, remuneration however defined, that reciprocal rights and obligations are created between the employee and the employer. The employer employment relationship has been, and continues to be, the main vehicle through which workers gain access to the rights and benefits associated with employment in the areas of labour law and social security. It is the key point of reference for determining the nature and extent of employers. rights and obligations towards their workers.- Report on The employment relationship presented at International Labour Conference, 95th Session, 2006
  • 8. Employment relationship has been,and continues to be…“…the main vehicle through which workers gain access to the rights and benefits associated with employment in the areas of labour law and social security. It is the key point of reference for determining the nature and extent of employers. rights and obligations towards their workers…”
  • 9. BUT EMPLOYERS NOW WANT TO… DIVIDE & EXPLOIT Maximize Profits  Reduce Liabilities/Risks Increase Flexibility Easy Hire Easy Fire
  • 10. WorkplaceAbout 50% Employees – 20% regular 30% short-termAbout 50% ‘workers’ but NOT employees (i.e. supplied by 3rd parties – many different 3rd parties…who usually supply workers to many different workplaces in many different sectors)
  • 11. BEST if we can just use LABOUR without all the other obligations that come with an employment relationship….Like the obligation to look after the welfare of the worker, ensure that worker rights are protected….permanent employment until retirement, domestic inquiry & right to be heard when want to fire workers, trade union & collective agreements, Last In First Out(LIFO) policy when it comes to retrenchment…..
  • 12. Permanent to Short-TermEmploymentPermanent Employees Short-Term ContractsWage increments, annual Easier termination, Avoid leave/medical leave wage/annual leave/sick leave entitlement increases, increments, Avoid maternity maternity leave & benefits, leave, Lay-Off Benefits, etc termination/lay-off benefits, More compliant less termination difficult – demanding worker – worried domestic inquiry, right to be about ‘contract renewal’ – heard…., unions & collective hence also no union agreements problems..
  • 13. No employment relationship – noemployer’s obligationsEmployee Not EmployeeCan come together as No right to make claim for UNION and make demands – better wages, working for better rights, wages, etc conditions, benefitsCannot be gotten rid off Can be gotten rid off easily easily – due process by just picking up the phone Obligation to ensure rights & asking supplier to take and welfare of worker worker away No worries about worker rights or welfare – just use them
  • 14. Why ‘outsourcing’?Workers work for the factory, factory pays RM50 to the ‘outsourcing agent’ for normal hours of work for 1 worker, and agent pays worker RM20, making about RM30 per day per worker.1,000 such workers - RM30,000 per day, per month RM780,000-00, per year RM9.35 million.With 2 million workers -RM1.9 billionWith 10 million workers ….
  • 15. “…Investors do not want unions to be formed in their establishments. Through outsourcing, it would be difficult for unions to be formed as outsourcing company, and not the factory, would be the employer…’ - Datuk Ishak Mohamed, Enforcement Director of the Immigration Department Malaysia (New Straits Time, 20/7/2008)
  • 16. Trade UnionMembership - only employees (not other workers working at the same workplace)Collective Agreement – between employer & employeeONLY 50% of workers are ‘employees’ ….weaker trade unions…. If NO employees, then no UNION
  • 17. Triangular Relationship“triangular relationships” - These are workers employed by an enterprise (the provider) who perform work for a third party (the user/the principal) to whom their employees provides labour or services – BUT do NOT become EMPLOYEES of the ‘user/principal’ – the factory/workplace.Rightly – these labour/manpower suppliers should only be Private Employment Agencies – find and supply workers to the ‘user’/principal, who thereafter are the EMPLOYEES of the user/principal. For their service, they are paid a fee – a one time fee.
  • 18. Some struggles against outsourcing,short-term contracts…In October 2012 in Indonesia, 2 million workers protested against ‘outsourcing’ and short term contractsIn Malaysia, the Malaysian Trade Union Congress(MTUC, trade unions and civil society are still protesting against the ‘contractor for labour system’….outsourcing
  • 19. In 2011 and 2012, 2 statements, jointly issued by 115 and thereafter 94 tradeunions and CSOs calling for the abolition of the ‘contractor for laboursystem….calling for the retention of the 2-party employment agreement, “…We call for the abolition of the contractor for labour and their practices and that all workers, currently supplied by these 3 rd party manpower/labour suppliers (contractor for labour) who are still not direct employees of the principal employer be immediately made employees of the said principal and be accorded same benefits and treatment as accorded to all other employees without discrimination, including the right to form/join trade unions or afford protection and entitlement to the benefits accorded through their respective Collective Agreements. We call for the abolition of precarious employment, and for retention of a just 2-party employment relationship between principals and workers…”
  • 20. On 10 March 2012 the Malaysian Bar passed aresolution unanimously calling“…That the Malaysian government do the needful to maintain existing 2-party employment relationships between principals or owners of workplaces as employers, and workers that work in the said workplaces as employees of the said principals and owners… The Malaysian Bar takes the stand that labour owners suppliers and/or contractors of labour should never be or continue to be employers of workers after they are supplied, accepted and start working at the workplaces of principals or owners. Thereafter, these workers shall be employees of the principal or owners of the workplace…”
  • 21. Mechanisms for promotion of workerrights Trade Unions, Workers and their associations, Collective Actions by Workers/Trade Unions at Work Places….together with civil society, AND…..
  • 22. What we want…Ensure that workers have the right to regular employment with security of tenure until retirement.Abolish short-term or fixed duration employment contracts Ensure 2-party employment relationships between principals or owners of workplaces as employers, and workers that work in the said workplaces as employees of the said principals and ownersLabour suppliers, contractors for labour or labour outsourcing companies should never be or continue to be employers of workers after workers are supplied, accepted and start working at the workplaces of principals or owners. Thereafter, these workers shall be employees of the principal or owners of the workplace…”
  • 23. What else?Abolish manpower/labour outsourcing and all forms of triangular employment relationships/ arrangements.Ensure that all worker rights are respected, including rights of access to avenues of justice. Migrant workers shall be allowed to work and stay legally until the complaints and claims are finally adjudicated and settled.All workers shall have the right to form and/or join trade unions.……..
  • 24. THANK YOU