What rights remain ?8 hours work per day or 48 hours per 8 hours work per day or 48 hours per

week?week?Right to form and join Trade Unions?Minimum Wage?Employment Security?Permanent Regular Employment?Occupational Health and Safety?Maternity Leave & Benefits?………..

Erosion of Right to ‘Eight hours work, Eight hours 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 waive these rights as to required hours of work, on the application of the of work, on the application of the employeremployer, 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

Employment …Not JobRegular, Permanent…not short-termA fundamental right from which so many other rights A fundamental right from which so many other rights

naturally flownaturally flowEmployment determines where the worker will ‘settle Employment determines where the worker will ‘settle

down’, spouse finds employment, children schools,….down’, spouse finds employment, children schools,….Employment – regular permanent employment until Employment – regular permanent employment until

retirement, retrenchment, employer’s business retirement, retrenchment, employer’s business closure, termination by reason of misconduct/breach closure, termination by reason of misconduct/breach of contractof contract

Probation – time for employer to access suitability of Probation – time for employer to access suitability of worker before confirming permanent employmentworker before confirming permanent employment

When laws provide for annual leave, paid sick leave When laws provide for annual leave, paid sick leave entitlement, retrenchment and lay-off benefits – it all entitlement, retrenchment and lay-off benefits – it all pre-supposes a permanent employmentpre-supposes a permanent employment

Who should be the EMPLOYEREMPLOYER?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 productionowns the factory/workplace, tools of production, need workers 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 control and supervision of the workers at the workplaceworkplace

HAVE WORK – NEED WORKERS – FOR HAVE WORK – NEED WORKERS – FOR PRODUCTION/SERVICES – FOR PROFITPRODUCTION/SERVICES – FOR PROFIT

Who is the EMPLOYEEEMPLOYEE? 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 HAVE LABOUR – NEED WORK – NEED INCOME – FOR LIVELIHOOD– FOR LIVELIHOOD

EMPLOYMENT RELATIONSHIP Employer (Principal) Employer (Principal) ↔ Employee ↔ Employee

(Worker)(Worker)- inter-dependent relationship (or mutually dependent relationship)- direct 2-party employment relationship

Principal needs workers – and depend directly on workers to work Principal needs workers – and depend directly on workers to work producing products – hence profitsproducing products – hence profits

Worker’s power of negotiations – the ability to come together as unions, protest, picket, strike,… which will affect production and profits

Hence, EMPLOYERS need to be concerned about WELFARE, RIGHTS, Working conditions, etc…. And will negotiate…

The employment relationship is a legal notion widely used in countries around the world to refer to the relationship relationship between a person called an employee. (frequently between a person called an employee. (frequently referred to as a worker.) and an employer for whom the referred to as a worker.) and an employer for whom the employee performs work under certain conditions in employee performs work under certain conditions in return for remunerationreturn for remuneration. It is through the employment relationship, however defined, that reciprocal rights reciprocal rights and obligations are created between the employee and obligations are created between the employee and the employerand the employer. The 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

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…”

BUT EMPLOYERS NOW WANT TO…BUT EMPLOYERS NOW WANT TO…DIVIDE & EXPLOIT

Maximize Profits Reduce

Liabilities/Risks Increase FlexibilityEasy Hire Easy Fire

Workplace About 50% Employees – 20% regular 30% short-term

About 50% ‘workers’ but NOT 50% ‘workers’ but NOT employees employees (i.e. supplied by 3rd parties – many different 3rd parties…who usually supply workers to many different workplaces in many different sectors)

BEST if we can just use BEST if we can just use LABOUR LABOUR without all the other without all the other obligations that come with an obligations that come with an employment relationship…. employment relationship….

Like the obligation to look after Like the obligation to look after the welfare of the worker, the welfare of the worker, ensure that worker rights are ensure that worker rights are protected….permanent protected….permanent employment until retirement, employment until retirement, domestic inquiry & right to be domestic inquiry & right to be heard when want to fire heard when want to fire workers, workers, trade uniontrade union & & collective agreements, Last In collective agreements, Last In First Out(LIFO) policy when it First Out(LIFO) policy when it comes to retrenchment…..comes to retrenchment…..

Permanent Employees Short-Term Contracts

Wage increments, annual leave/medical leave entitlement increases, maternity leave & benefits, termination/lay-off benefits, termination difficult – domestic inquiry, right to be heard…., unions & collective agreements

Easier termination, Avoid wage/annual leave/sick leave increments, Avoid maternity leave, Lay-Off Benefits, etc

More compliant less demanding worker – worried about ‘contract renewal’ – hence also no union problems..

Permanent to Short-Term Permanent to Short-Term EmploymentEmployment

Employee Not Employee

Can come together as UNION and make demands – for better rights, wages, etc

Cannot be gotten rid off easily – due process

Obligation to ensure rights and welfare of worker

No right to make claim for better wages, working conditions, benefits

Can be gotten rid off easily by just picking up the phone & asking supplier to take worker away

No worries about worker rights or welfare – just use them

No employment relationship – no No employment relationship – no employer’s obligationsemployer’s obligations

Why ‘outsourcing’?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 ….

“…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)

Trade UnionMembership - only employeesonly employees (not other

workers working at the same workplace)Collective Agreement – between Collective Agreement – between

employer & employeeemployer & employeeONLY 50% of workers are ‘employees’

….weaker trade unions…. If NO employees, then no UNION

Triangular Relationship““triangular relationships” - triangular relationships” - These are workers These are workers

employed by an enterprise (the provider) who employed by an enterprise (the provider) who perform work for a third party (the user/the perform work for a third party (the user/the principal) to whom their employees principal) to whom their employees provides provides labour or services – BUT do NOT become labour or services – BUT do NOT become EMPLOYEES of the ‘user/principal’ – the EMPLOYEES of the ‘user/principal’ – the factory/workplace.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.

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

In 2011 and 2012, 2 statements, jointly issued by 115 and thereafter 94 trade unions and CSOs calling for the abolition of the ‘contractor for labour system….calling for the retention of the 2-party employment agreement,“…We call for the abolition of the contractor for labour abolition of the contractor for labour

and their practices and their practices and that all workers, currently supplied by these 3rd 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 for retention of a just 2-party employment relationship retention of a just 2-party employment relationship between principals and workers…”between principals and workers…”

On 10 March 2012 the Malaysian Bar passed a resolution unanimously calling“…That the Malaysian government do the needful to to

maintain existing 2-party employment maintain existing 2-party employment relationships between principals or owners of relationships between principals or owners of workplaces as employers, and workers that work in workplaces as employers, and workers that work in the said workplaces as employees of the said the said workplaces as employees of the said principals and ownersprincipals and owners… The Malaysian Bar takes the stand that labour suppliers and/or contractors of that labour suppliers and/or contractors of labour should never be or continue to be labour should never be or continue to be employers of workers after they are supplied, employers of workers after they are supplied, accepted and start working at the workplaces of accepted and start working at the workplaces of principals or owners. Thereafter, these workers principals or owners. Thereafter, these workers shall be employees of the principal or owners of shall be employees of the principal or owners of the workplace…”the workplace…”

Mechanisms for promotion of worker rightsTrade Unions, Trade Unions, Workers and their Workers and their associations,associations,

Collective Actions by Collective Actions by Workers/Trade Unions at Workers/Trade Unions at Work Places….together with Work Places….together with civil society, AND…..civil society, AND…..

What we want…Ensure that workers have the Ensure that workers have the right to regular right to regular

employment with security of tenure until employment with security of tenure until retirementretirement..

Abolish short-term or fixed duration employment Abolish short-term or fixed duration employment contractscontracts

Ensure Ensure 2-party employment relationships 2-party employment relationships between between principals or owners of workplaces as employers, principals or owners of workplaces as employers, and workers that work in the said workplaces as and workers that work in the said workplaces as employees of the said principals and ownersemployees of the said principals and owners

Labour suppliers, contractors for labour or labour Labour suppliers, contractors for labour or labour outsourcing companies should never be or outsourcing companies should never be or continue to be employers of workers after workers continue to be employers of workers after workers are supplied, accepted and start working at the are supplied, accepted and start working at the workplaces of principals or owners. Thereafter, workplaces of principals or owners. Thereafter, these workers shall be employees of the principal these workers shall be employees of the principal or owners of the workplace…”or owners of the workplace…”

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.

……..

THANK YOUTHANK YOU