The 1976 Employment (Amendment) Bill is a typical example of what is wrong with the Malaysian nation today, and why Malaysia is today faced with a crisis of identity and survival, marked by stepped-up communist guerrilla activities in both the towns and jungles, while social, economic and political unrest grow apace in the country.
There is no end to governmental profession of concern for the poor and the weaker sections of the population, who represent the majority of Malaysian, but governmental actions often belie the sincerity of these declarations. Hence, the rich grows richer while the poor becomes poorer year after year of government development efforts.
It is same story in the field of labour relations. Every time there is a labour law or legislative amendment, it is the workers who emerge the losers while the employers become more consolidated in their power and authority over the workers.
The 1976 amendment to the Employment Ordinance 1955 is the management’s delight and the worker’s curse.
Every major amendment is this Bill is detrimental to the interests of the workers, and beneficial to the employers.
The 1976 Employment (Amendment) Bill is a special gift of the MCA President, Dato Lee San Choon, to his own class – the capitalists and the management – at the expense of the workers of Malaysia.
This probably explains why the MCA President sum Minister of Labour has shown such contempt for workers and trade unions in the formulation and presentation of these amendments.
During the weekend, I received a telegram from the MTUC Secretary-General, Mr. S.J.H.Zaidi, which other Members of Parliament have probably received, and which reads:
“Government’s present proposals to amend Employment Ordinance 1955 very damaging to workers’ interest and are completely unacceptable. These amendments must not therefore be introduced in Parliament unless fully discusses and agreed with all concerned. MTUC seeks your support and co-operation for its stand.”
Being a conscientious Parliamentarian, I phoned up Mr.Zaidi on receipt of this telegram and asked him what was the actual position, expressing surprise on receipt of this telegram as I had thought that the MTUC was privy to the government’s proposed legislative amendments.
Mr.Zaidi told me that the MTUC was never consulted about these amendments.
Although there is a National Joint Labour Advisory Council (NTLAC), with representatives of both organized labour and employers and which is supposed to advise the government on labour laws, Mr.Zaidi said the present batch of amendments were never presented to the NJLAC for discussion and its recommendations.
Sometime in 1974, the government presented these proposals at a NJLAC sub-committee, but the union representatives disagreed. I am told that the NJLAC was not summoned to meet a single time for the whole of 1975. All that the Labour Minister did last month at the formal ceremony of the NJLAC was to inform the union representatives that the government intended to present amendments to the Employment Ordinance and that if they have any amendments to propose to the Employment Ordinance, they should communicate the proposals to the Minister by July 5, which is today, when Parliament is asked to pass them.
This makes a mockery of labour representation in the NJLAC and shows how little respect the Minister of Labour has for the views of workers and the labour movement.
He has shown an utter contempt for the workers’ viewpoint which is typically the attitude of arrogant capitalists and managements who think that they themselves know what is best for workers.
It is also clear that the Minister of Labour is merely using the so-called tripartite NJLAC as a window-dressing to show that the unions participate in the decision-making process, when in actual fact, the voice of labour are not given any weight at all in the high councils of the Ministry of Labour.
There is probably one exception in connection with contract labour, where a special committee was set up to study the problems of contract labour and to a\make recommendations, but I shall have more to say on this subject when I deal with the various amendments proposed by the Minister of Labour.
Symbiotic Relationship between Employers and Ministry of Labour
While the Minister of Labour does not give any weight to the views and interests of workers and does not even bother to go through the motion of properly consulting the unions on proposed changes of the labour laws, this is far from being the case vis-à-vis the relationship between the Ministry of Labour and the employers. I do not think anyone is surprised at this, especially as the Minister of Labour is none other than the President of MCA, a party of the rich for the rich. There is a symbiotic relationship between the Ministry of Labour and the employers, The dictionary tells us that symbiosis is a mutually beneficially such an association where one lives within the other.
I have been told that the person who is largely responsible for framing these proposals was one Mr. Chung Shin Che when he was Commissioner of Labour until 1975, when he retired to become the Director of a powerful employer group, namely MAPA or Malayan Agricultural Producers’ Association.
How can the workers have confidence in top Labour Ministry officials who are packing their bags to join the employers’ ranks to confront them across the negotiating table? In fact, I want to ask a direct question. Have the present batch of amendments been authored and engineered by Mr. Chung Shin Che prior to retirement as Commissioner of Labour to take up his post of MAPA Director? This is what I mean by a symbiotic relationship, which suits the Minister of Labour eminently, considering his role as MCA President.
Thus, we see that the employers’ interests and views are not only given weight, but become government policy through the active advocacy of Labour Ministry officials whose heart and soul, if not body, are already with the employers’ groups. Mr. Chung Sing Che is not the first, nor will he be the last, of top Labour Ministry officials who gild their way to high-salaried posts in Employers’ Groups from the Labour Ministry positions.
Employers have also other obvious ways of making their influence felt in the government. To say that the Minister of Labour is holding the balance between the employers on the one side and organized labour on the other side is to misrepresent the facts in Malaysia. What is actually happening is that the Minister of Labour, especially as President of MCA, is ranged on the side of the employers against the workers, as shown by the present batch of amendments to the 1955 Employment Ordinance.
DAP Protest against unavailability of Bahasa Malaysia versions of Labour Laws
Before I deal with the amendments proper, I want to protest in the strongest terms possible against the lack of seriousness on the part Ministry of Labour in the use of Bahasa Malaysia as an official language.
In view of the ruling by the Speaker that all proceedings in the Dewan Rakyat will be conducted in Bahasa Malaysia, I spent several hours trying to locate a Bahasa Malaysia version of the Employment Ordinance 1955 before I found to my shock that no Bahasa Malaysia version of the Employment Ordinance 1955 is available. I understand the other two major labour laws, the Trade Union Ordinance 1959 and the Industrial Relations Act 1967 are also not available in Bahasa Malaysia.
All the talk about the sovereignty of Bahasa Malaysia wears thin when twenty years after Merdeka and ten years after the Official Language Act, we do not have Bahasa Malaysia versions of the labour laws in the country. This is indeed a crying shame. I am aware that the official version of the Employment Ordinance 1955 is the English version, and I appreciate the reason for it, but what I cannot appreciate, and what the country cannot excuse, it that no Bahasa Malaysia version of the labour laws are available.
Government amendments a retrograde measure
The major amendments embodied in the Bill before the House is a retrograde one, which erodes further workers’ rights, which are already very limited in Malaysia.
I will first deal with Clause 12 of the Bill which seeks to amend Section 16 of the Ordinance. The present Section 16 of the Ordinance reads:
“Where a labourer is employed in any agricultural undertaking on an estate on a contract of service under which he earns wages calculated by the reference to the number of days’ work performed in each month of his service, his employer shall be bound neither to provide him within work suitable to his capacity on not less than 24 days in each month during the whole of which he is so employed, or if the employer is unable or fails to provide work on 24 days in each month whereon the labourer is willing and fit to work, the employer shall nevertheless be bound to pay to the labourer in respect of such days’ wages at the same rate as if such labourer had performed a day’s work:
Provided that any dispute as to whether a labourer was willing or fit to work shall be referred to the Commissioner for his decision;
Provided further that in computing 24 days for the purposes of this sub-section account shall not be taken of more than six days in any week.”
Under this section, an agricultural labored who fulfils three conditions, namely (i) employed in “any agricultural undertaking on an estate”; (ii) worked under a “contract of service” and (iii) his wages of his service, shall be entitled to one of the following: (a) the employer must either provide the labourer with work suitable to his capacity not less than 24 days in each month; or (b) if the employer is unable or fails to provide work on 24 days in each month whereon the labourer is willing and fit to work , the employer shall nevertheless be bound to pay the labourer wages on each of such days wages at the same rate as if such labourer had performed a day’s work.
This is a form of minimum wage protection which is necessary to ensure that a labourer in an agricultural undertaking may live without undue hardship when he is prevented from working as a result of inclement weather or other factors since he cannot obviously do work for other employers to augment his wages due to the fact that he lives in tied-houses on plantations which in many cases are isolated.
In this way, agricultural labourers will not be subject to the vagaries of weather and nature, as it is well known for instance, that on wet days, rubber tappers cannot tap and employers are ‘unable’ to provide work.
Many employers have evaded their statutory duties laid down since the colonial days as provided by Section 16(1) of the Employment Ordinance, and it is shocking that the government has all along closed an eye to such employer evasion and irresponsibility.
What is even more shocking is that the colonial masters seemed to be more concerned about the welfare of the agricultural labourers in this regard than the government of Independent Malaysia.
Employers have in fast become bolder today with Dato Lee San Choon as Minister of Labour, and are openly challenging this colonial protection of agricultural labourers.
For over ten years, the former Director of MAPA, Mr. Fernando, had called for updating of the Employment Ordinance, 1955. By this he means the amendment of Section 16(1).
There is now a test case in the Kuala Lumpur High Court between The Manager, Kinrara Estate v. Govinda Pillai, a tapper, where among other things, the MAPA is challenging the interpretation that employers are statutorily required to give 24 days’ work or pay 24 days ‘ wages each month. I do not propose to go into the merits and demerits of this particular case, as it would be sub judice as the judge hearing it, Mr. Justice Harun Hashim, has reserved judgement.
What concerns us now is the proposed government amendment to Section 16, which is to introduce a new sub-section 3, and which reads:
“16(3) Notwithstanding the provisions of sub-section (1) and (2), the Minister may by order exempt any employer or class of employers from the operation of this section subject to such conditions as the Minister may deem fit o impose and such order shall be final.”
The question the Minister of Labour must answer all estate workers and the Malaysian public is why is there need for this amendment to Section 16 of the Employment Ordinance 1955 when the High Court is still deliberating on the matter?
Disgusting demonstration of Power by Employers
One would have thought that the Minister of Labour, if he is genuinely interested about the welfare of agricultural labourers, and no less keen as the colonial draftsmen who authored Section 16 would have introduced an amendment to remove beyond all possible doubt the provision that labourers in agricultural undertakings are entitled to the statutory right to 24 days’ work or 24 days’ wages each month.
The mentality of the Minister of Labour, the MCA President, appears to be even more anti-labour than the colonial masters, for he is doing the exact opposite in diluting and weakening the statutory right of labourers in agricultural undertakings to a minimum of 24 days work or 24 days wages.
For here we are seeing the disgusting demonstration of power of employers and MAPA, who can get Labour Minister to introduce an amendment which would safeguard their interests and claims regardless of the outcome in the High Court test case.
The present proposed amendment to introduce a new Sub-section 3 to Section 16 giving powers to the Minister of Labour to exempt any employer or class of employers from the operation of Section 16(1) is clearly to give the MAPA and other non-MAPA employers an escape route should the test case go against them.
This is because this amendment would be redundant and irrelevant if the test case is favourable to them where labourers in agricultural undertakings are not entitled to the statutory right of 24 days’ work or 24 days’ wages each month.
With this new sub-section (3), the employers would have taken out a complete insurance to safeguard their claims, and achieve what Mr. Fernando of MAPA had been clamouring for over a decade.
Employers who can get the Minister of labour to introduce labour law amendments in anticipation of any adverse legal outcome, would have no problem in getting the Minister to exercise exemption powers in their favour. Unions and workers, on the other hand, are not even consulted on a matter which involves the erosion of a important trade union right. This is the type of anti-labour, pro-employer government we have in Malaysia.
I demand to know what part Mr. Chung Shin Che, now MARA director, played in originating, formulating and getting this Section 16(3) accepted by the Ministry of Labour while he was still Commissioner of Labour.
Call for NBI investigating into any conflict of interest
An independent inquiry should be conducted as to whether there had been a conflict of interest. I suggest that the NBI should be called in to conduct this inquiry, as the whole question of integrity of top Labour Ministry officials is involved. If the Minister of Labour or the NBI wants more names of top Labour Ministry officials who in the past had left to join employers’ groups, I am prepared to offer them.
The vesting of absolute discretion on a Minister is highly undesirable as it is always open to abuse and corruption. On what principles are the Minister to adopt in exempting employers from the operation of Section 16(1)? Is this power to be dependent on the likes and dislikes, the whims and fancies of the Minister at particular moment of time? Is he required to give any reasons, or can protect himself and hide his abuses behind the wall of ‘no reasons need be given’? Can he exercise his powers of exemption to employers on the basis of political affiliation or on the basis of the size of political contributions to the MCA? How can such abuses be checked?
These questions highlight the undesirability of vesting absolute discretionary powers on the Minister. For all the above reasons, and especially on the ground that this provision for exemption is not justified today as it wan not justified 21 years ago when it was put on the statuette book by the colonial masters, I have given notice to move an amendment during the Committee stage to delete this proposed new sub-section (3) to Section 16, and I hope the Minister of Labour can be enlightened enough to support it.
Repeal of 60G on Redundancy Entitlement and 60H on Retirement Entitlement are putting the clock of industrial relations backward
I now come to Clause 30 of the Bill which seeks to repeal Sections 60G and 60H.
Section 60G of the Employment Ordinance reads:
“No labourer who has been in continuous service with an employer for less than three years shall be entitled to any retrenchment benefit on the termination of his service by the employer on the ground of redundancy or by reason of any re-organisation of the employer’s profession, business, trade or work.”
Section 60H of the Employment Ordinance reads:
“No labourer who has been in continuous service with an employer for less than five years shall be entitled to any retirement benefit other than the sums payable under the Employees Provident Fund Ordinance on the cessation of his service with the employer.”
Both sections 60G and 60H are unsatisfactory on two grounds: firstly, they provide a qualifying period namely that workers with less than three years’ service shall not be entitled to retrenchment benefits while workers with less than five years’ service shall not be entitled to retirement benefits.
Secondly, the Employment Ordinance does not provide the quantum or basis for the computation of the redundancy and retirement benefits for those who qualify.
A further unsatisfactory feature of both these provisions is that they do not provide an express statutory right to workers to retrenchment and retirement benefits where they have worked for more than three and five years respectively. This is why employers have contended that Sections 60G and 60H merely provide a qualifying period for making a claim for retrenchment and retirement benefit without any obligation on the part of the employers to pay. For instance, if a company closes down, and a union puts in a claim for retrenchment benefit under Section 60G, it must be subjected to the qualifying period of three years, and the employer can either entertain the claim and negotiate on the quantum or reject the claim outright on the ground that there is no such entitlement.
The High Court case of Malayan Pineapple Company Sendirian Bhd. Klang v. Food Industry Employees Union (originating motion No. 64 of 1974) settled the issue.
In upholding the Industrial Court’s award of retrenchment benefits, to the retrenched workers, Mr. Justice Azmi, in his judgement said:
“I do not agree that under Section 60G there is no obligation on the part of an employer to pay retrenchment benefits. Since the section provides for qualification period for making retrenchment benefits, then it follows those who qualify must have a legal right to such benefit….. Any other interpretation would render the section meaningless.”
Here again, we see the disgusting demonstration of employer power in the country. Through their pressure, the Minister of Labour has introduced an amendment to repeal Section 60G and 60H which will remove the workers’ legal entitlement and right to retrenchment benefit after working for three years, as upheld by the Azmi judgement. The same applies with regard to the legal entitlement and right of a worker to retirement benefit after five years’ service.
The hard-won gains of the workers in the Courts can so easily be robbed away by the employers through the judicious use of their influence with the Minister to get him to introduce amending legislation.
Right of workers in job security
The Minister of Labour has not fully explained or justified the abolition of two legal, though limited , rights of workers to retrenchment and retirement benefits, apart from the fact that the employers are opposed to these rights.
Employers, and the government in Malaysia, must recognise the legitimate right of the workers to enjoy a reasonable measure of job security so as to be able to plan their own and their families’ lives. Employers and the Minister of Labour, who is MCA President, do not understand that to workers, loss of employment because of retrenchment or otherwise, is often a disaster, leading even to the breaking up or uprooting of families and homes. Retrenchment benefits must be a statutory right of every worker as an economic cushion against the hardships of loss of employment.
Just as a property owner has a right in his property and when he is deprived he is entitled to compensation, along-term employee must be considered to have a right analogous to a right of property in his job.
A worker must be recognized as having a right to security in his work and his rights must gain in value with the years. If he loses his job, he must be entitled to compensation for loss of the job – just as a director gets a compensation for loss of office.
With the repeal of Sections 60G and Section 60H, the workers in Malaysia are thrown back into the industrial jungle, and have lost a measure of social security which they had enjoyed, in the event of loss of employment.
I understand that the Minister of Labour had explained to some trade union leaders that Section 60G and 60H contain qualifying periods so that workers who had worked less than three years and five years are not entitled to retrenchment and retirement benefits respectively, and that the repeal of these two sections would remove these qualifying periods.
If this is true, then the Minister of Labour is guilty of the grossest form of deception, for the effect of the repeal of Sections 60G and 60H is not to remove the qualifying periods for entitlement to retrenchment and retirement benefits, but to remove these entitlements altogether!
I know that sub-section (2) of Section 102 the Ordinance to insert is being amended to insert a new paragraph (da) to give the Minister power to make regulations “prescribing entitlement to and payment of retrenchment and retirement benefits”. This however is merely a red herring.
This provision cannot hide the fact that workers will lose their legal entitlement to retrenchment and retirement benefits, for new paragraph (da) of Section 192(2) does not restore to workers this legal right to retrenchment and retirement benefits. It is now left completely to the Minister, where he chooses, to “prescribe entitlement to and payment of retrenchment benefit” – in other words, to the social conscience, compassion for the sufferings of the poorer sections of the community, and commitment to give workers social security of the Minister of labour. A Minister of Labour who will rob workers of existing statutory rights to retrenchment and retirement benefits cannot be very kind to claims of workers to retrenchment and retirement payments!
Furthermore, from what we have seen of the power of the employer groups, both outside and inside the very inner councils of policy-making circles, we can understand why the Employers’ groups are not in any way disturbed or agitated by new paragraph (da) of Section 102(2), for they know that this will practically be a ‘dead letter’.
Sections 60G and 60H should be amended, not by abolishing the workers’ legal rights to retrenchment and retirement benefits, but by removing the qualifying periods and providing the basis for computing such benefits.
This is why I shall be introducing amendments during the Committee stage to delete the Minister of Labour’s present proposal to repeal Sections 60G and 60H but to amend them so as to remove the qualifying periods and leave the worker’s statutory rights to retrenchment and retirement benefits intact.
The proposed new Part IX on Maternity Protection is substantially the same as the existing Part IX except for new Section 37(1)(c) which will limit a female employee’s entitlement to maternity allowance to three children.
The employers’ groups are of course delighted, and are in fact, the originators of this amendment. But have the Minister fully consulted the trade unions on this?
While family planning and population control is an accepted goal, population control must be undertaken as part of an overall national policy. If population control measures are only confined to one section of the population, then the workers will be fully justified in feeling aggrieved in being penalized.
I do noe see why in this case the Minister of labour could not fully discussed this measure with the labour movement, and secure their agreement. I have no doubt that the organized labour movement would agree to limiting of maternity allowance at some point, if this is firstly, part of an overall national population control policy (.e.g. extended to all areas of government and public activity like granting of privileges whether in urban or rural areas); and secondly, as part of a reform of labour laws.
But here again, we have a Minister of Labour who is too arrogant to consult the wishes of labour, and who cannot rise above his class background.
I new come to another major change as envisaged by new Section 2A. This will enable the Ministry to prohibit by order the employment, engagement or contracting of any person or class of person to carry out work in any occupation in any agricultural or industrial undertaking, constructional work, statutory body, local government authority, trade business or place of work other than under a contract of service entered into with the owner or principal of such undertaking, constructional work, trade, business or place of work, or with that statutory body or local government authority.
On the making of any such order, all persons or classes of persons specified in the order would become employers and employees for the purposes of the Employment Ordinance and other written law.
The Minister will also be given power to exempt or exclude persons and class of persons from the operation of any provision of the Ordinance.
I have many a time inside this House spoken on the exploitation of the working class in Malaysia through the pernicious use of contract labour system, as this permits the employer to get cheap labour by enabling him to avoid his other responsibilities to a regular worker, as security of employment, medical benefits, E.P.F., leave and other fringe benefits.
Thus a contract tapper can be paid as low as $40 a month, when the MAPA rates for a tapper is around $4 a day basic wage. I understand that there are easily 100,000 to 150,000 contract tappers, who are exploited as wage slaves. They are also cheated in the weighing of their produce, whether latex of oil palm bunches.
Contract labour is also very prevalent in other sectors of the economy. In the debate on the Royal Address on 16.4.1974, I had called for the abolition and regulation of contract labour. Where work is of a permanent nature, a contract system is clearly designed to deny the workmen security of service and other labour benefits required by law. In such cases, contract labour system should be abolished. Where work is of an intermittent or temporary nature or is so little that it would not be possible to employ full-time workmen, contract labour may be permitted but it must be regulated.
There have been two major industrial court cases which highlight the abuses of the contract labour system. In Industrial Court Case No.35 of 1974, NUPW v. United Pateni Arumugam Pillai Estate, Kedah (Award No.1/75), the President, Mr. Abraham referred to the ‘callous attitude of both the Estate and the contractors towards the security and future well-being of the workers” in the case before him, and added: “If this pattern (of contract labour) were to continue in the industry, there would be quite a large number of workers with insecure employment, in spite of years of service with the estates concerned, and subject to the whims and fancies of these so-called independent contractors.”
In another major case, Industrial Court Case No.44 of 1974, R.Vengettasamy v. Luen Hoe Estate, Sungai Patani (Award No.8/75), the President, Mr. Abraham said:
“Perhaps, a stage has been reached where it may be desirable to regulate contract labour and, in some cases to provide for its abolition. Legislation on the lines introduced in other countries could be contemplated in view of the increasing trend towards such a contract system in many of the industries. While there may be a need for contract labour in certain circumstances, regulation would be necessary to curb any unfair labour practices that may arise therefrom…”
Subramaniam Committee on Contract Labour a farce and charade
As a result of these mounting pressures, the Minister of Labour announced last year that a special committee had been set up with representatives of his Ministry, employers and unions to “identify the problems, if any, arising out of labour contracting in the major industries, i.e. (a) the engagement of workers as ‘independent contractors’, and (b) the engagement of workers through contractors for labour; and to recommend the extent to which labour contracting should be regulated in the interests of all concerned.”
This committee was under the chairmanship of Y.B.S. Subramaniam, then Parliamentary Secretary to the Ministry of Labour.
This special committee on contract labour never made public its report, and made no in-depth study of the whole problem of contract labour in the country. In fact, this committee completely neglected to study the problem of contract labour in a important sector, the constructional industry, where large numbers of contract labour are engaged.
This raise the question whether the Minister of Labour has formed this special committee on contract labour merely for publicity, when in fact, the real decision is made elsewhere.
According to its terms of reference, one of the functions of this Subramaniam Committee is to recommend to the Ministry of Labour legislative measures needed and the extent, to regulate contract labour.
But as late as the month of May, the Subramaniam Committee was meeting on what to recommend to the Minister, when on 12.4.1976, the Minister of Labour had already tabled for first reading in the Dewan Rakyat the Employment (Amendment) Bill 1976, which among other things make provision with regard to contract labour.
Was the Subramaniam Committee on Contract Labour consulted before the drafting of the government’s contract labour proposals in the Employment (Amendment) Bill and its tabling on 12.4.76 for first reading?
The truth is the union representatives on the Subramaniam Committee were not aware that the Amendment Bill had been drafted and his Parliamentary Secretary, Y.B. Subramaniam, had deceived and misled the Special Committee on the contract labour, leading the union representatives at least to believe that they were there to recommend measures for Ministerial action when the Minister has already decided and acted – no doubt with the guidance of the Employers’ Groups.
The Subramaniam Committee on contract labour is a farce and charade. This explains why it dealt with the problem so superficially and so narrowly. This explains why the Committee was unable to present a cogent, intelligent and authoritative report on the problems of contract labour in the various industries in the country.
The present legislative proposals to control the abuses of contract labour is most unsatisfactory and can only please the employers.
Under the new section 2A(1) the Minister may by order prohibit contract labour in any agricultural or industrial undertaking, constructional work, statutory body, local government authority, trade, business or place of work. But the Minister is then given powers to exempt persons or class of persons from the operation of his own order!
This means taking away with one hand what is given by the other. What is the criteria of exemption. Are MCA contractors to get special privileges, and those too who make big political contributions? The employers should normally be the persons who are most worried about any regulation of contract labour, but they are quite happy about this government proposal. This speaks for itself!
What is needed to eliminate the abuses of contract labour is to have a separate Act on the abolition and regulation of contract, which lays down the principles under which contract labour is to be abolished or permitted. A machinery must be established, such as a Contract Labour Licensing Board, which would have the power to abolish contract labour in certain categories of work in accordance with well laid-down principles e.g. where work is regular and perennial. The Board, which should sit in public so that it can be seen to be open, fair and impartial, should be entrusted with the responsibility of licensing and regulating contract labour where it is permitted, where work is temporary or intermittent, or where it is insufficient to employ considerable number of whole-time workmen, to ensure that contract workers enjoy minimum social and labour safeguards.
Section 15(2) of Employment Ordinance should be amended so that workers absent because of strike will be away on reasonable excuse
The government is proposing some literal amendments to Section 15(2). I am surprised that the government did not take this opportunity to amend Section 15(2) to put beyond all controversy the right of a worker to go on a lawful strike and such absence would be regarded as reasonable excuse without any breach of contract.
This is the call that I made on 16.4.1974 in this House, for such a minor amendment would have ended considerable labour hardships and sufferings and stopped management exploitation of workers.
But this will be to go against employers’ wishes, which the Minister of Labour holds in holy respect. This is why although employers defied labour law provisions, the government has not taken any action the employers. A good case in point is the South East Asia Firebricks Sdn. Bhd dispute, in which 73 workers were still looked out for over two years despite an Industrial Court award ordering their reinstatement. This order has been specifically restored by the Federal Court, and last Monday, the Federal Court dismissed the application for stay of proceedings while granting conditional leave to the employers to appeal to the Privy Council. Although the workers’ union had filed a complaint to the Attorney-General, no actions had been taken.
I have no doubt that if the intransigent party had been the workers, the workers and their union would have been denounced as anti-national, probably branded as a ‘communist’ and a few arrested under the Internal Security Act, while the union will be issued with a show-cause letter by the Registrar of Trade Unions why it should not be de-registered.
I am therefore proposing an amendment on this section, which would give the workers the right to strike without breaking any contract of service.
There are many other amendments which are generally detrimental to the interests of workers, for instance, Clause 23 of the Bill which provides a definition of rest day for shift workers as “any continuous period of not less than 24 hours”. This means a worker who is on the 2.p.m. to 10 p.m. shift on one day can be required to start work the next day on 10 p.m. shift on the ground that he had already a a rest-day of 24 continuous hours. This will deprive a worker of normal family lives and is inhuman and completely unjustifiable.
Then there is Clause 24 of the Bill, which provides a new sub-section (3) for Section 60 providing a new and lower basis for the computation of pay for work on a rest day. Under the present provision, “any labourer who at the request of his employer works on a rest day shall be paid an extra day’s wage at the ordinary rate of pay for one day’s work in addition to the ordinary rate of pay for that day.”
This will be replaced by a new sub-section (3) where a worker would earn less. The new sub-section provides that an employee employed on a monthly rate of pay who works on a rest day shall be paid for any period of work (i) which does not exceed half his normal hours of work, wages equivalent to half the ordinary rate of pay for work done on that day; and (ii) which is more than half but which does not exceed his normal hours of work, one day’s wages at the ordinary rate of pay for work done on that day.
Again Section 60C is amended so that an employee engaged in regular shift work can now be required to work for more than 12 hours a day!
All these amendments make serious inroads into labour rights.
But it is the new Section 2 B which is the most horrifying amendment. The new Section 2 B reads:
“The Minister may by order exempt or exclude, subject to such conditions as he may deem fit to impose, any person or class of persons from all or any of the provisions of this Ordinance.”
Minister of Labour given powers to oppress workers
This is an extraordinary and far-reaching amendment which gives the Minister the power to exempt the operation of any provision in the Ordinance. The Employment Ordinance is aimed at providing a minimum of terms and conditions of service to workers, below which employers cannot go.
This is the 1 purpose of Section 7 in the Ordinance providing that “no condition of any contract of service shall be contrary to the provisions of this Ordinance and any such condition which is contrary to such provisions shall be void and of no effect”, Although the wording of Section 7 is being amended, the effect remains the same, which is that “a term or condition of service which is less favourable to an employee than a term or condition of service prescribed by this Ordinance shall be void and of no effect to that extent and the more favourable provisions of this Ordinance shall be substituted therefore.”
Section new 2B, however, makes Section 7 irrelevant, and arms the Minister of Labour extraordinary powers in giving the Minister of Labour to power to take away the prescribed minimum terms and conditions of service which the highest legislature had legislated for workers.
This make the Minister of Labour omnipotent, the superman in the industrial relations field, who has the power to decree that employers can be exempted from the statutory need to observe the provisions laid down by the Employment Ordinance with regard to termination of notice, holidays, hours of work, rest day, sickness benefits, maternity benefits, and any one or all the provisions in the Ordinance!
At a time when Malaysian workers had the honour of having a Malaysian to be head the ICFTU of the so-called free world, Malaysian workers have become more unfree
It is indeed a great irony and tragedy that at a time when Malaysian workers have the honour of one of them to lead the International Confederation of Free Trade Unions, the workers in Malaysia should at the same time become oven less free!
Section 2B of the Amendment Bill will completely nullify all the rights won by labour to ensure that labour is not a ‘commodity’.
In coming to Parliament with this proposed new section 2B, the Minister of Labour is in fact seeking to usurp the powers of Parliament. For if the Labour Minister had the powers as envisaged in Section 2 B, then it is all a farcical exercise for Parliament to pass any labour laws to govern minimum standards on terms and conditions of employment for workers. Parliament might just as well pass a one-section Act giving the Labour Minister all the powers to make any regulations or rules concerning employment is as he in his wisdom decides, for this is what the new Section 2B means.
I am horrified by the audacity of this proposal, which is contrary to all the notions and norms of democratic legislation, and typify the arrogant attitude of the class of whom the Labour Minister is a representative of their god-given right to rule and decide the destiny, the happiness and sorrows of the working population!
Motive for Systematic Emasculation of labour rights
Workers of Malaysia have a right a know the motive behind this systematic emasculation of worker rights, and under the new Section 2 B, the power of the total elimination of workers’ rights is now vested in the hands of one man, the President of MCA, cum Minister of Labour.
The Minister of Labour is introducing these anti-labour amendments to try to attract back foreign investors who, in the last two years because of internal and regional developments, have shied away from Malaysia.
The government, however, in the usual fashion, has embarked on a policy which will make the situation worse. For stability cannot be built on further exploitation of the workers and drastic denial of their basic rights to a decent and human life.
On the other hand, the passage of these new amendments to the Employment Ordinance will inject into Malaysian body politic a new poison which will sour up the ground even more, and will be a great de-stabilising element, creating new sources of tension, sharpening class conflicts.
I notice that it has become more and more fashionable for leaders and members of the government parties to brand critics and opponents as ‘anti-national’ or ‘communist-inspired’, and we hear recently of so-called exposes of trade unions, student organizations, and even political parties as having been infiltrated by communists. There will probably be those who will be quick to label as communists all who are opposed to the present amendments to the labour laws, whether from Opposition parties or trade unions.
It is such hysteria and myopic refusal to understand the genuine grievances of the workers which are chiefly responsible for the losing battle for the hearts and minds of the people.
The government must pause, and in the interests of greater national solidarity, heed the voices of the poor and working class.
Proposal to refer amendment bill to Select Committee and for Enactment of a Totally new Employment Act
I call on the government not to disregard the mass dissatisfaction of workers and their representatives over this amendment bill. I am sure the government had spies at the special conference of affiliated unions of the MTUC held at the MTUC headquarters on 20th June 1976, where workers’ representatives, especially at the union and state levels were very bitter and frustrated about these proposed amendments.
The government has nothing to lose by giving more time for a fuller consultation and discussion of these amendments before enacting them into law. On the contrary, the government has everything to gain, for it will contribute to the lessening of social tension and class conflict.
For this reason, I will propose that this Bill be referred to the Select Committee, for this will give the MTUC and other interested organizations fullest opportunity to discuss and convince, or be convinced, of the suitability and unsuitability of these bills proposals.
The MTUC has up to now been unable to get its voice heard. For instance, I have not received any communication from the MTUC explaining the MTUC’s proposals and stand on each and every one of the proposed amendments. I understand that the MTUC is seeking a meeting with the Prime Minister on these amendments.
It would be most improper to say the least for the Labour Minister to rush through these amendments now, when he has undertaken to arrange a meeting between the MTUC leaders and the Prime Minister on these very proposals.
Finally, what Malaysia and our workers need is not the piece-meal amendment of the Employment Ordinance, 1955, cutting it up and pasting all over it every few years. What Malaysia needs is a new Employment Act which will give due recognition to the place of workers in our society. It is another cause for shame that despite the fact that we have been Independent since 1957, for 20 years, we have still to base our labour laws on colonial legislation – and what is worse, eroding rights given in colonial times instead of building upon them.
The reference of this amendment Bill to a Select Committee will also have the advantage of enabling a deeper consideration and study of the question of introducing an entirely new Employment Act to provide minimum safeguards to workers in Malaysia.
(Speech by Ketua Pembangkang and DAP Member of Parliament for Kota Melaka, Lim Kit Siang, in the Dewan Rakyat on 5th July 1976 on the Employment (Amendment) Bill 1976)