Sunday, June 10, 2012

Are Malaysian Employment Laws Challenging?

Are Malaysian employment laws and policies in keeping with the new models or do they still carry signs of the traditional master-servant model and archaic gender stereotypes?
 
WE hear of female civil servants taking optional retirement but that is because the Public Service Commission allows for that.

And when they go, they get a pension.

But to be forced to retire in the private sector before your male colleagues? That goes against the grain and, surely, Article 8 of the Federal Constitution which guarantees gender equality.

And yet that is the case for female workers in some industries in the private sector.

In June 2001, the Guppy Plastics Industries' new employee handbook stipulated that the retirement age for its female and male workers was 50 and 55 respectively. Apparently, women are prone to medical problems after 50.

Tan: The argument that female workers lose their ability at 50 is not backed by scientific fact.

The fact that the Federal Constitution was amended a month later to include gender in Article 8's equality provision and that Malaysia is a signatory to the United Nation's Convention on the Elimination of Discrimination Against Women (Cedaw) before that was of no consequence to them or the Court of Appeal.

On March 21 this year, the second highest court in the country dismissed an appeal by eight female employees against their forced retirement from Guppy in July 2001, saying the plastics company had merely followed its handbook and early retirement for female workers was industry practice.

The fact that other industries also have similar retirement policies is a matter for concern. Apart from a clear case of gender bias, some could, like Guppy had done, re-employ the terminated workers on a contract basis, depriving them of benefits they would have got otherwise.

The women are not giving up, though. They are applying for leave to appeal in the Federal Court.

Lawyer Honey Tan says the Guppy case reinforces the male and female stereotypes. “The argument that female workers lose their ability at 50 is not backed by scientific fact,” she says.

“If age was a bona fide occupational qualification, then both male and female workers should retire at the same time.”

Should our employment laws remain in the dark ages, leaving a worker with social security that is nebulous at best?

Tan will be raising the Guppy case and other cases of sex discrimination at the workplace for discussion and debate at a conference on “Challenges in Employment Law: Proposals for Reform” on July 2.

The one-day conference is organised by the Malaysian Chapter of the International Society of Labour and Social Security Law (MSLSSL) and Current Law Journal.

Roy: There is a great need to create public awareness of labour laws and social security.
 
Participants will hear from Susila Sithamparam, Industrial Court president, Lawasia Committee on Labour Law chair Bernard Banks, Human Resources Ministry officials, unionists, lawyers, employers and an Industrial Court chairman.

The other topics that will be debated are minimum wage, contract labour and labour claims under Section 69 of the Employment Act.

“There is a great need to create public awareness of labour laws and social security,” says conference organising chairman Datuk Roy Rajasingham.

As such, the Malaysian chapter of the international society was set up in 2011 to promote the study of labour and social security laws here and at the international level, adds Roy, who is also MSLSSL vice-president.

“It seeks to provide lawyers, labour practitioners and others working in the fields of labour and social security law with a forum for discussion and debate.”

Membership is open to all who, because of their scholarly work or judicial or professional activities, are interested in furthering the aims and purposes of the society.

Besides them, the Malaysian Employers Federation (MEF), Malaysian Trades Union Congress (MTUC), Human Resources Ministry, Employees Provident Fund and Social Security Organisation are entitled to nominate one representative each to be a member.

Conference participants can expect to look at proposals for reform in the changing field of social security, employment, and human resources management.

One of the long-time bones of contention has been whether to introduce a minimum wage.

Recently, the Government ended that dispute by announcing a minimum wage for the private sector but whether this is the best thing for workers here and Malaysia's competitiveness remains to be seen.

Lo: The matter of what constitutes minimum wage has to be resolved.
“Even though the rate has been announced, the matter of what constitutes minimum wage has to be resolved,” says Andrew Lo, who will be speaking on the topic.

“Does it include, for example, shift allowance, service charge, overtime payment, performance bonus? How about accommodation, transport and meals provided by employers?” says Lo, chief executive officer of the Sarawak Bank Employees Union.

Also speaking is MEF executive director Shamsuddin Bardan and participants can expect a robust discussion on who benefits most.

For example, would a minimum wage increase the standard of living for the poor and increase domestic consumption, which is the engine of economic growth?

Or would it destroy jobs?

Lo notes that some employers are already claiming that up to four million jobs are at risk and 200,000 businesses may close.

As such, he speculates, some companies may adopt more capital intensive and efficient production systems and reduce the number of workers needed.

MSLSSL president Datuk Dr Cyrus Das says it would be good for all stakeholders to remember that a minimum wage is tied to a “living wage”.

“Every society that prescribes to social justice must accept a minimum wage structure and employment. You can't pay a worker RM300 and expect him to survive on that today.”

Another major concern currently is the over-dependence on contract labour and foreign labour.

Dr Das says contract labour should not be introduced for the local workforce as that would mean bypassing trade union membership by workers, who would otherwise be eligible to join a trade union.

“The mechanism of trade union membership and terms of employment guaranteed by a collective agreement are generally regarded as minimum safeguards to an industrial workforce,” he adds.

Dr Das: You can’t pay a worker RM300 and expect him to survive on that today.

Lo, who is also MTUC Sarawak secretary-general, claims that the supply of foreign workers is controlled by syndicates and is a multi-million industry.

“Employment agents are exploiting foreign workers as they charge more than what the workers would have earned during their employment contract.”

One of the recent amendments to employment law is that which allows labour supply companies to source and employ foreign workers and farm them out to work for a fee.

“The problem arises when these labour contractors abscond, leaving their workers unpaid. The company where the employees have been working will deny responsibility as they are not the employer, leaving employees high and dry,” Lo says.

This amendment and others were greeted with protest and concern but were passed by Parliament anyway, ostensibly to facilitate the easier registration of labour contractors.

The question now, says Lo, is whether the amendments will ensure greater accountability and protection for workers or would they be legalising an undesirable practice.

He adds that the conference will look into whether a Royal Commission would be appropriate to provide an independent, in-depth inquiry to assist the Government in formulating a robust, effective, enforceable, and sustainable foreign labour policy.

By SHAILA KOSHY koshy@thestar.com.my

> Register before June 11 for an early bird fee. For conference details, contact 03-4270 5400 or e-mail priority@cljlaw.com

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