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

Too many holidays in Malaysia?

Are workers getting too many holidays?

Question Time By P. GUNASEGARAM

Instead of griping about days off, employers should focus on improving productivity – and benefits.

Click on graphic for larger view.

ASK any person who employs other people and they will say their workers get too many days off and public holidays. Ask the workers and their answers will be exactly the opposite.

That was the scenario played out recently when employers and their associations clamoured for less public holidays while workers and their representatives demurred strongly.

Objectively, it is simply too much to expect public holidays to be reduced, especially when many private sector employers are remiss when it comes to giving workers decent pay and benefits, including leave. A few examples will illustrate this well.

Take the five-day working week. The Government has adopted this for some years now but there are many firms in Malaysia, particularly those which are Malaysian-owned, which do not practise this.

This is despite the fact that it is easy to make up the hours for a Saturday half day by working just half an hour to 45 minutes more on the other working days.

Why many private firms continue to do this when they can so easily make up for the hours lost is a mystery and just shows plain unwillingness to grant workers better benefits even when it costs the company nothing.

The number of public holidays in Malaysia is about 18, not counting state holidays which may account for one or two more. But those who don’t work a five-day week work 26 days more in a year.


The Government should just mandate a five-day week for everyone like it is done in many other countries.


Next, guess who is opposing vehemently a current proposal to raise the retirement age to 60 and which may be legislated this year if all goes well. Yes, private sector employers.

The life expectancy over the last half century has increased by over 20 years to 75 but the retirement age still stays at 55.

Many countries already have a retirement age of 65 and some don’t even have a retirement age and here we are baulking because of employer opposition.

Why is the private sector behaving like that? It wants to get rid of staff and get new ones at lower pay or retain the old ones on yearly contracts and with reduced benefits, saving costs.

The broader interest will be served by increasing the retirement age so that the useful lives of all citizens can be extended, they are better able to take care of their needs in older age and their accumulated knowledge and expertise used.

If we look at the way employers treat foreign workers, it is appalling to say the least.

The construction industry, for instance, is almost entirely dependent on foreign workers. Often they are paid a daily rate and they get no pay when there is no work. Is that any way to treat a worker?

Imagine how much the wages for local labour is depressed because of the cheap availability of foreign labour, often illegal.

For a long time, even local plantation workers never got a monthly salary, only being paid when they went out to work. They were forced to take lower salaries when prices of rubber and palm oil dipped but had little benefit when prices rose. They remained abjectly poor despite the manyfold increase in commodity prices over the years.

If you ever wondered why our currency is weak – and therefore we pay high prices for all manner of products with imported content – look again at export manufacturers and how they lobby strongly to keep their costs down, including asking the Government to keep the currency at “competitive levels” and encourage cheap imported labour.

It seems like the rest of us have to keep on subsidising the exporters through a weak currency and lower wages so that they can make money.

The question is why can’t the employers raise productivity so that everyone can contribute and earn more and thereby do their bit towards becoming a high-income nation and making all our lives, instead of a few, better.

If management thinks 10 days of annual leave is too much for workers, ask how much top management gets – the norm is 30 days, but of course they will argue that they work all the time. Anyway, don’t some workers too?

Any which way you look at it, Malaysian employers are mollycoddled. They want wages to be low, the currency to be weak, employees to take less leave, imported cheap labour to be plentiful, the retirement age to be low and workers to work long hours.

But they do very little to be more productive – spend a bit more in terms of training and equipment to produce more with less and in less time.

Germany is moving to a four-and-a-half-day week, France has a seven-hour work day, Australians value their leisure as do many others. How come they are all so much more productive than Malaysia?

And, finally, the most ironic part. Many workers actually employ people – yes, maids.

And what do a good proportion of them think when it comes to their own servants. No leave! They will get into mischief if they get out of the house. And so one strata of society exploits the next and the next the ones below and it goes all the way down to the lowest economic strata.

No wonder there’s such a scramble to get to the top and do all the exploiting!

If only everybody thought of others as themselves and focused on giving decent wages for good work done and not making enormous profits at somebody else’s expense, we all can have a good life together.

Ever wonder why developed countries are developed and everyone who wants to work has a place under the sun and moral values – in its true sense – are much higher in these places?

> P. Gunasegaram enjoys his holiday as much as the next person and wishes there were more of them even if he knows there is a limit to it.

Employers to feel the brunt with workers taking long festive breaks

By P. ARUNA and ISABELLE LAI newsdesk@thestar.com.my  Jan 5, 2012

 PETALING JAYA: The year-end holiday season may be over worldwide but not in Malaysia where the festive mood continues as a second wave of public holidays looms.

Employers are bracing for a hit in productivity as huge numbers of workers are expected to take long breaks in January and February.

Malaysians enjoy over 50 national, school and state holidays a year and ranks in the top 10 countries with the most public holidays. This is apart from the minimum of 14 days of annual leave a worker is entitled to.

Worse for employers this year, various state and national holidays come on the heels of Chinese New Year, which falls on Jan 23.

These include Federal Territory Day (Feb 1), Prophet Muhammad's birthday (Feb 5) and Thaipusam (Feb 7).

Also, it is a common practice among Malaysian workers to take their annual leave, before and after a festival, to enjoy an even longer break.

Federation of Malaysian Manufacturers small and medium industries committee chairman Tan Sri Soong Siew Hoong said the many public holidays affect the ability to remain competitive in business and “make employers cry”.

“I think there are too many paid public holidays for the private sector. And yet various sectors still want to lobby for more holidays,” he said.

Soong also expressed his unhappiness that public holidays were brought forward to weekdays if they fell on weekends, deeming this unnecessary.

He suggested that religious holidays be declared a personal choice so employees could celebrate on their own while colleagues of other faiths work as usual.

Malaysian Employers Federation executive director Shamsuddin Bardan said productivity would be affected during the holiday period with working days in between.

He said companies would not be able to operate at optimum levels as many workers would be taking leave.

“The alternative is for them to declare a shutdown through the whole period as the overhead costs will be very high. If they can't stop work, then they have to absorb the impact,” he added.

Shamsuddin said the Special Task Force to Facilitate Business had suggested that MEF and the Malaysian Trades Union Congress come up with a formula for employers to “buy back” annual leave days, adding that discussions were ongoing.

Federation of Chinese Associations Malaysia economic research committee chairman Kerk Loong Sing said the large number of public holidays would “naturally result” in higher production costs.

“Of course, too many holidays are bad. It will affect productivity, especially for industries which cannot afford to stop production. Employers also need to pay higher wages during public holidays,” he said.

However, MTUC vice-president Mohd Roszali Majid strongly disagreed that the number of public holidays be trimmed down as “employees deserve their holidays”.

“It doesn't affect productivity because they can work on public holidays if they want to. Employers can also convert their unused annual leave to cash and increase their income,” he said.

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